◆ SpookStack

AO 72A (Rev. 8/82) that Murtha stole the plan from Fenton so he could bring it to fruition and take the credit for himself. Even under Fenton’s distorted view of reality, there was no “official” action Murtha could take or not take that would satisfy Fenton’s desires. At most, Congressman Murtha could have given Fenton the credit Fenton thought he deserved, but that is not an official duty. Accordingly, even if Fenton had intended to impede, intimidate or interfere with Murtha, that intent had absolutely no nexus with any of the Congressman’s official duties. The government argues that there is no nexus requirement; rather, it contends that the defendant need only intend to impede, intimidate or interfere with the Congressman “during the time that” he is performing official duties. That is simply not what the statute provides. Section 115(a)(1)(B) is quite clear that the defendant’s intent must be “to impede, intimidate or interfere with such official. . . while engaged in the performance of official duties. . . .” (Emphasis added.) See United States v. Streich, 759 F.2d 579, 584 (7th Cir. 1985) (Whether an official is engaged in performance of official duties “turns on whether the federal officer is acting within the scope of what he is employed to do or is engaging in a personal frolic of his own.”). Evidently, the government believes this condition is satisfied during the entire time that Congress is in session, or perhaps as long as the member holds office. This is implausible, leading as it does to absurd possibilities, for example, that a person could be convicted under § 115(a)(1)CB) for threatening a Member of Congress in response to an insult the Member made to that person’s spouse during cocktail party conversation. Significantly, the government cites no useful authority for this novel proposition. The closest it comes is the case of United States vy. Berki, 936 F.2d 529 (11th Cir. 1991), but that case is inapposite. There, the defendant clearly threatened a federal judge on account of her performance of official judicial duties. Id. at 531. 14