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United States v. Johnson

decided: June 1, 1972.

UNITED STATES OF AMERICA
v.
JAMES E. JOHNSON



Adams, Gibbons*fn* and Rosen, Circuit Judges. Adams, Circuit Judge (concurring).

Author: Rosen

Opinion OF THE COURT

JAMES ROSEN, Circuit Judge.

The convictions which form the basis of this appeal arise from a micro-melodrama occurring at Grady's Incorporated, on Route 9 in Bayville, New Jersey, on April 18, 1969. On that day, several officers of the Internal Revenue Service went to Grady's, Inc. to remove property located on the premises, which had been seized*fn1 on April 14, 1969 for non-payment of quarterly corporate taxes. The seizures were made after a corporate officer of Grady's, Mr. Toughill, had supplied revenue officers with an inventory and equipment list showing all property owned by Grady's, and after a search had been made of the County Clerk's records to determine whether any prior liens had been effected against the property.

Appellant encountered the IRS officers in his office where they had gone for a key to open the Grady premises. The officers identified themselves to Johnson and explained the nature of their visit. Appellant stated that the seized property belonged to him by virtue of a landlord's lien, and that the officers would not be permitted to enter the premises of Grady's, Inc. A locksmith was summoned, and the officers returned to Grady's. Johnson summoned two local police officers from Berkeley Township, insisting that the IRS officers be arrested. The police officers refused to act unless a formal complaint was lodged. Johnson then placed himself in the door and stated that he would bar the IRS officers entrance into the building, and that they would only enter over his dead body.*fn2 The officers again advised appellant of their identity and purpose, but Johnson remained steadfastly in the doorway. He was then placed under arrest and the officers requested that he submit peacefully. Johnson refused to submit, and the agents attempted to physically remove him from his position in the doorway. A scuffle ensued, and one of the agents was scratched and bitten. Eventually the appellant was subdued and handcuffed, and the officers gained entrance to the premises.

A three count indictment was returned under 18 U.S.C. § 111*fn3 and 26 U.S.C. § 212(a).*fn4 Count 1 charged a willful assault of federal officers; count 2 charged Johnson with willfully resisting, opposing, impeding and interfering with federal officers; and count 3 charged appellant with endeavoring, by threats of force, to impede IRS officers in the exercise of their duties and in their official capacities. Johnson entered a plea of not guilty. His jury trial resulted in an acquittal on count 1 and a conviction on the remaining counts. Throughout the trial appellant represented himself without the assistance of an attorney. On May 7, 1971 the trial judge committed Johnson to the custody of the Attorney General for study and observation for a period of three months, pursuant to 18 U.S.C. § 4208(b). Final sentence was imposed on July 26, 1971. The appellant was fined $2500. and placed on probation for two years on count 2 and was fined $2500. and placed on a one year probation on count 3.

The appellant advances several grounds of error: (1) the court's charge was "duplicitous", resulting in inconsistent verdicts; (2) the verdicts as returned are "fatally" inconsistent; (3) isolated remarks made by the trial judge were highly prejudicial; (4) the court's refusal to allow evidence to be introduced on the question of Johnson's ownership of the seized property was plain error; and (5) the multiple fines on counts 2 and 3 of the indictment and a 90 day pre-sentencing incarceration of the defendant constitute an illegal sentence.

We view appellant's first and second contentions of error in terms of "multiplicity." His argument reduces itself to a claim that the separate counts of the indictment arise out of the same act, and charge offenses which are in fact one and the same. As far as this court can determine, Johnson takes exception to the judge's charge insofar as separate offenses are delineated along the same lines as the separate counts of the indictment, i.e. (1) assault, (2) wilful and forcible resistance and (3) wilful impediment to IRS officers, by threats of force, contrary to Title 26. Since Johnson regards these counts as multiplicitous statements of the same offense, he claims that the charge also suffers from the same error, thus leading the jury to arrive at inconsistent verdicts.*fn5

In the absence of congressional intent to the contrary, the applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine if there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The test prescribed in Blockburger, though criticized by some as being too broad,*fn6 has been followed in this jurisdiction and in others. United States v. Stubin, 446 F.2d 457 (3d Cir. 1971); Goldsmith v. Cheney, 447 F.2d 624 (10th Cir. 1971); Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

The court's charge to the jury separated each of the chargeable offenses under 18 U.S.C. § 111:

"An assault under our law is defined as an attempt or an offer with unlawful force or violence to do bodily injury or physical injury to another. * * * It is an offer or attempt to do bodily harm. To impede, as used in the statute, someone in the performance of their duties means, to obstruct them, to get in their way while they are attempting to carry out their duties. To intimidate someone means to bully or browbeat them; in this case, so as to prevent them from doing what they were sent to the Grady, Inc. to do."

The court enumerated the various elements of the Government's burden of proof in this fashion:

"First, the act or acts of forcibly assaulting, resisting, opposing, impeding or intimidating an Internal Revenue Officer while that Officer was engaged in the performance of his official duties. * * * And second, that these acts were done willfully, intentionally, on purpose, not by accident. And third, that the defendant knew the agents were agents engaged in the performance of their official duties."

The court also included the following instruction in its charge to the jury with respect to the ...


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