United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2004
Charles R. Fulbruge III
Clerk
No. 03-51292
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON ANTHONY DOMBROWSKY;
JON MICHAEL DOMBROWSKY,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-86-1
Before JONES, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
In this appeal, we review the convictions of Defendants-
Appellants, Jason and Jon Dombrowsky, for assaulting federal
officers in violation of 18 U.S.C. § 111. For the following
reasons, we uphold the convictions.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2002, Specialist Opal Peters of the
United States Army got into an argument with her husband, Jon
Dombrowsky, at their home on the military base in Fort Hood, Texas,
during which Dombrowsky pushed and threatened to hit Peters.
Jon’s brother, Jason Dombrowsky, was also present at the
time as he was helping his brother move out of the house. The
couple had decided to separate because Jon Dombrowsky believed
Peters was cheating on him.
After the argument, Specialist Peters went to see her
commander, who then contacted military police. Lieutenant
Christopher Smith, an Army Civilian Police Officer, responded to
the call and obtained permission from Peters to enter her home and
question Jon Dombrowsky. Lieutenant Smith also requested an
additional patrol, Sergeant Newton and Private Rottenberry, who met
with Lieutenant Smith at Peters’ and Dombrowsky’s home.
When the officers arrived, Lieutenant Smith knocked on
the door and identified himself as a military policeman, saying
that he was there to speak with Jon Dombrowsky to investigate an
assault complaint. Jason Dombrowsky opened the door part-way,
allowing Lieutenant Smith to see Jon Dombrowsky inside the home.
Lieutenant Smith and Sergeant Newton then made their way past Jason
Dombrowsky, who was still standing at the door.
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Sergeant Newton requested that Jason Dombrowsky leave the
house, but Jason refused. Sergeant Newton then grabbed Jason by
the arm to attempt to forcibly remove him from the house. After
Jason pushed Sergeant Newton away twice and made a move to punch
Sergeant Newton, Lieutenant Smith intervened by spraying Jason with
pepper spray. Jon Dombrowsky then attacked Lieutenant Smith with
his own can of pepper spray. After scuffling for a while,
Lieutenant Smith withdrew his pistol and ordered Jon Dombrowsky to
the ground. By that time Sergeant Newton had handcuffed Jason
Dombrowsky and the incident was over.
Following a bench trial, Jason and Jon Dombrowsky were
each convicted of assaulting a military police officer while the
officer was performing his official duties. Jason was sentenced to
eight months’ imprisonment and two years’ supervised release. Jon
was sentenced to ten months’ imprisonment and two years’ supervised
release. Both Jason and Jon timely filed notices of appeal.
On appeal, the Dombrowskys argue that the evidence was
insufficient to support their convictions in light of their
affirmative defense of self-defense. Jason Dombrowsky argues that
the officers had no right to enter the home and that Sergeant
Newton initiated physical contact. Jon Dombrowsky argues that he
was therefore justified in defending his brother.
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II. STANDARD OF REVIEW
We review the sufficiency of the evidence supporting a
conviction after a bench trial by determining whether the finding
of guilt is supported by substantial evidence sufficient to justify
the trial judge’s conclusion beyond a reasonable doubt that the
defendant is guilty. See United States v. Mathes, 151 F.3d 251,
252 (5th Cir. 1998). It is not our task to weigh the evidence or
determine the credibility of witnesses, but instead we view all of
the evidence in the light most favorable to the Government and
defer to all reasonable inferences drawn by the trial court. See
United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995).
III. SUFFICIENCY OF THE EVIDENCE
To obtain a conviction for assaulting a federal officer,
the Government must prove forcible assault or resistance of a
federal officer while engaged in the performance of official
duties. See United States v. Moore, 997 F.2d 30, 35 n.8 (5th Cir.
1993). The Government need not prove that the defendants intended
to injure the officers, but the Government must show that the
defendants intended the assault. See United States v. Feola, 420
U.S. 671, 684 (1975).
As the above stated facts convey, Jason and Jon
Dombrowsky intended to assault the federal officers. However, the
crux of their argument on appeal is that the officers did not have
a right to enter the home or to arrest them, and thus, the
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Dombrowskys were justified in defending themselves from what the
Dombrowskys argue was the officers acting beyond the scope of their
authority and with excessive force.
An officer is considered to be engaged in his official
duties and thus protected by the statute, 18 U.S.C. § 111, if he is
performing the functions for which he is employed, if he is acting
in good faith and in the colorable performance of his duties, and
if he is not on “a frolic of his own.” See United States v. Lopez,
710 F.2d 1071, 1074 (5th Cir. 1983).
In this case, there is substantial evidence that the
officers were engaged in the performance of their duties.
Lieutenant Smith was responding to a domestic violence call from
Specialist Peters. Even if this information was insufficient to
provide Lieutenant Smith with probable cause to arrest Jon
Dombrowsky, a federal officer is protected from assault under 18
U.S.C. § 111, even if he is effecting an arrest without probable
cause. Id. at 1074.
Furthermore, the Dombrowskys’ claim that the force used
by Sergeant Newton in attempting to escort Jason Dombrowsky from
the home was excessive also fails. The trial court heard the
testimony of both the officers and the Dombrowskys, and the court
simply found the officers’ testimony to be more credible. It is
not our duty to second-guess the trial court’s determination of
credibility. See Ybarra, 70 F.3d at 364.
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Finally, Jason Dombrowsky argues that there is no
evidence that his slap of Sergeant Newton’s hand was forceful or
that his pushing of Sergeant Newton was done with the intent to
forcibly assault. However, any physical contact by which a person
forcibly assaults, resists, impedes, intimidates, or interferes
with a federal officer in the performance of their duties in
punishable under 18 U.S.C. § 111. See United States v. Ramirez,
233 F.3d 318, 322 (5th Cir. 2000). Jason Dombrowsky conceded that
he intended to slap and push Sergeant Newton, and there is no
assertion that the physical contact was an accident. Thus, the
evidence is sufficient to establish that Jason intended to forcibly
assault Sergeant Newton.
IV. CONCLUSION
For the foregoing reasons, the convictions of Jason and
Jon Dombrowsky are AFFIRMED.
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