U.S. v. Acosta-Sierra, No. 10-50575 (08-15-12) (Nelson with Gould and Ikuta).

Need a guide to assault on a federal officer in violation of 18 USC 111?  This is the opinion to turn to. The defendant here threw a rock at a Border Patrol agent, and later punched a guard coming to escort him. Yes, one should limit their rock throwing to glass houses, but the defendant had a history of paranoid schizophrenia. At the bench trial, the defendant was convicted of both counts. On appeal, the 9th reversed the rock throwing conviction on the basis that the agent did not know the rock was thrown at him until after it clanged against a metal fence. The court should have analyzed the assault under the prong of "attempted battery" rather than "causing a threat." (Yes, there are two prongs or ways of looking at common law assault). Moreover, the court should have used an intent analysis or it threatened to turn the offense into a strict liability one. The 9th did not grant the Rule 29 claim because there was sufficient evidence to possibly convict on the attempt theory. Alas, for the second count, the 9th affirmed, rejected the argument that 18 USC 111 actually requires specific intent. The 9th stuck by precedent in holding that it is a general intent crime, and therefore he could not introduce diminished capacity evidence. The district court also did not err in precluding diminished capacity evidence to show that the defendant acted in perceived self defense. The 9th stated that an objective reasonableness to a guard's acts was the standard here.

Congratulations to Jasob Ser of the San Diego Federal Defenders.