Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-2002

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID WONG TROY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Howard, Ripple and Selya, *

Circuit Judges.

Richard L. Hartley, with whom Law Office of Richard Hartley

was on brief, for appellant.

Renèe M. Bunker, Assistant United States Attorney, with whom

Paul D. Silsby, United States Attorney, was on brief, for appellee.

September 25, 2009
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HOWARD, Circuit Judge. In April 2008, a jury convicted

the appellant, David Wong Troy, of assaulting a federal officer in

violation of 18 U.S.C. § 111(a), which imposes criminal liability

on one who “forcibly assaults, resists, opposes, impedes,

intimidates, or interferes” with a designated federal officer who

is “engaged in . . . the performance of official duties.” During

the trial, Troy timely moved for a judgment of acquittal, arguing

that the evidence was insufficient to prove beyond a reasonable

doubt that the relevant federal officer had been engaged in the

performance of official duties at the time of the assault. The

district court denied the motion, the jury returned a guilty

verdict, and Troy appeals. Because a rational factfinder could

have concluded beyond a reasonable doubt that the officer was

acting within the scope of her official duties for purposes of the

statute, we affirm.

I. BACKGROUND

As the facts presented here are relevant only to Troy’s

claim of insufficient evidence, we present them in the light most

favorable to the jury’s verdict. United States v. Cruz-Rodriguez,

541 F.3d 19, 25-26 (1st Cir. 2008). 

In November 2007, Troy, a United States citizen, entered

the public lobby (the "passenger processing area") of an inspection

building operated by the United States Customs and Border
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Protection (“CBP”) component of the Department of Homeland Security

in Calais, Maine, apparently seeking to file a complaint relating

to a prior interaction with CBP officers. As Troy entered the

building, CBP Officer Richard Baker, who described the look on

Troy's face as "tense," acknowledged him by asking, "May I help

you?" Troy paused momentarily to look at Officer Baker, but,

intent on speaking to a supervisor, he ignored the question and

walked directly towards the supervisor’s office.

The supervisor's office was located behind a counter,

although there was no sign or other explicit indication that the

office was off limits to the public. CBP Officer Martha Beckett,

who was in uniform at the time, was seated near the supervisor’s

office. She did not recognize Troy, and Troy did not identify

himself to her. As Troy approached the supervisor’s door, Officer

Beckett told Troy that he was not permitted to enter the

supervisor’s office. Troy continued another foot or so, stopped,

turned around, and walked back through the passenger processing

area towards the exit leading both to a cargo area and to United

States soil.

In order to investigate the circumstances of Troy’s

attempt to enter a restricted area and to ascertain Troy’s right to

enter the United States, Officer Beckett followed Troy towards the

exit and instructed him to stop. Troy ignored her and continued.

Concerned that perhaps Troy did not speak English or otherwise did
The jury acquitted Troy of the second count, which alleged an 1

assault against Officer Baker in connection with the same incident.

That count is not at issue in this appeal.

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not understand her command, and in an attempt to gain his attention

and redirect him, Officer Beckett reached out and touched Troy

lightly on the arm. Troy pulled away, turned, and pushed Beckett

into a nearby counter. Multiple CBP officers responded to Troy’s

action by subduing and restraining him as he kicked and otherwise

resisted. The next day, Troy was charged with two counts of

assaulting a federal officer.1

During the one-day trial, the government introduced

evidence to establish that Officer Beckett was engaged in the

performance of official duties at the time of the altercation.

Various CBP officers testified to the missions and duties of CBP

officers working at the Port of Entry in Calais. Supervisory CBP

Officer Timothy Corbett testified that CBP officers are expected to

determine whether people and conveyances entering the country are

allowed to enter and are properly documented. Included in these

duties is interacting with people who enter the passenger

processing area. Some of those are pedestrians attempting to enter

the United States. Others are vehicle occupants who have been

asked to enter the passenger processing area for a more detailed

inspection than is possible in the vehicle lanes outside the

building. In addition to the inspection duties identified by

Officer Corbett, CBP Officer Richard Baker and Officer Beckett
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testified that the officers are also responsible for ensuring the

security of the inspection building and the area around it, a duty

that includes inquiring about the activities of people walking near

the border.

Officers Corbett, Baker and Beckett further testified to

the procedures they generally follow in the passenger processing

area. Officer Corbett testified, “[I]f a person walks in there, we

assume that that person has just come from Canada and is seeking

admission.” He stated that the officers in the inspection building

are expected to determine each person’s citizenship and eligibility

to enter the United States, although he noted that when a person

shows a United States passport, the inspection is often very short.

Officers Baker and Beckett corroborated this account, testifying

that because the area is part of the border inspection operation,

they treat people who enter the passenger processing area as

arriving aliens until those persons prove to the inspecting officer

that they are eligible to enter the United States. The reason for

this approach, according to Officers Baker and Corbett, is that

people who are seeking admission are not always escorted into the

passenger processing area by CBP officers, and therefore it is

often impossible to distinguish them from United States citizens

who enter from United States soil for the purpose of asking

questions. Consequently, the officers presume that each person

entering the passenger processing area is an arriving alien. The
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testifying officers also noted that, with respect to United States

citizens, they often forgo an extensive inspection if a simple,

interview-style examination satisfies them of the person's right to

enter the United States. Finally, Officers Corbett, Baker, and

Beckett testified that one factor they consider when attempting to

discern a person’s reason for being in the passenger processing

area is the person’s refusal to answer simple questions. When this

occurs, the officers testified, the person is typically detained

until the officers can determine the person’s identity and

admissibility.

The jury also heard testimony from CBP Officer Geoffrey

Catlett, an instructor in the use of force, as well as testimony

from Officers Baker and Beckett, describing the training CBP

officers receive about how to deal with a person who does not

comply with an officer's verbal commands at the border. They each

testified that they had been instructed first to present respectful

verbal commands, and if those are ignored, to escalate to “soft

techniques” such as physically touching the person in question to

get the person's attention, or applying an “escort hold” or a

"come-along hold" to physically guide the person to an area.

At the close of the evidence, Troy moved for a judgment

of acquittal under Federal Rules of Criminal Procedure 29(a), based

on his contention that the prosecution had failed to show that

Officer Beckett was engaged in the performance of official duties
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at the time of the assault. See Fed. R. Crim. P. 29(a) (“After the

government closes its evidence or after the close of all the

evidence, the court on the defendant's motion must enter a judgment

of acquittal of any offense for which the evidence is insufficient

to sustain a conviction.”). The district court denied the motion,

concluding that there was “evidence sufficient to allow the matter

to proceed to the jury.” As an alternative basis for the motion,

Troy had also argued that the officers’ conduct in stopping him and

refusing to allow him to exit the passenger processing area had

exceeded their authority as federal officials; the district court

rejected this argument, too, citing United States v. FloresMontano, 541 U.S. 149 (1975), for the proposition that federal

agents enjoy expansive authority to conduct searches at the border.

See id. at 152-53 (“[S]earches made at the border, pursuant to the

longstanding right of the sovereign to protect itself by stopping

and examining persons and property crossing into this country, are

reasonable simply by virtue of the fact that they occur at the

border.” (quoting United States v. Ramsey, 431 U.S. 606, 616

(1977))).

Ultimately, the trial court charged the jury, explicitly

noting in its instructions that the government was required to

prove that Officers Beckett and Baker were “engaged in the

performance of their official duties,” and defining “official

duties” as “acting within the scope of his or her employment at the
Troy also received a mandatory $25 special assessment 2

pursuant to 18 U.S.C. § 3013.

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time of the events giving rise to this charge.” The jury convicted

Troy as to the assault on Officer Beckett, and he was sentenced to

one year of probation. Troy now appeals the district court’s 2

denial of his motion for a judgment of acquittal, raising just one

issue: the sufficiency of the evidence to prove that Officer

Beckett was engaged in the performance of her official duties.

II. DISCUSSION

Because Troy moved for a judgment of acquittal on

sufficiency grounds, we review the district court’s denial of that

motion de novo. Cruz-Rodriguez, 541 F.3d at 26. As noted earlier,

we examine the evidence, both direct and circumstantial, in the

light most favorable to the jury’s verdict. Id. “We do not assess

the credibility of a witness, as that is a role reserved for the

jury.” United States v. Paret-Ruiz, 567 F.3d 1, 5 (1st Cir. 2009).

Nor need we be convinced that the government succeeded in

“eliminating every possible theory consistent with the defendant's

innocence.” United States v. Moran, 312 F.3d 480, 487 (1st Cir.

2002). Rather, we must decide “whether that evidence, including

all plausible inferences drawn therefrom, would allow a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime.” Cruz-Rodriguez, 541 F.3d at 26
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(citing United States v. Perez-Ruiz, 353 F.3d 1, 7 (1st Cir.

2003)); see also United States v. Carroll, 105 F.3d 740, 742 (1st

Cir. 1997).

Although we have not yet had occasion to limn the

contours of the phrase “engaged in . . . the performance of

official duties” in 18 U.S.C. § 111(a), those circuits that have

considered the phrase are unanimous in the view that whether a

federal officer is so engaged “does not turn on whether the law

being enforced is constitutional or applicable to the defendant, or

whether the levy order being enforced was validly obtained; rather

it turns on whether the federal officer is ‘acting within the scope

of what [he] is employed to do . . . or is engaging in a personal

frolic of his own.’” United States v. Streich, 759 F.2d 579, 584

(7th Cir.), cert. denied, 474 U.S. 860 (1985) (quoting United

States v. Heliczer, 373 F.2d 241, 245 (2d Cir.), cert. denied, 388

U.S. 917 (1967)); see also United States v. Juvenile Female, 566

F.3d 943, 949-50 (9th Cir. 2009); United States v. Colbert, 70 F.3d

1263, 1995 WL 703546, at *1 (4th Cir. 1995) (table); United States

v. Street, 66 F.3d 969, 978 (8th Cir. 1995); United States v.

Clemons, 32 F.3d 1504, 1507 (11th Cir. 1994), cert. denied, 514

U.S. 1086 (1995); United States v. Lopez, 710 F.2d 1071, 1074 (5th

Cir. 1983); United States v. Cunningham, 509 F.2d 961, 964 (D.C.

Cir. 1975); United States v. Linn, 438 F.2d 456, 458 (10th Cir.
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1971); Arwood v. United States, 134 F.2d 1007 (6th Cir.), cert.

denied, 319 U.S. 776 (1943).

Whatever ambiguity may exist at the margins of the

distinction between conduct within the scope of an officer’s

employment and a personal frolic, that ambiguity does not touch

this appeal: plainly a rational factfinder, viewing the evidence

in the light most favorable to the jury’s verdict, could have

concluded beyond a reasonable doubt that Officer Beckett was

engaged in the performance of her official duties when Troy

assaulted her. Officer Beckett was in uniform and at her place of

work. She confronted Troy in an attempt to keep order in the

passenger processing area, as he was walking into a restricted area

and had ignored Officer Baker. She pursued Troy across the

passenger processing area to ascertain the reasons for his

behavior, and also to determine whether Troy was admissible into

the United States. And her escalation of the confrontation from

verbal command to physical contact conforms precisely to the

training she had received instructing her how to behave as a CBP

Officer towards uncooperative individuals. Moreover, her conduct

was entirely consistent with her dual missions of inspecting

individuals at the border and maintaining the security of the

inspection building. In the face of this evidence, a rational

factfinder could easily have concluded beyond a reasonable doubt

that Officer Beckett's conduct fit comfortably within the scope of
Even if the scope of Officer Beckett’s “official duties” for 3

purposes of the statute were limited to conduct within her

constitutional authority -- and it is not -- we think it very

likely that Officer Beckett would have had reasonable suspicion to

conduct an investigative stop, especially given the broad authority

of federal agents to conduct searches at the border, see FloresMontano, 541 U.S. at 152-53: she was confronted with an

unidentified man with a tense look on his face who had entered the

inspection building at an international point of entry, refused to

respond to questions and commands of CBP officers, proceeded

(however briefly) into a restricted area, and was attempting to

leave the building. See generally Terry v. Ohio, 392 U.S. 1

(1968).

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what she was employed to do, and that she had not crossed the line

to personal frolic.

Troy’s appellate arguments to the contrary are

unpersuasive. His claim that Officer Beckett’s decision to stop

him from exiting the inspection building was an unconstitutional

seizure in derogation of the Fourth Amendment is beside the point,

for the inquiry into whether Officer Beckett was engaged in the

performance of her official duties does not turn on the precise

limits of her authority, but rather on the proper characterization

of her conduct as official or personal. See Streich, 759 F.2d at 3

584.

Similarly, Troy’s argument that he should not have been

subject to any kind of examination at all -- because he had not

crossed the border but instead had entered the inspection building

from United States soil -- again only raises an argument about the

scope of Officer Beckett’s authority. It does not cast doubt on

the official nature of her actions. This is particularly so in
The district court noted that “if Mr. Troy had come into the 4

port of entry here, said he was an American citizen, [and]

identified himself, that the facts would be markedly different and

the legal resolution might be different.” This hypothetical

scenario, however, is not before us.

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light of the record evidence showing that Officer Beckett did not

know that Troy was a United States citizen and that she did not

know that he had entered the inspection building from United States

soil.

Nor do Troy’s arguments deal with the record evidence

that Officer Beckett stopped him not only for examination, but also

to maintain the order and safety of the passenger processing area.4

Finally, Troy’s suggestion, largely implicit, that Officer Beckett

stopped him because of a grudge against him for his prior

complaints against CBP officers contradicts Officer Beckett’s

testimony as to her own motivations, and it is not our role to

reassess the credibility of that testimony. Paret-Ruiz, 567 F.3d

at 5.

AFFIRMED.