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
*
Of the Seventh Circuit, sitting by designation.
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
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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
1
The jury acquitted Troy of the second count, which alleged an
assault against Officer Baker in connection with the same incident.
That count is not at issue in this appeal.
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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. Flores-
Montano, 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
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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.2 Troy now appeals the district court’s
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
2
Troy also received a mandatory $25 special assessment
pursuant to 18 U.S.C. § 3013.
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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
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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.3 See Streich, 759 F.2d at
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
3
Even if the scope of Officer Beckett’s “official duties” for
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 Flores-
Montano, 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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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.
4
The district court noted that “if Mr. Troy had come into the
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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