United States v. Perea
| Decision Date | 23 April 2010 |
| Docket Number | No. CR 09–1034 JB.,CR 09–1034 JB. |
| Citation | 818 F.Supp.2d 1293 |
| Parties | UNITED STATES of America, Plaintiff, v. Leroy PEREA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
OPINION TEXT STARTS HERE
Gregory J. Fouratt, United States Attorney, Jack E. Burkhead, Shana B. Pennington, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.
Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, NM, for Defendant.
THIS MATTER comes before the Court on the Defendant's Objections to the Government's Jury Instructions and His Response to the Government's Objection to the Court's Preliminary Instruction, filed April 6, 2010 (Doc. 50). The Court held hearings during the jury trial on April 8 and April 9, 2010. The primary issues are: (i) whether instructing the jury on the first element of 18 U.S.C. § 111(b) will violate Defendant Leroy Perea's due-process rights if the Court includes the language “forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with Sonny Garcia”; (ii) whether § 111(b) requires underlying physical assaultive conduct; and (iii) whether the Court should instruct the jury on the meaning of “engaged in the performance of his official duties” in § 111(b). Because the United States Court of Appeals for the Tenth Circuit has held that the language of § 111 does not violate a defendant' due-process rights, the Court will overrule Perea's objection on the basis of due process. Because the Tenth Circuit has not indicated that § 111(b) requires underlying assaultive conduct, and because the current circuit split on the issue pertains to § 111(a), and not § 111(b), the Court will overrule Perea's objection on that ground. Because the Court finds that the jury should receive some guidance on the scope of Immigrations and Customs Enforcement (“ICE”) Special Agent Sonny Garcia's official duties, but not in the manner which the United States proposes, the Court will sustain in part and overrule in part Perea's objection on that ground.
The charges arise from an incident on June 20, 2007, involving Immigrations and Customs Enforcement Special Agent Sonny Garcia and Perea, whose vehicles were stopped alongside each other at the stoplight at Eagle Ranch Road and Paradise Boulevard in Albuquerque, New Mexico. See Defendant's Objections at 1–2. Perea represents that he anticipates that Garcia will testify at trial that, while stopped, Perea unrolled his window, shouted at Garcia, accusing him of cutting Perea off on the road, and then placed a firearm in his lap, where, according to a witness, it remained until the light changed. See id. at 2. According to Perea, Garcia will also testify that, moments before the light changed, he flashed his badge and said he was a federal officer, and that Perea responded by shouting that he did not care and drove away. See id. Garcia followed Perea to a nearby residence. See id. The United States represents that the evidence will show that, in addition to showing his badge and identifying himself as a federal agent, Garcia drew his weapon. See United States' Objections to the Court's First Proposed Preliminary Instructions at 2, filed April 5, 2010 (Doc. 48). The United States represents that the evidence will also show that, in addition to Perea responding that he did not care who Garcia was, he also threatened to kill him. See id. The United States further represents that, when Perea drove away, Garcia had his weapon trained on Perea's vehicle. See id.
The Court filed its first proposed preliminary jury instructions on April 5, 2010. See Doc. 47. In the Court's proposed preliminary instructions, the Court narrowed the list of six enumerated acts against an officer engaged in the performance of his official duties listed in 18 U.S.C. § 111(a)(1) to two of the six: forcibly assaulted or intimidated. The United States objected to the Court's preliminary instruction, arguing that it anticipated that the evidence would support a reasonable jury concluding unanimously that Perea committed each of the six proscribed acts in 18 U.S.C. § 111(a)(1)—forcibly assaults, resists, opposes, impedes, intimidates, or interferes. Perea responded:
It is Mr. Perea's position that the court's proposed preliminary instruction that states the offense as “forcibly assault and intimidate” is correct. It is his position that this should remain the preliminary instruction. The issue of the final instructions can be re-visited after all the evidence developed during the course of trial. Mr. Perea's position remains, however, that all manners of violating the statute, except assault, have no part in any instruction given to the jury.
Defendant's Objections to the Government's Jury Instructions and His Response to the Government's Objection to the Court's Preliminary Instruction at 10–11. The Court overruled the United States' objection to the preliminary instruction and stated that it would reconsider the § 111 instruction for the final jury instructions after it had heard all of the United States' evidence at trial. See Memorandum Opinion and Order, filed April 8, 2010 (Doc. 58).
In the United States' Proposed Jury Instruction No. 9, it states:
To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: the defendant forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with Immigration and Customs Enforcement Special Agent Sonny Garcia;
Second: the person assaulted, resisted, opposed, impeded, intimidated, or interfered with was a federal officer who was then engaged in the performance of his official duty, as charged; and
Third: the defendant did such acts intentionally.
Fourth: in doing such acts, the defendant used a deadly or dangerous weapon.
Government's Requested Jury Instructions at 14, filed March 31, 2010 (Doc. 43). In combination with his response to the United States' objection to the preliminary instruction, Perea objected to the United States' proposed jury instruction including all six enumerated acts. See Defendant's Objections to the Government's Jury Instructions and His Response to the Government's Objection to the Court's Preliminary Instruction. He argues that “resisted, opposed, impeded, intimidated, or interfered with” should not be included in the elements instruction, and that only “assaulted” should be included. Defendant's Objections at 3. Perea argues that “resisted, opposed, impeded, intimidated, or interfered with” presupposes that there is some kind of law-enforcement activity that can be resisted, opposed, impeded, intimidated, or interfered with, and that in this case, there was no apparent law-enforcement activity occurring with which Perea could have resisted, opposed, impeded, intimidated, or interfered. Defendant's Objections at 3. Perea argues that he was without notice that any activity on his part short of assault could be a felony offense, and thus holding Perea to answer for a felony charge for resisting, opposing, impeding, intimidating, or interfering “with someone who looked and acted like just another person on the street,” would violate the Fifth Amendment's due process clause. Defendant's Objections at 5. He further argues that, without notice, there could be no criminal intent. See Defendant's Objections at 6 n. 2. He stresses that, regardless of the identity or activity of the alleged victim, any person of ordinary intelligence would be on notice that assault is a crime, and thus Perea does not object to including “assault” in the elements definition of § 111(a). Defendant's Objections at 6–7. He further argues that assault is the offense which Congress intended to proscribe, and not “the mere incivility of resistance, opposition, impediment, intimidation, or interference.” Defendant's Objections at 8. Because Perea contends the charge against him is assault, he argues that the other acts are irrelevant, superfluous, and confusing, and that the Court should eliminate them. See Defendant's Objections at 8. In support of his argument, Perea looks to the lesser “simple assault” offense, and argues that the lesser offense proscribing simple assault might be the non-assaultive resisting, opposing, impeding, intimidating, or interfering with a law-enforcement officer, and thus argues that, if the Court uses those acts in its final instruction, it should do so in conjunction with a lesser-included instruction of a misdemeanor offense. See Defendant's Objections at 8.
In addition to his argument that including the other enumerated acts violates due process, Perea also argues that the challenged manners of violating § 111 are not supported under the facts of the case. See Defendant's Objection at 10. Perea argues that the United States' position in its objection to the preliminary instruction that he violated other acts within § 111 when he drove away from Garcia is “a forced and novel application of the law to facts that will be contested—facts that have not heretofore appeared in any statement made by SA Garcia, nor in any response by the government to Mr. Perea's request for a bill of particulars.” Defendant's Objections at 10. Perea argues that this version of the facts supports an as-applied due-process challenge. See Defendant's Objections at 11.
The United States, in response, argues that the discovery the United States provided Perea gave all the relevant details regarding Garcia's actions at the intersection, the threats Perea lodged at Garcia, and that Perea drove off, and thus he was aware of all the facts the United States would be using and was not unfairly surprised. See United States' Response to Defendant's Objections [to] the Government's Jury Instructions and Reply in Support of the Government's Objection to the Court's Preliminary Instruction, filed April 6,...
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