Appeal from a final judgment of the United States District Court for the Southern District of New York, John E. Sprizzo, Judge, convicting the defendant of forcibly assaulting, intimidating, and interfering with a probation officer, in violation of 18 U.S.C. § 111. Affirmed.
Lumbard, Oakes, and Kearse, Circuit Judges.
Defendant Albert Reginald Walker appeals from a final judgment entered in the United States District Court for the Southern District of New York after a jury trial before John E. Sprizzo, Judge, convicting Walker of one count of forcibly assaulting, intimidating, and interfering with a federal probation officer, in violation of 18 U.S.C. § 111 (1982). Walker contends that there was insufficient evidence to sustain the conviction, and that the prosecutor's rebuttal summation prejudiced his right to a fair trial. We affirm the judgment of the district court.
Taken in the light most favorable to the government, the evidence at trial showed the following. In 1986, Walker was nearing the end of a five-year term of probation imposed on him following a prior federal felony conviction. During his probationary term, he had violated the conditions of his probation by submitting urine samples that indicated he was using drugs and by failing to report for scheduled appointments with his probation officer. The probation officer, Donald Freeman, reported these violations to Judge John M. Cannella of the United States District Court for the Southern District of New York, and in September 1986 Walker admitted the violations before Judge Cannella. On October 15, 1986, Judge Cannella sentenced Walker to an 18-month prison term, the term originally proposed by the government for his previous offense, but did not require him to surrender until October 17.
After being sentenced by Judge Cannella on October 15, Walker left the courthouse and went across the street to the Probation Office and asked to see Freeman. Walker refused to identify himself or fill out a visitor's slip, and, without authorization, he entered the corridor leading to the probation officers' offices, opened the door to Freeman's office, and walked in unannounced. He asked why Freeman had reported the probation violations and began to use abusive language. Freeman asked him to leave, but Walker refused. He stood over Freeman, who was sitting at the desk, and stated, "I am going to get you outside after work. You are going to pay for what you did," gesturing at Freeman with his thumb and index finger in a way commonly thought to symbolize a gun.
Freeman testified that he did not know what Walker was about to do, so he got out of his chair and left his office. Walker followed Freeman into the corridor and continued his harangue. Reiterating, "I am going to get you for what you did," he stood about one foot away from Freeman and began to remove his jacket. Other probation officers heard the commotion and came into the corridor. Officer Bernard Ray testified that Walker was then within inches of Freeman and was "very irate, loud and boisterous." As Freeman and Walker moved toward the exit, Walker became more abusive and began shouting obscenities. Walker became so irate that Ray felt he had to step between the two men; Walker was so close to Freeman that when Ray stepped between them he made physical contact with both. After being separated from Freeman, Walker was escorted to the elevators by other probation officers, and as he was leaving he stated that he would "see [Freeman] on the street."
In summation, defense counsel Ruth Chamberlin noted that, in order to prove forcible assault, intimidation, or interference with a probation officer in violation of § 111, the government had the burden of proving force sufficient to make a reasonable person fear immediate bodily harm. She argued that that burden had not been met because the government had not shown that Freeman himself or the other probation officers involved had actually feared violence from Walker. Chamberlin pointed out that neither Freeman nor Ray had testified explicitly that he feared Walker was about to become physically violent. She emphasized that neither witness had been asked by the prosecutor whether he actually feared immediate use of physical force by Walker, and she argued repeatedly that the reason the question had not been posed was that "the honest answer" would have been that the witness was not afraid.
Special Assistant United States Attorney Andrew C. McCarthy, in his rebuttal summation, stressed that defense counsel too had failed to ask Kay and Freeman whether they feared immediate harm. He began by stating that if defense counsel really believed that the witnesses did not fear physical violence from Walker, "wouldn't that make a great case for her?" Chamberlin immediately objected, stating, "I have no burden of proof in this case." The court overruled the objection, stating, "You have no burden of proof, but you commented on his failure to ask a question. I guess he can comment on your failure to ask a question." McCarthy went on to emphasize defense counsel's failure to ask the questions :
Wouldn't it have been easy? You saw her ask Mr. Ray some questions. Wouldn't it have been easy for her if she really thought that was the answer to say to Mr. Ray, "Isn't it a fact that you didn't believe that there was any threat of a fight?", and get the answer that she says she expected?
As to the cross-examination of Freeman, McCarthy argued that defense counsel had asked many questions about Freeman's life history but none about the incident in question Chamberlin objected again, stating that Walker had the right to rely on the government's failure to prove its case. The trial judge again overruled the objection, stating that the government had a perfect right to comment on what the defense did or did not do in cross-examination. McCarthy continued:
In fact, we all sat here for a long time while she asked him an awful lot of questions, but nothing, ladies and ...