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UNITED STATES v. DURAN

March 19, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant



The opinion of the court was delivered by: CHARLES R. RICHEY

 The Court is in receipt of the Government's and the Defendant's proposed jury Instructions in the above-captioned case. Upon review of the same, the Court has determined that there are a number of conflicts in the proposed instructions that must be addressed. Namely, the Court must determine whether the crime of assault of assault on a federal officer is a specific intent or a general intent crime; whether a necessary element of the crime of attempt requires a finding that the accused took a "substantial step" toward the commission of the crime or, instead, a finding that the accused came "dangerously close;" and whether the defense of impossibility is available to the accused.

 Upon careful review of the applicable law, the Court finds that: (1) the charged crime of assault on a federal officer is a general intent crime; (2) a necessary element of the charged crime of attempting to kill the President, requires a finding that the accused took a "substantial step" toward the commission of the crime; and (3) the defense of impossibility is not available to the accused with respect to the charged crime of attempting to kill the President.

 As a preliminary matter, the Court observes that many of these issues were raised with the parties at a preliminary conference. During those conferences, Counsel for the Defense indicated that the issues are complicated and that they needed to brief the issues. To date, however, Counsel has not filed any pleadings. Accordingly, since the Court must issue preliminary instructions, and the resolution of these issues may impact the parties' opening statements, the Court shall dispositively address the issues.

 DISCUSSION

 I. BECAUSE THE LAW OF THIS CIRCUIT IS THAT THE CRIME OF ASSAULT ON A FEDERAL OFFICER IS A GENERAL INTENT CRIME, THE COURT SHALL INSTRUCT THE JURY ACCORDINGLY.

 The Defendant in this case has been charged, inter alia, with four counts of assault on a federal officer with a deadly weapon pursuant to 18 U.S.C. § 111(b) . The Defendant has indicated, orally, that such a crime is a specific intent crime rather than a general intent crime. The Court disagrees.

 
We do not believe the trial judge erred when she instructed the jury that forcible armed assault on a federal officer is a general intent crime. The Supreme Court's decision in United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975), leads us to conclude that forcible armed assault on a federal officer under 18 U.S.C. § 111 is a general intent crime. In Feola, the Court stated: "We hold, therefore, that in order to incur criminal liability under § 111 an actor must entertain merely the criminal intent to do the acts therein specified." Id. at 686, 95 S. Ct. at 1264-65 (emphasis added). we find this language conclusive. See United States v. Jim, 865 F.2d 211 (9th Cir.), cert. denied, 493 U.S. 827, 110 S. Ct. 93, 107 L. Ed. 2d 58 (1989); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S. Ct. 1676, 48 L. Ed. 2d 182 (1976).

 Id. (emphasis added). In view of Kleinbart, this Court concludes that assault on a federal officer is a general intent crime. The jury shall be instructed accordingly.

 II. TO BE GUILTY OF ATTEMPTING TO ASSASSINATE THE PRESIDENT UNDER 18 U.S.C. § 1751(c), THE GOVERNMENT MUST PROVE BEYOND A REASONABLE DOUBT, IN PART, THAT THE DEFENDANT'S ACTIONS CONSTITUTE A "SUBSTANTIAL STEP" TOWARD THE COMMISSION OF THE CRIME.

 The Defendant's proposed jury instructions regarding the crime of attempting to kill the President, state, in part, that the Defendant's actions must have come "dangerously close" to completing the crime. (Def.'s Proposed Jury Instructions). In contrast, the Government's proposed jury instructions state that the accused must take a "substantial step" toward the commission of the crime. (Govt.'s Proposed Jury Instructions). Upon review of the applicable law, the Court agrees with the Government.

 It appears that the Defendant's proposed instruction is derived from the pattern jury instructions contained in the Redbook under the section defining "attempt." (See Def.'s Proposed Jury Instructions n.15). However, that section, which utilizes a "dangerously close" standard, appears to come from Superior Court cases for the District of Columbia, while the Defendant herein, has been charged with a federal offense. As a threshold matter, the Court observes that state definitions do not control the meaning of terms used in Federal statutes. See United States v. Masel, 563 F.2d 322, 324 (concluding that state definition of "assault" did not control the meaning of that term as used in 18 U.S.C. § 351, the analogue of 18 U.S.C. § 1751 for Members of Congress, the Cabinet, Presidential and Vice-Presidential candidates, and Justices of the United States), cert. denied, 435 U.S. 927, 55 L. Ed. 2d 523, 98 S. Ct. 1496 (1978).

 In fact, the federal courts that have squarely addressed the issue have uniformly applied the so-called "substantial step" test in discerning the elements of an attempt to commit a crime under the United States Code. See. e.g., U.S. v. Davis, 8 F.3d 923, 927 (2d Cir. 1993); U.S. v. Figueroa, 976 F.2d 1446, 1459 (1st Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1346, 122 L. Ed. 2d 728 (1993); U.S. v. Smith, 962 F.2d 923, 930 (9th Cir. 1992); U.S. v. Salazar, 958 F.2d 1285, 1293 (5th Cir.), cert. denied, U.S. , 113 S. Ct. 185, 121 L. Ed. 2d 129 (1992); U.S. v. Burks, 934 F.2d 148, 152 (8th Cir. 1991); U.S. v. Sullivan, 919 ...


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