MEMORANDUM OF DECISION RE MOTION TO DISSOLVE LIS PENDENS
BRAZZEL-MASSARO, J.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Lia Joseph, filed this civil action against the defendant, Denis Joseph, by complaint dated October 19, 2009 with return date of November 24, 2009. The plaintiff also filed a Notice of Lis Pendens for the property that is the subject of the instant action at 44 Brookridge Drive, Greenwich, Connecticut, (the "property"). The defendant has filed this motion to dissolve the lis pendens.
The parties to this action are mother and son. On or about June 2003, they agreed to purchase the property for purposes of investment. The property had a house which was demolished in February 2004 to build a new structure on the property. The plaintiff was involved in the original work to survey the property, to address some asbestos issues and worked with the original architect and contractors. The property was purchased in the name of the defendant. The plaintiff contends that she contributed approximately $980,000 to purchase the property and build the house that has been completed on the property. The parties entered into a written agreement for a sharing of the profits after sale based upon reimbursement and deductions. The plaintiff has alleged that the defendant has failed to allocate profits and has utilized the property in such a manner that it will benefit his investments and impact the sharing of the profits based upon the agreement of the parties. The plaintiff contends that an accounting should be done but the defendant has not provided such although he has employed an accountant to review some of the records. Although the house was marketed for sale, to date the house has not been sold. The defendant is not actively seeking to sell the property at this time.
DISCUSSION
The plaintiff filed a notice of lis pendens in accordance with General Statutes § 52-325 in conjunction with the filling of the CT Page 20589 present action. The defendant has filed a motion to dissolve the lis pendens pursuant to § 52-325a. The court conducted a hearing on July 19, 2010 and August 30, 2010.
General Statutes § 52-325 provides: (a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, . . . may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the party . . . Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action, . . ."
General Statutes § 52-325a provides: (a) Whenever a notice of lis pendens is recorded against any real property pursuant to subsection (a) of section 52-325, the property owner, if the action has not then been returned to court, may make application, together with a proposed order and summons, the superior court for the judicial district to which the action is made returnable. Or to any judge thereof, that a hearing or hearings be held to determine whether such notice of lis pendens should be discharged.
The notice of lis pendens puts "potential buyers of real estate and creditors of its owners on notice that the real estate may be subject to pending adverse interests that may affect the title or right to the property." Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988). ". . . [T]he effect of the lis pendens is simply to give notice to the world of the remedy being sought. The lis pendens creates no additional right in the property on the part of the plaintiff, but simply allows third parties to know that a lawsuit is pending in which the plaintiff is seeking to establish such a right." (Citations omitted.) Wallingford Staffordshire v. Staffordshire, 42 Conn.Sup. 241, 250 615 A.2d 188 (1992) "[A] notice of lis pendens ensures that the [litigant's] claim cannot be defeated by a prejudgment transfer of the property . . . [T]he lis pendens procedure provides security for payment of the claim pending final resolution of the case." Williams v. Bartlett, 189 Conn. 471, 479-80, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S.Ct. 46 (1983). The property owner burdened by the notice of lis pendens may challenge its validity on two independent grounds: (1) absence of probable cause to sustain the lis pendens claim, or (2) noncompliance with the procedural requirements of an effective lis pendens notice. Dunham v. Dunham, 217 Conn. 24, 35, 584 A.2d 445 (1991). The defendant has challenged the notice of lis pendens on the first ground.
When the defendant seeks to dissolve the lis pendens, the plaintiff is required to establish probable cause to sustain the validity of the claims. The burden of proof is upon the plaintiff to demonstrate that there is probable cause. Our rules regarding the standard of proof for establishing probable cause are well settled. It is important to remember that the plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Village Linc Corporation v. Children's Store, Inc., 31 Conn.App. 652, 657, 626 A.2d 813 (1993), citing Dow v. Condon, 525 A.2d 935 (1987). "The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. Wall v. Toomy, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983).
The complaint in this matter consists of three counts. The first count CT Page 20590 is based upon the written agreement and the funds contributed by the plaintiff. The second count contends that there is a constructive trust and that the plaintiff is entitled to a partition. The third count alleges that there was an oral agreement for the purchase and development of the property with the profits to be divided in a 60-40 split that takes into consideration expenses and an accounting of the finances.
"The trial courts' duty is to weigh the probabilities based on the facts and to exercise its broad discretion in determining whether there is probable cause to sustain the lis pendens." (Citations omitted.) Sanstrom v. Strickland, 11 Conn.App. 211, 212, 525 A.2d 989 (1987).
Although the testimony and the evidence were in some respects conflicting, the court finds that the following testimony is credible and provides sufficient probable cause for the plaintiff's claims as to the purchase, development and ongoing dealings with the property. Both the defendant and the plaintiff testified about the plaintiff's original involvement with the building of the residence. The plaintiff provided some of the invoices that evidence her involvement in the lumber, windows, garage doors, and stairs. (Pl. Exh. 4.) The plaintiff provided a written agreement signed by both partied and dated November 15, 2005, that supports her claim that the parties had been working together. (Pl. Exh. 3.) The defendant in his testimony countered that the plaintiff did not take as active a part as she contends. However, the defendant never denies that the plaintiff assisted in some manner. He simply denies the extent. However, the plaintiff has presented not only her testimony but evidence in support of the fact that it was accepted that she owned the property for purposes of the development. (Pl. Exhs. 3 and 5.) The written agreement sets forth a basis for sharing of the profits after the equity contributions have been determined. The concern that has been expressed by the plaintiff during the course of her testimony is a concern that the property which is in the defendant's name has been utilized for other investments without an accounting and that the property is not being marketed. There was evidence introduced by the plaintiff that supports a reasonable basis to believe that the defendant has utilized the property as collateral for other investments which may have an impact on the written or oral agreement of the parties for profit sharing. Thus, the profits originally expected may have been jeopardized. (Pl. Exhs. 7, 8, 9, and 10.) While the amount of the distribution is uncertain, the agreement that was entered into by the parties supports the plaintiff's claims.
The defendant contends that the funds did not come from the plaintiff for the development. In support of his position he provided the testimony of Ms. Startup who did a basic review of the financial records supplied CT Page 20591 by the defendant. However, Ms. Startup was unable to testify as to the authenticity or completeness of the records to provide a full forensic review. She described her role as a little more than a bookkeeping role. She describes some of the loans to the property but had not done a thorough analysis of the property financing and had received documents from the defendant that were not complete.
Although the defendant has challenged the plaintiff's notice of lis pendens, there is sufficient testimony and evidence to lead a reasonable person to believe that the plaintiff contributed financially as well as a consultant to the rebuilding of the property. There are issues as to the extent of her involvement but this does not negate her interest in the property and the value of the property to obtain her share of the profits, if any.
CONCLUSION
Based upon the above, the court finds that there is probable cause to sustain the validity of the plaintiff's claims to support the maintenance of the lis pendens. Therefore, the motion to dissolve the lis pendens is denied.
but on remand the jury subsequently rejects his diminished capacity defense.
See dissent, at pp. 1160-61 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.
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 statutory 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 unconstitutional 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
Three of Vela's contentions on the merits are interrelated and amount to an attempt to convince this court that § 111 requires a heightened mens rea for conviction. According to Vela, § 111 requires proof of an element of willfulness — which Vela understands to mean a "bad purpose" — and he 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 permitting him to present a diminished capacity defense and by failing to instruct the jury that, to convict, it must find that he acted willfully. We conclude that none of these contentions have merit.
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 intoxication. Id. On appeal, we affirmed the ruling on the ground that § 111 was a general intent crime, id. at 215, and voluntary intoxication is not a defense to a general intent crime, id. at 212.
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 conducted an analysis of congressional purpose and squarely held that this analysis led to the conclusion that "§ 111 is a general intent crime." Id. at 215. Vela simply misreads Jim in arguing that it imposed a requirement of willfulness or any other element of specific intent upon § 111.
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)).
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 considerations because it lacks the moral opprobrium of intoxication. See Montana, v. Egelhoff, 518 U.S. 37, 50, 116 S.Ct. 2013, 135 L.Ed.2d 361 (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 conclusion that § 111 was a general intent crime necessarily precluded 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 hurdle. Only when "`the reasoning or theory of our prior circuit 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 effectively 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, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (plurality opinion). 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, however, 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, 126 S.Ct. 2709, 165 L.Ed.2d 842 (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, 12:6 S.Ct. 2709. We fail to see how this ruling aids Vela or undermines Jim.
The last case Vela relies on is our en banc decision in United States v. Gracidas-Ulibarry, 251 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 Jim's, holding that § 111 is a general intent crime is irreconcilable with Gracidas-Ulibarry. We find no such irreconcilability. Gracidas-Ulibarry did not introduce any concepts that were not taken account of in Jim. 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 inconsistency between the two decisions. We conclude, therefore, that Jim has not been undermined by subsequent decisions.
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)).
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. III. 18 U.S.C. § 111 Does Not Violate Apprendi
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 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.
Vela's final contention is that his conviction must be vacated because § 111 is facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 120 S.Ct. 2348. 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.
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 bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. 6 111 (2007). 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 sentencing 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 dangerous weapon aggravates 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 provision "[was] not structurally separated from the rest of the section, indicating that the section contains only one substantive offense"; (2) the provision "[was] not drafted as a stand-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 altering the provision, . . . subsequently labeled the provision `Enhanced Penalty.'" Id. at 1054. None of these rationales continues to hold water.
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 dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 111 (1988); see also Young, 936 F.2d at 1053. 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 inconsistent with the Supreme Court's rationale in the more recent decision of Jones v. United States, 526 U.S. 227, 233, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones considered Congress's intent in drafting the federal carjacking 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 sentencing provisions. Id. at 232, 119 S.Ct. 1215. 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, 119 S.Ct. 1215.
Like the statute at issue in Jones, which increased the maximum penalty from fifteen years to either twenty-five years or life, see id. at 230, 119 S.Ct. 1215 (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, 119 S.Ct. 1215, § 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 federal government traditionally have considered elements of an offense rather than sentencing factors." United States v. Chestaro, 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 descriptor "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 congressional 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 `elements 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).
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 reasonable construction must be resorted to, in order to save a statute from unconstitutionality,'" id. at 564 (citing Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (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 evidence, 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, 120 S.Ct. 2348). 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.
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 Congress "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 inconsistent with this opinion.
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 punishment clauses constitute separate and distinct criminal offenses, rather than one offense with different punishments." Id. at 1218 (citing Jones, 526 U.S. at 252, 119 S.Ct. 1215). We joined a number of our sister circuits in holding that, in accordance with Jones, § 111 must be construed to create three distinct criminal offenses, with § 111(a) containing one misdemeanor and one felony and § 111(b) containing a second felony. Id. at 1218. If § 111(b) is itself a separate criminal offense, it follows 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 conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (citing Barman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937)). In this case, there was no conviction 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 contrary.
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 practical end, we can treat such a verdict as a final judgment for purposes of appeal. Maj. Op., 1151-52. These cases are irrelevant. 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., 1151. The relevant 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. Flanagan, 465 U.S. at 263, 104 S.Ct. 1051.
Alternatively, the majority holds that there can be a final judgment in a criminal case, even in the absence of a sentence. Maj. Op., 1151 n. 3. This argument is irrelevant, because in Vela's case there was no conviction or sentence.
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 contrary 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, 98 S.Ct. 2187, 57 L.Ed.2d 65 (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, 12 S.Ct. 609, 36 L.Ed. 445 (1892)). The majority's strained efforts to distinguish Flanagan, therefore, are unavailing.
The majority contends that "Vela . . . is not directly attacking his verdict 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., 1153. 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.
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, however, now crafts a rule, whereby Vela may back-pedal 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 challenge the district court's DCD ruling (and any of its other rulings) 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. Notwithstanding his acquittal, Vela now prefers to have been acquitted 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. We ought not act as a guarantor against 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)).
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 not any other has previously held that a criminal may appeal an acquittal by reason of insanity, 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.
In the end, we are left with a holding that will allow defendants 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, 97 S.Ct. 2497, 53 L.Ed.2d 594 (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 o. 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 consequences of such action). Given today's holding, we ought not 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."
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 process outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first step, we examine whether counsel's performance was deficient. Id. at 689, 104 S.Ct. 2052. 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.
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 constructed 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, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) ("The doctrines of actus reus, mens rea, insanity, mistake, 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, 374 Pa.Super. 549, 543 A.2d 1106, 1116-18 (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 insanity" defense, because it is, in fact, a dramatic remedy. By mitigating the effects of that choice (which I believe allowing jurisdiction in this case would do), we frustrate that balance.
This is not to say that Vela has no opportunity to challenge his commitment. Because an individual committed to a mental institution is being "detained," Vela may always file a petition 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 individual 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 associated with habeas challenges. I also understand that Vela may not be able to raise all the same arguments in a habeas challenge 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 persons 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 specifically 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 majority'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 U.S. at 263, 104 S.Ct. 1051, I dissent from the majority's holding that this court has jurisdiction to hear his appeal.