United States v. Vela

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50121
Plaintiff-Appellee, D.C. No.
v.  3:07-cr-00993-
ROGELIO VELA JR., DMS-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding

Argued and Submitted
April 15, 2009—Pasadena, California

Filed October 26, 2010

Before: William C. Canby, Jr., Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Canby;
Dissent by Judge N.R. Smith

17773
 UNITED STATES v. VELA 17777

COUNSEL

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

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

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
17778 UNITED STATES v. VELA
an element of § 111, and denying him the opportunity to pre-
sent 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 con-
clude, over the government’s opposition, that we have juris-
diction 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, Cali-
fornia, 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 him-
self. 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 “willful-
ly” with “intentionally.”1
1
Count 2 of the superseding indictment charged that Vela “did inten-
tionally and forcibly assault, resist, oppose, impede, and interfere with a
person [designated in the act] in that [Vela] stabbed Officer Wright in the
chest with a deadly and dangerous weapon . . . and did thereby inflict bod-
ily injury upon Officer Wright, while Officer Wright was engaged in the
performance of his official duties.”
 UNITED STATES v. VELA 17779
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 (2000). The district
court denied all three motions.

Vela proceeded to trial asserting an insanity defense, sup-
ported 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 rea-
son of insanity. The district court ultimately ordered Vela
committed to the custody of the Attorney General for place-
ment 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.

[1] “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,
2
The relevant motions are listed here in the order in which we will
address them, not the order in which they were presented in the district
court.
17780 UNITED STATES v. VELA
28 U.S.C. § 1291.” Abney v. United States, 431 U.S. 651, 656
(1977). Section 1291 grants us jurisdiction to review “all final
decisions of the district courts.” 28 U.S.C. § 1291.

[2] 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 crimi-
nal conviction and sentence. The government relies on state-
ments 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
(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, consid-
ered 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 fol-
lowed by a sentence.3 We conclude in this matter of first
impression that, when a defendant is found not guilty by rea-
son of insanity, the lack of a sentence does not necessarily
preclude appellate jurisdiction.

[3] 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 deci-
sion” generally is one which ends the litigation on the merits
and leaves nothing for the court to do but execute the judg-
ment.’ ” United States v. Ray, 375 F.3d 980, 985 (9th Cir.
3
We also note that this court has suggested, in another context, that the
requirement of a sentence for final judgment is not absolute. In Phillips
v. Vasquez, 56 F.3d 1030 (9th Cir. 1995), we observed that “the Supreme
Court has explicitly rejected the notion that final judgment always means
sentence when . . . the conviction and sentencing procedures are bifurcat-
ed.” Id. at 1033 n.2 (citing Brady v. State of Maryland, 373 U.S. 83, 85
n.1 (1963)).
 UNITED STATES v. VELA 17781
2004) (quoting United States v. One 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 (1989).
And, in Sell v. United States, 539 U.S. 166 (2003), the
Supreme Court recognized that “the term ‘final decision’ nor-
mally refers to a final judgment, such as judgment of guilty,
that terminates a criminal proceeding.” Id. at 176 (emphasis
added).4

[4] When a criminal defendant is found guilty, it is unre-
markable that there is no final judgment until the defendant is
sentenced; it is only at sentencing that the criminal action ter-
minates and “nothing [is left] for the court to do but execute
the judgment.” Midland Asphalt, 489 U.S. at 798 (citation
omitted); see also, e.g., Berman v. United States, 302 U.S.
211, 212 (1937) (“To create finality it was necessary that peti-
tioner’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
4
Of course, this rule of finality is not absolute. Under the collateral
order doctrine first announced in Cohen v. Beneficial Indus. Loan Corp.
337 U.S. 541, 546-47 (1949), we are permitted to consider the appeal of
an order apart from a final judgment provided that it “(1) conclusively
determines the disputed question; (2) resolves an important issue com-
pletely separate from the merits of the action; and (3) is effectively unre-
viewable on appeal from a final judgment.” United States v. Pace, 201
F.3d 1116, 1119 (9th Cir. 2000) (citation and internal quotation marks
omitted). In light of our conclusion that a verdict of not guilty by reason
of insanity is a final judgment subject to appeal, we need not consider
Vela’s alternate argument that we have jurisdiction under the collateral
order doctrine.
5
Subsequent commitment proceedings under 18 U.S.C. § 4243 are of a
civil, not criminal, nature. See, e.g., United States v. Budell, 187 F.3d
1137, 1141 (9th Cir. 1999) (citing United States v. Baker, 45 F.3d 837,
842-43 (4th Cir.), cert. denied, 516 U.S. 872 (1995)).
17782 UNITED STATES v. VELA
conclusively resolved the underlying criminal proceedings.”);
State v. Marzbanian, 198 A.2d 721, 724 (Conn. 1963) (“[I]t
is not correct to say that because no sentence had been pro-
nounced 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 (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.

[5] Moreover, appellate review in cases ending with ver-
dicts 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 (citation and internal quotation
marks omitted); see also Ray, 375 F.3d at 985 (“The founda-
tion of [the final judgment rule] is not in merely technical
conceptions of ‘finality.’ It is one against piecemeal litiga-
tion.” (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 (quoting Firestone
Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)), not
only “minimiz[es] appellate-court interference with the
numerous decisions [trial judges] must make in the pre-
judgment 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. In criminal cases, the policy against piecemeal appellate
review is at its strongest because of the interests of the defen-
dant, the prosecution, and society in promptly bringing a
criminal case to trial. Id. at 264.

Permitting Vela to appeal from a verdict of not guilty by
reason of insanity raises none of these concerns. His case is
 UNITED STATES v. VELA 17783
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 appel-
late jurisdiction appropriate here.

We also reject the government’s suggestion that it is
improper to permit an appeal by a defendant who prevailed in
his defense of insanity. The cases relied upon by the govern-
ment do not support that proposition. In United States v. Wat-
tleton, 296 F.3d 1184 (11th Cir. 2002), the defendant had
appealed a conviction and sought and obtained a reversal with
instructions to enter a verdict of not guilty by reason of insan-
ity. He later challenged that verdict in an appeal of his result-
ing civil commitment, arguing that the defense of insanity had
been imposed on him by the government. Id. at 1194. The
court of appeals addressed that contention on the merits and
held that there had been no such imposition. Id. at 1194-96.
In Curry v. Overholser, 287 F.2d 137 (D.C. Cir. 1960), a con-
victed defendant similarly succeeded on appeal and remand in
obtaining the verdict that he sought: not guilty by reason of
insanity. Id. at 138. He challenged that verdict in subsequent
civil commitment proceedings. Id. at 138-39. The court of
appeals held that he could “not now be heard to complain of
the consequences of” his decision to seek the insanity verdict.
Id. at 140.

We note first that neither of these cases raised a jurisdic-
tional question, because they both arose in challenges to sub-
sequent civil commitment, not in appeals from verdicts of not
guilty by reason of insanity. The rulings appear to proceed on
a theory akin to estoppel where the defendants asked for the
verdicts that they later attacked. But in both Wattleton and
Curry, the defendants had never sought any verdict other than
not guilty by reason of insanity, and that is the verdict they
attempted to challenge. Vela, on the other hand, is not directly
attacking his verdict of not guilty by reason of insanity; he is
arguing that errors were made in the district court that
deprived him of a proper opportunity to be freed entirely from
17784 UNITED STATES v. VELA
his indictment, or to succeed in a defense leading to an uncon-
ditional verdict of not guilty.6 He contends that his ultimate
resort to an insanity defense is not inconsistent with his claims
presented on appeal. The record supports his contention.

[6] One month after Vela was indicted, he moved the dis-
trict court to permit diminished capacity defenses to both
attempted murder (Count 1) and assault (Count 2). The gov-
ernment filed an opposition and Vela filed a notice indicating
that he “anticipate[d] relying on either the insanity defense,
and/or ‘intends to introduce expert evidence relating to a
mental disease or defect or . . . other mental condition.’ ”
(emphasis added). The district court ruled that he could assert
a diminished capacity defense to attempted murder, but not
assault. Only after the government dismissed the attempted
murder charge, and after the denial of his renewed motion to
permit a diminished capacity defense to assault, did Vela
acknowledge that he was “stuck” with insanity as a defense.
Under the circumstances, we are unpersuaded that Vela is
estopped because he “was given exactly what he had asked
the District Court to give him.” Curry, 287 F.2d at 140. Vela
is challenging errors quite apart from the verdict of not guilty
by reason of insanity. It is both appropriate and efficient that
he be entitled to raise those issues on this appeal.7
6
For this reason, the remedy of a challenge to his civil commitment, to
which the dissent here would confine Vela, is insufficient. He is not chal-
lenging the terms of that commitment, as the appellant did in Stewart, 452
F.3d at 274, nor the verdict of not guilty by reason of insanity, as the
habeas petitioner tried to do in Curry, 287 F.2d at 138-39. Vela is raising
issues related to his criminal trial that may be difficult or impossible to
address in a proceeding to challenge his civil commitment.
7
We see no reason why, as the dissent here urges, Vela must forfeit the
challenges he now seeks to raise because, after his positions were rejected
in the district court, he pursued and obtained a verdict of not guilty by rea-
son of insanity. Nor do we agree that permitting an appeal after the rela-
tively rare verdict of not guilty by reason of insanity will lead to the dire
consequences predicted by the dissent. We doubt, for example, that it will
encourage defendants to seek a “re-do” of a damaging cross-examination.
See dissent, infra p. 17799.
 UNITED STATES v. VELA 17785
[7] We conclude, therefore, that there are no barriers, juris-
dictional or prudential, to the entertainment of Vela’s appeal
as an appeal from a final judgment under 28 U.S.C. § 1291.8
We proceed, therefore, to address Vela’s contentions of error.

MERITS

I. Standards of Review

We review de novo a district court’s denial of a motion to
dismiss an indictment. United States v. Rivera-Sillas, 417
F.3d 1014, 1017 (9th Cir. 2005). We also review de novo
whether a jury instruction fails to state the elements of a statu-
tory crime, United States v. Gravenmeir, 121 F.3d 526, 528
(9th Cir. 1997), whether diminished capacity is a defense to
a charged offense, United States v. Twine, 853 F.2d 676, 678
(9th Cir. 1988), and whether a statute is facially unconstitu-
tional under Apprendi, United States v. Salazar-Lopez, 506
F.3d 748, 750 (9th Cir. 2007).

II. Vela’s Motions to Dismiss the Indictment, Instruct
the Jury on Willfulness, and Permit a Diminished
Capacity Defense Were Properly Denied

[8] Three of Vela’s contentions on the merits are interre-
lated and amount to an attempt to convince this court that
§ 111 requires a heightened mens rea for conviction. Accord-
ing to Vela, § 111 requires proof of an element of willfulness
—which Vela understands to mean a “bad purpose”—and he
8
The dissent here states that we have left unanswered the question of
what happens to an earlier verdict of not guilty by reason of insanity if a
defendant appeals as Vela has, wins on appeal, but on remand the jury
subsequently rejects his diminished capacity defense. See dissent, infra p.
17797-98 n.3.
We have not answered the question the dissent poses because any
answer we gave would be the purist dictum. A future panel that reverses
and remands an appeal like Vela’s can determine the effect to be given the
earlier verdict in further proceedings. That question is not before us.
17786 UNITED STATES v. VELA
asserts that, consequently, § 111 must define a specific intent
crime. Therefore, Vela argues, the indictment should have
been dismissed for failure to allege willfulness. Or, at the very
least, Vela insists that the district court erred by not permit-
ting him to present a diminished capacity defense and by fail-
ing to instruct the jury that, to convict, it must find that he
acted willfully. We conclude that none of these contentions
have merit.

[9] Vela’s arguments 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. The defendant in
Jim was charged with three counts of violating § 111 arising
from a drunken shooting spree. Id. at 212. The trial court
refused to instruct the jury on the defense of voluntary intoxi-
cation. Id. On appeal, we affirmed the ruling on the ground
that § 111 was a general intent crime, id. at 215, and volun-
tary intoxication is not a defense to a general intent crime, id.
at 212.

[10] Jim controls this case. We have held that a defense of
diminished capacity, like voluntary intoxication, is ordinarily
available only when a crime requires proof of a specific
intent. Twine, 853 F.2d at 679. Jim makes clear that § 111
defines a general intent, not a specific intent, crime. It follows
from that conclusion that the district court here did not err in
denying Vela’s motion to dismiss the indictment for lack of
an element of specific intent (as Vela defines “willfulness”)
or in refusing to permit or instruct the jury on a defense of
diminished capacity.

Vela seizes upon the statement in Jim that the common-law
crime of assault included an element of willfulness, and that,
if congressional purpose is not considered, § 111 “appears to
be a specific intent crime.” 865 F.2d at 213. But Jim then con-
ducted an analysis of congressional purpose and squarely held
that this analysis led to the conclusion that Ҥ 111 is a general
intent crime.” Id. at 215. Vela simply misreads Jim in arguing
 UNITED STATES v. VELA 17787
that it imposed a requirement of willfulness or any other ele-
ment of specific intent upon § 111.9

Vela next contends that Jim must be limited to the holding
that voluntary intoxication is not permitted as a defense to
§ 111, and that diminished capacity raises other consider-
ations because it lacks the moral opprobrium of intoxication.
See Montana v. Egelhoff, 518 U.S. 37, 50 (1996) (plurality
opinion) (noting the “traditional view that an intoxicated
criminal is not deserving of exoneration”). But nothing in
Jim’s analysis of congressional purpose depended upon, or
was limited to, the defense of voluntary intoxication. The con-
clusion that § 111 was a general intent crime necessarily pre-
cluded defenses aimed at a nonexistent element of specific
intent. Indeed, at least three other circuits that have addressed
the question have held that § 111 admits of no defense of
diminished capacity. See United States v. Kimes, 246 F.3d
800, 809 (6th Cir. 2001); United States v. Ricketts, 146 F.3d
492, 498 (7th Cir. 1998); United States v. Ettinger, 344 F.3d
1149, 1158 (11th Cir. 2003). We have found no circuits to the
contrary. Vela’s construction of Jim is unsupportable.

Vela’s last argument on this issue is that the authority of
Jim has been undermined by later decisions of the Supreme
Court or this court en banc. This contention faces a high hur-
dle. Only when “the reasoning or theory of our prior circuit
9
Vela makes a related argument that, even if assault on a federal officer
is a general intent crime, the other acts prohibited by § 111—resisting,
opposing, impeding, intimidating, or interfering with a federal officer—
are specific intent crimes. Thus, Vela claims that he was unconstitutionally
prohibited from presenting a diminished capacity defense for purposes of
the non-assault acts prohibited by the statute. We conclude, however, that
Jim’s holding that § 111 is a general intent crime applies to all of the acts
specified in § 111. See Jim, 865 F.2d at 214 (recognizing that because
§ 111 “prohibits in addition to assault, resisting, impeding, intimidating,
and interfering with a federal officer” and “has a broader purpose than to
deter assault . . . [a]pplying a general intent test well serves that purpose”
(emphasis added)).
17788 UNITED STATES v. VELA
authority is clearly irreconcilable with the reasoning or theory
of intervening higher authority [should a three-judge panel]
consider itself bound by the later and controlling authority,
and . . . reject the prior circuit opinion as having been effec-
tively overruled.” Miller v. Gammie, 335 F.3d 889, 892-93
(9th Cir. 2003) (en banc). None of the authorities relied upon
by Vela meet this standard.

First, Vela argues that Jim’s “speculating as to Congress’s
intent” is inconsistent with the Supreme Court’s decision in
United States v. Santos, 128 S.Ct. 2020 (2008) (plurality opin-
ion). In Santos, the Supreme Court, in a fractured opinion,
held that because the word “proceeds,” as used in the federal
money-laundering statute, could mean either “receipts” or
“profits,” the ambiguity was resolvable only by application of
the rule of lenity. Id. at 2025. The analysis in Santos, how-
ever, was necessarily specific to the words and purpose of the
money-laundering statute, and we are not persuaded that this
analysis can be applied directly to overcome Jim’s analysis of
the totally different § 111. Santos does not so undermine the
reasoning of Jim that we may depart from Jim’s holding that
§ 111 is a general intent crime.

The other two decisions relied upon by Vela are equally far
afield. Clark v. Arizona, 548 U.S. 735 (2006), held in relevant
part that Arizona did not violate due process of law by
restricting mental capacity evidence to the defense of insanity
and barring the use of such evidence to rebut the mens rea
element of a crime. Id. at 764-71. We fail to see how this rul-
ing aids Vela or undermines Jim.

The last case Vela relies on is our en banc decision in
United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.
2000) (en banc), in which we reaffirmed that attempts were
specific intent crimes at common law. See id. at 1191-92.
Because one definition of common-law assault includes “a
willful attempt to inflict injury upon the person of another,”
Dupree, 544 F.2d at 1051 (emphasis added), Vela argues that
 UNITED STATES v. VELA 17789
Jim’s holding that § 111 is a general intent crime is irreconcil-
able with Gracidas-Ulibarry. We find no such irreconcilabil-
ity. Gracidas-Ulibarry did not introduce any concepts that
were not taken account of in Jim.10 Jim quoted Dupree’s
common-law definition of assault and opined that, without a
consideration of congressional purpose behind § 111, it would
seem that § 111 was a specific intent crime. Jim, 865 F.2d at
213. Jim went on, however, to consider congressional purpose
and hold that § 111 defined a general intent crime. Id. at 215.
Nothing in Gracidas-Ulibarry, which dealt with attempted
illegal entry into the country, cast any doubt, explicitly or
implicitly, on Jim’s construction of § 111. There is no incon-
sistency between the two decisions. We conclude, therefore,
that Jim has not been undermined by subsequent decisions.

Accordingly, the district court did not err by denying
Vela’s motions to dismiss the indictment for failure to charge
willfulness, to instruct the jury on willfulness, or to permit a
diminished capacity defense.11
10
The common-law meaning of attempt was settled law long before Jim
was decided. See Gracidas-Ulibarry, 231 F.3d at 1192 (citing, inter alia,
Wooldridge v. United States, 237 F. 775, 778-79 (9th Cir. 1916)).
11
To avoid any misunderstanding of the scope of our ruling, we reject
Vela’s related contention that, if we were to agree with his assertion that
he should have been allowed to present a diminished capacity defense,
then we would have to order an acquittal. His reasoning is that the verdict
of not guilty by reason of insanity necessarily means that the jury found
him incapable of entertaining a specific intent. Accordingly, he argues, he
must be unconditionally acquitted of any charge requiring specific intent.
Carried to its extreme, Vela’s argument would lead to the conclusion that
no defendant charged with first degree murder could be held to a verdict
of not guilty by reason of insanity. The insanity verdict would require an
acquittal on the charge by negating premeditation and intent to kill.
No such assumption underlies our ruling. Vela’s argument conflates two
different potential jury findings. To reach a verdict of not guilty by reason
of insanity, a jury first must find unanimously that the government has
proved beyond a reasonable doubt all of the elements of the charged
offense. See, e.g., United States v. Southwell, 432 F.3d 1050, 1054-55 (9th
17790 UNITED STATES v. VELA
III. 18 U.S.C. § 111 Does Not Violate Apprendi

[11] Vela’s final contention is that his conviction must be
vacated because § 111 is facially unconstitutional under
Apprendi v. New Jersey, 530 U.S. 446 (2000). In Apprendi,
the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at 490.
At issue are the aggravating factors contained in § 111(b)—
use of a deadly or dangerous weapon and infliction of bodily
injury—which, if proven, increase the offense’s maximum
penalty to twenty years in prison.12

Cir. 2005). If the charge is of a specific intent defense, that intent must be
proved beyond a reasonable doubt. A finding that this burden has been
met is not necessarily inconsistent with a contemporaneous, unanimous
finding by the jury that the defendant has proved by clear and convincing
evidence that he was insane at the time of commission of the offense. We
are satisfied that a jury could reasonably find that an insane person had a
specific intent to commit a crime and yet was “unable to appreciate the
nature and quality or the wrongfulness of his acts.” 18 U.S.C. § 17(a).
Accordingly, we reject Vela’s contention that a finding of insanity ipso
facto negates specific intent.
12
At the time of Vela’s offense, § 111 provided, in pertinent part:
(a) In general.—Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates,
or interferes with any person designated [in the act] while
engaged in or on account of the performance of official
duties . . .
shall, where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more
than one year, or both, and in all other cases, be fined under this
title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.—Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon
(including a weapon intended to cause death or danger but that
fails to do so by reason of a defective component) or inflicts bod-
ily injury, shall be fined under this title or imprisoned not more
than 20 years, or both.
18 U.S.C. § 111 (2007).
 UNITED STATES v. VELA 17791
[12] Consistent with Apprendi, the indictment in this case
charged the aggravating facts and the jury in this case was
instructed that, to convict Vela under § 111(b), it must find
that Vela “used a dangerous or deadly weapon and/or inflicted
bodily injury” in committing the offense. Nonetheless, Vela
argues that § 111 is facially unconstitutional because, even if
the sentence-enhancing facts were found by the jury in his
case, Congress intended that these factors be treated as sen-
tencing factors and decided by the trial judge, not by the jury.
Vela relies upon this court’s pre-Apprendi holding in United
States v. Young, 936 F.2d 1050 (9th Cir. 1991) (per curiam),
that Congress in § 111 intended the factor of use of a deadly
and dangerous weapon to be “strictly a sentencing provision”
that need not be alleged in the indictment. Id. at 1054.
Because we conclude that Young’s reasoning has been fatally
undermined by subsequent decisions of the Supreme Court
and our en banc court, we reject Vela’s contention that § 111
violates Apprendi. See Miller v. Gammie, 335 F.3d 889, 892-
93.

In concluding that Congress intended the deadly or danger-
ous weapon aggravator of § 111 to be a sentencing provision,
rather than an essential element of the crime, the Young panel
cited the facts that (1) the deadly or dangerous weapon provi-
sion “[was] not structurally separated from the rest of the sec-
tion, indicating that the section contains only one substantive
offense”;13 (2) the provision “[was] not drafted as a stand-
13
At the time of Young’s crime, § 111 did not contain the bodily injury
aggravator. Further, § 111 was not structurally separated into subsections
(a) and (b), as it was at the time of Vela’s crime and it is today. Instead,
§ 111 provided:
Whoever forcibly assaults, resists, opposes, impedes, intimidates,
or interferes with any person designated in [the act] while
engaged in or on account of the performance of his official
duties, shall be fined not more than $5,000 or imprisoned not
more than three years, or both.
Whoever, in the commission of such acts uses a deadly or dan-
gerous weapon, shall be fined not more than $10,000 or impris-
oned not more than ten years, or both.
18 U.S.C. § 111 (1988); see also Young, 936 F.2d at 1053.
17792 UNITED STATES v. VELA
alone offense; it incorporates the predicate acts by reference
rather than affirmatively setting forth any specific elements”;
and (3) Congress, in later amending § 111 and dividing it into
subsections (a) and (b), “[w]ithout otherwise materially alter-
ing the provision, . . . subsequently labeled the provision
‘Enhanced Penalty.’ ” Id. at 1054. None of these rationales
continues to hold water.

[13] To begin, Young’s reliance on the first two facts—the
lack of structural separation between the primary offense and
the deadly and dangerous weapon provision, as well as the
deadly and dangerous weapon provision’s incorporation by
reference of the elements of the primary offense—is inconsis-
tent with the Supreme Court’s rationale in the more recent
decision of Jones v. United States, 526 U.S. 227, 233 (1999).
Jones considered Congress’s intent in drafting the federal car-
jacking statute, 18 U.S.C. § 2119, which, similarly to § 111 as
it presently stands, “begins with a principal paragraph listing
a series of obvious elements,” and that, “at first glance,” the
numbered subsections that follow appear to be only sentenc-
ing provisions. Id. at 232. The Court admonished, however,
that the “ ‘look’ of [a] statute . . . is not a reliable guide to
congressional intentions” where the provisions in question
“not only provide for steeply higher penalties, but condition
them on further facts . . . that seem quite as important as the
elements in the principal paragraph.” Id. at 233.

Like the statute at issue in Jones, which increased the maxi-
mum penalty from fifteen years to either twenty-five years or
life, see id. at 230 (citing 18 U.S.C. § 2119 (Supp. V 1988)),
§ 111(b) increases the maximum penalty to twenty years, up
from the one or eight years imposed by § 111(a), 18 U.S.C.
§ 111(b). Further, like the aggravating facts of serious bodily
injury or death at issue in Jones, see Jones, 526 U.S. at 230,
§ 111(b) requires proof of either use of a dangerous weapon
or infliction of bodily injury, which, as several of our sister
circuits have held, “are of the type that the states and the fed-
eral government traditionally have considered elements of an
 UNITED STATES v. VELA 17793
offense rather than sentencing factors.” United States v. Che-
staro, 197 F.3d 600, 608 (2d Cir. 1999); see also United
States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir. 2003);
United States v. Campbell, 259 F.3d 293, 299 (4th Cir. 2001).
Thus, the “look” of what is now § 111(b) is insufficient to
support the conclusion that Congress intended its aggravating
facts to be only sentencing provisions.

Nor does Congress’s labeling of § 111(b) with the descrip-
tor “Enhanced penalty” save Young’s analysis. As our en banc
court recognized in United States v. Buckland, 289 F.3d 558
(9th Cir. 2002) (en banc), relying on such labels to infer con-
gressional intent may be misleading, requiring a “conceptual
pigeon-holing” that Congress intended sub silentio that
sentence-enhancing factors such as those in § 111(b) be found
by the judge rather than the jury. Id. at 565-66. Instead, we
held that “[t]he days of semantical hair splitting between ‘ele-
ments of the offense’ and ‘sentencing factors’ are over,” and
that “[t]o the extent that our case law holds to the contrary,
it is overruled.” Id. at 566 (citation omitted).

[14] Indeed, Buckland is particularly applicable to the facts
of this case. In Buckland, we considered a facial challenge to
a portion of the Controlled Substances Act, 21 U.S.C. § 841,
on the ground that, as pre-Apprendi decisions of our court had
held, Congress intended the judge, rather than the jury, to
make certain sentence-enhancing determinations concerning
drug quantity. Id. at 563-64. We rejected the assumption that
“we are bound by our pre-Apprendi holdings” on the matter,
id. at 567 (“Apprendi’s reading of the Due Process Clause has
stripped these holdings of precedential value.”), and instead
heeded the Supreme Court’s instruction “that ‘every reason-
able construction must be resorted to, in order to save a statute
from unconstitutionality,’ ” id. at 564 (citing Hooper v. Cali-
fornia, 155 U.S. 648, 657 (1895)). We found dispositive the
fact that, in contrast to the state statute at issue in Apprendi,
which expressly provided that the sentencing enhancement be
imposed by the trial judge by a preponderance of the evi-
17794 UNITED STATES v. VELA
dence, Congress did not specify in § 841 whether the judge or
the jury would determine the drug quantity facts at issue. Id.
at 565 (citing Apprendi, 530 U.S. at 468). Thus, we refused
to read into the statute a congressional intent to “remove from
the jury the assessment of the facts necessary to increase the
prescribed range of penalties to which a criminal defendant is
exposed.” Id. at 566-67 (internal quotation marks, brackets,
and citation omitted). And because the appellant failed to
identify any persuasive legislative history to the contrary, we
held that we were obliged to construe the statute so as not to
violate Apprendi. Id. at 567.

[15] As in § 841, Congress did not specify in § 111(b)
whether the aggravating facts would be found by the judge or
the jury or by what standard of proof. Vela, however, fails to
provide persuasive legislative history suggesting that Con-
gress “purposely remov[ed] from the jury” the responsibility
to decide whether a defendant, in violating § 111, used a
deadly or dangerous weapon or inflicted bodily injury. Id. at
566-67 (internal quotation marks and citation omitted). As in
Buckland, we consider a construction of § 111 consistent with
Apprendi to be “fairly possible,” and thus “we are obliged to
so construe it.” Id. at 567. We conclude, therefore, that Young
has been effectively overruled to the extent that it is inconsis-
tent with this opinion.

[16] Our conclusion resolves what otherwise might be
viewed as a conflict between Young and our recent opinion in
United States v. Chapman, 528 F.3d 1215 (9th Cir. 2008). In
Chapman, we observed that the Supreme Court in Jones
established “that where a statute sets out separate punishment
clauses, each adding further elements to the crime, the punish-
ment clauses constitute separate and distinct criminal
offenses, rather than one offense with different punishments.”
Id. at 1218 (citing Jones, 526 U.S. at 252). We joined a num-
ber of our sister circuits in holding that, in accordance with
Jones, § 111 must be construed to create three distinct crimi-
nal offenses, with § 111(a) containing one misdemeanor and
 UNITED STATES v. VELA 17795
one felony and § 111(b) containing a second felony. Id. at
1218. If § 111(b) is itself a separate criminal offense, it fol-
lows that one of the offense elements is a finding of either use
of a deadly and dangerous weapon or infliction of bodily
injury, which is consistent with Apprendi.

For all of these reasons, we reject Vela’s facial challenge
to § 111 and hold that the district court properly refused to
dismiss Count 2 of the superseding indictment.

CONCLUSION

Although we conclude that we have jurisdiction to entertain
Vela’s appeal from the judgment of not guilty by reason of
insanity, none of his contentions on the merits succeeds.
Accordingly, the judgment is

AFFIRMED.

N.R. SMITH, Circuit Judge, dissenting:

The Supreme Court has been clear: “In a criminal case the
[final judgment] rule prohibits appellate review until convic-
tion and imposition of sentence.” Flanagan v. United States,
465 U.S. 259, 263 (1984) (citing Berman v. United States,
302 U.S. 211, 212 (1937)). In this case, there was no convic-
tion or imposition of sentence and, thus, no appealable final
judgment. Therefore, we have no jurisdiction to review this
appeal. I must then dissent from today’s holding to the con-
trary.

Knowing this to be the precedent, the majority has cited a
string of cases holding that, because a finding of “not guilty
by reason of insanity” brings a criminal proceeding to a prac-
tical end, we can treat such a verdict as a final judgment for
purposes of appeal. Maj. Op. 17781-82. These cases are irrel-
17796 UNITED STATES v. VELA
evant. I do not dispute that a “not guilty by reason of insanity”
verdict brings a “criminal proceeding . . . to an end and [that]
no criminal sentence will follow.” Maj. Op. 17781. The rele-
vant focus, however, is not simply on whether the criminal
proceeding has come to an end, but rather on whether it
resulted in a conviction and imposition of sentence.1 Flana-
gan, 465 U.S. at 263.

Far from this case ending in a conviction and sentence, it
ended in an acquittal. It goes without saying that a criminal
defendant may not appeal his acquittal. Not only does a con-
trary position conflict with the Supreme Court’s instruction
that there can be no appeal until there is a conviction and a
sentence, it defies basic notions of appellate review. Indeed,
in criminal cases that result in acquittal, not even the losing
party—i.e., the government—has an absolute right to appeal.
See United States v. Scott, 437 U.S. 82, 84-85 (1978) (“The
Court has long taken the view that the United States has no
right of appeal in a criminal case, absent explicit statutory
authority.”) (citing United States v. Sanges, 144 U.S. 310, 312
(1892)).2 The majority’s strained efforts to distinguish Flana-
gan, therefore, are unavailing.

In fact, there is no reason to distinguish Flanagan here,
because a close review of this case highlights the soundness
of its holding. Vela won on a defense that he chose; at trial,
he got the exact result for which he asked. The majority, how-
1
Alternatively, the majority holds that there can be a final judgment in
a criminal case, even in the absence of a sentence. Maj. Op. 17780 n.3.
This argument is irrelevant, because in Vela’s case there was no convic-
tion or sentence.
2
The majority contends that “Vela . . . is not directly attacking his ver-
dict of not guilty by reason of insanity,” but rather is “arguing that errors
were made in the district court that deprived him of a proper opportunity
to be freed entirely from his indictment.” Maj. Op. 17783-84. Therefore,
according to the majority, Vela is not actually appealing an acquittal. It
makes no difference what aspect of the trial Vela is attacking, because
Vela is nonetheless attacking a judgment that ended in an acquittal.
 UNITED STATES v. VELA 17797
ever, now crafts a rule, whereby Vela may backpedal out of
his decision to pursue a “not guilty by reason of insanity”
defense. Allowing such “second-guessing” of defendant’s
trial strategy both undermines the nature of our adversarial
system and diminishes the importance of the “not guilty by
reason of insanity” defense.

At trial, Vela wanted to pursue a diminished capacity
defense (“DCD”), which the district court disallowed. When
it became clear that the district court was not going to allow
the DCD, Vela had a choice: (1) he could pursue a general
“not guilty” theory, knowing that he would be able to chal-
lenge the district court’s DCD ruling (and any of its other rul-
ings) on direct appeal; or (2) he could raise other affirmative
defenses, which, if successful would result in exoneration.
Vela opted for the second choice, and succeeded. Notwith-
standing his acquittal, Vela now prefers to have been acquit-
ted under a DCD (because, of course, he could then avoid
commitment in a mental institution). Thus, he seeks review in
this court, which the majority has now granted him.

Rather than enforcing the consequences of Vela’s trial
strategy, today’s holding will convert appellate courts into a
form of insurance coverage, eliminating risks associated with
the parties’ strategic trial decision to pursue the “not guilty by
reason of insanity defense,” thereby hampering society’s
interest in the limited invocation of that defense. Had Vela
been uncomfortable with the implications of a “not guilty by
reason of insanity” verdict, he was certainly free to not pursue
it. But he chose to pursue it, with all of its attendant risks.
Now Vela wants to have his cake and eat it too by appealing
one failed affirmative defense, while keeping his acquittal
verdict as a back up.3 We ought not act as a guarantor against
3
On this note, it remains unanswered what happens with a jury’s prior
verdict of “not guilty by reason of insanity,” if, on remand, the jury rejects
the defendant’s DCD. Because neither this court nor any other has previ-
ously held that a criminal may appeal an acquittal by reason of insanity,
17798 UNITED STATES v. VELA
defendant’s strategic trial decisions. To do so here would
dilute the difficult choice any defendant considering a “not
guilty by reason of insanity” defense must make. See Curry
v. Overholser, 287 F.2d 137, 139-40 (D.C. Cir. 1960)
(“Having . . . elected to make himself a member of that
‘exceptional class’ of persons who seek verdicts of not guilty
by reason of insanity, he cannot now be heard to complain of
the statutory consequences of his election.” (internal citation
omitted)).

In the end, we are left with a holding that will allow defen-
dants to second-guess their strategic trial decisions. I cannot
think of any other example (nor can the parties or the majority
point me to any) in our adversarial system where we allow a
litigant to back out of such a strategic trial choice, especially
one that is ultimately successful. See, e.g., Wainwright v.
Sykes, 433 U.S. 72, 95 n.2 (1977) (Stevens, J., concurring)
(“[A]ssuming the lawyer’s competence, the client must accept
the consequences of his trial strategy.”) (quotation marks and
citation omitted); United States v. Gonzalez, 897 F.2d 1018,
1021 (9th Cir. 1990) (holding that a criminal defendant must
accept the sentencing consequences “of a trial strategy of
denying culpability”); United States v. Hamilton, 208 F.3d
1165, 1168 (9th Cir. 2000) (noting that a defendant must
“make an informed decision about whether or not to plead
guilty,” in order to understand the potentially adverse conse-
quences of such action).4 Given today’s holding, we ought not

there is no authority to guide a district court. A district court must choose
whether to, for example, 1) have a completely new trial, 2) allow the
defendant to conditionally plead not guilty by reason of insanity subject
to success on the DCD, or 3) retain the acquittal while retrying the DCD.
This lack of guidance further undermines the feasibility of the majority
opinion.
4
Not even in the “ineffective assistance of counsel” context is a criminal
defendant allowed to second-guess strategic trial decisions. In examining
“ineffective assistance of counsel” claims, we follow the familiar two-step
 UNITED STATES v. VELA 17799
act surprised if a defendant, after taking the stand on his
behalf and realizing that the cross-examination went rather
poorly, simply turns to the judge and requests a “re-do.”

Enforcing the consequences of a litigant’s trial strategy is
not simply born out of a desire to perpetuate certain aspects
of our adversarial system, it also furthers important policy
goals. The “not guilty by reason of insanity” defense was con-
structed as a way to balance the dual societal interests in
deterring bad behavior while punishing only those that are
morally culpable. See Powell v. Texas, 392 U.S. 514, 536
(1968) (“The doctrines of actus reus, mens rea, insanity, mis-
take, justification, and duress have historically provided the
tools for a constantly shifting adjustment of the tension
between the evolving aims of the criminal law and changing
religious, moral, philosophical, and medical views of the
nature of man.”). Where a defendant successfully pursues a
“not guilty by reason of insanity” defense, that defendant is
found to lack moral culpability—an extreme result that can be
upsetting to society. See, e.g., Commonwealth v. Trill, 543
A.2d 1106, 1116’18 (Pa. Super. Ct. 1988) (detailing episodes
of public outcry over various courts’ uses of the insanity
defenses). It is only reasonable, therefore, that society has an
interest in making this defense available to only the truly
insane. It makes sense that a defendant would have to make
a difficult choice in pursuing a “not guilty by reason of insani-
ty” defense, because it is, in fact, a dramatic remedy. By miti-
gating the effects of that choice (which I believe allowing
jurisdiction in this case would do), we frustrate that balance.

process outlined in Strickland v. Washington, 466 U.S. 668 (1984). Under
the first step, we examine whether counsel’s performance was deficient.
Id. at 689. But even then, we are not allowed to “second-guess counsel’s
assistance.” Id. Rather, we are limited to determining whether counsel’s
strategy was reasonable, instead of looking at what counsel could have
pursued. Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998). Thus,
not even does our “ineffective assistance of counsel” jurisprudence allow
a defendant to back out of his (or his attorney’s) strategic trial choices.
17800 UNITED STATES v. VELA
This is not to say that Vela has no opportunity to challenge
his commitment. Because an individual committed to a men-
tal institution is being “detained,” Vela may always file a peti-
tion for a writ of habeas corpus under 18 U.S.C. § 4247(g).
Moreover, Vela may appeal the district court’s subsequent
commitment order as an appealable final order. See United
States v. Stewart, 452 F.3d 266, 272 (3d Cir. 2006) (“[We]
hold that a district court’s § 4243(e) order committing an indi-
vidual to the Attorney General’s custody after his acquittal by
reason of insanity is an appealable final order under § 1291.”).
I understand, of course, the higher standard of review associ-
ated with habeas challenges. I also understand that Vela may
not be able to raise all the same arguments in a habeas chal-
lenge that he raises here. Nevertheless, those are the remedies
that the Constitution and Congress have outlined to make
available to persons in Vela’s position.

The habeas statute, which explicitly allows committed per-
sons to challenge their detention, proves that there is a scheme
already in place to treat people in Vela’s position. Claiming
insanity is a significant risk, to be sure. If the defense loses,
the defendant faces a criminal sentence. But even if the
defense succeeds, the defendant faces detention in a mental
institution. To prevent illegal detentions, Congress specifi-
cally dictated that “[n]othing contained in section 4243, 4246,
or 4248 precludes a person who is committed under either of
such sections from establishing by writ of habeas corpus the
illegality of his detention.” 18 U.S.C. § 4247(g). The majori-
ty’s rule would seem to violate the spirit of this congressional
scheme, if not the letter of it, by essentially holding that the
habeas remedy already in place is simply not good enough. I
see no reason for creating a new jurisdictional rule to allow
defendants like Vela to circumvent the system already in
place.

Based on these considerations and the Supreme Court’s
unequivocal instruction that there can be no “appellate review
until conviction and imposition of sentence,” Flanagan, 465
 UNITED STATES v. VELA 17801
U.S. at 263, I dissent from the majority’s holding that this
court has jurisdiction to hear his appeal.