United States District Court, Eastern District of New York
August 6, 1991
UNITED STATES OF AMERICA
PAUL PADILLA, DEFENDANT.
The opinion of the court was delivered by: Amon, District Judge.
CORRECTED OPINION AND ORDER
On December 18, 1990, a jury convicted the defendant Paul
Padilla of conspiring and attempting to possess cocaine with
intent to distribute in violation of 21 U.S.C. § 846 and
841(a)(1) and (b)(1)(B) (Counts One and Two); forcibly assaulting
and resisting Special Agents John Henderson, Nicholas Maggio, and
Rene Robinson of the Drug Enforcement Administration (DEA) in
violation of 18 U.S.C. § 111 (Counts Three, Four, and Five); and
attempted murder of Agents Henderson and Robinson in violation of
18 U.S.C. § 1111, 1114 (Counts Six and Eight). The jury
acquitted the defendant of attempted murder of Agent Maggio
Defendant moves for judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure on Counts Six and
Eight. He further seeks a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure on Counts Three, Four, and
Special Agents John Henderson, Nicholas Maggio, and Rene
Robinson of the DEA testified to the following facts surrounding
the arrests of defendants, which formed the basis for the assault
and attempted murder charges.
The events commenced with the arrest of Rosa Arias at the
airport in Miami, Florida in possession of two kilograms of
cocaine. Arias agreed to cooperate with agents of the DEA in
making a controlled delivery of the drugs. She advised the agents
that she was supposed to deliver the drugs to "Rachel" in New
York and was to be picked up at La Guardia Airport by individuals
driving a maroon-colored van. She gave descriptions of both
Rachel and the other individuals who were involved and likely to
pick her up; namely, Rachel's son "Paulie" and her boyfriend,
Luis Medina. Arias flew to New York accompanied by Agent
Henderson. Sometime after they arrived, Henderson was notified
that the maroon van had been spotted on the upper level of the
Officers were sent ahead of Arias and Henderson to position
themselves around the van. Arias approached the van with
Henderson walking in front of her and Agent Robinson behind her.
Arias was initially greeted by her boyfriend, Luis Medina.
Padilla was in the driver's seat of the van and his co-defendant
Juan Torres was in the passenger's seat. The sliding
passenger-side door of the van was open. Both Padilla and Torres
were looking around the area. Padilla made eye contact with
Henderson. When Arias and Medina walked toward the van, Henderson
moved in to make the arrests.
Henderson ran towards the van and shouted in English and
Spanish "police, don't move." Robinson, who was in front of the
van at this point, drew her gun and shouted "police, freeze"
several times in English and Spanish. Agent Maggio approached the
driver's side of the van, shouted "police, freeze" several times,
and pointed his gun at Padilla. Henderson reached through the
open door of the van and grabbed Torres by the shirt to pull him
out of the van prompting Padilla to put the van into gear.
Henderson started to get into the van to prevent Padilla from
leaving. Padilla looked at Henderson and then looked at Maggio
and cursed. He lunged the van forward at an angle towards Maggio,
striking him in the shoulder and forearm and pinning him against
a taxi that had pulled alongside the van. The van quickly pulled
away from the curb with Henderson partially inside the van
holding onto Torres.
As the van sped away, Padilla looked at Henderson then swerved
the van to the right towards a parked car. The van struck the
car, causing the door of the van to slam shut on Henderson and
throwing him to the floor of the van. Padilla drove alongside of
the parked car, with Henderson pinned in the van by the door
and his feet dragging on the ground. The van proceeded directly
at Agent Robinson who was in front of the van. In order to escape
injury, Robinson jumped back onto the hood of the parked car.
Robinson's legs were struck by the door of the van as it passed
the car. Henderson testified that Padilla looked at Henderson
several times while the van was in motion.
Henderson raised his gun towards Padilla. Torres reached down
towards the gun preventing Henderson from aiming it at Padilla's
chest. Henderson fired the gun at Padilla's legs, Padilla slumped
in his seat, and the van slowed to a stop. Padilla and Torres
were then arrested.
I. Attempted Murder Counts
Defendant contends that he is entitled to a judgment of
acquittal on the attempted murder counts.
Section 1114 states, in relevant part, that whoever attempts to
kill any of the federal officers listed in the section "engaged
in or on account of the performance of his official duties . . .
shall be punished as provided under sections 1111 [murder] and
1112 [manslaughter] of this title . . ." 18 U.S.C. § 1114.
Section 1111 of Title 18 sets forth the elements of first and
second degree murder. "Malice aforethought," which distinguishes
murder from manslaughter, is an element of both first and second
degree murder.*fn1 United States v. Fleming, 739 F.2d 945, 947
(4th Cir. 1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83
L.Ed.2d 973 (1985); United States v. Shaw, 701 F.2d 367, 392
(5th Cir. 1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419,
79 L.Ed.2d 744 (1984). "Malice does not require a subjective
intent to kill, but may be established by evidence of conduct
which is `reckless and wanton and a gross deviation from a
reasonable standard of care, of such a nature that a jury is
warranted in inferring that defendant was aware of a serious risk
of death or serious bodily harm.'" Shaw, 701 F.2d at 392 n. 20
(quoting United States v. Black Elk, 579 F.2d 49, 51 (8th Cir.
1978)); accord Fleming, 739 F.2d at 947-48.
Consistent with the mens rea requirement for the principal
offense of second degree murder, the jury was instructed without
objection that an element of the attempted murder charge was that
the defendant acted with "malice aforethought."*fn2 Defendant
now contends that this instruction was erroneous in that it
permitted the jury to convict him of attempted second degree
murder without a finding that he specifically intended to kill
Agents Henderson and Maggio.*fn3
In Braxton v. United States, ___ U.S. ___, 111 S.Ct. 1854,
114 L.Ed.2d 385 (1991), the Court discussed whether the
defendant's agreement to certain facts for the purposes of his
plea to assault and firearms counts "specifically established"
an attempt to kill under 18 U.S.C. § 1114 within the meaning of
Section 1B1.2(a) of the U.S. Sentencing Commission Guidelines
Manual. The Court concluded that the agreed-to facts were
insufficient because "even if one could properly conclude that
the stipulation `specifically established' that Braxton had shot
`at the marshals,' it would also have to have established that he
did so with the intent of killing them." 111 S.Ct. at 1859. The
Court further explained:
Since the statute [18 U.S.C. § 1114] does not specify
the elements of "attempt to kill," they are those
required for an "attempt" at common law, see
Morissette v. United States, 342 U.S. 246, 263, 72
S.Ct. 240, 249, 96 L.Ed. 288 (1952), which include a
specific intent to commit the unlawful act. "Although
a murder may be committed without an intent to kill,
an attempt to commit murder requires a specific
intent to kill." [citations omitted].
Id. n. * *.
The government appears to concede that this is at least a
correct statement of the common law. (see Government's Letter
dated July 22, 1991 at 2). Indeed, this specific intent
requirement existed under both English and American common law as
early as the mid-19th Century. See W. Clark & W. Marshall, Law
of Crimes § 121, at 151 (3d ed. 1927), and cases cited at n. 26.
This doctrine is still considered the common law rule in the
majority of state jurisdictions. See Annotation, What
Constitutes Attempted Murder, 54 A.L.R.3d 612 § 3 (1973 & Supp.
1989) (collecting cases); 4 C. Torcia, Wharton's Criminal Law §
743 (14th ed. 1981).
The government nonetheless argues that Congress intended to
change the common law rule when it enacted Section 1114. See
United States v. Everett, 700 F.2d 900, 904 (3d Cir. 1983)
(quoting Morissette v. United States, 342 U.S. 246, 273, 72
S.Ct. 240, 255, 96 L.Ed. 288 (1952)) ("Even if [a term used in a
criminal statute] had a generally accepted common law meaning,
the courts will not impose that meaning if there are `grounds for
inferring an affirmative instruction on Congress' to define it
The legislative history of Section 1114, however, provides
little support for the government's position. Consistent with the
common law, the Senate Judiciary Committee stated:
To constitute an attempt under this section, the
defendant must engage in conduct with the intention
of killing the victim and the conduct must
constitute a substantial step toward the killing.
S.Rep. No. 225, 98th Cong., 1st Sess. 328 (1983), reprinted in
1984 U.S.Code Cong. & Admin.News 3182 [hereinafter 1983 Senate
Report] (emphasis added). In a footnote following this statement,
the Committee referred to a previous report it issued in
connection with its consideration of the Criminal Code Reform Act
of 1981, S. 1630, 97th Cong., 1st Sess., 127 Cong.Rec. 20,926
(1981), which would have added a general attempt provision to
Title 18.*fn4 It is this report, S.Rep. No. 307, 97th Cong., 1st
Sess. (1981) [hereinafter 1981 Senate Report], that supplies the
basis for the government's argument that proof of "specific
intent" is unnecessary in a prosecution for attempted second
degree murder, and that, as instructed, the jury in this case
need only have found that the defendant acted with "malice."*fn5
The 1981 Senate Report separated the concept of mens rea into
two categories: (1) defendant's mental state as it relates to his
own conduct, and (2) defendant's mental state as it relates to
the circumstances attendant to the crime and the results of
defendant's conduct.*fn6 See id. at 165.
With respect to defendant's conduct, the Committee stated that it
was necessary for the defendant to have "consciously desired to
perform the conduct." Id. As to defendant's mental state as it
relates to the results of defendant's conduct, which includes the
death of the victim, as well as the circumstances of the crime,
the Committee stated that the defendant need only be "acting with
the state of mind otherwise required for the commission of a
crime."*fn7 Id. The government is therefore correct that under
the 1981 Senate Report, malice, which is the sufficient mental
state relating to the results of defendant's conduct for second
degree murder, would be sufficient in a prosecution for attempted
second degree murder.
The obstacle the government faces, however, is the specific
statement in the 1983 Senate Report that attempted murder
requires the defendant to have the "intention of killing the
victim." 1983 Senate Report, supra, at 328. Although this
statement conflicts with the statement in the 1981 Senate Report
that the defendant need only be "acting with the state of mind
otherwise required for the commission of a crime," the 1981
Senate Report, which was elaborating on attempt liability
generally, cannot be considered controlling. Rather, it is
apparent that by citing the 1981 Senate Report the Judiciary
Committee was referencing only the discussion in its previous
report on the elements of attempt that were not inconsistent with
the stated requirement of specific intent. Even if such a
construction were not apparent and the ambiguity remained, the
ambiguity should be resolved in favor of the defendant,
especially in light of the established common law view that
specific intent is a necessary element of attempted murder. See
United States v. Gaggi, 811 F.2d 47, 58 (2d Cir.), cert.
denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987) ("a
time-honored tenet of statutory construction directs that a court
called upon to apply an ambiguous penal statute should not
construe it in favor of sanctions, but strictly in favor of
Furthermore, the Supreme Court has expressly stated that such
specific intent is a necessary element under Section 1114.
Braxton, 111 S.Ct. at 1859 n. * *; see also United States v.
Martinez, 775 F.2d 31, 35-36 (2d Cir. 1985). The government's
attempt to characterize the Court's statement as non-binding
dicta is unpersuasive. Although the principal issue before the
court was an application of the facts to a provision of the
sentencing guidelines, the issue of the elements necessary to
establish attempted murder under Section 1114 was directly before
Accordingly, I hold that the jury charge in this case was
erroneous in that it failed to instruct the jury that it was
necessary for the government to prove beyond a reasonable doubt
that Padilla intended to kill Agents Robinson and Henderson. I
further find that the error, which related to an essential
element of the crime, was not harmless beyond a reasonable doubt.
See United States v. Doherty, 867 F.2d 47, 57-58 (1st Cir.),
cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590
(1989), and cases cited therein.*fn8
II. Assault Counts
Defendant further argues that he is entitled to a new trial on
Counts Three, Four, and Five because the evidence was
insufficient to establish an "intent to injure," the state of
mind which he argues is required to be proven for an assault
under 18 U.S.C. § 111. The defendant concedes that the evidence
was sufficient to establish that the defendant committed other
acts constituting conduct prohibited by Section 111 — i.e.,
resisting, opposing, impeding, intimidating, or interfering with
a federal agent — but argues that the convictions are infirm
since it cannot be determined from the jury's general verdicts
the precise way in which it found the defendant violated the
statute. Accordingly, citing the decision of the Second Circuit
in United States v. Garcia, 907 F.2d 380, 381 (2d Cir. 1990),
defendant maintains that the possibility that the convictions
were based upon a finding of assault requires reversal. The
defendant's argument fails for three reasons.
First and dispositive of the claim, I concur with the holdings
of the Ninth and Tenth Circuit Courts of Appeal that assault as
proscribed by Section 111 is a general intent crime which does
not require proof of "an intent to injure." United States v.
Jim, 865 F.2d 211 (9th Cir.), cert. denied, ___ U.S. ___, 110
S.Ct. 93, 107 L.Ed.2d 58 (1989); United States v. Sanchez,
914 F.2d 1355, 1358 (9th Cir. 1990), cert. denied, ___ U.S. ___,
111 S.Ct. 1626, 113 L.Ed.2d 723 (1991); United States v. Hill,
526 F.2d 1019, 1027 (10th Cir.), cert. denied, 425 U.S. 940, 96
S.Ct. 1676, 48 L.Ed.2d 182 (1976). Although the Second Circuit
has not specifically addressed the intent requirement for an
assault under Section 111, it has analyzed similar federal
assault statutes as general intent crimes. United States v.
Gan, 636 F.2d 28, 29 (2d Cir. 1980), cert. denied,
451 U.S. 1020, 101 S.Ct. 3011, 69 L.Ed.2d 392 (1981) (interpreting
18 U.S.C. § 112 which proscribes assaulting a foreign official as
not requiring proof of intent to injure); United States v.
Martin, 536 F.2d 535, 536 (2d Cir.), cert. denied,
429 U.S. 862, 97 S.Ct. 167, 50 L.Ed.2d 141 (1976) (holding that assault as
proscribed by 18 U.S.C. § 113(d) does not require intent to
Second, assuming intent to injure were an element of Section
111, it was sufficiently proven in this case. Although defendant
repeatedly refers to his panicked intent to flee as being his
only state of mind, when one views the evidence in the light most
favorable to the government, it supports the inference that
although Padilla undoubtedly intended to flee, he also intended
to incapacitate the major obstacles to his flight, namely three
law enforcement officers with guns who were trying to prevent his
Finally, even if "intent to injure" were an element of Section
111 and it was not established, defendant would still not prevail
on his request for a new trial. The other forms of conduct
constituting violations of Section 111 for which there was
concededly enough evidence do not constitute sufficiently
different theories of the case on the facts presented to call
into question the validity of the verdicts.
For the reasons stated above, the government's motion at
sentencing to dismiss Counts Six and Eight which was prompted by
this ruling will be granted, and the defendant's motion for a new
trial on Counts Three, Four, and Five is denied.