JAMES CANTU SANCHEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-6610 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 11,679-11,693) is reported at 914 F.2d 1355. JURISDICTION The judgment of the court of appeals was entered on September 20, 1990. The petition for a writ of certiorari was filed on December 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether 18 U.S.C. 111, which punishes assaults on federal officers, requires proof of a specific intent to injure the officer. STATEMENT After a jury trial in the United States District Court for the Southern District of California, petitioner was convicted of assaulting a federal officer with a dangerous weapon, in violation of 18 U.S.C. 111. He was sentenced to 57 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. Pet. App. 11,679-11,693. 1. The evidence at trial showed that, on August 21, 1988, United States Border Patrol Agent Jaime Macias was on patrol in a marked border patrol car near Andrade, California. At about 8 p.m., petitioner drove by in a Toyota. Agent Macias pulled out and activated the red and blue lights of his patrol car. When petitioner failed to stop, Macias pursued him. During the pursuit, petitioner's car spun out of control and became stuck on railroad tracks. Agent Macias got out of the patrol car, approached petitioner, identified himself as a border patrol agent, and told petitioner to get out of his car. Petitioner ignored the instructions, freed his car from the railroad tracks, and drove straight at Agent Macias. Macias dove under his patrol car to avoid petitioner. He felt an impact, and also felt rocks and dirt hit his back. Pet. App. 11,679-11,680. After reporting by radio that he had been rammed, Agent Macias resumed his pursuit of petitioner. Petitioner began to drive in circles around the patrol car, bumping it a second time, before becoming stuck in sand. Agent Macias reapproached petitioner and again identified himself as a border patrol agent. This time, petitioner replied "I am no wetback" and struck Agent Macias in the chest. Macias handcuffed petitioner as other family members arrived. Petitioner continued to yell and curse. He bit his wife when she attempted to calm him. Pet. App. 11,680-11,681. Petitioner testified at trial to a different version of events. According to petitioner, he attempted to go directly home after his car stalled on the railroad tracks. Agent Macias then attacked him from behind as he got out of his car. Pet. App. 11,681. 2. The district court instructed the jury that assault is "(a)ny willful attempt to inflict injury on the person of another, when coupled with the present ability to do so; and any intentional display of force, such as would give the victim reason to feel or expect immediate bodily harm." Tr. 304-305. The court went on to say that, in order to convict petitioner, the jury had to find "an act forbidden by law and an intent to do the act." Id. at 306. The court explained that: "An act is done knowingly if it's done voluntarily and intentionally and not because of mistake, accident, or other innocent reason. The purpose of adding the word knowingly was to insure no one would be convicted for an act done because of mistake, accident, or other innocent reason." Ibid. The court added that "(i)ntent to injure is not an element of the offense charged," and that therefore the proof need not "show that (petitioner) intended to injure the Border Patrol agent." Ibid. The court further instructed the jury that a car constitutes a dangerous weapon if used "intending to endanger the life or inflict great bodily harm upon another." Id. at 305. The jury convicted petitioner. 3. The court of appeals affirmed. Pet. App. 11,679-11,693. The court rejected petitioner's challenge to the instruction that an assault offense does not require specific intent to injure the officer. The court applied the plain error standard of review because defense counsel had agreed at trial that the instruction was a correct statement of law. Id. at 11,682. The court noted that, under its decision in United States v. Jim, 865 F.2d 211 (9th Cir.), cert. denied, 110 S. Ct. 93 (1989), assault is a general intent offense that does not require the prosecution to establish the defendant's specific intent to injure the officer. Pet. App. 11,683. The court concluded that it need not decide whether the district court correctly instructed the jury that a car is a dangerous weapon if used with an intent to endanger life or inflict great bodily harm (Pet. App. 11,683-11,685), or whether Jim applies retroactively (Pet. App. 11,685-11,686). As the court explained (Pet. App. 11,684-11,685), petitioner's defense was that he had never driven toward the border patrol car. Consequently, "(t)he pivotal issue was * * * not what (petitioner) intended when he drove toward Macias, but whether he drove toward him at all." Because petitioner's defense did not depend on the distinction between general and specific intent, the instructions petitioner complains of were unlikely to have affected the jury's verdict. /1/ ARGUMENT Petitioner contends that the court of appeals erred in following its decision in United States v. Jim, 865 F.2d 211 (9th Cir.), cert. denied, 110 S. Ct. 93 (1989), that a specific intent to injure the officer is not an element of the offense of assaulting a federal officer. Since the Court denied certiorari on this precise issue in Jim, and since petitioner failed to preserve the issue in the district court, further review is not warranted. 1. In United States v. Feola, 420 U.S. 671 (1975), this Court held that 18 U.S.C. 111 does not require proof that the defendant had a specific intent to assault a federal officer. The Court refused to read such an "unexpressed requirement" into the statute, explaining that "(a)ll the statute requires is an intent to assault, not an intent to assault a federal officer." Id. at 684. The Court concluded (id. at 686) that "in order to incur criminal liability under Section 111 an actor must entertain merely the criminal intent to do the acts therein specified." Petitioner suggests (Pet. 6) that the reference in Feola to "criminal intent" should be construed as requiring a specific intent to injure the federal officer. But the holding of Feola, which rejected an implied requirement that a defendant specifically have intended to assault a federal officer, undercuts this position. Moreover, nothing in the Court's opinion in Feola suggests that the Court was referring to a requirement of specific intent rather than general intent. On the contrary, as this Court subsequently explained in construing 18 U.S.C. 751, a statute that prohibits escape from federal confinement: "cases have generally held that, except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction." United States v. Bailey, 444 U.S. 394, 408 (1980). See also id. at 405 ("In a general sense, 'purpose' corresponds loosely with the common-law concept of specific intent, while 'knowledge' corresponds loosely with the concept of general intent."). Bailey held that only general intent was required where "(n)othing in the language or legislative history of (the statute) indicated that Congress intended to require * * * a heightened standard of culpability." Since nothing in the language or legislative history of 18 U.S.C. 111 requires a specific intent to injure a federal officer, Feola and Bailey together point to the conclusion that a defendant who acts with general intent is guilty of violating the statute. /2/ Here, the district court correctly instructed the jury on general intent by explaining that it had to find that petitioner "intentionally committed the act," and that the act was "done knowingly * * * (rather than) because of mistake, accident, or other innocent reason." Tr. 306. Given these instructions on general intent, the district court was entirely correct to instruct the jury (id. at 306) that "(i)ntent to injure is not an element of the offense charged." 2. Contrary to petitioner's suggestion, there is no square conflict among the courts of appeals on the question whether a defendant convicted under 18 U.S.C. 111 must have had a specific intent to injure the officer. Petitioner relies upon United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977), in which the court of appeals stated: If (18 U.S.C. 111) is a "general intent" crime, the Government would not need to prove anything about the defendant's state of mind at the time he acted. The only issue would be whether a reasonable man would find that the defendant's actions should have put a federal officer in apprehension of bodily harm. * * * On the other hand, if section 111 is a "specific intent" crime, the Government would have to prove that the defendant subjectively intended to put a federal officer in apprehension of bodily harm. Id. at 1076. The Staggs court erred by equating a general intent crime with a strict liability crime that requires no proof concerning the defendant's state of mind. See Liparota v. United States, 471 U.S. 419, 423-424 n.5 (1985)(distinguishing between strict liability crimes requiring no mens rea, and other crimes requiring proof of general or specific intent). While the Seventh Circuit correctly relied on Feola for the proposition that a defendant's state of mind is relevant in a prosecution under 18 U.S.C. 111, it mislabeled the requisite proof as specific intent rather than general intent. See 553 F.2d at 1076. In any event, the defendant in Staggs was charged under 18 U.S.C. 111 for pointing a gun at a federal agent and threatening to shoot him. The defendant claimed that he had picked up the gun intending to shoot himself rather than the agent. In considering whether psychiatric testimony about the defendant's non-aggressive personality was admissible at trial, the Seventh Circuit observed that 18 U.S.C. 111 requires specific intent, and that the testimony therefore was relevant to whether the defendant intended to threaten or did threaten a federal official. 553 F.2d at 1076. The court also stated, however, that "(e)ven if Section 111 was a general intent crime, (the) testimony would be relevant" as corroboration of the defendant's claim that he did not in fact point the gun at the agent. Ibid. Thus, the Seventh Circuit would have reached the same result in Staggs whether or not it concluded that Section 111 requires specific intent. /3/ Similarly, none of the other cases cited by petitioner holds that Section 111 requires proof of a specific intent to injure the federal officer. The court in United States v. Taylor, 680 F.2d 378 (5th Cir. 1982), approved a supplemental instruction on "willful intent," but the substance of the instruction was, like the instructions in this case, framed in terms of general intent. See id. at 381 ("Was the defendant in such a state of mind that he was incapable of knowing that he was committing an assault?"). The court in United States v. Manelli, 667 F.2d 695 (8th Cir. 1981) cited Feola as requiring "specific intent" (id. at 696), but never suggested that the defendant must actually intend to injure a federal agent. In addition, the only issue before the court in Manelli was the sufficiency of the evidence. See id. at 697 (concluding that "the evidence amply supports the jury's finding that Manelli intended to assault Agent Meyer with his automobile as charged in the indictment"). In United States v. Caruana, 652 F.2d 220 (1st Cir. 1981), the defendant did not directly assault the officers, but instead was charged with releasing dogs to frighten them. The substance, if not the precise wording, of the instruction approved in that case undoubtedly was correct. See id. at 223 (jury must fine that "the defendant released the dogs with the specific intent and expectation that they would frighten the officers"). /4/ 3. Even if the issue raised by petitioner warranted review, this would not be a suitable case for resolving it. Petitioner did not object to the instruction at trial. See Pet. App. 11,682. Accordingly, as petitioner recognizes (Pet. 6), he is entitled to relief only if the instruction was plain error. See Fed. R. Crim. P. 52(b); United States v. Young, 470 U.S. 1, 16 (1985)(plain error review limited to cases where defendant shows that it undermined fundamental fairness of trial and resulted in miscarriage of justice). Here, the court of appeals correctly concluded that petitioner cannot meet that demanding standard. The district court clearly instructed the jury that petitioner could be found guilty only if he acted with criminal intent. See Tr. 306 (petitioner must have acted "intentionally" and "knowingly"). In addition, the district court instructed the jury that petitioner must have acted "willfully" (id. at 304), which it defined as "voluntarily and intentionally and with a specific intent to do something the law forbids, that is to say: with bad purpose, either to disobey or disregard the law." Id. at 307. And the court instructed the jury (id. at 305) that a car constitutes a dangerous weapon if petitioner used it "intending to endanger the life of or inflict great bodily harm upon another." Although we believe these additional instructions were unnecessary, the jury may well have concluded, in light of the instructions as a whole, that it could convict petitioner only upon finding that he specifically intended to cause injury to the officer. In addition, petitioner's defense at trial was not that he lacked a specific intent to injure the officer, but rather that he never even drove his car at the officer. See Pet. App. 11,684-11,685. Consequently, as the court of appeals explained (id. at 11,684), "(t)he pivotal issue was * * * not what (petitioner) intended when he drove toward Macias, but whether he drove toward him at all." The possibility that the jury could have disbelieved petitioner's defense, yet still concluded that he did not specifically intend to injure the officer, is quite remote. Because petitioner's basic defense was unaffected by the district court's instructions, there was no plain error in this case. See Young, 470 U.S. at 16. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney APRIL 1991 /1/ The court of appeals also rejected petitioner's contentions that the district court committed plain error by failing to instruct the jury that it was required to agree unanimously on a specific assault in order to convict petitioner (Pet. App. 11,686-11,687), and by failing to give a lesser included offense instruction (id. at 11,687-11,688). In addition, the court held (id. at 11,688-11,693) that petitioner's sentence was proper under the Sentencing Guidelines. The petition for certiorari presents none of these questions. /2/ When Congress wishes to engraft a specific intent requirement onto an assault statute, it knows how to do so. For example, the statute governing assaults within the federal maritime and territorial jurisdiction lists three specific intent offenses and three general intent offenses. Compare 18 U.S.C. 113(a)(assault "with intent to commit murder"); 113(b)(assault "with intent to commit any felony, except murder or a felony under chapter 109A"); and 113(c)(assault with dangerous weapon "with intent to do bodily harm") with 18 U.S.C. 113(d)(assault "by striking, beating, or wounding"); 113(e)("(s)imple assault"); and 113(f)(assault "resulting in serious bodily injury"). /3/ Subsequent decisions of the Seventh Circuit have not been entirely consistent. In United States v. Gometz, 879 F.2d 256, 260 (7th Cir. 1989), cert. denied, 110 S. Ct. 752 (1990), the court cited Staggs as establishing that Section 111 requires specific intent. But in United States v. Streich, 759 F.2d 579, 584-585 (7th Cir.), cert. denied, 474 U.S. 860 (1985), the court said that "willfulness" is not an element of a Section 111 offense. /4/ The remaining two cases cited by petitioner simply suggest that assault requires intent, without discussing whether the requisite intent is general or specific. See United States v. Alvarez, 755 F.2d 830, 845 (11th Cir.), cert. denied, 474 U.S. 905 (1985); United States v. Flood, 586 F.2d 391, 392 (5th Cir. 1979).