Sunday, October 31, 2010

Case o' The Week: Defense Appeals Acquittal - and Loses; Vela and NGI appeals

Judge Canby's decision in Vela, complains dissenting Judge N. Randy Smith (right), will allow the defense to "have its cake and eat it too," and to get a "do over" when a defense strategy does not pan out at trial.

Works for us.

United States v. Vela
, 2010 WL 4188983 (9th Cir. Oct. 26, 2010), decision available here.

Hard-fought appeal by San Diego AFPD Todd Burns. Decision by Judge Canby, dissent by Judge N. Smith.

Facts: Vela, plagued with delusions about persecution by the Mafia and his family, interacted with a Customs Agent – then severely injured the agent by stabbing him in the chest. Id. at *1. Vela went to trial on a count of 18 USC § 111, assault on a federal officer. Id.

The indictment didn’t allege a “willful” assault, and the court refused a pretrial challenge on that alleged missing “element.” Id. The district court also rejected a diminished capacity defense, and an Apprendi challenge. Id. Vela was found not guilty by reason of insanity at trial, then committed to a mental facility in the custody of the A.G.. Id. “Vera timely appealed the judgment.” Id.

Issue(s): “[T]he government’s contention [is that] we lack jurisdiction because there is no final judgment from which Vela can appeal.” Id. at *2. Vela “contends that the district court erred in failing to dismiss the indictment, refusing to instruct the jury that willfulness is an element of § 111, and denying him the opportunity to present a diminished capacity defense. He contends that, as a result, he was denied an opportunity for an outright acquittal rather than a verdict of not guilty by reason of insanity, which results in civil commitment.” Id. at *1.

Held: “We conclude in this matter of first impression that, when a defendant is found not guilty by reason of insanity, the lack of a sentence does not necessarily preclude appellate jurisdiction.” Id. at *2. “Vela’s arguments [that § 111 requires a heightened mens rea for conviction, and that the diminished capacity defense therefore lies], are foreclosed by our decision in United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989), where we held that § 111 is a general intent crime.” Id. at *4.

Of Note: The big new rule of Vela is the ability to appeal after a verdict of “not guilty by reason of insanity” (N.G.I.). An intriguing side issue, however, is the Apprendi challenge to the federal assault statute. In 1991, the Ninth held that Section 111 – the assault statute – has a sentencing factor within it: whether the defendant used a dangerous weapon. Id. at *6. The Ninth explained that the judge could find that fact, kicking the stat max for the crime up to twenty years. Id.

Then Apprendi came down in 2000, and required that any enhancement fact that increases the stat max to be proved to the jury. Id. Faced with Apprendi, the panel in Vela now saves the federal assault statute by suddenly converting a former sentencing factor into an element. Id. at *7-*8.

Did the language of the assault statute change since the Ninth’s 1991 decision? Nope – and the legislative history didn’t either. The analysis supporting this flip-flop on the meaning of the assault statute in Vela is precisely as compelling as it was when the Ninth similarly salvaged the federal drug statute in Buckland in 2002 – not the Circuit’s finest hour.

How to Use: Dissenting Judge N. Smith gives a great primer on how the defense can “have its cake and eat it too.” Id. at 10. As Judge Smith grumbles, Vela allows a defendant to appeal “one failed affirmative defense, while keeping his acquittal verdict as a back up.” Id. Sadly, Vela isn’t quite the defense bonanza that Judge Smith describes: counsel for a mentally-ill defendant must still worry about indefinite civil commitment whether pursuing a dim cap or insanity defense (a danger not fully acknowledged by either Judge Canby or Judge Smith).

The availability of appellate review after Vela does help us to untangle the Gordian knot we face when weighing whether to pursue a N.G.I. defense. Of course, bear in mind that while Mr. Vela won on j/x, he actually lost his appeal – taking a little of the urgency out of Judge N. Smith’s “sky is falling” dissent.

For Further Reading: Diminished capacity, and N.G.I., are two very different concepts: a point emphasized by Judge Canby in lengthy footnote in Vela. Id. at *6 & n. 11. For an interesting and detailed (though ultimately disappointing) Posnerian exegesis on just how complicated N.GI. is, see Morgan v. Israel, 735 F.2d 1033 (7th Cir. 1984) (upholding denial of federal habeas petition), decision available here.

Image of the Honorable N. Randy Smith from

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


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