United States v. Hertular
562 F.3d 433, 2009 WL 902345, 2009 U.S. App. LEXIS 7156 (2009)
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Rule of Law:
To sustain a conviction for forcibly impeding or intimidating a federal officer under 18 U.S.C. § 111 based on a threat, the government must prove the threat instilled an objectively reasonable apprehension of immediate harm, which requires evidence of the defendant's apparent present ability to inflict the injury.
Facts:
- Robert Hertular, a known drug trafficker in Belize, had prior contact with DEA Agent Vincent Williams in 2001 after being charged with trafficking.
- On April 11, 2003, after being followed by Agent Williams, Hertular told the agent he was 'willing to kill a DEA agent'.
- Separately, Hertular offered a confidential informant, Liston McCord, hand grenades to 'get rid of' DEA agents who were surveilling McCord's home.
- On December 25, 2003, Hertular arranged a meeting with Agent Williams and DEA Agent Raymond Kelly, demonstrating knowledge of their investigation by playing a recording of one of their intercepted phone calls.
- During this meeting, Hertular demanded the agents stop their investigation and told them to 'watch [their] backs, because the Fonseca organization would hire hit men from Colombia or Mexico to take [the agents] out.'
- At the time of this threat, Hertular was not armed and did not indicate he was contemplating any immediate action against the agents.
Procedural Posture:
- A grand jury in the U.S. District Court for the Southern District of New York returned an indictment charging Robert Hertular with multiple offenses.
- At the request of the United States, Belizean authorities arrested Hertular and extradited him to New York.
- Hertular was tried in the district court on a superseding indictment.
- On March 1, 2006, a jury found Hertular guilty on four counts, including forcibly impeding a federal officer and obstruction of justice.
- The district court sentenced Hertular to a term of 400 months in prison.
- Hertular, as appellant, appealed his convictions for impeding an officer and obstruction of justice to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a defendant's threat to have federal agents killed by hitmen in the future, made without any display of a weapon or other indication of an apparent present ability to inflict injury, satisfy the 'force' element of 18 U.S.C. § 111?
Opinions:
Majority - Judge Raggi
No. A threat against a federal officer does not satisfy the 'force' element of 18 U.S.C. § 111 unless it creates an objectively reasonable apprehension of immediate harm, which was absent here. The court's precedent establishes that for a threat to be considered 'forcible,' it must be coupled with an 'apparent present ability' to inflict injury. Hertular’s threat, while serious, was conditional upon the continuation of the DEA's investigation and pointed to future harm to be carried out by third parties ('hit men from Colombia or Mexico'). Because the threat involved future actions and Hertular showed no present ability to harm the agents, it was analogous to a threat of future harm, like 'I will get you after work,' which the court has previously indicated is insufficient. Therefore, the evidence was insufficient to support the conviction under § 111, even though the conduct may have violated other statutes like 18 U.S.C. § 115 which do not contain a 'force' element.
Analysis:
This decision narrowly construes the 'force' element of 18 U.S.C. § 111, creating a clear distinction between general threats and those that constitute forcible intimidation. By emphasizing the requirement of an 'apparent present ability' to inflict 'immediate' harm, the court limits the statute's application in cases involving threats alone. This ruling effectively directs prosecutors to use other statutes, such as 18 U.S.C. § 115, when charging defendants for threats of future violence against federal officers. It reinforces that the statutory language of 'forcibly' is a meaningful limitation that requires more than just words, however menacing.
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