U.S. v. Veach

• Decision Date: 01 August 2006
• Docket Number: No. 05-6268.,05-6268.
• Citation: 455 F.3d 628
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darwin E. VEACH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

455 F.3d 628

UNITED STATES of America, Plaintiff-Appellee, v. Darwin E. VEACH, Defendant-Appellant.

No. 05-6268.

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2006.

Decided and Filed: August 1, 2006.

ARGUED: Bruce R. Bentley, Zoellers, Hudson & Bentley, London, Kentucky, for Appellant. David P. Grise, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Bruce R. Bentley, Zoellers, Hudson & Bentley, London, Kentucky, for Appellant. David P. Grise, Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: DAUGHTREY and COLE, Circuit Judges; GRAHAM, District Judge.^*

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

The defendant, Darwin Veach, appeals from his conviction and sentence for resisting a federal law enforcement officer and threatening to assault and murder two federal law enforcement officers with intent to impede the performance of their official duties. The district court determined that Veach was a career offender and thus sentenced him to an effective prison term of 80 months. The defendant now asserts that the district court erred in preventing him from presenting a diminished capacity defense, in restricting his cross-examination of one of the victims, and in counting his prior conviction for a fourth offense of driving under the influence of intoxicants as a crime of violence. Because we conclude that the district judge improperly restricted Veach's ability to present a diminished capacity defense to a specific-intent crime, we reverse the defendant's convictions for threatening to assault and murder law enforcement officers with intent to impede the performance of their official duties and remand this matter for retrial on those counts. Because we are remanding this case for a new trial, we address the remaining evidentiary and sentencing issues merely as a matter of guidance to the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

There is no dispute concerning the relevant facts underlying the defendant's convictions. The record establishes that Veach's automobile was involved in a collision with another vehicle in Cumberland Gap National Historic Park. When United States Park Rangers Greg Mullin and Karen Bradford arrived on the scene, they suspected that the defendant was intoxicated and performed various field sobriety tests and a portable breath test on Veach that confirmed their initial impressions.

While securing the defendant for transport, Ranger Mullin was forced to struggle with Veach, who "attempted to pull away from" Mullin. The defendant also pulled the officer "down to one knee, causing an abrasion on that knee." Furthermore, as Mullin drove the defendant to the police station for booking, Veach stated, "I'm going to mess with you; if I get a shot at you[,] God dammit I'll kill you, I will; and I'm going to cut your head off." Veach was later transported to a local hospital for treatment of a facial cut, and once there he again threatened to decapitate one of the rangers. On the way back to the detention center, Veach threatened Mullin and Bradford once more, saying, "I will put a fuckin' bullet straight in your fuckin' head. The sheriff won't always be in office and 15 years later I'll walk up on you . . . . I'm going to drive you'ans all straight to hell."

Based on these facts, the jury convicted Veach of one count of resisting a federal law enforcement officer, 18 U.S.C. § 111(a)(1), and two counts of threatening to assault and murder a federal law enforcement officer with intent to impede such officer in the performance of official duties, 18 U.S.C. § 115(a)(1)(B). At sentencing, the district judge ruled that Veach's prior convictions for second-degree manslaughter and for a fourth offense of driving under the influence within five years were crimes of violence that subjected the defendant to sentencing as a career offender. Consequently, the court imposed prison terms of 12 months, 80 months, and 80 months for the respective offenses, to be served concurrently.

II. DISCUSSION

A. Evidentiary Challenges

On appeal, Veach first challenges two evidentiary rulings made by the district court. Specifically, he maintains that the court erred in granting the government's motion in limine to exclude presentation of a defense of diminished capacity based upon voluntary intoxication. Veach also contends that the district court erred in preventing him from cross-examining Ranger Bradford regarding her perception of the threats made by the defendant.

1. Presentation of a Diminished Capacity Defense

As we have held, "[i]t is well established that intoxication, whether voluntary or involuntary, may preclude the formation of specific-intent and thus serve to negate an essential element of certain crimes." United States v. Newman, 889 F.2d 88, 92 (6th Cir.1989). It is, however, only "the mens rea of a specific-intent crime" that may be negated by a diminished capacity or voluntary intoxication defense; such defenses have no applicability to general intent crimes. See United States v. Gonyea, 140 F.3d 649, 650 (6th Cir.1998) (citations and footnote omitted). To determine whether the district judge properly excluded the defendant's testimony relating to his level of intoxication at the time of the crimes charged, it is thus necessary to decide, first, whether 18 U.S.C. §§ 111(a)(1) and 115(a)(1)(B) are general or specific intent offenses.

In Gonyea, we highlighted the differences between the two classes of crimes:

[A] specific intent crime is one that requires a defendant to do more than knowingly act in violation of the law. The defendant must also act with the purpose of violating the law. The violation of a general intent crime, by contrast, requires only that a defendant intend to do the act that the law proscribes.

Id. at 653 (citations and internal quotation marks omitted).

Pursuant to the provisions of 18 U.S.C. § 111(a)(1):

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [any officer or employee of the United States or of any agency in any branch of the United States Government, or any person assisting such an officer or employee] while engaged in or on account of the performance of official duties ... shall, where the acts . . . constitute only simple assault, be fined ... or imprisoned not more than one year, or both . . . .

This statutory provision clearly indicates that any violator will be punished solely for the forcible assault on, resistance to, opposition to, impedance of, intimidation of, or interference with a designated individual. No other intent on the part of a defendant need be shown; the mere intentional performance of the prohibited act is sufficient to subject the perpetrator to federal criminal liability. The plain language of the statute thus supports the district judge's conclusion that voluntary intoxication or diminished functional capacity is not a viable defense to a charge of a violation of § 111.

Indeed, we have previously recognized as much in United States v. Kimes, 246 F.3d 800, 808-09 (6th Cir.2001), in which we examined the language and overall purpose of the statute before concluding "that the crime established in 18 U.S.C. § 111(a) is a general intent crime as to which evidence of diminished capacity is not admissible." Because Kimes is thus the law of the circuit, the district court was not at liberty to disregard that holding and this panel may not now overturn that decision absent intervening Supreme Court direction or an en banc decision of this court. See, e.g., United States v. Seltzer, 794 F.2d 1114, 1123 (6th Cir.1986).

Unlike 18 U.S.C. § 111, however, § 115(a)(1)(B) does contain additional language not found in the former general intent statute. That latter statutory provision reads:

Whoever threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under [18 U.S.C. § 1114], with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b). (Emphasis added.)

Despite the clear linguistic differences in the two statutes, the government argues that § 115, like § 111, contains no element of specific intent. In support of its position, the government cites the holding of the Eleventh Circuit in United States v. Berki, 936 F.2d 529, 532 (11th Cir.1991), "that 18 U.S.C.A. section 115(a)(1)(B) (West Supp.1990) is not a specific intent crime." See also United States v. Ettinger, 344 F.3d 1149, 1157 (11th Cir.2003). But see United States v. Stewart, 420 F.3d 1007, 1017 (9th Cir.2005) ("Moreover, by its express language, section 115(a)(1)(B) contains a specific intent element: it punishes only threats made regarding enumerated officials with the intent to impede, intimidate, interfere with, or retaliate against such officials on account of the officials' performance of official duties.").

The Sixth Circuit has not spoken directly to this issue in a published opinion. Nevertheless, we have recognized "that Congress is fully cognizant of the general intent/specific intent dichotomy," Kimes, 246 F.3d at 808, and that "[w]here a statute does not specify a heightened mental element such as specific intent, general intent is presumed to be the required element." United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.1992) (quoting United States v. Brown, 915 F.2d 219, 225 (6th Cir.1990)). Conversely, when the legislative branch "intends to create a specific intent crime, Congress explicitly says so." Kimes, 246 F.3d at 808. For example:

18 U.S.C. § 113(a)(1), which provides that "assault with intent to commit murder" in the...