United States v. Johnathon Frank , 472 F. App'x 431 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30091
Plaintiff - Appellee, D.C. No. 2:09-cr-02075-EFS-2
v.
MEMORANDUM *
JOHNATHON FRANK,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted March 9, 2012 **
Seattle, Washington
Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.***
Appellant Jonathon Frank was charged with (Count One) a crime on an
Indian reservation - assault resulting in serious bodily injury and aiding and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.
abetting, in violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; and (Count Two) a
crime on an Indian reservation - voluntary manslaughter and aiding and abetting, in
violation of 18 U.S.C. §§ 1153, 1112, and 2. Having pled guilty pursuant to a
conditional guilty plea, Frank appeals the district court’s order granting the
government’s motion to exclude Frank’s defense of diminished capacity and
related expert testimony. We review de novo whether diminished capacity is a
defense to a charged offense. United States v. Vela, 624 F.3d 1148, 1154 (9th Cir.
2010). We do not recite the facts as they are known to the parties.
A diminished capacity defense is “ordinarily available only when a crime
requires proof of a specific intent.” Id. (citing United States v. Twine, 853 F.2d
676, 679 (9th Cir. 1988)). Assault resulting in seriously bodily injury is a general
intent crime. United States v. Fitzgerald, 882 F.2d 397, 399 (9th Cir. 1989).1
Voluntary manslaughter, 18 U.S.C. §1112, is also a general intent crime. Kane v.
United States, 399 F.2d 730, 736 (9th Cir. 1968). There is no legal authority for
Frank’s claim that his alleged use of a weapon transformed these charges into
specific intent crimes. Because the crimes with which Frank was charged are both
1
Fitzgerald, 882 F.2d at 399 (9th Cir. 1989), examined assault causing
serious bodily injury as codified at 18 U.S.C. § 113(f), which has since been re-
codified as 18 U.S.C. § 113(a)(6). See Pub. L. No. 103-322, §§ 170201(c)(4)-(6),
108 Stat. 1796 (1994).
2
general intent crimes, we hold that the district court did not err in excluding the
defense of diminished capacity and any evidence thereof. Vela, 624 F.3d at 1154.
AFFIRMED.
3