Medina, Anderson and Feinberg, Circuit Judges.
The appellants, Martin, Heliczer and Smith were found guilty by a jury on a single count indictment for violating Title 18 U.S.C. § 111*fn1 by assaulting, resisting and interfering with the arrest of Martin by Federal Narcotics Agents Jensen, Feldman, Maher and O'Neill. A co-defendant Nolan was acquitted. Judgments were entered against the three who were convicted; sentences of three months were imposed upon Martin and Smith and the imposition of sentence upon Heliczer was suspended and he was placed on probation for two years. It is from these judgments that they appeal.
The jury could have found that the events leading up to and surrounding the arrest of the defendants-appellants on August 11, 1965 were as follows:
On July 23, 1965 Agent Jensen arrested Martin and one Dale Wilbourne for a violation of the federal narcotics laws. The agent acted in part in reliance upon the report of an informant named Cutler. Martin and Wilbourne were placed in the Federal Detention Headquarters from which Martin was released on July 30 after posting bail. Meanwhile, Martin had learned that Cutler was the informant in the case, and, within a few hours of his release, he accosted Cutler and said, "You are dead, man. I am a friend of Dale's." Cutler reported this to Agents Feldman and Jensen, who two days later interrogated Martin about the incident. The agents testified that Martin admitted that he threatened to kill Cutler but said that he made a mistake in doing so. The agents warned him to stay away from Cutler. Parenthetically it may be said that in his own testimony Martin denied the agents' version of his meeting with Cutler and declared that what he told Cutler was "* * * Dale Wilbourne * * * was really puzzled at what you did to him and he wanted me to tell you that you are just dead as far as this town is concerned," which he interpreted to mean only that Cutler had destroyed his own usefulness as an informant in the area because he had become known. Despite the agents' warning, Martin continued to pursue Cutler, and the agents decided to arrest him for the original threat. They had difficulty in locating Martin but knew that he was scheduled to speak at a rally to be held on August 11, 1965 in the auditorium of the Broadway Central Hotel in connection with a showing of "underground" movies to raise money to provide bail for Dale Wilbourne, who still remained at the Detention Headquarters on the pending narcotics charge. At this rally Heliczer was master of ceremonies and Miss Nolan, a co-defendant, was the ticket taker. There were about 200 persons present. Before Martin spoke the four narcotics agents, accompanied by Coleman, who was another federal narcotics agent, and Detective Imp of the Narcotics Bureau of the New York City Police Department, entered the auditorium and took seats. Agent O'Neill was dressed in ordinary civilian business attire; the others were dressed in sport shirts and trousers. After Martin spoke, Agent Feldman went to the rear of the podium where Martin was sitting and ordered Martin to accompany him. Martin then returned to the microphone and told the crowd that he was being arrested. There was evidence that he said he was being arrested by federal agents and that he pointed out three of them, calling them by name. Martin himself testified that he announced that he was being illegally arrested because Feldman did not have a warrant. In any event, other agents then joined Feldman in subduing Martin, who was striking and kicking and seeking to escape from Feldman. Martin was handcuffed and carried from the auditorium. Meanwhile, Martin was calling on the crowd to attack the agents and rescue him. A melee resulted in which the agents were repeatedly kicked, struck and otherwise impeded until they reached the Government car in the street into which they placed Martin and also Heliczer and Nolan, whom they had arrested for assaulting them along the way. Martin, Heliczer and Nolan escaped from the car but were recaptured and again placed in the car. Smith then assaulted Agent Feldman and was arrested and placed in another car by other agents. The mob, however, surrounded the cars so that the agents could not leave with their prisoners until they were rescued by a detail of twenty to thirty New York City policemen.
Martin argues three principal points on his appeal: that his arrest was unlawful, that the agents were not engaged in the performance of their duties when they arrested him, and that the trial judge erroneously instructed the jury that it was irrelevant whether or not a particular defendant knew that the men arresting them were in fact federal agents.
The last of these three points is not actually in issue in Martin's case because he made a judicial admission that he knew who the agents arresting him were and that they were Federal Narcotics Agents.
With regard to the validity of the arrest, no claim is made by the Government that the agents had the power to make the arrest without a warrant pursuant to federal statute Title 26 U.S.C. § 7607 because that statute limits their authority to arrest to violations of the narcotics laws. The power to make the arrest here called into question derives from the New York State Code of Criminal Procedure, Chapter V § 183*fn2 which authorizes a private person to arrest one who has committed a felony. The trial judge properly left it to the jury to find whether or not Martin's felonious act of threatening Cutler with death actually took place. The proof in support of this rested upon Agent Jensen's testimony about Cutler's report to him that Martin had threatened him in that manner and upon Martin's own admissions to Agents Jensen and Feldman that he had done so. The court left it to the jury to determine whether or not Martin said what the agents in testifying about the admission reported that he said and whether it constituted a threat to Cutler. The charge was proper in this respect; and, although Martin now raises an objection to it, he took no exception to that part of the charge at the trial and there is no reason to consider it for the first time on appeal.
Appellant's argument that the agents were not "engaged in * * * the performance of [their] duties" is closely allied to the point already mentioned concerning the unlawfulness of the arrest. It is his claim that if the arrest was unlawful, the agents were not engaged in performing their official duties, and Martin had a right to resist. Defense counsel excepted to the court's charge on this essential element of an offense under § 111 without giving any reason for doing so, as required by Rule 30 F.R.Crim.P., and therefore it cannot be assigned as error. It is apparent, however, that the appellant assumes that the scope of the agents' official duties is co-extensive with their power to arrest. But this is not so. Their official duties may cover many functions which have nothing whatever to do with making arrests. It is true that from time to time in appropriate circumstances they may have a duty to make an arrest, but their power to make it is not a natural incident derived from the catalogue of their duties but must be separately granted by the act of a sovereign. Moreover, the sovereign granting it may be a different one from that which prescribes their duties, as in the present case. "Engaged in * * * performance of official duties" is simply acting within the scope of what the agent is employed to do. The test is whether the agent is acting within that compass or is engaging in a personal frolic of his own. It cannot be said that an agent who has made an arrest loses his official capacity if the arrest is subsequently adjudged to be unlawful. An analogous claim as made in United States v. Montanaro, 362 F.2d 527, 528 (2 Cir. 1966) and was rejected by this court.
The charge of the court on this element of the offense was as follows:
"The Government must also prove beyond a reasonable doubt other elements as to each defendant. They must prove beyond a reasonable doubt that * * * the agents of the Federal Bureau of Narcotics were engaged in the performance of their official duties.
It is not disputed here that these men, these agents, at the time of the offense were agents and employees of the Federal Bureau of Narcotics.
It is further undisputed that at the time of the arrests these men were attempting to arrest, and eventually did arrest, the defendant Jack William Martin. If you find that the defendant Martin had prior to August 11, 1965 threatened the Government informant and that the agents were effecting Martin's arrest for having made such a threat, then I charge you that these agents were then and there performing their official duty."
This portion of the charge is actually too favorable to the defendants because it went a long way toward equating the area of official duty with the boundaries within which an arrest could lawfully be made. It plainly instructed the jury that if they found that Martin had committed the felony of threatening a Government informant and the agents were in the process of arresting Martin for that felony, they would be performing their official duty. In other words, the court in effect said it is of this that "performance of official duty" consists for the purpose of this case. Consequently, in the event that the jury found that the Government had not proved beyond a reasonable doubt that Martin had committed the felony, the essential element of engaging in the performance of their official duties would ...