concurring:
This is a painful case. I am left with the strong impression that appellant should not have even been prosecuted, let alone convicted. He is a victim of hostile Washington Post reporting and its influence on a number of federal officials more concerned with protecting their own posteriors than ensuring the fair administration of the criminal law. Unfortunately, I cannot perceive any ground that permits me, legitimately, as an appellate judge, to vote to reverse the conviction.
Appellant had been a Special Deputy U.S. Marshal for seven years by virtue of his affiliation with a group of volunteers (ARGUS) (the Armed Response Group of the United States), which loaned armored vehicles to police agencies during emergencies. In 1992, The Washington Post published a series of articles critical of ARGUS and of Bryant, implying that he had been granted Special Deputy status because of his family money and political connections. See, e.g., Robert O’Harrow, Jr., FBI Probes Self-Styled Police Force, Wash. Post, May 10, 1992, at Al. The then-Director of the Marshals Service Henry Hudson wrote Bryant advising him to send Hudson a letter asking not to be reappointed, which Bryant did. His appointment thus expired on June 30, 1992, only two months before the events leading to his conviction.
Appellant can be thought guilty of a crime — assuming his politically incorrect possession of guns, attachment to a law enforcement agency, his wealth, and Virginia-Mississippi connections are not sufficient to call for imprisonment — only if he actually said at the Mayflower on September 2,1992, that he was at that time a Special Deputy U.S. Marshal, not that he had been, which was true, or that he was closely affiliated with the Marshals Service, which also was true.
*1470A careful examination of all of the testimony, which is only sketchily presented in the majority opinion, leads me to conclude that it is very unlikely that Bryant actually said he held the Special Deputy office when trying to extricate himself from a very dicey situation, and that it was Marshal Rutherford who made the crucial representations. From the moment Deputy Williamson arrived at the Mayflower and Bryant told him he knew Rutherford, Bryant received respectful treatment. Williamson, Rutherford’s subordinate, testified that he immediately tried to contact Rutherford for Bryant. When Rutherford returned the call, Williamson told him that “the police officer on the scene wanted to resolve [the matter] and either arrest Herb Bryant or wanted us to tell him that he was a Special Deputy or Deputy United States Marshal,” which prompted Rutherford to ask Williamson to stall while he called headquarters. Rutherford thereafter spoke to Sergeant Sandora and admitted that he told the sergeant that Bryant was known by the Marshal Association. Astonishingly, he also testified that he could not remember if he told Sandora that Bryant was previously a Special Deputy or many details of the call, but importantly, after this discussion, the police department offered the marshals custody of Bryant to sort out the matter and the marshals accepted. So the key to Bryant’s release was Rutherford’s intervention.
Rutherford even rejected Sandora’s suggestion that the police take custody of the guns. Instead, a marshal drove Bryant’s vehicle to the courthouse, returned much of the gear (including knives) to Bryant that same day, and inventoried the guns to send to Bryant later. Bryant was escorted by Williamson to Marshal Rutherford’s office. Rutherford called Deputy Director Twomey and left his own office to allow Bryant to speak in private to Twomey. Neither Rutherford nor Twomey ever asked Bryant what he told the officers on the scene or about his current status. Instead, he was released without suggestion that he had done anything inappropriate, much less in violation of federal law.
The redoubtable Washington Post reporter Mr. O’Harrow, learning of the incident, published a news story in the Post some three weeks later, on September 24, accusing the Marshals Service of intervening to help Bryant.
After Bryant told police he had friends in the Marshals Service, a deputy marshal was sent to the scene, law enforcement officials said.... When asked why no legal action was taken against Bryant, Twomey said the District police officer ‘chose simply to turn the weapons and Mr. Bryant over to the marshal.’ But the District police official, who ordered the retrieval of Bryant’s guns from the Marshals Service yesterday, said Bryant was released only because the Marshals Service ‘represented to us he was a U.S. Marshals deputy.’
Robert O’Harrow, Jr., Quasi-Police Official Freed in Gun Case, Wash. Post, Sept. 24, 1992, at A1 (emphasis added). Only then does the question of appellant’s misrepresentation arise. Id. (“[Ajfter inquiries from the Washington Post, District Police said they plan to investigate the Sept. 2 incident and turn over their findings to the U.S. attorney in the District.”). Both the marshals’ headquarters and the Marshals Office in the District of Columbia disclaimed responsibility for allowing Bryant to be released and at trial blamed each other for improper behavior.1
Rutherford’s testimony is laced with concern as to how the press would cover the story. From the moment he found out that Bryant was being detained, he thought the “situation would prove to be somewhat sticky for the United States Marshal’s Service.” He confessed that fear of press coverage was one reason he did not go to the scene himself. He testified that he thought Twomey deliberately tried to stay out of the matter so that Rutherford would be saddled with the decision and Twomey could have “deniability.” Rutherford admitted that he talked to O’Harrow, who wrote the story describing *1471the representation as coming from the marshals, before the article was published.2
Both the ex-Director and Deputy Director of the Marshals’ Office contradict all the material facts of Rutherford’s story. Rutherford testified that no one at headquarters, including Twomey, told him of Bryant’s actual status with the marshals. When Rutherford called headquarters to find out Bryant’s status so as to decide how to handle the situation at the Mayflower, he initially did not try to reach Twomey, whom Rutherford knew to be in charge of the Special Deputy program, but instead tried to reach Hudson directly because Rutherford did not think Twomey looked out for the “best interest of [Hudson].” Only after his unsuccessful attempt to talk to Hudson, did Rutherford call Twomey, who supposedly told him that he, Twomey, didn’t know Bryant’s status. Indeed, according to Rutherford, Twomey never told him of Bryant’s status. But Twomey testified that, without question, he told Rutherford, during the incident, that Bryant was no longer a Special Deputy U.S. Marshal.
Rutherford testified that he spoke with “someone” (perhaps not surprisingly, he couldn’t remember whom) who told him that Bryant “was claiming to have some affiliation with or to be a deputy or special deputy United States Marshal.”3 Rutherford also claimed that, a few days after the incident, Twomey called him at home to find out if Bryant had claimed to be a Deputy Marshal. Rutherford patched Williamson into the call, and Williamson supposedly said that Bryant had claimed to be a Deputy U.S. Marshal. But Twomey flatly denied that he called Rutherford at home after the incident or that he had had a three-way call with Williamson. Twomey testified that he “never spoke with Deputy Williamson ... at any time on the day of the incident or at any time thereafter to this date” and that he “didn’t even know the names of the deputies that went to the scene.” It is also rather suspicious that Rutherford did not mention the three-way call in his initial statement to the inspector general, but included it only much later in an addendum.
Both Twomey and Hudson testified that no one at the time of the incident reported to either of them that Bryant had represented himself to be a Special Deputy or Deputy U.S. Marshal. Twomey said he did speak to Rutherford about misrepresentations, but these were alleged misrepresentations of the marshals, not Bryant. When Twomey read the Washington Post article, he was “highly disturbed by the implication in the article ... that Deputy U.S. Marshals had represented to the Metropolitan Police that Mr. Bryant was a Deputy U.S. Marshal or a Special Deputy U.S. Marshal.” Wanting to make “absolutely sure” that fhe marshals did not improperly attempt to influence the D.C. police or do anything that “would embarrass the Marshal’s Service as an agency,” Twom-ey called Rutherford at his office to determine what actually was said; Rutherford told him that no marshal had made a representation to the police that Bryant was deputized. Rutherford conceded, however, that no other marshal spoke with the metro police department nor did any other marshal have the authority to make such a representation to the police.
The district court did not resolve this troublesome conflict between Rutherford and the Director and Deputy Director but instead relied on what the judge described as “clear and unequivocal” testimony of Williamson, Rutherford’s subordinate Supervisory Deputy. Yet even Williamson testified initially that Bryant “implied” he was a Special Deputy and only after being pushed said, “[Bryant] said he was a special deputy.” And Rutherford admitted that when he spoke with Williamson, Williamson may have told him that Bryant was “associated or affiliated with the Marshal Service” as opposed to stating he was a Deputy or Special Deputy. Williamson’s testimony, even putting aside his subordinate relationship to Rutherford, does not therefore seem so compelling.
*1472The other witness relied upon by the district court was Special Agent Conord, who, the district court assumed, had “no apparent reason for bias in favor of or against the defendant, the marshals or the Metropolitan Police.” It should be noted, however, that Conord and Agent Perkins were the first to respond to the potential security threat. It was Conord who allowed the matter to be turned over to the Marshal’s Office. If Bryant did not claim to be a “Special Deputy United States Marshal” and was instead left to the marshals because of his less formal relationship with the service, Conord might have been thought derelict in his duties by treating a potential threat to Israeli diplomats so causally. Conord had, of course, read the Washington Post article and he was aware of the Justice Department and FBI investigation of the incident. Surely he knew that his own conduct — it was he who spoke to Bryant — could be subject to questioning. Yet if Bryant was thought to have stated unequivocally that he was a Special Deputy Marshal, Conord might well be less subject to criticism.
Conord’s testimony, moreover, is hardly convincing. He could not “remember clearly” how long he was outside before the police arrived, could not “recall exactly” what the placard said, could not “recall exactly” whether Bryant made statements about people he knew in law enforcement, and could not “remember specifically” what the tag on the vehicle stated; nevertheless he remembered with the utmost clarity that Bryant said, “I am a Special Deputy U.S. Marshal” as opposed to saying a former Special Deputy or otherwise referring to his legitimate, albeit more complicated, relationship. Co-nord explained that although he was “vague on some of the technical and the specifics of the conversation, [he] remember[ed] the large picture.” Perkins testified, however, that Conord and the officers on the scene told him only that Bryant was “associated with the Marshal’s Service or he’s with the Marshal’s Service. But nobody ever told me Mr. Bryant says he is a Special Deputy Marshal.” And, at one point, Conord himself testified that Bryant claimed an “affiliation” with the Marshals Service, prompting the district court to ask why Bryant would say “affiliation” when he was supposedly representing himself as a Special Deputy. “A lot of things didn’t seem to add up at the time,” was Conord’s explanation.
Too much about this case does not add up. It is not just the shaky and unreliable testimony against Bryant, it is also the testimony from unbiased sources strongly supporting Bryant. Officer Suarez, the Metropolitan Police Department officer conducting the inquiry of Bryant at the scene, did not once mention in his contemporaneous notes that Bryant claimed to be a Special Deputy Marshal. And Carl Crawford, the security director for the Mayflower, vouched for Bryant’s depiction of the events. Bryant claimed to be “associated with the United States Marshal’s Service” and “use[d] names of people that were in the Marshal’s Service” but did not say that he Was a U.S. Marshal, according to Crawford, who paid close attention to Bryant’s answers because of his “concern ... for the people that were in the hotel.” Crawford thought Bryant was merely trying to show he was well-connected with law enforcement, which of course he was.
As a Justice Department alumnus, I simply cannot imagine approving, had it come to me, the prosecution of Bryant, who seems to be an unfortunate scapegoat. As a judge, I cannot understand how the district judge could have concluded that the government made out its case beyond a reasonable doubt. But I am powerless, given the scope of review of a district judge’s factual findings, from seeking to rectify this gross injustice.
KAREN LeCRAFT HENDERSON, Circuit Judge,concurring:
I write separately for two reasons. First, I share the concerns expressed in Judge Silberman’s concurring opinion and agree that, given the circumstances, Bryant should not have been prosecuted or convicted. Second, I believe that a special deputy United States marshal is not an “officer or employee of the United States” the impersonation of which is proscribed by 18 U.S.C. § 912.
Special deputy marshals are designated under the purported authority of 28 C.F.R. § 0.112 which provides that “[t]he Director, United States Marshals Service, is autho*1473rized to deputize ... to perform the functions of a Deputy U.S. Marshal in any district designated by the Director,” among others, “[s]eleeted federal, state, or local law enforcement officers.” Whatever other effect such a special deputation may produce, it cannot transform a local law enforcement officer into a federal one. The Director’s appointment authority is fixed by statute. He “is authorized to appoint and fix the compensation of such employees as are necessary to carry out the powers and duties of the Service” and “may designate such employees as law enforcement officers.” 28 U.S.C. § 561(f).1 He has no statutory authority to appoint anyone other than a Marshals Service employee or official as an “officer” of any kind.2 Thus, his deputation of an individual outside the Service as a special deputy marshal does not confer “federal officer” status on that individual and, therefore, impersonation of a special deputy marshal should not violate section 912.3 Nevertheless, I am constrained to join in affirming Bryant’s conviction on count 1 because circuit precedent holds that the statute can be violated even when the assumed office does not exist. See United States v. Maxwell, 920 F.2d 1028, 1037 n. 11 (D.C.Cir.1990) (citing United States v. Rosser 528 F.2d 652, 656 n. 14 (D.C.Cir.1976)). Although I believe the circuit precedent is wrong, I am nevertheless bound by it.
. Rutherford as the Marshal for the District of Columbia is a presidential appointee confirmed by the Senate. The Mayflower events took place two months before the presidential election. After the election, but before the trial, Hudson and Twomey had left office.
. Rutherford had also previously spoken with O'Harrow about Bryant’s role with ARGUS.
. Rutherford tried to explain away his use of the term "affiliation,” which would be an accurate characterization of Bryant's relationship with the marshals, by noting that he thought if a person is a Deputy U.S. Marshal, he is certainly "affiliated with the agency also.”
. Section 561(1) provides in full: “The Director is authorized to appoint and fix the compensation of such employees as are necessary to carry out the powers and duties of the Service and may designate such employees as law enforcement officers in accordance with such policies and procedures as the Director shall establish pursuant to the applicable provisions of title 5 and regulations issued thereunder.”
. The statutes repeatedly emphasize that the Director’s authority extends only over officials and employees of the Marshals Service, a class that does not encompass special deputy marshals. The Director serves "at the head of the United States Marshals Service," 28 U.S.C. § 561(a), and is authorized to administer oaths and to take affirmations “of officials and employees of the Service,” 28 U.S.C. § 561(h). In addition only an "official of the Service” may be designated by the Director” to carry firearms and to make warrantless arrests. 28 U.S.C. § 566(d).
. I am aware that the Ninth Circuit has concluded that a special deputy is protected by 18 U.S.C. § 111, entitled “Assaulting, resisting, or impeding certain officers or employees,” which prohibits assaults against specific persons enumerated in 18 U.S.C. § 1114. United States v. Diamond, 53 F.3d 249, 252-53 (9th Cir.1995). In Diamond, however, the Ninth Circuit merely construed the language of section 1114, concluding that a special deputy marshal fell within the statutory category of "any United States ... deputy marshal.” The court did not address the scope of the Marshals Service Director's statutory appointment authority and did not hold that a special deputy is a "federal officer."