Sunday, August 19, 2012

Case o' The Week: Ninth Provides Concrete Answer, Sierra-Acosta and Assault on Federal Officer

Is it assault on a federal officer if you lob a hunk of concrete at the head of a border agent, but the officer never sees it?

No. (At least, it isn't under the “intent-to-frighten” theory of assault). United States v. Acosta-Sierra, 2012 WL 3326623 (9th Cir. Aug. 15, 2012), decision available here.

The Honorable Judge Dorothy W. Nelson
Players: Decision by Judge Nelson (left). Victory for San Diego Ass’t Defender Jason Ser.

Facts: Acosta-Sierra, a mentally-ill man, chucked a baseball-sized chunk of concrete at a border officer. Id. at *1. The rock missed the officer’s head by two feet -- the officer never saw it. Id. Moments later, the officer saw other officers arrested Acosta-Sierra, and began to feel “a little scared.” Id. Acosta-Sierra was convicted at a bench trial of 18 U.S.C. § 111(a)(1), assault on a federal officer. Id. at *2.

Issue(s): “The question here is whether Acosta-Sierra is guilty of assault if the rock he threw narrowly missed Officer Lopez, and Officer Lopez did not see the rock or feel afraid until immediately after it landed.” Id. at *4.

Held: “The first type of common law assault is an attempt to commit a battery . . . The second type of criminal assault, sometimes called an ‘intent-to-frighten,’ derives from the law of torts, and recognizes the importance of protecting individuals from the mental disturbance of being put in reasonable apprehension of bodily harm.” Id. at *3-*4. 

Although Acosta-Sierra’s rock-throwing seems to be a straightforward example of attempted battery, the district court analyzed his conduct under only the ‘reasonable apprehension of harm’ prong of common law assault.” Id. at *4. “We conclude that the district court erred in its application of the ‘reasonable apprehension of harm’ prong of common law assault. However, because the evidence would have been sufficient to convict Acosta-Sierra of attempted battery if the district court had not relied on the erroneous model jury instruction then in effect, we remand for retrial under the proper standard.” Id. at *5. 

“The district court erred in concluding that Acosta-Sierra caused a reasonable apprehension of immediate bodily harm under an objective standard of reasonableness because the district court did not limit its consideration to the facts known to Officer Lopez. Officer Lopez did not see Acosta-Sierra before he threw the rock and did not realize what had happened until after the threat of imminent bodily harm had passed.” Id. at *7.

Of Note: This opinion is fascinating discussion of the surprisingly complex assault statute. Judge Nelson devotes much effort to distinguishing and explaining the two theories of assault. 

The disappointing corner of the opinion is the later mens rea discussion relating to another count. Id. at *9. Despite ambiguity in the mens rea requirement (revealed in the tension between the Ninth’s Jim and Chapman) the Court sticks to the view that Section 111 assault is a general intent crime. Id. at *11. The result? Diminished capacity is not a defense in Section 111 cases, and the shrink here was properly excluded. Id. at *12 (“While mental health evidence would have explained why Acosta-Sierra subjectively believed that self-defense was necessary under the circumstances, it would not have supported the proposition that his actions were objectively reasonable.”)

How to Use: The “rock-throwing” count in this indictment did not specify the theory of prosecution. Id. at *9. Because there are two ways to prove Section 111 assault – and because the two theories have different factual requirements – a bill of particulars in Section 111 cases may make sense. Because the government had both theories available here, this win meant a reversal for retrial on the “attempt to assault” prong – instead of a flat appellate reversal. Id. at *10.
For Further Reading: It was a big week for San Diego. In Aguilar-Turcios v. Holder, 2012 WL3326618 (9th Cir. Aug. 15, 2012), amicus San Diego A.F.D. Steve Hubachek brings home a big win for Aguila Montes de Oca jurisprudence. Judge Paez’s opinion carefully dissects an AMdO issue in the immigration context and ultimately concludes a military conviction doesn’t qualify (much to dissenting Judge Bybee’s chagrin.) An important victory, particularly in the immigration context -- worth a close read.

Image of the Honorable Dorothy W. Nelson from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


Labels: , , , , , ,


Post a Comment

<< Home