United States of America v. William K. Washington

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3299
_____________
UNITED STATES OF AMERICA
v.
WILLIAM K. WASHINGTON,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-20-cr-00220-001)
District Judge: Honorable John M. Younge
_____________
Argued: November 15, 2022
Before: HARDIMAN, RESTREPO, and PORTER,
Circuit Judges.
(Filed: August 24, 2023)

-- 1 of 15 --

2
Brett G. Sweitzer [Argued]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Kevin L. Jayne [Argued]
Robert A. Zauzmer
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_____________
OPINION OF THE COURT
_____________
PORTER, Circuit Judge.
William Washington was convicted for assaulting two
people providing security services for a federal building. His
indictment was flawed. It alleged that he assaulted two officers
of the United States when his victims could be protected only
if designated as persons assisting federal officers or employees.
Because the government’s evidence at trial did not prove that
modification, we need not consider whether the modification
was a constructive amendment or variance. We will reverse the

-- 2 of 15 --

3
judgment and remand with instructions to grant Washington’s
renewed motion for a judgment of acquittal.
I
The Federal Protective Service is a federal law
enforcement agency. Congress transferred FPS from the
General Services Administration to the Department of
Homeland Security under the Homeland Security Act of 2002.
6 U.S.C. § 203. FPS hires Protective Service Officers to
manage security of federal property. FPS can also secure
contracts for private security. FPS contracted with Triple
Canopy, a private security company, to provide security for the
Social Security Administration office in Philadelphia. To
perform the contract, Triple Canopy assigned Deirdre Smith
and Kenneth Bell to that office.
At the time of the events in question, William
Washington had received Social Security Administration
benefits for ten years. In May 2020, he needed to submit
paperwork to the SSA to continue receiving benefits. Over the
phone, Washington was told that he could deliver the
paperwork to the SSA’s Philadelphia office. Upon arrival, he
found the front door locked. He pulled on the door in
frustration, which attracted Smith and Bell’s attention. Bell
explained that the office was open, but with modified
operations because of the coronavirus pandemic. Bell allowed
Washington into the building and directed him to a drop box
where he could deposit his paperwork.
Washington did not find that method of submission
satisfactory. He insisted that he be allowed to visit the person
with whom he spoke on the phone. The SSA’s office manager
joined the discussion and reiterated that in-person meetings

-- 3 of 15 --

4
were not an option. The office manager told Washington to
leave, or he would call the police. “Washington lost his temper
and refused to leave.” Appellant’s Br. 6. He forced his way
farther into the building, at which point Smith and Bell moved
to restrain him. The ensuing scrap lasted more than three
minutes before Smith and Bell were able to subdue and
handcuff Washington. They then maintained custody over him
until FPS and local police arrived, at which point FPS officers
arrested him.
The government charged Washington with two
violations of 18 U.S.C. § 111. The indictment alleges that
Washington “forcibly assaulted, resisted, opposed, impeded,
intimidated and interfered with an officer of the United States,
as designated in [18 U.S.C. § 1114], that is, [the victim], a
Protective Services Officer,” while the victim was performing
official duties. App. 19–20 (emphasis added).
Two months before trial, the government stated that
Smith and Bell were contract officers. The government
contended that they are designated under § 1114 because they
were assisting the FPS in securing the Social Security office
where they were assaulted. The evidence at trial confirmed that
Smith and Bell are private contractors, not government
employees.
Washington moved for acquittal at the close of the
government’s case, the close of evidence, and after the trial. He
argued that the evidence did not support the indictment’s
charge that he assaulted an officer because his victims were
private contractors. The District Court rejected Washington’s
“form-over-substance arguments.” App. 11 n.3. Although the
government had argued that § 1114 reaches Smith and Bell
because they assisted FPS in securing a federal building, App.

-- 4 of 15 --

5
28–29, the District Court held that they were officers of the
United States because “they were performing federal
functions.” App. 11 n.3. It supported this conclusion with
findings that Smith and Bell “were assigned to a federal SSA
office; were protecting that facility pursuant to a contract with,
under the supervision of, and with training by the FPS; and they
were working with and responded to this altercation with the
SSA District Manager of the federal facility.” Id. It also noted
“that Defendant raised no concerns about the sufficiency of the
Indictment, or the crimes alleged therein at any point before
the government had rested its case at trial, in a ‘gotcha’
moment.” Id. For his two counts of felonious assault under 18
U.S.C. § 111, the District Court sentenced Washington to a few
days’ time served and twelve months of supervised release.
II
The District Court had jurisdiction over this criminal
case under 18 U.S.C. § 3231. We have jurisdiction over his
appeal under 28 U.S.C. § 1291.
“As to the proper interpretation of a statute, our review
is plenary.” United States v. Jackson, 964 F.3d 197, 201 (3d
Cir. 2020). We also exercise plenary review over “whether
there was a constructive amendment of the indictment and
whether there was a variance between the indictment and the
proofs at trial.” United States v. Daraio, 445 F.3d 253, 259 (3d
Cir. 2006). We review evidentiary challenges to a conviction
for sufficiency of the evidence, and evidence is sufficient if
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt” after
viewing the evidence in the light most favorable to the
prosecution. Coleman v. Johnson, 566 U.S. 650, 654 (2012)

-- 5 of 15 --

6
(emphasis removed) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
III
We start by considering the scope of “officer of the
United States” as used in § 1114 and, in turn, Washington’s
indictment. Concluding that it does not include all classes of
designated persons in that section, we turn to whether the
government’s proof at trial supports a conviction of a modified
indictment. It did not. Because the government has not proven
that Washington’s victims were assistants for purposes of
§ 1114, we do not consider whether such modification would
be a constructive amendment or a variance. It follows that
Washington is entitled to a judgment of acquittal.
A
Under 18 U.S.C. § 111, “Whoever forcibly assaults,
resists, impedes, intimidates, or interferes with any person
designated in section 1114 of this title while engaged in or on
account of the performance of official duties . . . shall, . . .
where such acts involve physical contact with the victim of that
assault,” commit a felony. Section 1114 protects “any officer
or employee of the United States or of any agency in any
branch of the United States Government . . . while such officer
or employee is engaged in official duties” and “any person
assisting such an officer or employee in the performance of
such duties.” 18 U.S.C. § 1114(a).
Washington admits that he physically assaulted two
private contractors providing security for a federal building.
But he argues that they were not “officers of the United States”
as the indictment charges. The government did not argue that

-- 6 of 15 --

7
the Department of Homeland Security designated Smith and
Bell officers according to 40 U.S.C. § 1315 or other statutory
authority. So we turn to tools of statutory interpretation to
decide whether Smith and Bell may still be officers of the
United States as Washington’s indictment charged. We
conclude that the weight of authority favors an interpretation
that excludes Smith and Bell.
1
“In determining the meaning of any Act of Congress,
unless the context indicates otherwise, ‘officer’ includes any
person authorized by law to perform the duties of the office.”
1 U.S.C. § 1. An “officer of the United States” could be
understood as a person authorized by law to perform duties of
an office of the United States, but that interpretation does not
decisively place Smith and Bell inside or outside the ambit of
the phrase. The Department of Homeland Security has a
statutory duty to protect federal buildings, 40 U.S.C. § 1315,
and it contracted with Triple Canopy to fulfill that obligation.
But Smith and Bell themselves do not hold an office of the
United States and are not employees of a federal agency.
An officer may also include a “[p]erson holding [an]
office of trust, command or authority in corporation,
government, armed services or other institution or
organization.” Officer, Black’s Law Dictionary (5th ed. 1979).
To determine whether someone is an officer or employee,
Black’s identifies “important tests”:
1. the tenure by which a position is held,
whether its duration is defined by the statute
or ordinance creating it, or whether it is

-- 7 of 15 --

8
temporary or transient or for a time fixed only
by agreement;
2. whether it is created by an appointment or
election, or merely by a contract of
employment by which the rights of the parties
are regulated; [and]
3. whether the compensation is by a salary or
fees fixed by law, or by a sum agreed upon
by the contract of hiring.
Id.
Black’s separately defines “Officer of the United
States” as “An officer nominated by the President and
confirmed by the senate or one who is appointed under an act
of congress, by the President alone, a court of law, or a head of
a department.” Officer, Officer of the United States, Black’s
Law Dictionary (5th ed. 1979); see U.S. Const. art. II, § 2. The
current edition of Black’s defines the term similarly: “Someone
who holds an office of trust, authority, or command. In public
affairs, the term refers esp. to a person holding public office
under a national, state, or local government, and authorized by
that government to exercise some specific function.” Officer,
Black’s Law Dictionary (11th ed. 2019).
Each of these definitions supports a reading of 1 U.S.C.
§ 1 that excludes Smith and Bell as officers. They do not hold
an office of trust, command, or authority. Their tenure is either
transient or fixed by agreement; the contract under which they
provide services is closer to an employment contract than an
appointment or election. The government pays rates set by
contract, not law. And they were not nominated and confirmed
or otherwise appointed by Congress, the president, a court, or

-- 8 of 15 --

9
a department head. Smith and Bell are not officers of the
United States under these definitions.
The government urges us to reach the opposite
conclusion by citing United States v. Torres, 862 F.2d 1025 (3d
Cir. 1988). Torres was a city police officer who had been
detailed to a DEA Task Force. Id. at 1027–28. As part of that
detail, Torres took an oath. Id. This Court held that local
government employees who take the oath of office, 5 U.S.C.
§ 3331, as part of an assignment to a federal agency, 5 U.S.C.
§ 3374, can be officers for purposes of § 1114. 862 F.2d at
1030. Here, the record does not show that the contractors have
taken an oath, and they are not state or local government
employees assigned to a federal agency. Accordingly, Torres
does not establish that Smith and Bell are officers.
2
The government argues that an obsolete regulation and
a separate criminal statute’s definitions of “law enforcement
officer” expand “officer” to include Smith and Bell. Neither
source lives up to the government’s argument.
First, the government points to a final rule promulgated
by the Attorney General in 1987 as evidence that private
contractors are designated as officers.1 Appellee’s Br. 20
(citing 28 C.F.R. § 64.1); see 52 Fed. Reg. 4767 (Feb. 17,
1987). That regulation states, “The protective coverage has
been extended to those federal officers and employees whose
jobs involve inspection, investigative or law enforcement
1 The Department of Justice had statutory authority to
designate victims under § 1114 until 1996. See 18 U.S.C.
§ 1114 (1994).

-- 9 of 15 --

10
responsibilities, or whose work involves a substantial degree
of physical danger from the public that may not be adequately
addressed by available state or local law enforcement
resources.” 28 C.F.R. § 64.1 (emphasis added).
By its text, the regulation is limited to federal officers
and employees. It then enumerates two categories of federal
officers and employees. The government wants to shoehorn
private contractors into the second—officers and employees
exposed to “a substantial degree of physical danger from the
public”—without first proving that they are federal officers or
employees. Section 64.2 repeats that the designated persons
must be federal officers or employees, so the use of officer in
that part of the C.F.R. does not extend to private contractors,
either. 28 C.F.R. § 64.2.
In the notes to the final rule, the Attorney General
explained that many “substantive comments requested changes
in the definition of several categories of Federal employees”
and others “asked that additional categories of Federal
employees be designated.” 52 Fed. Reg. at 4768. The rule does
not mention or contemplate private contractors, further
indicating that the Attorney General did not intend the
regulation to cover private contractors.
Second, the government leans on a separate criminal
statute. That statute defines “law enforcement officer” as “an
officer or employee of the Federal Government, or a person
authorized to act for or on behalf of the Federal Government
or serving the Federal Government as an adviser or
consultant” performing certain functions, including police
functions. Appellee’s Br. 22 (quoting 18 U.S.C. § 1515(a)(4)).
The government emphasizes that the provision recognizes
agents as a separate category of protected persons. The

-- 10 of 15 --

11
government contends that, under that statute: Smith and Bell
are agents of the federal government; they perform a police
function; agents that perform a police function are law
enforcement officers; law enforcement officers are officers of
the federal government; therefore, Smith and Bell are officers
of the federal government. Not so. The statute says that officers
who perform police functions are law enforcement officers, not
that all law enforcement officers are officers of the United
States. And, in any event, § 1515(a)(4) defines “law
enforcement officer” only for 18 U.S.C. §§ 1512 and 1513. 18
U.S.C. § 1515(a). Thus, the statute and regulations do not
disturb our conclusion that Smith and Bell are not officers of
the United States under § 1114.
3
The District Court relied on a functional test and
decided that Smith and Bell were officers. App. 11 n.3 (citing
United States v. Feola, 420 U.S. 671, 679 (1975)). After
evaluating several factors, the District Court concluded that
Smith and Bell were officers of the United States because they
“were performing federal functions as federal officers.” App.
11 n.3 (citing Feola, 420 U.S. at 679). But Feola did not clearly
define what makes one an officer of the United States
The issue in Feola was whether assailants must know
the victim’s status as a designated person to be convicted under
§ 111. 420 U.S. at 672–73. The Court, believing that “Congress
intended to protect both federal officers and federal functions,”
rejected a strict scienter requirement. Id. at 679 (emphasis
removed). Because Feola does not purport to define “officer of
the United States,” it does not affect our interpretation.

-- 11 of 15 --

12
The government charged Washington with assaulting
officers of the United States. FPS did not designate Smith and
Bell officers of the United States. They are not officers of the
United States under the plain meaning of the phrase. And they
are not officers of the United States as the phrase is used in any
of the other contexts provided by the parties. The Supreme
Court did not expand the definition of officer when it held that
a criminal defendant violates § 111 by assaulting an officer of
the United States without knowing that the victim is an officer.
For these reasons, the government has failed to prove that
Smith and Bell are officers of the United States, and the District
Court’s contrary conclusion must be reversed.
B.
“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury.” U.S. Const. amend. V. “It is
generally sufficient that an indictment set forth the offense in
the words of the statute itself.” Hamling v. United States, 418
U.S. 87, 117 (1974). An indictment cannot be broadened
through amendment except by the grand jury. Stirone v. United
States, 361 U.S. 212, 215–16 (1960) (citing Ex parte Bain, 121
U.S. 1 (1887)); see also United States v. Harra, 985 F.3d 196,
221–22 (3d Cir. 2021). But some variations between the
indictment and the conviction are permissible. Daraio, 445
F.3d at 262.
Section 111 prohibits the assault of “any person
designated in section 1114.” But Washington’s indictment was
more specific. Section 1114 designates three classes of victims:
federal officers, federal employees, and persons assisting “any
officer or employee of the United States or of any agency in
any branch of the United States Government . . . while such

-- 12 of 15 --

13
officer is engaged in official duties.” 18 U.S.C. § 1114(a). The
government charged Washington with assaulting an officer of
the United States. At trial, it submitted evidence that he
assaulted persons assisting an officer or employee of the
United States. We now consider whether that evidence was
sufficient to prove that Smith and Bell were assistants. For the
reasons below, we conclude it was not, so we need not decide
whether the indictment was permissibly varied.
Section 111 prohibits assault against any person
assisting an officer or employee of the United States in the
performance of official duties or on account of such assistance.
The language of §§ 111 and 1114 calls for a connection
between the person assisted and his performance of an official
duty. The government argued to the District Court that Smith
and Bell were assisting the FPS because they were “engaged
for the purpose of providing security to the Social Security
Office.” J.A. 29; see also J.A. 248 (arguing Smith and Bell are
“persons assisting the Federal Protective Service”). It elicited
testimony to that effect, too: the government asked Smith and
Bell on direct examination whether they were “assisting the
Federal Protective Service.” Both answered affirmatively. J.A.
56, 113.
Washington understood the government’s theory to be
that Smith and Bell were assistants to an agency in general. He
argued that theory cannot support his conviction because the
statute requires assistance to a person—an officer or employee.
The government says Washington “misstate[d]” its theory and
disavows on appeal any theory of liability other than Smith and
Bell assisting individual officers. Indeed, the only testimony it
elicited concerning their assistance to the agency itself was
Smith and Bell’s conclusory agreement to that proposition. As

-- 13 of 15 --

14
a result, we will not consider whether assistance to an agency
in general can support Washington’s conviction.
The government instead contends that it “put on
numerous examples of Officer Bell and Smith’s assistance to
various specific officers and employees of the United States.”
Id. It referred to “unnamed but real FPS officers,” FPS officer
Clarence Thomas, and SSA district manager Shawn Fordam.
Id. at 42. But it did not introduce sufficient evidence of Smith
or Bell assisting those officers in their official duties.
The unnamed but real FPS officers, for instance, were
responsible for training contractors in baton use, firearm
qualifications, and using on-site equipment like x-ray
machines. Smith and Bell provided no assistance to the
unnamed officers in performing those duties, so they could not
be assaulted while assisting or on account of their assistance.
Likewise, the evidence does not show Smith and Bell
assisting Thomas in performing his official duties. The
government intended to call Thomas to testify about statements
Washington made after his arrest. J.A. 175–76. But it did not
intend to ask him about his official duties. And while the record
shows that Thomas ultimately arrested Washington, it does not
speak to Thomas’s official duties before the arrest. Smith and
Bell were assaulted before attempting to arrest Washington, so
the assault was not based on assisting the performance of that
duty.
Finally, Smith and Bell were not assaulted while
assisting Shawn Fordam in his official duties. The government
called Fordam as a witness at trial. It asked about the services
the Social Security Administration provides, but Smith and
Bell were not assaulted for assisting in processing claims for

-- 14 of 15 --

15
retirement, disability, supplemental security income, and the
like. Nor were they assaulted for helping Fordam perform his
responsibility to provide surveillance footage to the
government. In short, the evidence does not establish that
Smith and Bell were assisting Fordam in the performance of
his official duties.
The evidence the government cites supports, at best,
that Smith and Bell were assisting the FPS—the precise
argument it disavowed. See Appellee’s Br. 31–32, 41. But it
did not build a record of Smith or Bell assisting a specific
officer. See, e.g., United States v. Grant, 979 F.3d 1141, 1143
(6th Cir. 2020) (Deputy U.S. Marshal testified victim was
assisting him in performing official duty of detaining federal
prisoner before sentencing). Without a record of Smith and
Bell assisting a specific person performing official duties, we
cannot affirm the conviction. We thus conclude that the
government failed to prove at trial that Smith and Bell were
assaulted while assisting specific federal officers or employees
in the performance of their official duties.
Because we conclude that the government has not
proven the proposed modification, we need not consider
whether that modification would have been a constructive
amendment, impermissible variance, or permissible variance.
IV
We will reverse the denial of the renewed motion for
acquittal and remand with instructions to grant the motion for
a judgment of acquittal.

-- 15 of 15 --