United States v. Nelson

579 F.Supp.3d 1251

UNITED STATES of America, Plaintiff,

v.Robert Benjamin NELSON, Defendant.

1:20-cr-01864-KWR

United States District Court, D. New Mexico.

Filed January 6, 2022

Paul Mysliwiec, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

Devon Fooks, Public Defender, Federal Public Defender, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

KEA W. RIGGS, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States’ Motion to Determine Federal Officer Status (Doc. 36 ). On October 20, 2021, the Court conducted an evidentiary hearing on the motion, and the parties submitted written closing arguments. Having reviewed the pleadings, and heard oral argument and testimony at the hearing, the Court finds that the Government's motion is well-taken and, therefore, is GRANTED .

BACKGROUND

Defendant Nelson faces two charges: (1) attempted murder of a United States employee or officer, 18 U.S.C. § 1114, and (2) discharge of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii), in connection with allegedly shooting Officer S.D. on September 12, 2020.¹ Doc. 1 .

Officer S.D.² is a full-time New Mexico State Police ("NMSP") officer. A Memorandum of Understanding ("MOU") exists between the NMSP and the U.S. Immigration and Customs Enforcement. See Gov't Ex. 2, at 1 . Under this MOU, Homeland Security Investigations ("HSI"), the investigative arm of Immigration and Customs Enforcement, agreed to designate certain NMSP officers as federal Customs Officers, also called Task Force Officers, without any additional compensation. Id. HSI has the authority to conduct federal criminal investigations into the cross-border movement of people, goods, money, technology, and contraband throughout the United States.

Officer S.D. was nominated by the NMSP to become an HSI Task Force Officer. See Doc. 52, at 15 . S.D. then successfully completed an HSI Task Force Officer Training Course. See Gov't Ex. 1, at 4 . On August 26, 2020, S.D. was designated as a full-time federal HSI Task Force Officer by Acting Special Agent in Charge Erik P. Breitzke and this designation was valid for two years. Id. at 2 . S.D. was then assigned to the HSI Border Enforcement Security Interdiction Task Force. See Doc. 41-5, Ex. E, at 1 ; Doc. 52, at 14 . S.D. remained a full-time NMSP officer and she was paid solely by the NMSP. See Doc. 52, at 59–60 .

As an NMSP and federal Task Force officer, S.D. reported to Officers Ron Wood and Arcenio Chavez, and Special Agent Karl Flusche. See Gov't Ex. 1, at 2 . Officers Wood and Chavez were NMSP officers and were also designated as HSI Task Force Officers. See Doc. 52, at 58 . Special Agent Flusche worked as an HSI special agent and was the supervisor of the Task Force. See Doc. 52, at 14–15 . S.D. regularly kept Officers Wood and Chavez informed of her law enforcement activities. See Doc. 52, at 58–59 .

On September 12, 2020, S.D. was patrolling the area around Gallup, New Mexico and was observing traffic. See Doc. 41-5, Ex. E, at 1 ; see also Doc. 52, at 60–61 . That morning, S.D. was driving her NMSP vehicle and wearing her state police uniform, and she had her assigned narcotics detection dog, Iza, patrolling with her. See Doc. 41-5, Ex. E, at 1 ; Doc. 52, at 61–62 . S.D. was observing traffic on Interstate 40 East when she encountered Defendant Nelson's vehicle. See Doc. 41-5, Ex. E, at 1 . S.D. stated that she observed Defendant's vehicle "weave" towards another lane and that it was "following dangerously close" to another vehicle. Id. ; see also Doc. 52, at 63 . S.D. then initiated a stop of Defendant's vehicle, and as she approached the passenger side, she was allegedly shot by the vehicle's driver, Defendant Nelson. Doc. 41-5, Ex. E, at 2–3 . S.D. fired her weapon in response, the car fled the scene, and a chase ensued. Id. at 3–4 . Defendant was later stopped and apprehended by S.D. and local and state police officers. Id. at 6 . After the incident, S.D. contacted one of her supervisors, Officer Wood. See Doc. 52, at 64 . Officer Wood then informed Officer Chavez and Special Agent Flusche of the incident. Id.

DISCUSSION

The Government files the instant motion, asking the Court to determine, as a matter of law, that Officer S.D. was a federal officer under 18 U.S.C. § 1114 at the time of the shooting, and that "highway narcotics interdiction" is a federal law enforcement function. See Doc. 36, at 1 . In response, Defendant contends that S.D. is not a federal officer because she was not carrying out her duties as a designated Task Force Officer nor was she assisting Special Agent Flusche at the time of the shooting, and therefore, the Court lacks subject matter jurisdiction and must dismiss the indictment. See Doc. 41, at 8 . As discussed below, the Court finds that, based on the evidence presented, S.D. is a federal officer covered by § 1114 because she was properly designated as a full-time Homeland Security Investigations Task Force Officer.

I. The Legal Framework for "Federal Officer" Status.

18 U.S.C. § 1114 penalizes whoever kills or attempts to kill "any officer or employee of the United States" or "any person assisting such an officer or employee" in the performance of such duties or on account of that assistance. The "federal officer" requirement is jurisdictional. See United States v. Feola , 420 U.S. 671, 676, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The threshold legal question of whether the "type of individual" at issue is an "officer or employee of the United States" or a "person assisting such an officer" under § 1114 is a question for the Court. See United States v. Martin , 163 F.3d 1212, 1214 (10th Cir. 1998). However, it is the jury who must decide the ultimate issue of fact—whether the individual "was engaged in the performance of federal duties." Id.

The Court of Appeals for the Tenth Circuit and other courts have found that a state or local police officer deputized by a federal agency is a federal official or employee under 18 U.S.C. § 1114.³ See, e.g. , Martin , 163 F.3d at 1215 (finding that a local Oklahoma Police Department detective was a federal officer under § 1114 because he was deputized to participate in a federal narcotics investigation at the time that the charged conduct occurred); United States v. Diamond , 53 F.3d 249, 251–52 (9th Cir. 1995) (finding that a local Oregon Sheriff's Deputy cross-deputized as a special deputy U.S. marshal, assigned to the FBI Fugitive Task Force, and acting at the direction of a federal agent was a federal official under § 1114 ).

Courts have also found that a state or local officer is a federal officer under § 1114 by way of contract or designation. See, e.g. , United States v. Smith , 194 F.3d 1321 (10th Cir. 1999) (finding that a tribal law officer enforcing federal law on tribal lands as authorized by a contract between the Bureau of Indian Affairs and the Osage Nation tribe was a federal officer under § 111 ); United States v. Bettelyoun , 16 F.3d 850, 852 (8th Cir. 1994) (concluding that Oglala Sioux tribal officers were federal officers under § 1114 where the Bureau of Indian Affairs had delegated its law enforcement functions to the tribe by contract and had designated tribal officers to carry out BIA functions under the contract); United States v. Oakie , 12 F.3d 1436, 1440 (8th Cir. 1993) (same).

Separately, in determining whether an individual is a person "assisting" a federal officer, the issue can be framed as "whether the performance of his [or her] official duties was for the purpose of assisting a federal officer." See United States v. Ama , 97 F. App'x 900, 901–02 (10th Cir. 2004). The plain meaning of the term assist means "to give support or aid." See United States v. Holder , 256 F.3d 959, 965 (10th Cir. 2001) (quoting United States v. Murphy , 35 F.3d 143, 145 (4th Cir. 1994) ). Thus, the term "assist" "generally connotes a role in which the person providing assistance does not act independently, but operates under the direction of or in conjunction with the individual being assisted." See United States v. Sapp , 272 F. Supp. 2d 897, 906 (N.D. Cal. 2003) ; Holder , 256 F.3d at 965 ("[T]he common usage of ‘employed to assist’ means that a person is being used to help a federal agent.").

A court may find "assistance" where there is "some mutual contemporaneous involvement" between state and federal law enforcement officials. See United States v. Smith , 296 F.3d 344, 347 (5th Cir. 2002) (concluding that Dallas police officers were assisting a federal officer where the evidence showed that "the Dallas police officers and the FBI agents were jointly pursuing a suspect in a federally-investigated bank robbery"). However, the "physical presence of a federal agent at the time of the assault [or attempted assault] is not required." See Ama , 97 F. App'x at 902.

Additionally, courts have concluded that a state officer, or even a private citizen, is a person "assisting" a federal officer where they are "acting in cooperation with and under control of federal officers." See United States v. Williamson , 482 F.2d 508, 512 (5th Cir. 1973) (finding a state narcotics agent was an official protected under § 111 where the agent was acting in cooperation with and under control of federal officers in effecting an arrest for violations of federal drug laws when he was assaulted); United States v. Hooker , 997 F.2d 67, 74 (5th Cir. 1993) (finding a Mississippi Bureau of Narcotics officer to be a federal agent where he was "enlisted" by the DEA to assist with a coordinated federal drug investigation and was attacked during the surveillance investigation); United States v. Bedford , 914 F.3d 422, 428 (6th Cir. 2019) (finding a truck driver employed by a private trucking company that had a contract with the U.S. Postal Service to transport mail was a person assisting a federal officer or employee when he was attacked while transporting U.S. mail).

"Direct control" by a federal employee or officer is not...