United States v. Augustin Alvarez, Oscar Hernandez, Mario C. Simon, Rolando Rios, Ramon Raymond, Eduardo Portal, Victoriano Concepcion, A/K/A \Macho\""

On December 2, 1982, in a run-down motel in the Little Havana section of Miami, Florida, a cocaine deal turned into tragedy when a shoot-out erupted between the dealers and two undercover special agents from the Bureau of Alcohol, Tobacco, and Firearms (BATF). During the shoot-out, one of the BATF agents was killed and the other agent, along with two of the cocaine dealers, was seriously wounded. Appellants Augustin Alvarez, Mario Simon, Vic-toriano “Macho” Concepcion, Eduardo Portal, Oscar Hernandez, Ramon Raymond, and Rolando Rios were convicted after a trial by jury on various charges arising from the cocaine deal and shoot-out. All of the appellants were convicted of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846, and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). In addition, Alvarez and Simon were convicted of first degree murder of a federal agent, 18 U.S.C. §§ 1111(a) and 1114, assault on a federal agent by means of a deadly and dangerous weapon, 18 U.S.C. §§ 111 and 1114, and use of a firearm to commit a felony, 18 U.S.C. § 924(c)(1). Portal, Concepcion, and Hernandez were convicted of second degree murder of a federal agent, 18 U.S.C. §§ 1111(a) and 1114, and assault on a federal agent by means of a deadly and dangerous weapon, 18 U.S.C. §§ 111 and 1114.

The appellants now appeal their respective convictions, raising numerous claims of error. Among the issues raised by this appeal are (1) whether BATF agents are protected under 18 U.S.C. § 1114, (2) whether the district court committed plain error by instructing the jury that the government was not required to prove that the appellants knew that their victims were federal agents, and (3) whether the second degree murder and assault convictions of Portal, Concepcion, and Hernandez were based on an improper extension of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). After careful consideration of these issues and the others raised by the appellants, we conclude that the district court did not commit reversible error and the appellants received a fair trial in every respect. We therefore affirm the appellants’ convictions.

I. FACTS

On December 1, 1982, at about 6:00 p.m., BATF Special Agents Joseph Benitez, Joseph Tirado, Ariel Rios, and Alex D’Atri, each acting in an undercover capacity, met with appellants Rolando Rios and Ramon Raymond in the parking lot of a convenience store in Homestead, Florida. The purpose of the meeting was to continue previously initiated negotiations for the purchase of two kilograms of cocaine. Raymond informed the agents that he had obtained a source for the cocaine, but that delivery would be delayed by about a half hour. Raymond attempted to telephone his cocaine source but was unsuccessful. Agent Tirado then asked appellant Rios if he knew when the cocaine would be delivered. Appellant Rios also attempted to telephone the cocaine source but, like Raymond, was unsuccessful. Appellant Rios asked Agents Rios and Tirado to take him to the source’s residence. The three men drove to a house about two miles away, but, finding no one there, returned to the parking lot. Meanwhile, Raymond continued to assure the remaining agents that the cocaine would be delivered shortly. At one point, Raymond suggested that the deal be moved across the street because he thought that there were too many cars in the parking lot.

A short time later, appellant Eduardo Portal arrived at the parking lot and began speaking with appellants Rios and Raymond. Portal informed Agents Rios, Tira- *837 do, and Benitez that he could make immediate delivery of two kilograms of cocaine. Portal then made a telephone call to appellant Victoriano “Macho” Concepcion. After the call, Portal told the agents that delivery of the cocaine could be made by noon the next day. The agents departed after agreeing to call Concepcion the next morning to arrange the details of the cocaine delivery. 1

The next day, at about 12:00 noon, Agent Rios telephoned Concepcion and arranged to meet with Concepcion and Portal in the parking lot of a restaurant in the Little Havana section of Miami. Agents Rios and D’Atri met with Concepcion and Portal shortly before 2:00 p.m. D’Atri told Concepcion that he wished to purchase three kilograms of cocaine. Concepcion answered that the cocaine was available at a price of $49,000 per kilogram. The four men left the restaurant parking lot and proceeded, in two separate cars, to the Hurricane Motel on West Flagler Street in Miami. The agents advised their surveillance team of their destination by means of a portable radio concealed in their car.

Shortly after 2:00 p.m., Agents Rios and D’Atri and appellants Concepcion and Portal arrived at the Hurricane Motel. Concepcion advised the agents that only one of them would be allowed inside the motel to complete the deal. The agents refused to proceed under those circumstances, and Concepcion agreed to allow both agents to be present. Concepcion and the two agents entered the motel office, while Portal remained outside. Surveillance agents stationed near the motel observed Portal acting as a “lookout.” The agents saw Portal closely watching passing cars and pedestrians, and noticed a handgun-shaped bulge on Portal s left side, under his shirt.

Inside the motel office, Concepcion and the two agents met appellants Augustin Alvarez and Oscar Hernandez. Hernandez was the manager of the Hurricane Motel, and Alvarez and Hernandez shared an apartment that adjoined the motel office, Alvarez told the agents that he was not the cocaine source, but that he would make a telephone call and arrange the cocaine delivery. Alvarez made the call and informed the agents that the cocaine would be delivered shortly. The five men waited in the living room of the Alvarez-Hernandez apartment. While they waited, Alvarez and Agent Rios conversed in Spanish, with Agent Rl0S translating into English for Agent D’Atri’s benefit. According to D’Atri’s testimony at trial, Alvarez stated, “In this business, you have to be careful. R s a dangerous business. You have to watch out for rip-offs and Federal agents.” Alvarez also stated that he would never go back to prison, and that he would rather be dead than go back to prison. D’Atri answered, “It’s always better to be alive than in prison.” Alvarez then spoke to Hernandez in Spanish, and D’Atri asked Hernandez what Alvarez had said. Hernandez replied that Alvarez had said that he could never go back.

After twenty- or twenty-five minutes, D’Atri decided to make a telephone call to let the surveillance team know that the cocaine deal was still pending. D’Atri asked Hernandez for permission to use the telephone. Hernandez spoke to Alvarez in Spanish, and then indicated that D’Atri could use the telephone in the motel office, After completing the telephone call, D’Atri returned to the living room and joined the other men in general conversation. At one point, Alvarez went into a bedroom, got a sample of cocaine, and asked D’Atri if he wanted to test the sample. D’Atri replied that he wanted to test the cocaine that was about to be delivered, not Alvarez’ sample,

After twenty more minutes, D’Atri, who was becoming increasingly concerned about the prolonged delay, announced that he and Agent Rios were leaving. Hernandez said, in English, “Don’t worry, he’s coming. If he says he’s coming, he will be here.” At the same time, appellant Mario *838 Simon drove into the motel parking lot. Hernandez said, “He’s here,” and the men all laughed. Simon entered the living room, 2 and D’Atri asked him whether he had the three kilograms of cocaine. Simon answered, in English, “I have to make a phone call.” After making the call, Simon told the agents that he could deliver the cocaine, but that it would take one hour. He also said that he would deliver one kilogram of cocaine at 4:00 p.m., and one kilogram every hour after that. The agents agreed to return to the motel in about one hour. 3

Agents Rios and D’Atri drove to a nearby restaurant and met with Special Agent Michael Casali, one of the members of the surveillance team. During the meeting, Agent Rios expressed concern about a leather pouch carried by Simon, which Agent Rios thought might contain a weapon. The agents then discussed their plans for effecting the intended drug arrests. The agents decided to place $50,000 in the trunk of their car. Once the cocaine was delivered, Agent Rios would go out to the motel parking lot and remove the money from the trunk. Upon observing this signal, the surveillance and backup agents would wait forty-five seconds to a minute, and then move in to effect the arrests.

At about 4:15 p.m., Agents Rios and D’Atri returned to the motel, but Simon had not yet returned with the cocaine. The agents drove around the area of the motel for several minutes. At about 4:25 p.m., the agents noticed Simon’s car in the parking lot of the motel. The agents entered the motel and found Simon, Alvarez, and Concepcion in the living room where the earlier meeting had taken place. Agent D’Atri asked Simon whether he had the cocaine, and Simon replied, “Yes, it is in the car.” Simon went out to his car, and returned with a plastic bag. Concepcion took the bag from Simon and removed a cardboard box from the bag. Concepcion handed the box to D’Atri, who opened the box and found another plastic bag containing what appeared to be about one kilogram of cocaine. D’Atri then asked Agent Rios to go out to their car and get the money.

Agent Rios returned to the living room and handed the money, which was in a paper bag, to D’Atri. D’Atri noticed Simon, who was partially seated on and resting against the armrest of a couch, looking out the window and nervously fidgeting with the leather pouch that was suspected to contain a weapon. The other men were all seated on the couch. D’Atri took the money out of the paper bag, stood up, and began to count the money. Again, D’Atri noticed Simon looking out the window and fidgeting with the pouch. At about this time, the surveillance and backup agents began to converge on the motel.

D’Atri heard the surveillance and backup agents arrive at the door of the motel office. Suddenly, Agent Rios shouted, “No,” and D’Atri heard a gunshot. D’Atri drew his gun and held it on Concepcion and Alvarez. Meanwhile, out of the corner of his eye, D’Atri saw Simon and Agent Rios engaged in a struggle. D’Atri heard another gunshot, and he turned to help Agent Rios. 4 D’Atri lunged at Simon, but, as he reached Simon, he felt tremendous pain in his forehead and left arm. D’Atri fired several shots at Simon, emptying his weapon in the process. D’Atri then looked up and saw Alvarez aiming a chrome-plated .357 Magnum pistol at him. Alvarez fired one shot at D’Atri, hitting him in the chest. D’Atri saw Alvarez take two steps *839 toward him and fire another shot. The impact of the second shot caused D’Atri to careen into the wall of the living room, where he blacked out.

During this time, the surveillance and backup agents were attempting to force their way into the motel. The agents finally shot the lock off the door of the motel office and entered the living room. The agents found Agent Rios on the couch with a gunshot wound in the face. Agent Rios had also been shot in the finger and the left thigh. Agent D’Atri was lying on the floor in a pool of blood, with four gunshot wounds. Simon, who was covered with blood, was leaning against the wall near a hallway that led to the bedrooms. A carbine rifle was at his feet. Alvarez was running down the hallway toward the bedrooms. Agent Casali yelled, “Freeze, police,” but Alvarez ducked into a bedroom. Casali drew his gun and entered the bedroom. Alvarez looked up, saw Casali, and reached for a shotgun that was lying on the bed. Casali shot Alvarez. Casali then instructed Agent Switzer to watch Alvarez while Casali searched the other bedroom. When Switzer turned his back on Alvarez to help cover Casali’s entry into the other bedroom, Alvarez again went for the shotgun, and Switzer shot him.

The surveillance and backup agents tried to administer first aid to Agent Rios, but he died before medical help could arrive. Agent D’Atri, Alvarez, and Simon were taken to the hospital, and eventually recovered from their wounds.

The cause of Agent Rios’ death was determined to be the gunshot wound in the face. The bullet had lodged in the back of Agent Rios’ skull. Expert testimony at trial indicated that the bullet that killed Agent Rios was fired from Alvarez’ .357 Magnum pistol.

The appellants were indicted in the United States District Court for the Southern District of Florida as follows:

Count I: Conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846 (all appellants);

Count II: Possession with intent to distribute cocaine, or aiding and abetting the same, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (all appellants);

Count III: First degree murder of Agent Ariel Rios, or aiding and abetting the same, 18 U.S.C. §§ 1111(a), 1114, and 2 (all appellants except Rios and Raymond);

Count IV: Assault on Agent Alex D’Atri by means of a deadly and dangerous weapon, or aiding and abetting the same, 18 U.S.C. §§ 111, 1114, and 2 (all appellants except Rios and Raymond); and Count V: Use of a firearm to commit a felony, 18 U.S.C. § 924(c)(1) (Alvarez and Simon only).

In connection with Count III, the district court also instructed the jury on the lesser-included offense of second degree murder. The jury found all of the appellants guilty as charged, except that Portal, Hernandez, and Concepcion were found guilty of second degree murder under Count III. The district court sentenced Alvarez and Simon to life plus 50 years in prison, Hernandez to 30 years in prison, Concepcion to 25 years in prison, Portal to 22 years in prison, Raymond to 10 years in prison, and Rios to 8 years in prison. Each of the appellants also received a special parole term of 3 years as mandated by 21 U.S.C. § 841(b)(1)(A).

The appellants now raise numerous challenges to the validity of their respective convictions. All except appellants Rios and Raymond contend that (1) the murder and assault counts, Counts III and IV, should have been dismissed because BATF agents are not protected under 18 U.S.C. § 1114, and (2) the district court erroneously instructed the jury concerning the crimes charged in Counts III and IV. In addition, Portal, Concepcion, and Hernandez contend that (3) their convictions on Counts III and IV were based on an improper extension of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), and (4) the district court erred by giving the lesser-included offense instruction in connection with Count III, thus allowing the jury to *840 reach a “compromise” verdict. Rios, Raymond, Portal, and Hernandez claim that (5) the evidence was insufficient to establish their knowing participation in the drug conspiracy. Hernandez also claims that (6) the district court erred by admitting coconspirator hearsay statements against him in violation of United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Portal alleges that (7) the weight of the evidence supported his defense theory of entrapment, and the evidence was insufficient to establish his predisposition to commit the crime of conspiracy. Rios and Raymond contend that (8) the district court should have granted a severance so that they could have been tried separately from the other appellants. Finally, all of the appellants argue that (9) the district court should have granted a change of venue, (10) prosecutorial misconduct tainted the trial, (11) the district court erroneously admitted the statements translated by Agent Rios for the benefit of Agent D’Atri, and (12) the district court should not have allowed the BATF agents who testified at trial to remain in the courtroom during the closing arguments.

II. DISCUSSION

A. Are BATF Agents Protected Under 18 U.S.C. § 11U?

Both the federal murder statute, 18 U.S.C. § 1111(a), 5 and the federal assault statute, 18 U.S.C. § 111, 6 apply to crimes committed against “officers and employees of the United States” as listed in 18 U.S.C. § 1114. 7 The appellants who were convicted of the murder of Agent Rios and the assault on Agent D’Atri contend that the failure of Congress to mention explicitly BATF agents in section 1114 indicates that the murder or assault of a BATF agent is not a federal crime, and that Counts III and IV therefore should have been dismissed. We disagree.

The argument that BATF agents are not protected under section 1114 was rejected by the Second Circuit in United States v. Lopez, 586 F.2d 978 (2d Cir.1978), cert. denied, 440 U.S. 923, 99 S.Ct. 1251, 59 L.Ed.2d 476 (1979). The Lopez court explained that, prior to 1972, the functions of the BATF were conducted by the Internal Revenue Service (IRS), and IRS agents, officers, and employees were explicitly mentioned in section 1114. See id. at 979. In 1972, the Secretary of the Treasury ordered the transfer of IRS functions relating to alcohol, tobacco, firearms, and explosives to the BATF. Treas.Dept. Order No. 221, 37 Fed.Reg. 11696 (1972). After the 1972 transfer, Congress did not amend section 1114 to add BATF agents to the list of protected persons.

Such an amendment, however, is unnecessary. The situation is governed by 5 U.S.C. § 907(a), which provides:

A statute enacted, and a regulation or other action made, prescribed, issued, granted, or performed in respect of or by an agency or function affected by a reorganization under this chapter, before the effective date of the reorganization, has, except to the extent rescinded, modified, superseded, or made inapplicable by or *841 under authority of law or by the abolition of a function, the same effect as if the reorganization had not been made____

Under 5 U.S.C. § 907(a), any statute, regulation, or other action already in effect prior to the date of an executive reorganization of agency functions continues to have the same effect as if there had been no reorganization. United States v. Irick, 497 F.2d 1369, 1372 (5th Cir.1974), cert. denied, 420 U.S. 945, 95 S.Ct. 1325, 43 L.Ed.2d 423 (1975). 8

Thus, the 1972 transfer of certain IRS functions to the BATF did not render section 1114 inapplicable to persons performing those functions. Rather, under 5 U.S.C. § 907(a), the designation of IRS agents in section 1114 also includes BATF agents. Lopez, 586 F.2d at 980; see also Irick, 497 F.2d at 1372 (reaching identical conclusion with respect to the 1973 transfer of functions of the Bureau of Narcotics and Dangerous Drugs to the Drug Enforcement Administration). We therefore hold, as the Second Circuit did in Lopez, that BATF agents are protected under 18 U.S.C. § 1114. 9 Accordingly, the district court did not err when it denied the appellants’ motion to dismiss Counts III and IV.

B. Did the District Court Erroneously Instruct the Jury Concerning the Murder and Assault Charges?

Those appellants who were convicted of murder and assault under Counts III and IV also contend that the district court erroneously instructed the jury concerning those counts. According to the appellants, the court should have instructed the jury that the government was required to prove that the appellants knew, at the time the shoot-out occurred, that their victims were federal agents. The appellants argue that, under United States v. Danehy, 680 F.2d 1311 (11th Cir.1982), the court’s refusal to give such an instruction requires the reversal of their murder and assault convictions.

1. The Appellants’ Requested Instruction

The appellants alleged at trial that they mistakenly believed that the undercover agents were members of the Mafia, and that the shootings of Agents Rios and D’Atri were in self-defense. 10 At the *842 charge conference, counsel for the appellants requested the following instruction as to the assault count, Count IV: 11

That to establish the offense of assaulting a federal officer in the performance of his official duties as charged in the indictment there are four essential elements which must be proved beyond a reasonable doubt:

First, that the defendant forcibly assaulted with [sic] any federal officer described in the indictment.

Second, that the individuals were federal officers then engaged in the performance of their official duties as charged.

Third, that the defendant did such acts willingly.

Fourth, that they did it knowingly. The court refused to give this instruction because of the inclusion of the fourth, or “knowledge,” element. The appellants now contend that, under Danehy, the court erred when it refused to give this instruction. In our view, this contention reflects a basic misunderstanding of Danehy and the federal assault statute, 18 U.S.C. § 111.

Knowledge of the victim’s status as a federal officer is not an element of the federal crime of assault under 18 U.S.C. § 111. See United States v. Feola, 420 U.S. 671, 684, 95 S.Ct. 1255, 1264, 43 L.Ed.2d 541 (1975); United States v. Young, 464 F.2d 160, 163 (5th Cir.1972); Bennett v. United States, 285 F.2d 567, 570-71 (5th Cir.1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961). As the Supreme Court stated in Feola:

[I]n order to effectuate the congressional purpose of according maximum protection to federal officers by making prosecution for assaults upon them cognizable in the federal courts, § 111 cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer. A contrary conclusion would give insufficient protection to the agent enforcing an unpopular law, and none to the agent acting under cover.

420 U.S. at 684, 95 S.Ct. at 1264 (footnote omitted).

Of course, it is a well-established proposition of federal criminal law that, when a defendant presents evidence in support of a claim of self-defense, the absence of self-defense must be proven beyond a reasonable doubt by the government. 12 See United States v. Jackson, 569 F.2d 1003, 1008 n. 12 (7th Cir.), cert. denied, 437 *843 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978); United States v. Corrigan, 548 F.2d 879, 883 (10th Cir.1977); United States v. Johnson, 542 F.2d 230, 233 n. 4 (5th Cir.1976); Frank v. United States, 42 F.2d 623, 629 (9th Cir.1930); see also Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895) (burden of proof on government with respect to defendant’s sanity). Accordingly, the Feo-la Court emphasized that, in certain circumstances, the defendant’s state of knowledge may become relevant to a prosecution under 18 U.S.C. § 111:

We are not to be understood as implying that the defendant’s state of knowledge is never a relevant consideration under § 111. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.

420 U.S. at 686, 95 S.Ct. at 1264 (footnote omitted).

Nevertheless, even a claim of self-defense based on lack of knowledge of the victim’s federal status does not make knowledge an element of the crime under section 111. When such a claim of self-defense arises in a section 111 case, the government may attempt to negate the claim by proving that the defendant knew of the victim’s federal status. See, e.g., United States v. Ochoa, 526 F.2d 1278 (5th Cir.1976). That is not, however, the only way in which the government can negate such a claim of self-defense. For example, the government can do so by proving that the defendant was the aggressor or used excessive force:

[WJhere a defendant charged with violating § 111 claims that he was unaware that the victim was a federal officer, the question becomes: would the defendant have been justified, because of the agent’s actions, in using force against the agent had the latter, in fact, been a “civilian.” If the defendant made an honest mistake of fact with respect to the agent’s status and the defendant’s use of force would have been justified against a private citizen, then he cannot be held criminally liable under § 111____ If ... the defendant would not have been justified in using force against a private citizen or if the defendant used more force than the law permitted, see United States v. Perkins, [488 F.2d 652, 654-55 (1st Cir.1973)], his mistake as to the agent’s status would be no defense to an action under § 111.

United States v. Hillsman, 522 F.2d 454, 460 (7th Cir.) (emphasis added), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410 (1975).

Our decisions in Danehy and United States v. Young, 464 F.2d 160 (5th Cir. 1972), are consistent with these general rules. We did not hold in those two cases that the government was required to prove that the defendant knew of the victim’s federal status. On the contrary, in Da-nehy, we emphasized that proof of such knowledge is merely one of the government’s options:

[T]he all-important point [is] that in a prosecution under 18 U.S.C. § 111 the defendant must either (1) know the person he is impeding is a federal officer or (2) engage in conduct towards that individual which would constitute a crime even if he were not a federal officer.

680 F.2d at 1315 (emphasis added).

Although some of the language in Da-nehy and Young may have engendered unnecessary confusion on this issue, we find that language to be no more than an attempt to tailor the standard self-defense instruction to the factual circumstances *844 present in those two cases. For example, in Young, we held:

[T]he jury should have been clearly instructed that it could not find Young guilty of the offenses charged unless the jury believed that Young intended to threaten or attempted to injure [the federal agents]; and that Young could not intend to threaten or attempt to injure [the agents] if Young acted out of a reasonable belief that [the agents] were strangers who intended to inflict harm upon Young____

464 F.2d at 163. Our suggested instruction in Young did not purport to make knowledge an element of the crime; instead, it simply restated the law of self-defense in terms applicable to the facts of the case. 13 The instruction we proposed in Danehy was identical to the one in Young. See Danehy, 680 F.2d at 1315. 14

We acknowledge the possibility that, upon some extraordinary set of facts, the government might be required to prove that the defendant knew of the victim’s federal status in order to obtain a conviction under 18 U.S.C. § 111. For example, if the undisputed evidence showed that the federal agent was the aggressor, and that the defendant used a reasonable amount of force in response, then the government might be able to negate the defendant’s claim of self-defense only by proving that the defendant knew that his victim was a federal agent. In such a case, an instruction similar to the one here requested by the appellants might be proper. This is not, however, such a case. Here, the government was not required to prove the appellants’ knowledge of their victims’ identities in order to negate the appellants’ *845 claim of self-defense. 15 We therefore hold that the court below did not err by refusing to give the appellants’ requested instruction.

2. Plain Error

The appellants also contend that, even if their requested instruction was improper, the jury charge given by the district court constituted plain error under Danehy and Young. The appellants’ challenge relates to the following portion of the charge:

It is not necessary to show that the defendant knew the person being forcibly assaulted was at the time a federal officer carrying out an official duty, so long as it is established beyond a reasonable doubt that the victim was in fact a federal officer acting in the course of his duty and that the defendant willfully committed forcible assault upon him.

It is true that, in Danehy and Young, we held that the district court committed plain error by including similar language in the jury charge. The appellants’ argument, however, ignores the fundamental principle that, in determining the correctness of a jury charge, a reviewing court must examine the entire charge. See United States v. Rackley, 742 F.2d 1266, 1273 (11th Cir. 1984); United States v. Abravaya, 616 F.2d 250, 251 (5th Cir.1980). Such an examination reveals that, viewed in its entirety, the charge in the instant case differs significantly from the charges that were found to be plain error in Danehy and Young. 16

In Young, the district court instructed the jury as follows:

... It is completely unimportant whether this defendant did or did not know that these men were FBI agents on such occasion. He didn’t have to know that. Whether he knew it or not if he did what the government contends that he did whether he knew that they were agents at the time or not would make no difference as to whether he is guilty or innocent.

An intentional or unlawful threat or attempt to commit injury upon the person of another when coupled with an apparent present ability so to do and an intentional display of force such as to place the victim in reasonable apprehension of immediate bodily harm constitutes an assault. An assault may be committed without actually touching, striking or committing bodily harm to another.

Unlawfully as used in this instruction means either contrary to law or without legal justification; thus a person who in fact has the present ability to inflict bodily harm upon another, wilfully threatens or attempts to inflict bodily harm upon such person, may be found guilty of forcefully assaulting such person.

The essential elements required to be proved in order to establish the offense charged in the indictment are first the act or acts of forcefully assaulting an agent of the Federal Bureau of Investigation while the agent was engaged in the performance of his official duties as charged, and second, such act or acts wilfully which means with bad purpose to disregard the law.

*846 Knowledge of the identity or official character of the person assaulted is not an essential element of the offense. If the defendant assaults a federal officer in order to be guilty it will not be necessary that the defendant should know that they were federal officers to be guilty of the offense charged.

464 F.2d at 162-63. We explained that these instructions “permit[ted] the jury to find Young guilty of the offenses charged even if the jury believed Young’s testimony that he thought he was being harassed by local rowdies,” id. at 163, and held that the jury charge as a whole constituted plain error, id. at 164.

In Danehy, the district court gave the following instruction:

It is not necessary to show that the defendant knew the people being forcibly resisted, opposed, impeded, or interfered with were, at that time, Federal officers carrying out an official duty; so long as it is estab