Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. 3:09-CR-03175-JAH-1
The opinion of the court was delivered by: Nelson, Senior Circuit Judge:
December 7, 2011-Pasadena, California
Before: Dorothy W. Nelson, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.
Defendant-Appellant Enrique Acosta-Sierra ("Acosta-Sierra"), a 57-year-old native and citizen of Mexico who has been diagnosed with paranoid schizophrenia, appeals from his conviction, following a bench trial, of two counts of assault on a federal officer in violation of 18 U.S.C. § 111.
Acosta-Sierra raises four claims on appeal: (1) that the district court's findings of fact and conclusions of law pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure were insufficient to find Acosta-Sierra guilty of assault on a federal officer with a dangerous and deadly weapon in violation of 18 U.S.C. §§ 111(a)(1) & (b); (2) that the district court erred in denying Acosta-Sierra's motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure; (3) that the district court erred when it concluded that 18 U.S.C. § 111 did not require the government to prove specific intent, and thereby precluded Acosta-Sierra from presenting a diminished capacity defense; and (4) that the district court erred when it precluded mental health evidence in support of Acosta-Sierra's self-defense claim.
We have jurisdiction pursuant to 18 U.S.C. § 1291. We reverse in part, affirm in part, and remand to the district court for further proceedings consistent with this opinion.
On June 18, 2009, Acosta-Sierra walked across the United States border from Mexico at the San Ysidro, California, Port of Entry. While in a lane designated for vehicles, Acosta-Sierra threw a baseball-size piece of jagged concrete in the direction of United States Customs and Border Protection Officer Abram Lopez, who was walking approximately seven to eight feet in front of a closed, unmanned primary inspection booth.
The rock did not strike Officer Lopez, though it came within two feet of hitting his head. Officer Lopez did not see Acosta-Sierra throw the rock or observe it travel through the air. In fact, Officer Lopez only became aware of the rock when he heard it hit the metal gate behind him, and bounce off of the gate into the inspection booth. He did not fear immediate bodily harm at the time he heard the rock hit the gate. Instead, he felt stunned and confused.
It was only after Officer Lopez heard the rock hit the gate, repositioned himself to see from where the rock originated, saw Acosta-Sierra walking in his general direction from six to seven car lengths away, and observed his fellow officers moving to arrest Acosta-Sierra that Officer Lopez started to feel "a little scared of the situation that was going on." He did not see Acosta-Sierra holding any other rocks at that time.
Based on these events, the government charged Acosta-Sierra with assault on a federal officer in violation of 18 U.S.C. §§ 111(a)(1) and (b) ("Count 2").*fn1 The government alleged that Acosta-Sierra "did knowingly and intentionally and forcibly assault . . . United States Customs and Border Protection Officer A. Lopez, in that defendant did throw baseball size rocks at Agent Lopez while he was engaged in the performance of his official duties, and in committing such offense, did use dangerous and deadly weapons, to wit, rocks."
On December 7, 2009, while awaiting trial, Acosta-Sierra was transported to an individual holding cell at the courthouse. District Security Officer Mark Burrola approached Acosta-Sierra in the holding cell to handcuff him and to transport him to the courtroom. Acosta-Sierra walked backwards toward the cell door with his hands behind his back so that Officer Burrola could handcuff him, but when Officer Burrola opened the cell door, Acosta-Sierra turned around and punched Officer Burrola on the left side of his head. Although Officer Burrola did not require medical attention, his "ear felt hot."
In light of this incident, the government filed a Second Superseding Indictment which added Count 3 and charged Acosta-Sierra with assault on a federal officer in violation of 18 U.S.C. § 111(a)(1) for "punch[ing] Officer Burrola, while Officer Burrola was engaged in the performance of his official duties."
Prior to trial, the district court denied Acosta-Sierra's in limine motions seeking to introduce expert testimony that Acosta-Sierra suffered from paranoid schizophrenia and delusions of being subject to persecution and torture by governmental authorities. The district court held that this evidence was not admissible to prove a diminished capacity defense because Section 111 is a general intent crime. The district court also held that this evidence was inadmissible to present a theory of self-defense because "there was no use of force, let alone any excessive force, from which one might reasonably suggest that a cognizable theory of self-defense would lie." Acosta-Sierra waived his right to a jury trial due to these rulings.
Following a two-day bench trial, the district court found Acosta-Sierra guilty on both counts of assaulting a federal officer and denied his Rule 29 motion for a judgment of acquittal. In finding Acosta-Sierra guilty of Count 2, the court found beyond a reasonable doubt (1) that Acosta-Sierra inten- tionally used force in assaulting Officer Lopez, (2) that Officer Lopez was engaged in his official duties at the time of the assault, and (3) that the baseball-size rock that Acosta-Sierra threw constituted a dangerous or deadly weapon. As for the first element, the district court found that "there was a display of force" that "reasonably caused a person to fear immediate bodily harm." The district court also concluded that the government did not need to prove that Acosta-Sierra "intention-ally used force against Officer Lopez or someone else" because "this is a general intent crime, not a specific intent crime."
In finding Acosta-Sierra guilty of Count 3, the court found beyond a reasonable doubt that Acosta-Sierra intentionally used force in assaulting Officer Burrola based on the "aggression" revealed by "the power of th[e] first punch" as well as the "way [Acosta-Sierra] went after [Officer Burrola] to try to hit him the second time." The court further found that there was no evidence that Officer Burrola applied any force, let alone excessive force, such that a reasonable person would consider self-defense necessary. In addition, the court found "more than sufficient evidence was presented for the Court to find beyond a reasonable doubt that Officer Burrola was performing in the execution of his official function at the time of the assault."
In November 2010, the district court sentenced Acosta-Sierra to 60 months in prison on Count 2 and 36 months on Count 3, with those terms to run concurrently, as well as three years of supervised release. Acosta-Sierra then filed a timely appeal.
We review mixed questions of law and fact de novo. See United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir. 2000). We also review de novo a district court's denial of a motion for a judgment of acquittal based on insufficient evidence. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008). In so doing, we must determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[W]hen faced with a record of historical facts that supports conflicting inferences . . . [we] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (internal quotation marks and citation omitted).
Whether diminished capacity is a defense to a charged offense is reviewed de novo. United States v. Vela, 624 F.3d 1148, 1154 (9th Cir. 2010). We review for abuse of discretion a district court's decision to admit or exclude scientific ...