United States District Court, S.D. New York
November 5, 2004.
UNITED STATES OF AMERICA
EVA C. TEMPLE, Defendant.
The opinion of the court was delivered by: DENNY CHIN, District Judge
On March 5, 2003, two New York City police detectives arrested
defendant Eva C. Temple for threats she had made toward her
landlord. Temple was an employee of the Internal Revenue Service
(the "IRS"), and the detectives arrested her at IRS offices in
Manhattan. During the course of the arrest and as the detectives
were transporting Temple to a police precinct in Queens, she
threatened to initiate an audit of their tax returns.
On May 2, 2003, the IRS fired Temple for unrelated employment
problems. On June 12, 2003, Temple left a threatening voicemail for the IRS employment specialist who had handled her
Temple was indicted in this case for these incidents. Count 1
charges her with willful oppression under color of law, for her
conduct in threatening the detectives with an audit. Count 2
charges her with forcible interference with a federal employee
engaged in official duties, for the threatening voicemail she
left for the IRS employment specialist.
On July 14, 2004, a jury convicted Temple on both counts.
Before the Court is Temple's motion pursuant to Fed.R. Crim. P.
29(c)(2) for a judgment of acquittal as to both counts.
Alternatively, Temple moves for a new trial pursuant to
Fed.R.Crim. P. 33.
For the reasons that follow, the Rule 29(c)(2) motion is
granted as to Count 1 and both motions are denied as to Count 2.
STATEMENT OF THE CASE
The facts are construed in the light most favorable to the
Government. See United States v. Hamilton, 334 F.3d 170, 179
(2d Cir. 2003).
1. Temple's Arrest
On March 5, 2003, two detectives from the New York City Police
Department arrested Temple while she was working as a program
analyst at an IRS office in Manhattan. (Tr. at 20-21; GX 6).*fn1 Temple was arrested pursuant to a charge of
aggravated harassment following allegations that she threatened
her landlord with "physical harm and death." (Id. at 22). The
arresting detectives attempted to contact Temple and allow her to
voluntarily surrender, but after "numerous" unsuccessful attempts
the detectives decided to arrest Temple at her place of
employment. (Id. at 22-23). When the detectives took Temple
into custody, she became "very violent" and "abusive." (Id. at
25). As a result of Temple's behavior, the detectives handcuffed
her and forcibly escorted her from the building and placed her in
their vehicle. (Id. at 24-26).
In the vehicle, Temple continued to be abusive and belligerent
towards the officers, kicking the detective who was in the back
seat with her. (Id. at 26). During the ride to the precinct in
Queens Temple told the detectives that she was "an IRS employee
and . . . had the ability to initiate investigations and audits
into [their] tax histories." (Id.). She also stated that "there
were a number of brothers and sisters who held a grudge against
the NYPD and would be willing to do the same on her behalf" and
that she was part of a "group of militant black IRS employees
employed at the IRS . . . that hate [the] NYPD" and that she
would contact these "militants" to initiate an audit of the
detectives because of her arrest. (Id. at 26, 36). At the
precinct, Temple continued to act irrationally and make comments to the officers, some of which caused the officers to laugh.
(Id. at 43, 45). Eventually, the officers contacted the police
emergency services unit. (Id. at 43-44). The emergency services
unit considered using a Taser gun to subdue Temple and eventually
took Temple to a psychiatric hospital for evaluation and
treatment. (Id. at 44). Temple did not cause any audits to be
2. Temple's Dismissal from the IRS and Threat to
In late 2002, IRS Senior Labor Relations Specialist James
Petherbridge was contacted by Temple's supervisor about an
incident involving Temple in Philadelphia. (GX 4; Tr. at 55-57).
Petherbridge's responsibilities at the IRS included, among other
things, assisting IRS management with administrative issues such
as employee removals. (Tr. at 54). In the Philadelphia incident,
as Petherbridge learned in his investigation, Temple confronted a
federal protective service officer when she was asked to display
photo identification after she set off a magnetometer at an IRS
office. (Tr. at 66; GX 4). After placing her photo identification
"within an inch of the officer's face," Temple left the building,
only to return a short time later and berate the officer by
cursing and insulting him. (GX 4).
This incident, along with three other episodes of "disruptive
behavior and insubordination" for which she was suspended, caused
Petherbridge to recommend to Temple's superiors in December 2002
that she be fired. (Id.; Tr. at 64-72). During Petherbridge's continuing investigation thereafter, he also
learned about the circumstances surrounding Temple's March 5,
2003 arrest described above, including Temple's physical and
verbal assaults on the arresting officers. (Tr. at 69-70).
Temple was fired from the IRS effective May 2, 2003. (Id. at
73; GX 5). Following her dismissal, Temple failed to return her
IRS identification badge as required. (Tr. at 73-74; GX 7). On
June 12, 2003, Petherbridge received a telephone call from a bank
officer seeking to verify Temple's identity. (Tr. at 75).
Apparently, Temple was using her IRS identification at the bank.
(Id.). Petherbridge was able to identify Temple because he
heard her "yelling in the background." (Id.). Petherbridge then
asked the bank representative to confiscate Temple's IRS
identification. (Id.). The bank representative was not able to
do so because Temple's identification had already been returned
to her. (Id.).
That afternoon, at approximately 5:12 p.m., Temple left a
voicemail for Petherbridge on the IRS messaging system. (GX 1;
Tr. at 53, 76-77). The following morning, June 13, 2003,
Petherbridge played the voicemail and heard the following message
left by Temple in an angry and hostile voice: "yeah, you faggot
ass bitch ass stupid faggot fuck. I'm gonna fuck you up, you
faggot bitch." (Id. at 76-77; GX 1).
After listening to the voicemail, Petherbridge testified he was
"basically petrified" and "immediately" contacted a special agent
for the Inspector General for Tax Administration at the Department of the Treasury to report the
incident. (Id. at 77, 111). Petherbridge testified that he did
not know where Temple was when he received the voicemail and "was
afraid and had lunch the next week in [his] office because [he]
was really afraid to go out." (Id. at 78). Petherbridge
testified that he was afraid because he "was well aware of
[Temple's] actions when she was arrested, her beating up the
detectives in the car and the fact that she had threatened to
hurt or kill her former landlord and child. So that led [him] to
have great concerns about [his] own safety." (Id.).
B. Prior Proceedings
The July 3, 2003 Indictment in this case contains two counts.
Count 1 charges Temple with willfully oppressing a person under
color of law by threatening two New York City police detectives
with an IRS audit in retaliation for arresting her, in violation
of 26 U.S.C. § 7214. Count 2 charges that Temple forcibly
assaulted, resisted, opposed, impeded, intimidated, or interfered
with an officer or employer of the United States while engaged in
or on account of the performance of his official duties, in
violation of 18 U.S.C. § 111.
Trial commenced on July 12, 2004. At the close of the
government's evidence, Temple moved pursuant to Rule 29 for an
acquittal on both counts of the indictment. I reserved decision.
Temple did not put on a defense case, and following Temple's
conviction on both counts, Temple renewed her motion for acquittal and also moved pursuant to Rule 33 for a new trial. The
parties briefed both motions and presented oral argument.
I begin by discussing the standards applicable to post-trial
motions in criminal cases. I then discuss each count in turn.
A. Fed.R. Crim. P. 29 & 33
Rule 29 provides that:
[T]he court on motion of a defendant or of its own
motion shall order the entry of judgment of acquittal
of one or more offenses charged in the indictment or
information after the evidence on either side is
closed if the evidence is insufficient to sustain a
conviction of such offense.
Fed.R. Crim. P. 29(a). "A conviction must be upheld if, after
viewing the evidence in the light most favorable to the
Government, and drawing all reasonable inferences in its favor,
`any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'" United States
v. Medina, 944 F.2d 60
, 66 (2d Cir. 1991) (quoting Jackson v.
Virginia, 443 U.S. 307
, 319 (1979)). Therefore, a jury's verdict
will be affirmed "so long as, from the inferences reasonably
drawn, the jury might fairly have concluded guilt beyond a
reasonable doubt." United States v. Hamilton, 334 F.3d 170
(2d Cir. 2003); see also United States v. Nersesian,
824 F.2d 1294
, 1324 (2d Cir. 1987) ("A jury's verdict will be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it."). Pursuant to Fed.R. Crim. P. 33, a court may grant a
defendant's motion for a new trial "if the interests of justice
so require." A new trial is to be granted only "in the most
extraordinary circumstances." United States v. Locasio,
6 F.3d 924
, 949 (2d Cir. 1993). The defendant bears the burden of
proving that this extraordinary remedy should be granted, see
United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995), and
the decision to order a new trial rests within the discretion of
the trial judge. See United States v. Sanchez, 969 F.2d 1409
1413 (2d Cir. 1992).
B. Count 1
1. 26 U.S.C. § 7214(a)(1)
Count 1 of the indictment charges Temple with willfully
oppressing a person under color of law, in violation of
26 U.S.C. § 7214(a)(1). The statute provides:
Any officer or employee of the United States acting
in connection with any revenue law of the United
States (1) who is guilty of any extortion or
willful oppression under color of law . . . shall be
dismissed from office or discharged from employment
and, upon conviction thereof, shall be . . .
imprisoned not more than five years.
26 U.S.C. § 7214(a)(1). To prove a violation of § 7214(a)(1), the
government must prove the following three elements: first, at the
time of the acts alleged, the defendant was an officer or
employee of the United States; second, the defendant was acting
in connection with a revenue law of the United States; and third, the defendant willfully oppressed a person under color of law.
(Tr. at 192).*fn2
Here, there was no real dispute as to the first element: Temple
was an employee of the IRS. Although there was more of a dispute
as to the second element, a reasonable jury could have found that
Temple was acting in connection with the revenue laws because her
threat to the detectives involved IRS audits. The real issue is
the third element: whether Temple willfully oppressed the
detectives under color of law.
2. Willful Oppression Under Color of Law
a. Applicable Law
The parties have not cited, and the Court's own research has
not found, any reported decision in a case involving a conviction
under 26 U.S.C. § 7214(a)(1) for "willful oppression." There are
some civil cases in which plaintiffs unsuccessfully argued for a
private cause of action for damages under § 7214(a)(1), and there
are some decisions addressing convictions under other parts of §
7214(a), including, for example, cases involving fraud and the
acceptance of a gratuity. But there is simply no case law
interpreting "willful oppression under color of law" in the
context of criminal charges under § 7214(a)(1). Hence, we look
elsewhere for guidance. Willfully in the context of this statute means that the
defendant acted voluntarily with the specific intent to oppress a
person in connection with the revenue laws of the United States.
(Tr. at 192). See, e.g., Leonard B. Sand et al., Modern
Federal Jury Instructions, Instr. 17-7 (2004).
Oppression means conduct intended to harm, frighten, or inhibit
the free action of another person. Id., Instr. 17-4 (defining
color of law as used in 18 U.S.C. § 242 defining the deprivation
of civil rights). Oppression should be "taken in its ordinary
sense, which is an act of cruelty, severity, unlawful extraction,
domination, or excessive use of authority." United States v.
Deaver, 14 F. 595, 597 (W.D.N.C. 1882).
The color of law requirement is interpreted broadly. United
States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999); see also
United States v. Classic, 313 U.S. 299, 326 (1941). A person
acts under color of law by misusing power, "possessed by virtue
of state [or federal] law and made possible only because the
wrongdoer is clothed with the authority of state [or federal]
law." Id. The "relevant question" when determining whether an
action was under color of law "is not whether the [action] was
part of the defendant's official duties but, rather, whether the
[action] was `made possible only because the wrongdoer is clothed
with the authority of state [or federal] law.'" Walsh,
194 F.3d at 51 (quoting Classic, 313 U.S. at 326); see also Monsky
v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997). "Section 7214
imposes sanctions on revenue agents for departures from the high standards of conduct demanded of those holding that office. Quite
realistically, some of those derelictions may be committed
outside the performance of the officer's official duties."
United States v. Stern, 418 F.2d 198, 199 (2d Cir. 1969).
"Whether a government employee is acting under color of law is
not always an easy call, especially when the conduct is novel."
Gritchen v. Collier, 254 F.3d 807, 813 (9th Cir. 2001).
Although case law construing "under color of law" under § 7214 is
scarce, "[c]ourts have had frequent occasion to interpret the
term `color of law' for the purposes of § 1983 actions."
Pitchell v. Callan, 13 F.3d 545, 547-548 (2d Cir. 1994). These
cases require that courts look beyond the actual duty status of
the actor to "the nature of the officer's act." Id. at 548.
Color of law analysis should inquire whether the action was
"committed in the performance of any actual or pretended duty."
Id. (quoting Bonsignore v. City of New York, 683 F.2d 635,
639 (2d Cir. 1982) (quoting Johnson v. Hackett,
284 F. Supp. 933, 937 (E.D. Pa. 1968))).
I conclude that no reasonable jury could have found that Temple
willfully oppressed the detectives under color of law. Looking at
the nature of Temple's acts, I conclude that the jury's verdict
of guilty on Count 1 must be set aside, for no reasonable jury
could have found that the government had proven the third element
beyond a reasonable doubt. Although Temple clearly acted willfully in an attempt to
interfere with the detectives' efforts to arrest her and
transport her to the precinct, her actions were not "clothed"
with authority and she was not acting under "color of law" in any
meaningful sense. Her tantrum was not part of the performance of
any actual or pretended duty, and she was not empowered
actually or even apparently to punish the officers for
To the contrary, Temple had no power or authority, and it was
clear in the circumstances here that she did not. Indeed, she had
already been placed under arrest and handcuffed. She engaged in
an incoherent outburst and eventually was treated as an
emotionally disturbed person: a police department emergency
services unit was summoned, and the unit considered using a Taser
gun to subdue her. The officers were laughing at Temple and
eventually they took her to a psychiatric hospital for evaluation
and treatment. Throughout this series of events, Temple called
one of the detectives by the wrong name.
Moreover, as early as December 2, 2002, some four months
earlier, Temple had been put on notice that the IRS was proposing
to "remove" her from service, and she had previously been
progressively disciplined for other incidents with one-day,
nine-day, and then 14-day suspensions. (GX 4). Clearly, her
employment was precarious even before the detectives arrested
her. Finally, although the record shows that Temple was employed
at the IRS as a "program analyst," the record contains no description of her duties (see id.; Tr. at 32), and there
simply was no factual basis in the record for a jury to conclude
that Temple had the power or ability to initiate an audit of the
detectives' tax returns.*fn3
Under these circumstances, no reasonable jury could have
concluded that Temple abused her power as an IRS employee to
willfully oppress the detectives when, in the course of her
emotional, incoherent reaction to being arrested, she threatened
them with a tax audit.
Temple's motion under Fed.R. Crim. P. 29(c)(2) for a judgment
of acquittal as to Count 1 is granted and the jury's verdict as
to Count 1 is overturned.*fn4
C. Count 2
1. 18 U.S.C. § 111
Count 2 charges that Temple forcibly assaulted, resisted,
opposed, impeded, intimidated, or interfered with an officer or employer of the United States engaged in or on account
of the performance of his official duties, in violation of
18 U.S.C. § 111. The statute provides: "[w]hoever forcibly assaults,
resists, opposes, impedes, intimidates, or interferes with any
[officer or employee of the United States] while engaged in or on
account of the performance of official duties . . . shall . . .
be imprisoned not more than five years." 18 U.S.C. § 111.
To prove a violation of § 111, the government must prove four
elements: first, the targeted individual was a federal officer or
employee; second, the defendant forcibly assaulted, resisted,
opposed, impeded, intimidated, or interfered with the federal
officer or employee; third, the defendant acted knowingly and
willfully; and fourth, the federal officer or employee was
engaged in the performance of his official duties or that the
assault or interference occurred on account of the performance of
his official duties. (Tr. at 195). See Leonard B. Sand et
al., Modern Federal Jury Instructions, Instr. 14-2 (2004).
Here, there was no real dispute as to the first, third, and
fourth elements. The disputed element was the second element:
forcible assault or intimidation of or interference with a
federal officer or employee. 2. Forcible Assault, Intimidation, or Interference
a. Applicable Law
Congress intended § 111 to "deter harm to certain federal
officials and to deter interference with their law enforcement
activities." United States v. Walker, 835 F.2d 983, 987 (2d
Cir. 1987). The standard for determining whether the requisite
degree of force was displayed is an objective one: "whether the
defendant's behavior would reasonably have inspired fear in a
reasonable person." Id.
The term "forcibly" in § 111 does not require actual use of
force. Id. The threat of force is sufficient. Id. The force
element of § 111 may be satisfied by proof that there was such a
threat or display of physical aggression toward the officer as to
inspire fear of pain, bodily harm, or death. Id. If the force
element is to be established by proof of a threat rather than by
proof of actual touching, the threat must be of "immediate harm,"
or "imminent bodily harm," not at some point in the indefinite
future. Id. ("[I]mplied threat of the use of force sometime in
the indefinite future would not suffice to violate § 111.");
United States v. Bamberger, 452 F.2d 696, 699 (2d Cir. 1971);
see also Cunningham, 509 F.2d at 963 ("Threats of future
use of force are not enough."). Hence, the Second Circuit has
suggested that the threat "I will get you after work" is not
sufficient to meet the requirements of § 111. Walker,
835 F.3d at 988. Of course, the line between "immediate" or "imminent"
harm and future harm is not always clear. See United States
v. Cunningham, 509 F.2d 961, 963 (D.C. Cir. 1975) ("Whether a
person has opposed the efforts of federal agents with sufficient
force to engage the statute can thus be a troublesome question of
The common law meaning of "simple assault" is a crime
"committed by either a willful attempt to inflict injury upon the
person of another, or by a threat to inflict injury upon the
person of another which, when coupled with an apparent present
ability, causes a reasonable apprehension of immediate bodily
harm." United States v. Chestaro, 197 F.3d 600, 605 (2d Cir.
1999) (quoting United States v. Johnson, 637 F.2d 1224, 1242 n.
26 (9th Cir. 1980)). "Because Congress was silent as to the
meaning of `simple assault' when it adopted § 111," the common
law definition applies. Id.
Temple moves to set aside the conviction on Count 2 principally
on the argument that the jury could not have reasonably found a
threat of "immediate harm" because her threat was in the form of
a voicemail message. Indeed, Temple has cited numerous cases
holding that a telephone threat is not grounds for an action for
assault. (Def. Mem. 7-8). These cases conform to the concept that
a telephone call or voicemail lacks the immediacy required for
common law assault. See Alter v. Lawlor, No. CV990591658S,
2003 WL 1090630, *1 (Conn.Super., Feb. 27, 2003) (holding a
telephone call is not grounds for an action for assault, because
it lacks the requisite "imminence"). The government, on the other hand, cites a case holding that a
telephone threat was properly charged as an assault. See State
v. Smith, 95 P.3d 137 (Mont. 2004). Actions for assault based on
a telephone call or voicemail typically fail because they lack
immediacy. That is not to say, however, that a bright line rule
exists, for under certain circumstances immediacy will be present
even when the threat is conveyed via a telephone call or
Here, even assuming a telephone call or voicemail message
cannot be the basis for an assault finding as a matter of law,
Temple's argument in this respect must be rejected. Section 111
criminalizes more than assault; it also criminalizes forcibly
resisting, opposing, impeding, intimidating, or interfering with
an officer or employer of the United States while engaged in or
on account of the performance of his or her official duties.
See United States v. Henderson, 770 F.2d 724, 730 (8th Cir.
1985) (affirming conviction under § 111 even though evidence did
not establish an assault against postal officer because there was
"ample evidence to sustain a conviction on the basis [the
defendant] willfully and forceably [sic] impeded, intimidated and
interfered with a United States mail carrier."). In other words,
§ 111 can be violated even in the absence of an "assault."
Ultimately, the issue is whether the government's evidence
showed that Temple forcibly intimidated or interfered with
Petherbridge in or because of the performance of his duties. That
turns, in part, on whether the voicemail left by Temple posed an immediate or imminent threat to Petherbridge. Under the
totality of circumstances in this case, this requirement was met.
See Cunningham, 509 F.2d at 963.
First, as the evidence showed, Temple's threat was to cause
immediate or imminent harm. A reasonable jury could find that the
words "I'm gonna fuck you up, you faggot bitch" (as opposed to
the words "I will fuck you up" or "I'm gonna fuck you up after
work") were expressing an immediate or imminent threat. This is
particularly so in view of the following circumstances: the angry
harsh tone of the message; the sense of immediacy in Temple's
voice; her knowledge of where Petherbridge's office was located;
her ability to gain access to the building (she still had her IRS
credentials); and the timing of the telephone call (i.e., the
same day that Temple tried unsuccessfully to use her IRS
credentials at a bank). Indeed, a reasonable jury could have
found that Temple might very well have been in the building or
across the street or somewhere else nearby, waiting for
Petherbridge to leave work at the close of the business day, when
she placed the telephone call.
Second, the evidence showed that Petherbridge was actually
intimidated by the voicemail. Petherbridge was "petrified" and he
believed that he was in immediate danger of Temple assaulting or
interfering with him. 18 U.S.C. § 111; (Tr. at 77). Petherbridge
was intimately aware of Temple's past; he knew of the
Philadelphia incident, where Temple left and then returned and
berated a security officer after an initial altercation. (GX 4; Tr. 78). He also knew that Temple still had
her IRS credentials and was aware that Temple had not only
threatened violence in the past, but had engaged in violence
against others. (GX 4; Tr. 78). Moreover, given Petherbridge's
prior knowledge about Temple, it was objectively reasonable for
him to be afraid that he was in imminent danger from Temple.
See Walker, 835 F.2d at 987 ("The proper standard for
determining whether the requisite degree of force was displayed . . .
is an objective one, i.e., whether the defendant's behavior
would reasonably have inspired fear in a reasonable
Third, Temple's actions are clearly the type of conduct § 111
seeks to prevent. The statute prohibits "any acts or threats of
bodily harm that might reasonably deter a federal official from
the performance of his or her duties." Walker, 835 F.2d at 987.
Petherbridge was deterred. He testified at trial that he was
afraid to go out for lunch for at least a week because of the
voicemail, combined with what he knew about Temple's violent
past. The jury could have reasonably found that this intimidation
was precisely what Temple intended when she left the voicemail. Petherbridge was doing his job both in his
investigation of Temple and when he requested that the bank
officer confiscate Temple's IRS credentials. By leaving the
voicemail, Temple clearly was seeking to punish Petherbridge for
his performance of his duties in the past or to intimidate him as
he continued to deal with Temple's dismissal in the future.
The Supreme Court in Ladner discussed the hypothetical
situation of an individual locking a door of a building to
prevent the entry of officers intending to carry out an arrest as
being "an act of hindrance denounced by the statute." Ladner,
358 U.S. at 176. The officers in that hypothetical would not have
been concerned for their personal safety necessarily, but § 111
nonetheless applied, for the statute criminalizes forcibly
impeding or interfering with federal officials. The point is that
§ 111 is not limited to assault cases. There is nothing in the
legislative history to suggest otherwise.
At one point during its deliberations, the jury sent out a note
asking whether it was enough if the threat was to harm
Petherbridge "as soon as possible." (Ct. Ex. 3; Tr. at 218). In
response, I instructed the jury as follows:
For the government to prove this element, it must
prove such a threat or display of physical aggression
towards Mr. Petherbridge as to inspire fear of pain,
bodily harm, or death. The threat must be of
immediate harm. What do I mean by immediate harm? I
mean a present, real, concrete, definitive, and
explicit threat of bodily harm rather than a
speculative, vague, or indefinite threat, or an
implied threat to use force sometime in the
indefinite future. The government must prove beyond a
reasonable doubt that the threat of bodily harm must have been so real and
concrete that it would have inspired fear in a
reasonable person of imminent bodily harm.
(Tr. at 229-30). The evidence was sufficient for the jury to
conclude that the threat was present, real, concrete, definitive,
and explicit, and not just speculative, vague, or indefinite, and
"that imminent bodily harm would have been feared by a reasonable
person standing in [Petherbridge's] shoes." See Walker,
835 F.2d at 987. The jury's verdict as to Count 2 of the indictment
For the foregoing reasons, Temple's Rule 29 motion is granted
as to Count 1 and denied as to Count 2, and her Rule 33 motion is
moot as to Count 1 and denied as to Count 2. A judgment of
acquittal is ordered as to Count 1. Temple will be sentenced on
Count 2 on December 15, 2004, at 4:30 p.m.