USA v. Vela Jr

• Decision Date: 26 October 2010
• Docket Number: No. 08-50121.,08-50121.
• Citation: 624 F.3d 1148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelio VELA Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

624 F.3d 1148

UNITED STATES of America, Plaintiff-Appellee,

v.Rogelio VELA Jr., Defendant-Appellant.

No. 08-50121.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 15, 2009.

Filed Oct. 26, 2010.

Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

George D. Hardy, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. No. 3:07-cr-00993-DMS-1.

Before: WILLIAM C. CANBY, JR., JOHNNIE B. RAWLINSON, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge CANBY; Dissent by Judge N.R. SMITH.

OPINION

CANBY, Circuit Judge:

Rogelio Vela Jr. (“Vela”) appeals from a judgment of not guilty by reason of insanity following a jury trial on a charge of assault on a federal officer, in violation of 18 U.S.C. § 111. He 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. See 18 U.S.C. § 4243. We conclude, over the government's opposition, that we have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We affirm the district court's judgment.

BACKGROUND

On the evening of March 22, 2007, in the San Ysidro, California, Port of Entry security office, Vela stabbed Customs and Border Protection Branch Chief Patrick Wright in the chest with a knife. The stabbing occurred after Officer Wright and Vela, who is deaf, exchanged a series of notes concerning Vela's fear that both the Mafia and his family wanted him dead, and Vela's own declaration that he intended to kill himself. Officer Wright was severely injured, but survived.

A federal grand jury returned a two-count indictment, charging Vela in Count 1 with attempted murder in violation of 18 U.S.C. § 1114 and in Count 2 with assault on a federal officer in violation of 18 U.S.C. §§ 111(a)(1) and (b). Count 1 eventually was dismissed on the government's motion, so only Count 2 is at issue on appeal. Count 2 originally charged Vela with “willfully” assaulting Officer Wright while Wright was performing his official duties. Subsequently, the grand jury returned a superseding indictment that replaced “willfully” with “intentionally.” ¹

Vela filed several pretrial motions, three of which are the concern of this appeal. First, Vela filed a motion to dismiss the superseding indictment because Count 2 failed to charge a required element of willfulness. ² Second, Vela filed a motion to be allowed a defense of diminished capacity to the Count 2 charge. Finally, Vela moved to dismiss Count 2 on the ground that § 111(b), the assault statute, unconstitutionally required the court, rather than the jury, to find aggravating facts that increased the authorized sentence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied all three motions.

Vela proceeded to trial asserting an insanity defense, supported by expert testimony. The government proffered its own expert witness who testified that Vela was not legally insane, but only “severely depressed” at the time of the incident. After a three-day trial, the jury found Vela not guilty by reason of insanity. The district court ultimately ordered Vela committed to the custody of the Attorney General for placement in a suitable mental facility, pursuant to 18 U.S.C. § 4243(e). Vela timely appealed the judgment.

JURISDICTION

Before proceeding to the merits of Vela's appeal, we first address the government's contention that we lack jurisdiction because there is no final judgment from which Vela can appeal. The government also asserts that Vela is not entitled to appeal the verdict that accepted Vela's affirmative defense of insanity.

“The right of appeal ... is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute-in this case, 28 U.S.C. § 1291.” Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Section 1291 grants us jurisdiction to review “all final decisions of the district courts.” 28 U.S.C. § 1291.

The government argues that there has been no final decision in this case because Vela was found not guilty by reason of insanity, with the result that there has been no criminal conviction and sentence. The government relies on statements from decisions of this court and the Supreme Court to the effect that “[i]n a criminal case the [final judgment] rule prohibits appellate review until conviction and imposition of sentence.” Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); see also United States v. Montalvo, 581 F.3d 1147, 1150 (9th Cir.2009) (“In criminal cases, a final decision is rendered upon imposition of the defendant's sentence.”). None of the cases making such statements, however, considered whether appellate jurisdiction lies in the unusual case where a criminal defendant is aggrieved by a verdict of not guilty by reason of insanity, which, by its nature, is not followed by a sentence. ³ 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.

First, both this court and the Supreme Court repeatedly have emphasized that, as a general matter, finality coincides with the termination of the criminal proceedings. We have explained that “[u]nder the modern doctrine, a ‘ “final decision” generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” United States v. Ray, 375 F.3d 980, 985 (9th Cir.2004) (quoting United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184 (9th Cir.1995) (per curiam)); see also Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). And, in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the Supreme Court recognized that “the term ‘final decision’ normally refers to a final judgment, such as judgment of guilty, that terminates a criminal proceeding.” Id. at 176, 123 S.Ct. 2174 (emphasis added). ⁴

When a criminal defendant is found guilty, it is unremarkable that there is no final judgment until the defendant is sentenced; it is only at sentencing that the criminal action terminates and “nothing [is left] for the court to do but execute the judgment.” Midland Asphalt, 489 U.S. at 798, 109 S.Ct. 1494 (citation omitted); see also, e.g., Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) (“To create finality it was necessary that petitioner's conviction should be followed by sentence....”). But when, as in Vela's case, a jury finds a criminal defendant not guilty by reason of insanity, the docketing of the verdict amounts to a final judgment because the criminal proceeding has come to an end and no criminal sentence will follow. ⁵ See United States v. Stewart, 452 F.3d 266, 272 (3d Cir.2006) (“[T]he judgment of acquittal solely by reason of insanity has conclusively resolved the underlying criminal proceedings.”); State v. Marzbanian, 2 Conn.Cir.Ct. 312, 198 A.2d 721, 724 (1963) ( “[I]t is not correct to say that because no sentence had been pronounced there is no final judgment from which an appeal may be taken. A judgment was rendered in this case, as it must be in every case which terminates in a finding after a trial on the facts....”); cf. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546, 69 S.Ct. 1221 (explaining that the term “final decision” is to be given a “practical rather than a technical construction”). Thus, we conclude that appellate review of proceedings culminating in a verdict of not guilty by reason of insanity accords with our prior decisions and those of the Supreme Court.

Moreover, appellate review in cases ending with verdicts of not guilty by reason of insanity is consistent with the primary rationale underlying the final judgment rule that courts of appeal should avoid “piecemeal appellate review of trial court decisions which do not terminate the litigation.” Flanagan, 465 U.S. at 264, 104 S.Ct. 1051 (citation and internal quotation marks omitted); see also Ray, 375 F.3d at 985 (“The foundation of [the final judgment rule] is not in merely technical conceptions of ‘finality.’ It is one against piecemeal litigation.” (citation omitted)). As the Supreme Court has explained, the general rule that requires parties “[to] raise all claims of error in a single appeal following final judgment on the merits,” Flanagan, 465 U.S. at 263, 104 S.Ct. 1051 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)), not only “minimiz[es] appellate-court interference with the numerous decisions [trial judges] must make in the prejudgment stages of litigation,” but also “reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals,” id. at 263-64, 104 S.Ct. 1051. In criminal cases, the policy against piecemeal appellate review is at its strongest because of the interests of the defendant, the prosecution, and society in promptly bringing a criminal case to trial. Id. at 264, 104 S.Ct. 1051.

Permitting Vela to appeal from a verdict of not guilty by reason of insanity raises none of these concerns. His case is over; an appeal cannot interfere with or delay the progress of his criminal trial. It will not lead to multiple appeals. Thus, the rationales underlying the final judgment rule render...