UNITED STATES of America, Plaintiff-Appellee,
v.
Elwin SMITHEN, a.k.a. Kel, a.k.a. Mambo, a.k.a. Raga, a.k.a. Keith, Plaintiff-Appellant.
No. 99-12723
Non-Argument Calender.
United States Court of Appeals,
Eleventh Circuit.
June 6, 2000.
Appeal from the United States District Court for the Middle District of Florida.(No. 97-00390-CR-T-26B),
Richard A. Lazzara, Judge.
Before ANDERSON, Chief Judge, and TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:
The sole issue we are asked to decide in this case is whether 18 U.S.C. § 2114(a) (1994), which
prohibits the assault of a person in lawful possession of property belonging to the United States with intent
to rob that person, requires proof, as an element of the offense, that the defendant had knowledge that the
property belonged to the United States. We answer in the negative.
I.
In August 1997, appellant Elwin Smithen and two compatriots, Errol Crossfield and Keith Bailey,
became the targets of a sting operation set up by undercover FBI agents posing as firearms buyers. The three
were to meet with the agents in a motel room in Tampa, Florida, and sell the agents unregistered guns.
Smithen, Crossfield, and Bailey decided instead to engineer a rip off: when they arrived at the hotel room,
they held the agents at gunpoint and robbed them of the cash the agents had brought for the transaction.
All three were subsequently arrested and indicted in the Middle District of Florida on three counts:
(1) conspiracy to assault with intent to rob, steal or purloin persons having lawful charge, control and custody
of money belonging to the United States, in violation of 18 U.S.C. § 2114(a); (2) assault with intent to rob,
steal or purloin persons having lawful charge, control and custody of money belonging to the United States,
in violation of 18 U.S.C. § 2114(a); and (3) knowing use and carry of firearms during and in relation to
crimes of violence punishable in the courts of the United States, in violation of 18 U.S.C. § 924(c)(1).
Crossfield and Bailey pled guilty.
Smithen filed a motion to dismiss the indictment, in which he alleged that he could not be convicted
under 18 U.S.C. § 2114(a) because he did not know that his victims were FBI agents or that the money
belonged to the United States. The court denied the motion. Smithen then pled guilty to all three counts, but
in the plea agreement, Smithen and the government agreed that Smithen reserved his right to appeal the
court's denial of his motion to dismiss. After Smithen was sentenced, he took this appeal.
II.
Section 2114(a) of Title 18, as amended, provides:
A person who assaults any person having lawful charge, control, or custody of any mail matter or of
any money or other property of the United States, with intent to rob, steal, or purloin such mail
matter, money, or other property of the United States, or robs or attempts to rob any such person of
mail matter, or of any money, or other property of the United States, shall, for the first offense, be
imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he
wounds the person having custody of such mail, money, or other property of the United States, or
puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be
imprisoned not more than twenty-five years.
The parties have not pointed us to a case, nor have we located one, which has answered the question
presented here: whether the statutory requirement that the property belongs to the United States is an element
of the offense or simply a jurisdictional requirement. Courts addressing analogous provisions of the criminal
code, however, have found it simply a jurisdictional requirement.
For example, 18 U.S.C. § 641 creates a penalty of up to ten years for theft, embezzlement, or
knowing conversion of personal property belonging to the United States, and the former Fifth Circuit decided
that knowledge that the property belongs to the United States is not required for conviction. See United States
v. Boyd, 446 F.2d 1267, 1274 (5th Cir.1971).1 Similarly, 18 U.S.C. § 2112 creates a penalty of up to fifteen
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
2
years for robbing someone of any personal property belonging to the United States. The Eighth Circuit has
held that conviction under section 2112 does not require knowledge that the property belongs to the United
States. See United States v. Roundtree, 527 F.2d 16, 18-19 (8th Cir.1975). Our court has also affirmed a
conviction under section 2112 for a purse snatching from an FBI agent on the way to work (when the purse
contained FBI identification and a service revolver). See United States v. Stephenson, 708 F.2d 580, 581
(11th Cir.1983) (per curiam).2
We have previously held that sections 2112 and 2114 are to be read in conjunction. United States
v. Garcia, 718 F.2d 1528, 1533 (11th Cir.1983) (rejecting a "postal nexus" requirement of section 2114 in
part because it achieved consistency with 2112), aff'd, 469 U.S. 70, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984).
Garcia, like this case, involved an undercover sting operation and attempted rip off, and we affirmed the
conviction under section 2114. See id. at 1530-32.
The cases cited by Smithen are inapposite. All of these cases involve criminalization of otherwise
"innocent" conduct or conduct protected by the Constitution. See, e.g., United States v. X-Citement Video,
Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (prosecution under statute prohibiting knowing
interstate transportation of child pornography requires proof defendant knew minority status of the
performers); Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (defendant
cannot be convicted under statute prohibiting possession of unregistered machine gun when he did not know
gun had been modified for fully automatic fire); Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084,
85 L.Ed.2d 434 (1985) (in prosecution for use of food stamps in manner not authorized by law, government
must prove defendant knew his use was unlawful).
2
Other analogous statutes which have been similarly interpreted are 18 U.S.C. § 1361 (destruction of
government property), see United States v. LaPorta, 46 F.3d 152, 158-59 (2d Cir.1994), and 18 U.S.C. § 111
(assaulting federal agent in course of official duties), see United States v. Feola, 420 U.S. 671, 676-86, 95
S.Ct. 1255, 1259-65, 43 L.Ed.2d 541 (1975).
3
We can surmise no reason why Congress would want prosecutions under 18 U.S.C. § 2114(a)
restricted to situations in which the defendant knew the property he was stealing by force belonged to the
United States. If anything, the United States' interest in protecting its agents and its property is heightened
during an undercover sting operation.
III.
The judgment of the district court is AFFIRMED.
4