USA v. Masaoud

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 17-cr-173-JD
Opinion No. 2018 DNH 059
Bashir Masaoud
O R D E R
Bashir Masaoud was indicted on two counts of assault on a
federal officer in violation of 18 U.S.C. § 111. In both
counts, the government alleges that Masaoud “did knowingly
forcibly assault, resist, oppose, impede, intimidate and
interfere” with the officer “while [the officer] was engaged in
the performance of his official duties.” Masaoud moves to
dismiss the charges on the ground that the mens rea required for
violation of § 111 is intentionally, not knowingly. The
government objects.
Discussion
At the time of the events underlying the charges against
Masaoud, he was incarcerated at FCI-Berlin in New Hampshire. He
is charged with assaulting two guards at the prison in May of
2017. The government alleges that Masaoud grabbed one officer
by the shirt and attempted to hit him with a closed fist and
kicked the other officer.
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Section 111 provides in pertinent part:
Whoever—
(1) forcibly assaults, resists, opposes, 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 the acts in violation of this section
constitute only simple assault, be fined under this
title or imprisoned not more than one year, or both,
and where such acts involve physical contact with the
victim of that assault or the intent to commit another
felony, be fined under this title or imprisoned not
more than 8 years, or both.
§ 111(a). The statute does not expressly include the mens rea
necessary to be convicted under § 111. Cf. Dixon v. United
States, 548 U.S. 1, 7 (2006) (when the statute provides the
required mental state that becomes an element of the offense).
“The fact that the statute does not specify any required mental
state, however, does not mean that none exists” because “a
guilty mind is a necessary element in the indictment and proof
of every crime.” Elonis v. United States, 135 S. Ct. 2001, 2009
(2015) (internal quotation marks omitted).
Neither the Supreme Court nor the First Circuit has
determined what mental state is required to violate § 111. The
government contends that § 111 is a general intent crime, which
requires that the defendant acted knowingly. See Kucinski v.
United States, 2016 WL 4444736, at *6 (D.N.H. Aug. 23, 2016)
(explaining the general intent mental state as knowingly).
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Masaoud contends that § 111 is a specific intent crime which
requires an intentional violation. See United States v. Dyer,
589 F.3d 520, 533 (1st Cir. 2009) (“A specific intent crime is
one committed voluntarily and purposely with the specific intent
to do something the law forbids.” (internal quotation marks
omitted)).
In United States v. Feola, 420 U.S. 671 (1975), the Supreme
Court considered whether the government must prove that a
defendant knew that his victim was a federal officer to convict
the defendant under § 111. Id. at 684. The Court concluded
that knowledge of the victim’s identity was not necessary
because “[a]ll the statute requires is an intent to assault, not
an intent to assault a federal officer.” Id. The Court did not
have reason to and did not decide whether violation of § 111
required specific or general intent.
A few years later, the First Circuit decided an appeal in
which the defendant argued that the evidence at his trial was
insufficient to show his specific intent to violate § 111.
United States v. Caruana, 652 F.2d 220, 221 (1st Cir. 1981).
Because the issue was not raised, the court did not consider
whether proof of specific intent was necessary. Instead, the
court determined that sufficient evidence had been introduced at
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Caruana’s trial to show that Caruana had the specific intent to
intimidate the federal officers. Id. at 222.
More recently, the First Circuit addressed the issue of
whether violation of § 111 constitutes a crime of violence for
purposes of the Armed Career Criminal Act. United States v.
Taylor, 848 F.3d 476, 491-94 (1st Cir. 2017). The court held
that the two parts of § 111, § 111(a) and § 111(b), are
divisible and that violation of § 111(b) is a crime of violence.
Id. at 494. The court listed the elements of a violation of
§ 111(a) but did not specify the mental state necessary for a
violation.
Most other circuit courts that have addressed the question
of the mental state necessary to violate § 111(a) have held that
it is a general intent crime, that requires the defendant to act
knowingly but not with specific intent to injure. United States
v. Gonzalez-Hermandez, 657 Fed. Appx. 658, 660 (9th Cir. 2016)
(citing United States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir.
1990)); United States v. Brown, 592 Fed. Appx. 164, 166 (4th
Cir. 2014) (citing United States v. Williams, 604 F.2d 277, 279
(4th Cir. 1979)); United States v. Cunningham, 564 Fed. Appx.
190, 195 (6th Cir. 2014) (citing United States v. Kimes, 246
F.3d 800 (6th Cir. 2001)); United States v. Gutierrez, 745 F.3d
463, 470-71 (11th Cir. 2014) (citing United States v. Ettinger,
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344 F.3d 1149, 1160 (11th Cir. 2003)); United States v. Graham,
431 F.3d 585. 588-89 (7th Cir. 2005); United States v.
Kleinbart, 27 F.3d 586, 592 (D.C. Cir. 1994). Massaoud cites
the Eighth Circuit Model Jury Instructions (2014) 6.18.111, and
the Fifth Circuit Pattern Jury Instructions (2012) 2.09, which
both require the defendant to act intentionally. The government
acknowledges that the Fifth Circuit has noted in dicta a defense
of lack of specific intent to a § 111 charge, United States v.
Taylor, 680 F.2d 378, 381 (5th Cir. 1982), and an Eighth Circuit
case in which the court relied on Feola to find that § 111 was a
specific intent crime, United States v. Manelli, 667 F.2d 695,
696 (8th Cir. 1981). But see United States v. Guler, 295 Fed.
Appx. 861, 863 (8th Cir. 2008) (holding that “only general
intent to commit assault is necessary for conviction under 18
U.S.C. § 111”); United States v. Oakie, 12 F.3d 1436, 1443 (8th
Cir. 1993) (acknowledging conflicting decisions in the Eighth
Circuit on the mens rea required for violation of § 111).
“When interpreting federal criminal statutes that are
silent on the required mental state, [the Court] read[s] into
the statute only that mens rea which is necessary to separate
wrongful conduct from otherwise innocent conduct.” Elonis, at
2010. Consonant with that direction and the decisions in other
circuits, § 111 is a general intent crime. There is little
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contrary authority, and those few cases are not persuasive.
Therefore, the government correctly charged that Masaoud
knowingly assaulted the officers in violation of § 111.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 9) is denied.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 19, 2018
cc: Donald A. Feith, Esq.
Dorothy E. Graham, Esq.
U.S. Probation
U.S. Marshal
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