United States Court of Appeals

Fifth Circuit



## FILED

June 21, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 03-10005

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

MALICH CHIKE REED,

Defendant - Appellee.

_____________________

No. 03-10060

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MALICH CHIKE REED,

Defendant - Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:

Malich Chike Reed robbed a federally insured bank and shot at

or attempted to shoot at a Dallas police officer as he fled. A

jury convicted Reed of, inter alia

, assault and attempted murder of

an officer assisting a federal officer under 18 U.S.C. §§ 111 and

1114 and related federal firearms charges. The district court2

acquitted Reed on the above charges, the government appealed, and

Reed cross-appealed. We affirm the judgment of acquittal because

there is insufficient evidence u pon which a rational jury could

find that the Dallas officer was assisting a federal officer.

I

On April 23, 2002, Reed robbed a federally insured bank. He

fled the scene, carrying a white plastic bag containing $2,248 and

an electronic tracking device. Dallas police officer Ronald Hubner

was patrolling the North Dallas area when he heard a police-radio

report of the bank robbery. Hubner discerned that Reed was

traveling on a nearby road and began a high-speed pursuit.

While Officer Hubner was pursuing Reed, unit “1187” announced

on the Dallas Police De partment (“DPD”) radio frequency its

involvement in the chase. This identification number is assigned

to Dallas P olice Detective John Westphalen, who is a member of a

Joint Violent Crimes Task Force c omposed of officers from the

Dallas, Mesquite, and Irving police departments as well as members

of the FBI. The primary responsibility of the task force is to

coordinate investigations of bank robbe ries in the Dallas

metropolitan area; its members investigate approximately 100 bank

robberies a year. Although the DPD is often responsible for

pursuing robbery suspects, the suspects are usually turned over to

the FBI, and nearly all face prosecution in federal court.

Immediately before involving himself in Reed’s pursuit,

Westphalen, along with FBI Special Agent Sean Joyce, had met with3

an informant in a Dallas-area hotel on an unrelated matter. After

the meeting, Westphalen and Joyce returned to Westphalen’s vehicle.

Joyce accompanied Westphalen as he drove away from the hotel, and

they then heard the robbery report come across the police radio.

Meanwhile, Hubner followed Reed as he drove through northern

Dallas. Reed eventually stopped his car in a residential

neighborhood, where Hubner saw him exit the vehicle carrying a

semi-automatic pistol and a white plastic bag. Hubner exited his

police cruiser, drew his weapon, and chased Reed on foot between

two houses and over two fences. While running, Reed pointed his

weapon at Officer Hubner and either fired or attempted to fire it

three times; Hubner shot back on each occasion. After Hubner’s

third shot, Reed threw his weapon on the ground, raised his hands

in the air, and surrendered. Within a few seconds, two DPD

officers arrived and assisted Hubner with the arrest.

Sometime thereafter, Westphalen and Joyce drove into the alley

wher e Reed was arrested. They approached Reed and asked him to

identify himself, but he refused to cooperate with them.

Westphalen then used a hand-held detector to recover the electronic

tracking device from the bag of stolen money, which Reed had

discarded under a nearby vehicle during the foot chase. It is not

clear from Westphalen’s testimony whether Joyce accompanied him as

he tracked down the discarded bag of money.

In July 2002, Reed was indicted for the following federal

crimes: (1) bank robbery in violation of 18 U.S .C. § 2113(a) and4

(d) as well as both (2) the assault and (3) the attempted murder of

H ubner, while Hubner assisted “police officers assigned to the

Dallas Federal Bureau of Investigation Violent Crimes Joint

Fugitive Task Force” and “Special Agents of the Federal Bureau of

Investigation then engaged in the performance of their official

duties,” in violation of 18 U.S.C. §§ 111 and 1114. Additionally,

Reed was charged with three counts of using, carrying, and

possessing a firearm during a crime of violence (one count for each

of the three crimes listed above).

The case proceeded to jury trial. At the close of the

government’s case, Reed moved for acquittal under Rule 29 of the

Federal Rules of Criminal Procedure. The district court denied the

motion, and the jury found Reed guilty of all six offenses.

Six days later, the district court indicated that it would

reconsider, sua sponte

, Reed’s motion for acquittal on the assault,

attempted murder, and accompanying firearms charges. In an

e xtensive written memorandum, the court asked the parties to

identify, from the record, the membership and mandate of the joint

Violent Crimes Task Force and als o to brief whether a member of

this task force qualifies as an officer or employee of the United

States for th e purposes of 18 U.S.C. §§ 111 and 1114. The court

further asked both parties whether Hubner had to know that he was

assisting a federal officer and w hether federal officials had to5

exert control over Hubner’s actions for him to be covered by the

federal statutes.

After the parties filed their responses, the court entered a

judgment of acquittal for Reed on the non-bank robbery charges,

concluding that the evidence did not demonstrate, beyond a

reasonable doubt, either (1) that Joyce was an active participant

in the pursuit of Reed or (2) that Westphalen’s status as a joint

task force member made him a federal officer for the purposes of 18

U.S.C. §§ 111 and 1114. Specifically, the court set aside the jury

verdicts on counts 3 and 5, assault on and attempted murder of

Officer Hubner while he was assisting federal officers under 18

U.S.C. §§ 111 and 1114, and counts 4 and 6, using, carrying, and

brandishing a firearm during the crimes of violence charged in

counts 3 and 5, under 18 U.S.C. § 924(c). The government appealed.

After Reed was sentenced on the bank robbery counts, he also filed

a notice of appeal, and the two appeals were consolidated.

II

We review a judgment of acquittal de novo , applying the same

standard as the district court. United States v. Loe , 262 F.3d

427, 432 (5th Cir. 2001). We must reverse the judgment of

acquittal if “a reasonable jury could conclude that the relevant

evidence, direct or circumstantial, established all of the

essential elements of the crime beyond a reasonable doubt when

viewed in the light most favorable to the verdict.” Id

.1 Although the government argues that other members of the

Violent Crimes Task Force and the FBI were involved in the

investigation during Officer Huber’s pursuit of Reed, the district

court foun d that no evidence supporting this contention was

presented during the trial. The record confirms that a bank

employe e, Christopher Robertson, testified that he spoke to law

enforcement officers, including employees of the FBI, after the

robbery. A second bank employee, Heather Jones, also testified

that police officers, followed by the FBI, came to the bank after

the robbery and that the FBI conducted the robbery investigation.

Neither employee, however, indicated how much time elapsed between

the robbery and the FBI investi gation. If it took more than

fifteen minutes for the FBI to arrive, then those events occurred

after Reed assaul ted and attempted to murder Officer Hubner.

Therefore, the district court correctly concluded that the evidence

was insufficient to support the government’s argument.

6 The government argues that the district court erred in finding

that Agent Joyce was “simply along for the ride as he and

Westphalen traveled to the scene of the arrest” and, therefore, was

not an active participant in pursuing Reed. 1 Although the

government appeals the dis t rict court’s judgment of acquittal

regarding both the assault and attempted murder charges, the issue

for both charges is the same: Whether the evidence before the

jury, which we have described above, is sufficient to support a

finding that the Dallas police officer, Hubner, was “assisting” the

FBI agent, Joyce, for purposes of § 111 and § 1114 before or during

the time that Reed assaul ted and attempted to kill Hubner. To

resolve this evidentiary question, we first consider the statute to

see what proof is necessary.

The assault statute, § 111, explicitly protects the same

persons described in § 1114, the attempted murder statute. S ee 18

U.S.C. § 111 (“Whoever . . . forcibly assaults, resists, opposes,2 As the district court set aside the convictions un der both

statutes on the ground that there was insufficient evidence to

demonstrate that Offic er Hubner was “assisting” an “officer or

employee of the United States” during the assault and attempted

murder, this Court’s interpretation of § 1114's scope will apply

equally to both charges, as well as to the accompanying firearms

charges. S ee United States v. Feola

, 420 U.S. 671, 684 n.18 (1975)

(stating, with respect to §§ 111 and 1114, “we have before us one

bill with a single legislative history, and we decline to bifurcate

our interpretation” of the meaning of the two statutes).

7 impedes, intimidates, or interferes with any person designated in

section 1114 of this title while engaged in or on account of the

performance of offi cial duties” has committed a crime) (emphasis

added). Section 1114 states, in relevant part, that:

Whoever kills or attempts to kill any officer

or employee of the United Stat es or of any

agency in any branch of the United States

Government (including any member of the

uniformed services) while such officer or

employee is engaged in or on account of the

performance of official duties, or any person

assisting such an off icer or employee in the

performance of such duties or on account of

that assistance , shall be punished. . . .

18 U.S.C. § 1114 (emphasis added). 2

Parsing the language of the statutes, we fir st observe that

the offense is to assault or attempt to kill any person assisting

a federal officer in the performance of his duties. We recall the

facts here: At the time Reed fired or attempted to fire a gun at

Hubner, Joyce was traveling to the scene of the crime. There is no

dispute that Reed assaulted and attempted to kill Hubner, or that

Joyce was a federal officer. The question then is whether, within

the meaning of the statute, Hubner, who was pursuing Reed when the8

assault/attempt occurred, was “assistin g” Joyce, who, in his

official capacity as an FBI agent, was riding in the car on his way

to the crime scene. It seems significant in determining whether

Hubner was assisting Joyce at the time of the assault/attempt that

Joyce arrived after Reed’s assault/attempt to kill Hubner and after

Hubner arrested Reed. The crimes here are assaulting and

attempting to kill a police officer who is assisting an FBI agent.

As “assist” is not defined in § 1114, we first look to its

plain meaning. S ee

, e.g.

, United States v. Vargas-Duran

, 356 F.3d

598, 602 (5th Cir. 2004) (en banc). The meaning of “assist” does

not vary across broad-based English-language dictionaries.

According to Webster’s Dictionary, the tr ansitive verb “assist”

means “to give support or aid

. . . in some undertaking or effort”

or “to perform some service for” the object of the assistance.

Webster’s Third New International Dictionary 132 (1993). The

Oxford English Dictionary defines “assist” as to “help [or] aid .

. . a person in doing something .” Oxford English Dictionary (2d

ed. 1989) (available at <http://dictionary.oed.com>). In addition,

“assist” means to “second, support; to succour; relieve,” as well

as to “stand or remain near,” to “stand by” or to “attend” someone.

Id

. Yet another dictionary defines “assist” as “aid” or “help” or

to “give aid or support.” T he American Heritage Dictionary of the

English Language 80 (New College Edition 1981). And one who

assists is an “assistant,” which also means “[h]olding an auxiliary

position” or “subordinate.” I d

. The meaning of the verb “assist”3 We note that any assistance that Hubner may have provided to

Joyce after Reed assaulted him is irrelevant to our inquiry. That

is, the statutory language has a temporal (and even

contemporaneity) element, in the sense that it speaks of the act of

“assisting” in the present tense. To restate the criminal offense

in context, it is: assaulting or attempting to kill a local police

officer who is assisting an FBI agent in the perfo rmance of his

official duties. The arrangement of words clearly suggests that

the defendant’s assault or att empt to kill, the local officer’s

assistance, and the duties being performed by the FBI agent must

all be, at least in the same reasonable sense, contemporaneous.

Evidence of post -arrest assistance by the DPD to the FBI in this

case

-- that is, after the assault and attempt occurred and in the

absence of involvement by the FBI agent

-- fails to satisfy the

statutory requirements.

9 is thus clear and uncontroverted: It means to provide supplemental

h elp or support to another in carrying out some task of mutual

involvement.

It is an elementary rule of statutory construction that "the

words of a statute will be given their plain meaning absent

ambiguity." T exas Food Indus. Ass'n v. United States Dept. of

Agric.

, 81 F.3d 578, 582 (5th Cir. 1996). The meaning of “assist”

is unambiguous, so we apply its plain meaning here. To satisfy the

requirements of § 111 and § 1114, therefore, Hubner, before or

during Reed’s assault and attempt on his life

, must have been

supporting or acting as an auxiliary to Joyce while Joyce was

performing his official duties as an FBI agent. 3

Applying the plain meaning of the words of the statute to the

facts of this case, Hubner could not have been “assisting a federal

officer” because nothing he did provided support for Joyce in the

performance of his official duties in any palpable way. Indeed, it4 The government argues, based on our decision in United States v.

Smith

, 296 F.3d 344, 346 -48 (5th Cir. 2002), that Hubner was in

fact assisting Joyce even though Joyc e was not on the scene when

Reed assaulted and attempted to kill Hubner. In S mith

, this

Court’s panel affirmed the defendants’ convictions under 18 U.S.C.

§ 1114 based on two factors: 1) that FBI agent s learned of the

robbery and joined the pursuit before the shots were fired

-- though it is not clear from the opinion, we s urmise that the

agents, in their chase vehicle, were physically present during the

s hooting; and 2) that the DPD and FBI regularly pursued

investigations together under a joint task force. Id . at 347.

In Smith t he FBI agents in charge of the investigation heard

about the bank robbery, left their offices to investigate, and

10 is far more nearly accurate to say that it was Joyce who was

“assisting” Hubner, by traveling to the scene to lend his support

to Hubner in the post-arrest investigation.

We emphasize that we are deciding a sufficiency of evidence

question. Each case will rest on its own facts. We do not hold

that federal officers must in all cases be the principal agents in

a law enforcement action to sustain a conviction under § 111 and §

1114, or even that they must in every case be at the scene of the

crime. That will depend on the facts of the particular case. We

only make clear th at for a “person” to be “assisting” a federal

officer, there must at least be some evidence that, at the time

relevant to the assault or attempt to kill, there was some mutual

contemporaneous involvement from which a fact-finder can find as an

evidentiary fact

-- not as theory -- that the person on whom the

assault or attempt was made was assisting the federal officer in

the performance of his o fficial duties. On the evidence in the

record before us in this case, such assistance was lacking. 4eventually joined the chase. The DPD acted in full cooperation

with the FBI

-- who were apparently present during the vehicular

pursuit

-- and the defendant s were only charged for attempted

murder in connection with shootings that occurred during the FBI’s

active involvement.

5 The government alternatively asks us to reinstate the jury

verdicts because Hubner was at least assisting his fellow Dallas

policeman, Westphalen, when Reed assault ed and attempted to kill

Hubner. This argument hinges on Westphalen’s status as a member of

the joint FBI-DPD task force; the government argues that Westphalen

was exercising his task force duties and consequently he was a

“federal officer” for the purposes of §§ 111 and 1114.

The government’s argument fails, if for no other reason, because

it ignores the reasoning behind our precedents, which have only

considered state law enforcement officials “federal officers” when

the state officers were both cooperating with and under the control

of federal officials, see

, e.g.

, United States v. Hooker

, 997 F.2d

67, 74 (5th Cir. 1993), and that is not the case here.

11 In sum, the insightful district court was correct in finding

that the evidence is insufficient for a reasonable jury to conclude

that all the elements of the crimes at issue were established

b eyond a reasonable doubt with respect to Hubner’s assistance of

Joyce. 5

As there are no remaining federal officers Hubner could have

assisted, we affirm the district court’s judgment of acquittal.

III

Reed has rai sed two issues on cross-appeal. As a result of

our resolution of the government’s appeal by affirming the district

court, we need not address these issues because Reed now stands

acquitted of the appealed charges.

IV

For the foregoing reasons, the district court’s judgment is12 AFFIRMED.