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Tiffany A. Harris OSB 02318

Attorney at Law
333 SW Taylor St., Suite 300
Portland, Oregon 97204
t. 503.782.4799
tiff@harrisdefense.com
Standby Counsel for Shawna Cox
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
SHAWNA COX.
Defendant.

3:16-CR-00051-BR-7
OPPOSITION TO
GOVERNMENTS REQUEST
FOR JUDICIAL NOTICE
REGARDING OFFICERS AND
EMPLOYEES OF THE UNITED
STATES

Defendant Shawna Cox, through standby counsel, and on behalf of all defendants
similarly charged, submits the foregoing Memorandum of Law opposing the Governments
request for judicial notice regarding the disputed designation of employees of the United States
Fish and Wildlife Service and Bureau of Land Management as officers for purposes of 18
U.S.C. 372. Even if Judicial Notice were the proper way for the Court to resolve this
foundational dispute about statutory construction, the Governments request should be denied
because it is at odds with the text, context, and legislative history of 18 U.S.C. 372.
I.

Procedural History

On March 8, 2016, the Government secured a superseding indictment charging

defendants, in count 1, with Conspiracy to Impede Officers of the United States under 18
U.S.C. 372. The indictment alleges, [o]n or about November 5, 2015 and continuing through
February 12, 2016, in the District of Oregon, defendantsdid knowingly and willfully
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conspireto prevent by force, intimidation, and threats, officers and employees of the United
States Fish and Wildlife Service and the Bureau of Land Managementfrom discharging the
duties of their office at the Malheur Wildlife Refuge and other locations in Harney County,
Oregon, in violation of U.S.C. 372. (Emphasis Added.)
On April 27, 2016, defendants filed a motion to dismiss count 1 as void for vagueness. In
that motion, defendants noted, [t]he government appears to assume that the statute prohibits
interference with any federal employee conducting any part of her job and that there is no
difference between an officer of the United States and an employee of any agency of the United
States.
On June 15, 2016, defendants offered proposed jury instructions defining the terms
officers of the United States and Federal officers as persons appointed by the President of
the United States and confirmed by the Senate and excluding regular employees of the United
States government who were not appointed to their position by the President. The Government
opposed these definitions, stating: It is the governments position that the term officers of the
United States means any federal employee or designated contractor performing their officially
assigned or designated duties.
On July 29, 2016, the Government submitted a 33-page trial brief. On page 33, the
Government asks the Court to take judicial notice that employees of the United States
Department of the Interior, including the Fish & Wildlife Service and the Bureau of Land
Management, are officers of the United States. Other than to assert that the request falls well
within this Courts authority under Red. R. Evid. 201, the Governments trial brief cites no case
law, legislative history or other authority for its request. None of the cases cited in the
governments earlier filings (specifically, the joint statement on proposed jury instructions)
construe the term officer or examine its meaning in light of the text, context and legislative
history of 18 U.S.C. 372.
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In 2012, there were 2.13 million members of the federal executive workforce.1 That
figure swells to approximately 4.4 million when postal service employees and employees of the
legislative and judicial branches of government are included.2 The prosecution asserts that all of
these employees, plus unknown numbers of designated contractors are actually officers for
purposes of Conspiracy to Impede Officers of the United States-- the offense charged in count
1 of the Indictment, under 18 U.S.C. 372. The prosecution insists that employees can be
officers, and that the Court can take judicial notice of this dual designation, despite the fact
that the word employee appears nowhere in the language of the statute, was never part of the
legislative history, and is specifically mentioned in other statutes, where Congress clearly
contemplated employees and intended to criminalize interference with or harm to employees of
the federal government. See, e.g., 18 USC 111 (Assaulting, Resisting, or Impeding Certain
Officers or Employees); 18 USC 1114 (Protection of Officers and Employees of the United
States).
II.

Historical Background of 18 U.S.C. 372

The unique historical background leading to the enactment of 18 U.S.C.

372 gives critical meaning to its text, context, and evolution. President Lincoln signed the bill
into law in July of 1861, three months after the outbreak of the Civil War. It provides:
If two or more persons within any state or territory in the United States shall
conspire together to overthrow, or to put down, or to destroy by force, the
Government of the United States, or to levy war against the United States, or to
oppose by force the authority of the Government of the United States; or by force
to prevent, hinder, or delay the execution of any law of the United States; or by
force to seize, take or possess any property of the United States against the will or
contrary to the authority of the United States; or by force, or intimidation or
threat to prevent any person from accepting or holding any office, trust or
place of confidence, under the United States; each and every person so
offending shall be guilty of a high crime andshall be punished by a fine not less
than $500 and not more than $5,000; or by imprisonmentnot less than six
1

2014 GAO Study: Recent Trends in Federal Civilian Employment, available at

http://www.gao.gov/assets/670/660449.pdf
2
Federal Computer Week, Counting Federal Employees is No Easy Task, September 13, 2012 (citing data from
the Office of Personnel Management).
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months nor greater than six years. (Emphasis Added.)

This wartime legislation did not reach lone wrongdoers accused of assaulting or
threatening a mere employee or functionary. The statute contemplates a far more serious
problem-- the secession, armed rebellion, and continued plotting to destabilize and overthrow the
government of the United States. By specifically targeting conspiracies, the statute equipped the
federal government with one of the most powerful tools in law enforcementthe ability to
prosecute organized groups for the act of planning or agreeing to undertake forbidden activity
before a substantive offense is completed, or even before there is a substantial step toward
completion. Presumably, more organized actors were more capable of inflicting harm upon
higher level officials, to whom presidential or federal authority had been delegated.
Opponents of the bill argued it was an unprecedented and improper means of relaxing the
standard of proof needed to mount prosecutions for treason and, therefore, would give, from the
uncertainty of the offense charged, and the proof requisite to sustain it, the utmost latitude to
prosecutions founded on personal enmity and political animosity and the suspicions as to
intention which they inevitably engender. 56 Cong. Globe, 37th Cong., 1st Sess. 277 (1861).
During Senate debate, radical republicans sponsoring the bill countered with examples of
conduct that did not constitute treason but posed a threat to the operations of the United States, as
carried out by its officers:
This bill provides punishment against persons who conspire together for the
purpose of seizing any property of the United States or who come together by
force or intimidation or threat to prevent any person from accepting or holding an
office under the Government of the United States Suppose a land officer in one
of our territories, where there is a great deal of excitement in regard to the entry of
public land, is driven off by settlers who are opposed to any sale of public lands;
suppose a number of settlers meet together and, by threats and intimidation, deter
the officer from performing his duty Not long ago, I think a case occurred
somewhere in the State of Missouri, where a number of persons, by threats of
violence and intimidation, prevented a postmaster from performing the duties of
his office. I think those persons ought to be punished but I dont suppose it was
treason on their part. Id.

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The incident involving the postmaster in Missouri, described during the Senate debate,
was widely reported when it occurred. The postmaster, John L. Bittinger, had been nominated
by President Lincoln and confirmed by the Senate earlier that year.3 Bittenger was stationed in an
area of Missouri that was evenly split between Union loyalists and southern sympathizers. In
May of 1861, when Bittenger refused to take down a union flag flying over his office, an armed
mob removed it, tore it to shreds, and chased Bittenger from his post at gunpoint.4
The language from the 1861 law reappeared ten years later, during Reconstruction, in the
Civil Rights Act of 1871. The Act added provisions concerning officers, and the duties of
their office, all of which continue to appear in the current version of 18 U.S.C. 372. The text
of the 1871 law never mentioned employees.
Relevant provisions of Section 2 of the Civil Rights Act of 1871 are as follows:
[I]f two or more persons within any State or Territory of the United States shall
conspire together to overthrow, or to put down, or to destroy by force the
government of the United States, or to levy war against the United States, or to
oppose by force the authority of the government of the United States, or by force,
intimidation, or threat to prevent, hinder, or delay the execution of any law of the
United States, or by force to seize, take, or possess any property of the United
States contrary to the authority thereof, or by force, intimidation, or threat to
prevent any person from accepting or holding any office or trust or place of
confidence under the United States, or from discharging the duties thereof,
or by force, intimidation, or threat to induce any officer of the United States
to leave any State, district, or place where his duties as such office might
lawfully be performed, or to injure him in his person or property on account
of his lawful discharge of the duties of his office, or to injure his person while
engaged in the lawful discharge of the duties of his office, or to injure his
property so as to molest, interrupt, hinder, or impede him in the discharge of
his official duty (Emphasis added.)
As part of the general revision and codification of the federal criminal code in 1909, a
new version of the criminal conspiracy statute was enacted. Congress stripped the language
concerning acts of war and insurrection against the United States and inserted provisions found
See, The Book of Missourians: The Achievements and Personnel of Notable Living Men and Women of Missouri in
the Opening Decade of the Twentieth Century, Van Nada and Steele, p. 299 (ed. 1906).
4
Chicago Tribune, The Grandest, Grittiest Road West, April 23, 1967.
3

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in the 1871 civil rights act. See, Act of March 4, 1909, ch. 321 35 Stat. 1088, 1092. Acts of
treason and insurrection were codified in different sections of the 1909 code. Id. at 1088. The
result was a criminal conspiracy statute that looks nearly identical to the one codified in 18
U.S.C. 372, prohibiting conspiracies to prevent persons from assuming an office or to
impede or interfere with an officer of the United States. Employees are not mentioned.
In 1948, Congress expanded the geographic scope of the criminal conspiracy statute to
include possessions of the United States. No language regarding officers was removed. No
language regarding employees was added. In 2002, Congress struck the words, not more
than $5,000 and added the words, under this title. There have been no subsequent
amendments.
As early as 1948, 18 U.S.C. 1114 outlawed the killing of any officer or employee of
the FBI, any officer, employee, agent or other person in the service of the customs or of the
customs office or IRS, along with various other officers, functionaries and employees of the
federal government.
Also as early as 1948, 18 U.S.C. 111 prohibited Assaulting, Resisting, or Impeding
Certain Officers and Employees. The statute provides: [w]hoever forcibly assaults, resists,
opposes, impedes, intimidates or interferes with any person designated in section 1114 of this
title while engaged in or on account of the performance of his official duties shall be fined and
imprisoned as specified in the act. The current version of section 1114 includes any officer or
employee of the United States or of any agency in any branch of the United States Government
(including any member of the uniformed services). 18 U.S.C. 1114.
III.

Text, Context, and Legislative History

In its current form, 18 U.S.C. 372 provides:

If two or more persons in any State, Territory, Possession, or District conspire to prevent,
by force, intimidation, or threat, any person from accepting or holding any office, trust, or
place of confidence under the United States, or from discharging any duties thereof, or to
induce by like means any officer of the United States to leave the place, where his duties
as an officer are required to be performed, or to injure him in his person or property on
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account of his lawful discharge of the duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede
him in the discharge of his official duties, each of such persons shall be fined under this
title or imprisoned not more than six years, or both.
In the over 150 years since the enactment of 18 U.S.C. 372, the statute has never
included the word employees. Congress amended it several times and enacted a related civil
rights law that now shares virtually identical language. In all of this time and through all of these
amendments, Congress has never tinkered with the cornerstone language concerning officers,
and it has never added the word employee or similar term. Yet, the Government has inserted
the term employee into the indictment, presumably inserted it into the presentation of its case
to the Grand Jury, and now seeks to insert it right into the language of the statute, through a gloss
of judicial notice. The Government cannot insert what Congress has omitted.
The statute proscribes certain conduct, all involving an office, officer and officer
discharging official duties or duties as an officer:

Conspiring (through force, threat or intimidation) to prevent a person from accepting

an office, trust, or place of confidence5 under the United States;

Conspiring to prevent a person from discharging any duties thereof;

Inducing by like means, any officer of the United States to leave the place where his
duties as an officer are required to be performed;

Injuring him or his property on account of his lawful discharge of the duties of his
office;

Causing him to be impeded in the discharge of his official duties.

Assuming an office under the United States is an act with constitutional significance.
Officers of the United States is a legal term of art. Article II, section 2 of the Constitution
provides that the President shall have the power, by and with the Advice and Consent of the

In this context, the terms trust and place of confidence have historical roots, though they do not appear to be
legal terms of art. One court construing a nearly identical phrase in North Carolinas State Constitution held that the
terms office and places of trust were interchangeable. Groves v. Barden, 169 NC 8, 9 (1915). In any case, the
terms have nothing to do with an employer-employee relationship.
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Senate, to make Treatiesand he shall nominate, and by and with the advice and consent of the
Senate, shall appoint, Ambassadors, other public Ministers and Consuls, Judges of the Supreme
Court, and all other Officers of the United States, whose appointments are not herein otherwise
provided for, and which shall be established by Law, but the Congress may by Law vest the
appointment of such inferior Officers, as they think proper. (Emphasis Added.) As set forth in
Article II, Clause 2, inferior officers need not be subject to the strictures of presidential
nomination and Senate confirmation. They can, consistent with Article II, Section 2, be
appointed by the President, alone, by the Courts of Law, or by the Heads of Departments.
But they must be appointed, or they are not officers. Additionally, an officer must exercise
significant authority pursuant to the laws of the United States. Buckley v. Valeo, 424 US 1,
125-126 (1976).6
Courts construing statutory language in the 19th century understood that that the terms
officer or officer of the United States were grounded in Article II, Section 2 and further
understood that those terms were diametrically opposed to employees and servants. For
example, in United States v. Germaine, 99 U.S. 508 (1878), the defendant was a surgeon, hired
by the federal Commissioner of Pensions to provide medical exams to pensioners. When he was
charged under an 1825 statute prohibiting Officers of the United States, from engaging in
extortion, he protested that he was not an officer within the meaning of Article II, Section 2.
The Supreme Court agreed, instructing:
This Constitution is the supreme law of the land, and no act of Congress is of
any validity which does not rest on authority conferred by that instrument.
It is, therefore, not to be supposed that Congress, when enacting a criminal law
for the punishment of officers of the United States, intended to punish any one not
appointed in one of those modes. If the punishment were designed for others than
officers as defined by the Constitution, words to that effect would be used, as
servant, agent, person in the service or employment of the government; and this
6

Buckley is the first in a line of modern cases that examines whether a federal official exercises such a degree of
authority, discretion and finality of decision-making thatabsent an appointmenthis actions are ultra vires.
Here, we believe the opposite to be truethat the claimed officers were mere employees, with varying degrees of
seniority and authority, but who lack the requisite appointment and were never intended by Congress to be
officers within the meaning of 18 U.S.C. 372.
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has been done where it was so intended, as in the sixteenth section of the act of
1846, concerning embezzlement, by which any officer or agent of the United
States, and all persons participating in the act, are made liable.7
The Supreme Court reached a similar conclusion in United States v. Perkins, 116 U.S.
483 (1886), where a Navy cadet challenged his discharge on the ground that he was an officer,
appointed by the Secretary of the Navy, and as such, he enjoyed the protection of a statute
limiting the Navys power to discharge an officer in the military or naval service during
peacetime. The Supreme Court adopted the lower courts reasoning that Congress has by
express enactment vested the appointment of cadet-engineers in the Secretary of the Navy, and
when thus appointed they become officers and not employs [sic].8
In a criminal context, a maxim to guide statutory construction is the rule of lenity.
United States v. Dorsey, 677 F3d 944, 957 (9th Cir. 2012). The rule advises that penal laws are
to be construed strictly. Id. To the extent that there is any ambiguity about Congress intent
with respect to the meaning of officers, the rule of lenity favors a reading of 18 U.S.C. 372
that provides fair notice of its terms and hues closely to its ordinary language. United States v.
Nosal, 676 F3d 854 (9th Cir. 2012) ([W]hen choice has to be made between two readings of
what conduct Congress has made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in language that is clear and definite.)
Ifgiven everything we know about the text, context, and legislative history of 18 U.S.C 372
officer could be a reasonable stand in for employee, then the language of the statute is
ambiguous enough to warrant application of the rule of lenity. Congress, through its own careful
drafting, has criminalized conspiracies to impede officers. The prosecution should not be
permitted to stretch that term beyond its ordinary meaning and legislative context for the sake of
expedient prosecution.
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7
8

United States v. Germaine, 99 U.S. at 510.

Perkins, 116 U.S, at 484.

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Conclusion
The Governments request for judicial notice rests upon a flawed interpretation of the
statute. The Court should deny it.
Dated, August 10, 2016.
Respectfully submitted,
/S/
Tiffany Harris
Tiffany A. Harris
Standby Counsel for Defendant Shawna Cox
Approved by,
/S/
Shawna Cox
Pro Se Defendant

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