Thursday, July 29, 2010

Court Construes Meaning of Federal “Official” for Purposes of Threat Statute; Rejects Self-Representation Challenge

In United States v. Michael Bankoff, Nos. 08-3275 & 08-3688 (July 27, 2010), the Court holds that the federal statute criminalizing certain threats of federal “officials” extends to both “officers and employees.” Separately, the Court determines that there was no abuse of discretion in a district court ruling temporarily barring the defendant from representing himself.

Section 115 of Title 18, enacted in 1984, defines certain crimes relating to threats of a federal “official” “whose killing would be a crime under” 18 U.S.C. § 1114. Section 1114 in turn covers “any officer or employee of the United States.…” Michael Bankoff argued that § 115’s use of the term “official” limited that statute’s scope to “officers” within the meaning of § 1114, thus excluding “employees.” The district court agreed and instructed the jury that each of three Social Security Administration employees allegedly threatened by the defendant had to be “authorized to exercise his or her discretion in the performance of … duties,” rather than engaged in “routine and subordinate functions.” The jury returned a guilty verdict with respect to an SSA “claims representative” and, separately, an “operations supervisor.” The district court thereafter granted the defendant’s Rule 29 motion for acquittal as to the claims representative but upheld the verdict as to the operations supervisor. Both the defendant and the government appealed.

The Court, with Judge Ambro writing, holds for the government. Its analysis foregrounds the rule that “the meaning of statutory language, plain or not, depends on context.” Reviewing the cross-referenced § 1114 as it read at the time of § 115’s enactment, as well as other statutes defining federal “officials” for purposes of coverage under criminal statutes, the Court determines that “Congress intended terms like ‘official’ and ‘officer’ to have a special meaning in § 115 that was not the same as their ordinary, dictionary definitions.” Although Webster’s Third New International Dictionary, as published in 1971, defines an “official” as “a person authorized to act for a government, corporation, or organization,” and an “employee” as “one employed by another, usually in a position below the executive level and usually for wages,” the Court holds that “official” in § 115 encompasses “both officers and employees.” Indeed, it deems that statutory meaning “plain” and consults legislative history only as a consistent “course marker.” Accordingly, the Court not only rejects the defendant’s appeal but vacates the partial judgment of acquittal as to the claims representative, remanding for further consideration of alternative challenges to the sufficiency of the evidence on that count.

As to the right of self-representation, the Court finds no abuse of discretion in the district court’s ruling denying the defendant’s requests to give his opening statement and to cross-examine the government’s first witness. The defendant aired an “angry outburst” during the prosecutor’s opening and then demanded, upon its conclusion, to deliver his own opening pro se. In light of earlier vacillation by the defendant as to whether or not he would proceed with counsel, the Circuit holds that the request could be deemed equivocal, and a hearing on it properly deferred until the conclusion of the first day of trial. After defense counsel concluded cross-examination of the first witness, the district court permitted Bankoff to proceed pro se, and also ultimately allowed him to recall the first witness for a pro se cross. Meanwhile, the court permitted newly stand-by counsel to take over the questioning of a different witness when the defendant’s examination faltered. “In this context, we believe the Court not only acted well within its discretion, but treated Bankoff with the utmost fairness.”

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