USA V. JOHNATHON FRANK, No. 11-30091 (9th Cir. 2012)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 15 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-30091 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 recodified 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
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