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Tiffany A. Harris OSB 02318

Attorney at Law

333 SW Taylor St., Suite 300

Portland, Oregon 97204
Tel: (503) 782-4788
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.
I.

3:16-CR-00051-BR-7
PROPOSED JURY
INSTRUCTION AND
SUPPORTING
MEMORANDUM DEFINING
OFFICER OF THE UNITED
STATES FOR COUNT 1

INTRODUCTION
The Court should revise the current version of its jury instruction defining Officers of

the United States and instruct jury as follows:

An Officer of the United States is a federal official who is appointed to his or
her position pursuant to Article II, Section 2, Clause 2 of the United States
Constitution. Such an appointment occurs either by (1) nomination of the
President of the United States and confirmation by the United States Senate; (2)
by the President alone; (3) by the Courts of Law; or (4) by the Heads of
Departments.
II. ARGUMENT
Title 18 U.S.C. 372 -- entitled Conspiracy to impede or injure officer -- 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 account of his lawful
discharge of the duties of his office, or while engaged in the lawful discharge
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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.
The statute makes it unlawful to conspire to commit any of the following acts:
(1) Preventing, by force, intimidation or threat, any person from accepting or
holding any office, trust or place of confidence under the United States;
(2) Preventing, by force, intimidation or threat, any person holding such an office
from discharging the duties of that office;
(3) Inducing an officer of the United States to leave the place where his duties as
an officer are required to be performed;
(4) Injuring the officer in his person or property on account of his lawful
discharge of his official duties or while he is engaged in the lawful discharge
of his duties;
(5) Injuring the officers property so as to interrupt, hinder, or impede him in the
discharge of his official duties.
The indictment in this case charges the defendants with committing a violation of (2)-conspiring to prevent by force, intimidation, and threats, officers and employees of the United
States Fish and Wildlife Service and the Bureau of Land Management ... from discharging the
duties of their office ....
The government argues that 372 applies to conspiracies to prevent both officers and
employees from discharging the duties of their office. The Governments argument is not
supported by the plain language of the text or the statutes history and purpose.
A. The Plain Language of the Statute Establishes That It Applies Only to Officers,
Not to Employees.
In construing a statute, the starting point is the plain language of the statute. United
States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011). The court must examine not only the
specific provision at issue, but also the structure of the statute as a whole, including its object and
policy. Id.
Section 372, as a whole, mentions only officers of the United States, not employees.
The court must give effect to the words Congress actually used. Hooks v. Kitsap Tenant
Support Serv., Inc., 816 F.3d 550, 562 (9th Cir. 2016).

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If Congress had intended that 372 apply to both officers and employees, it would have
said so. Indeed, it included both officers and employees under a related statute, 18 U.S.C.
111, entitled Assaulting, resisting, or impeding certain officers or employees.1 Congresss
inclusion of both officers and employees under 111 and 1114 establishes that Congress
intended each term to have its own meaning. Officers cannot mean officers and employees,
as the government may be suggesting, because that interpretation would render the term
employees in sections 111 and 114 superfluous, in violation of fundamental rules of statutory
construction. See, e.g., United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015) (courts must
giv[e] effect to each word of a statute and avoid interpreting a provision in a manner that
renders other provisions inconsistent, meaningless or superfluous). Instead, we know from
looking at Title 18 more generally that Congress intended that the terms officers and
employees have distinct meanings. See Branch v. Smith, 538 U.S. 254, 281 (2003) (when
diverse statutes relate to the same thing, they ought all to be taken into consideration in
construing any one of them) (quoting United States v. Freeman, 11 L.Ed. 724 (1845)).
Accordingly, if each term has its own meaning, but one of the terms employees is
omitted from 372, then we one must assume that Congress intended that 372 apply only to
officers and not to employees. It is a fundamental principle of statutory construction that when
Congress includes a particular term in one part of a statute but omits it in another section, it is
presumed that Congress acted intentionally and purposefully in the disparate inclusion or
exclusion. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002). Though, here, we are
talking about the inclusion of the term employees in 111 and 1114 and its exclusion in
another statute, 372, the statutes are part of the same criminal statutory scheme and the general
principle should apply. See Tyrone W. v. Superior Court, 60 Cal.Rptr.3d 486, 494 (Cal. App.
2007) (when statute on one subject omits particular language, the inclusion of such language in
1

18 U.S.C. 111 makes it a crime to forcibly assault, resist, impede, intimidate, or interfere with any person
designated in section 1114 while engaged in the performance of official duties. Section 1114, in turn, applies to
officers and employees of any agency in any branch of the United States government.
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another statute concerning a related matter indicates an intent that the language is not applicable
to the statute from which it was omitted).
To the extent the plain language of 372 leaves any room for doubt, the title resolves that
doubt. The statute is entitled conspiracy to impede or injure officer (whereas 111 is entitled
Assaulting, resisting, or impeding certain officers or employees and 1114 is entitled
Protection of officers and employees of the United States). See Florida Dept. of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (though a statutes title cannot substitute for
the operative text of the statute, statutory titles and section headings are tools available for the
resolution of doubt about the meaning of a statute).
In its September 1, 2016 Order Re Final Pretrial Conference, this Court rejected an earlier
version of a proposed definition of Officers of the United States and ruled Officers of the
United States includes any full-time or part-time employee of the federal government. In
arriving at that definition, this Court, understandably, identified three circuit court opinions in
which 372 was applied to criminal conspiracies against government employees who are not
officers within the meaning of Article II, Section 2. But, none of those cases construed the
language of 372 or attempted to define Officer of the United States. It appears the question
was never presented to the district court. One of the opinions cited by this CourtUnited States
v. Fulbright, 105 F3d 443, 448 (9th Cir. 1997)involves a criminal conspiracy targeting a
bankruptcy judge, a judicial officer who is appointed by the Courts of Law, consistent with
Article II, Section 2, Clause 2.2
B. The Statutes History and Purpose Establish That It Applies Only to Officers.
While the plain language of 372 establishes that it was intended to protect only
officers of the United States, analyzing the purpose and scope of the statute bolsters that

Note: this Court did not have the benefit of the current version of the defenses proposed jury instruction regarding
Officers of the United States when it issued its September 1, 2016 order and relied on Fulbright. We mention
Fulbright here to help draw attention to the changes to our proposed jury instruction, which now includes all of the
modes for appointment set out in Article II, Section 2, Clause 2.
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conclusion. In construing this 150-plus-year old statute, the court must take cognizance of the
events and passions of the time at which it was enacted. Dist. of Columbia v. Carter, 409 U.S.
418, 425 (1973) (Construing 42 U.S.C. 1983).
The statute was enacted in 1861, three months after the outbreak of the Civil War, as a
way of combatting resistance to a unified federal government. The statutes original iteration
demonstrates that it was not intended to punish run-of-the-mill agreements to assault or threaten
a mere employee or functionary of the government; rather, the legislation contemplated a far
more serious problem-- the secession, armed rebellion, and continued plotting to destabilize and
overthrow the government of the United States.
During the Senate debate, a Congressman recalled an episode in which the postmaster of
Missouri, an officer of the United States, had been prevented from discharging his duties by an
angry mob. The incident 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 Bittinger was stationed in an area of Missouri that was evenly split between Union
loyalists and southern sympathizers. In May of 1861, when Bittinger refused to take down a
union flag flying over his office, an armed mob removed it, tore it to shreds, and chased Bittinger
from his post at gunpoint.4
The first version of the statute reflected these sorts of concerns:
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

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.
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guilty of a high crime and shall be punished by ... imprisonment not less
than six months nor greater than six years .
Ten years later, the statute was revised and became part of section 2 of the Civil Rights
Act of 1871. Congress added provisions concerning officers and the duties of their office,
which appear in the current version of 18 U.S.C. 372. In the 1871 version, the statutes focus
continued to be on a certain type of conspiracy that undermined the governments essential
functions:
[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
Then, in 1909, as part of the general revision and codification of the federal criminal
code, a new version of the statute was enacted. Congress stripped the language concerning acts
of war and insurrection against the United States and inserted provisions found 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 present version 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.
The statute has not changed substantially since 1909. In 1948, the statute was
revised to expand the geographic scope of the statute to include possessions of the
United States. And in 2002, Congress made a minor adjustment to the language regarding
the amount of a fine to be imposed.
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At the same time, Congress was enacting separate laws to protect other persons of
associated with the federal government. As early as 1948, 18 U.S.C. 1114 outlawed the
killing 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. The current version of 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). Also as early as 1948, 18
U.S.C. 111 prohibited assaulting, resisting, or impeding certain officers and employees of the
federal government.
Section 372 cannot be read to serve precisely the same purpose as sections 111
and 1114. Rather, it must be construed, in accordance with its plain language, its key
terms as they were understood by the drafters and its unique purpose of outlawing
agreements that undermine the efficacy of the federal government by preventing its
officers from taking office or performing their duties.
The word officer appeared in the first iteration of the statute. Since that time, it
has never been modified. The original definition should control.
C. An Officer of the United States is a Federal Official Who is Appointed to an
Office Pursuant to Article II, Section 2 of the United States Constitution.
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 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, in the President alone,
in the Courts of Law, or in the Heads of Departments.
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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).
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, holding that an officer is a person appointed under the
Constitution:
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
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.
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
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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].
In a more modern context, courts have examined the distinction between officers and
employees to settle disputes about whether a government official who was hired as an
employee, is wielding an unconstitutional degree of authority and influence, such that he or she
should have been appointed, pursuant to Article II, Section II. See, Buckley, supra, 424 U.S. at
126 (Officers of the United Statesis a term intended to have substantive meaning[whose]
fair import is that any appointee exercising significant authority pursuant to the laws of the
United States is an Officer of the United States, and must, therefore, be appointed in the
manner prescribed by 2, cl. 2, of that Article.) If the accusation is proved, then the
government official was acting ultra vires and his or her government actions are subject to
collateral attack. For example, in Tucker v. Commer, 676 F3d 1129 (D.C. Cir. 2012), the Court
considered whether officials conducting Collection Due Process Hearings for the IRS were
actually Officers of the United States, whose determinations of income tax liability could be
collaterally challenged by a taxpayer. Canvassing precedent, the D.C. Circuit Court analyzed
three factors: (1) the significance of the matters resolved by the officials, (2) the discretion they
exercise in reaching their decisions, and (3) the finality of those decisions. Tucker, 676 F3d at
1133. The Tucker Court concluded that the subject officials were not Officers of the United
States because the significance and discretion involved in their decision making was well
below the level necessary to require the involvement of an Officer. Id. at 1135. But see,
Buckley, supra (Voting members of Federal Election Commission wielded the type of
significant authority requiring appointment under Article II, Section 2).
As these modern cases make clear, the distinction between officers and employees is
constitutionally and practically significant. John T. Plecnik, "Officers Under the Appointments

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Clause", 11 Pittsburgh Tax Review 201 (2014). Only a small minority of government officials
are appointed; [t]he vast majority are hired as employees. Id.
III.

CONCLUSION
The jury instruction should instruct the jury that, under 18 U.S.C. 372, the government

must prove that the defendants conspired to prevent an officer from discharging his duties and,
further, that an officer is defined, in accordance with Article II, Section 2, Clause 2 of the United
States Constitution. Defining Officers of the United States as full and part-time federal
employees is not a correct statement of the law.
Dated this 18th day of September, 2016

Respectfully submitted,
/S/
Tiffany Harris
Tiffany A. Harris
Standby Counsel for Defendant Shawna Cox
Reviewed and approved by
/S/
Shawna Cox
Shawna Cox
Pro Se Defendant

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