Third Circuit Clarifies Meaning of "Officer or Employee of the United States" in Federal Assault Statute

In United States v. Washington, ---F. 4th---, 2023 WL 5440527 (Aug. 24, 2023), the Third Circuit clarified the meaning of "officer or employee of the United States" in 18 U.S.C. § 111 and 1114(a), which make it a crime to assault such a person while they are engaged in their official duties.  The defendant, Mr. Washington, was convicted of assaulting two private contractors paid by the Federal Protective Service to protect the Social Security Administration building in Philadelphia.  The Third Circuit held that the contractors were not "officer[s] or employee[s] of the United States" because they did not hold an office of trust; their tenure was transient or fixed by agreement; their contract resembled an employment contract rather than an appointment or election; their pay was set by contract rather than law; and they were not nominated, confirmed, or appointed by a federal official such as the President of the United States or a department head.  

Because Mr. Washington did not assault an "officer or employee of the United States," and the evidence was insufficient to convict him under an alternative theory of liability, the Third Circuit reversed his conviction and remanded with instructions to enter a judgment of acquittal.