FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEPT 04 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________ No. 02-12871

_________________ D.C. Docket No. 01-00670-C R-PAS UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus JASON ETTINGER, Defendant-Appe llant.

___________________ Appeal from the United States District Court for the Southern District of Florida

___________________ (September 4 , 2003)

Before BIRCH,

CARNES and BR

UNETTI*, C

ircuit Judges.

________________________ *Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by designation.2

BRUNETTI, Circuit Judge: Jason Ettinger appeals his conviction for assaulting, resisti

ng, or impeding a federal officer

and inflicting bodily

injury, in violation of 18 U.S. C. § 111(a) and (b). Ettinger argues that the district court erred in (1) ruling that § 111 is a general intent crime,

(2) by allowing

the government t

o introduce testim

ony of a prior consistent statem

ent of a witness pur

suant to Fed. R. E

vid. 801(d)(1)(B) , and (3) in denying his motion for a mistri al. We have jurisdiction p ursuant to 28 U.S.C. § 1291, and we AFFIRM. I. BACKGROUND While being detained at a pretrial detention center in Miami, Florida, Ettinger was involv

ed in an altercatio

n with a Federal Correctional Off icer. As Officers Stephen Barnes and Donald Ferguson escorted Ettinger from the Special Housing Unit (“ SHU”) to the visit ing room, Etti

nger punched Officer Reginald Turner in the back of his head. Ther eafter, the gove

rnment charge

d Ettinger with assaulting, resisti

ng, or impeding a

federal office

r and inflicting bodily

injury, in violation of 18 U.S.C. § 111(a) and (b). He pleaded not guilty and a jury trial followed. Prior to trial, Ettinger filed a notice of his intent to raise a “diminished3

capacity” defense and to offer expert testimony at trial regar ding his mental condition. The distr

ict court first rul

ed that an offense c

harged under § 111 is a “specific intent” crime and therefore, Ettinger had a right to introduce psychological evidence to negate the mens rea element of the offense. After hearing the governm

ent’s motion f

or reconsideration

, the district cour

t ruled that § 111 is a “general intent” statute. Accordingly, Ettinger was denied the use of a diminished capacity defens e. During trial, Officer Barnes testified that after Ettinger struck Officer Turner, Ettinger stated that he had told Turn er he was “going to get him.” On cross-examina

tion, Barnes adm

itted that he had not inc

luded Ettinger’s

statement in his official report made on the day of the incident. Ettinger’s counsel asked Barnes if he had re

ad any other off

icers’ reports

and stated his concer

n regarding where Barnes’ s statement sudde nly came f

rom. Barnes

stated that he had spok

e with other correc

tion officers rega

rding the incident im

mediately after it occurre

d, but that he had not read any other officers’ report s regarding the inci dent. Following a sidebar, the district court allowed the government to introduce an FBI report of Barnes’ s statement to a n FBI agent. The

government used this statement to show that Barnes had previously mentioned Ettinger’s statement that he was going to get Turner, and to dispute Ettinger’s argument that Barnes had fabricated4

the statement.The district court allowed introductio

n of the stateme

nt pursuant to Fed. R. Evid. 801(d)(1)(B). Later, during a brief recess when the jury was not present, Ettinger physically a

ttacked one of the de

puty marsha

ls in the courtroom. After the altercation, the court and the parties discussed the incident and how the court could regain order.The district court then recessed the t

rial in order to all

ow Ettinger time

to calm down.After recess, outside the presence

of the jury,

defense counsel moved for a mistrial on the basis of a conflict of interest. Defense counsel contended that he wa

s involved in the alter

cation between E

ttinger and the deputy marshal. Further, defense counsel argued that the attorney-client relationship was compromise

d because it was lik

ely that he woul

d be called to testif

y regarding Ettinger’s demeanor following the incident, he would likely be called as an adverse witness in a future criminal proceeding against Ettinger, he was inhibited from presenti

ng an argument to

the jury rega

rding Ettinger’s

non-violent temperam

ent, he may

be called as a def

endant by Ettinge

r in a subsequent civil suit, and statem

ents that he mad

e to marshals du

ring the incident coul

d be construed by Ettinger as lacking trust. The dis trict c ourt de termined that th e confl ict of i nteres t was merel y a potential conflict th

at would occur at a

time when def

ense counsel would no5

longer be represen

ting Ettinger. No

netheless, the cour

t ruled that if, dur

ing the course of the trial , an actual confli ct arose that prohibi

ted defense counsel from zealously repr

esenting Ettinger,

it would take that int

o account after the

trial and act accordingly. [ R4 at 41-42] The district court proce eded with the trial , and the jury found Ettinger guil ty of assaulting a federal officer. After the trial, defense counsel filed a motion to withdraw as counsel because the government advised him that it was going to pursue a federal prosecution based on th

e incident between

Ettinger and the de

puty marsha

l during the trial. He co

ntended that it was i

nevitable that he wo

uld be called as a w

itness in the new crim

inal prosecution agai

nst Ettinger. The

district court gran

ted the motion to withdraw and ap pointed new couns el to represent Etting er. II. DISCUSSION

A. 18 U.S.C. § 111 The statute in questi

on in this case, 18 U .S.C. § 111, pr ovides as follows: (a) In general . – Whoever – (1) forcibly assaul

ts, resists, oppose s, impedes, i ntimidates, or interferes with a

ny person designat

ed in section 1114 of thi s title while engaged in or on account of the per formance of6 official duties; or (2) forcibly assaults or intimidates any person who formerly served as a person designate

d in section 1114 on acco unt of the performance

of official duties d

uring such person’s

term of service, shall, where the

acts in violation of th

is section constitute o

nly simple assault, be fined un

der this title or im

prisoned not more

than one year,

or both, and in all other cases, be fined under this title or imprisoned not more than three yea

rs, or both. (b) Enhanced penalty . – Whoever, in the commis sion of any acts described in subsecti

on (a), uses a dea

dly or dangerous w

eapon (including a weapon intended to cause dea th or danger but that f

ails to do so by reaso n of a de fectiv e compon ent) or inflic ts bod ily inju ry, shall be fined under t

his title or impr

isoned not more th

an ten years or both. Persons designated i

n § 1114 are officer

s or employe

es of the United Sta

tes or of any agency in any branch of the United States G overnment. We review the district cou rt’s interpretation o f 18 U.S.C. § 111, de novo. See United States v. Grossman , 131 F.3d 1449, 1451 (11th Cir. 1997). Ettinger argues that the distr

ict court erred in ruling that an offense charged under 18 U.S.C. § 111(a) and (b) is a general intent crime that precluded his claim ed defense of dim

inished capacity . Ettinger conten ds that § 111 is a “s

pecific intent” statute and that he can raise a “diminished capacity defense.” A defendant can at

tempt to introduce psychiatric e vidence to negate spe

cific7

intent when such is an element of the offense cha rged. See United States v. Cameron , 907 F.2d 1051, 1063 (11th Cir. 1990). Admitting psychiatric evidence to negate mens rea does not constitute a de fense, but only negates an elem ent of the offense. Id. at 1065. “Psychologic al evidenc e that aids the trier in determining the defend ant’s specific state of mind with regard to the actions she took at the time the charged offense was committed, by contrast, is not an aff irmative defense but is evidence that goes specifica

lly to whether t

he prosecution has ca

rried its burden of p

roving each essential element of the crime – at least when specific intent is at issue.” Id. at 1063. Cameron is a perfect example of a “specific intent” crim e and the use of a “diminished capacity defense” to negate the specific i ntent element of the crime. Cameron was

charged with part

icipating in a conspir

acy to distribute

“crack” cocaine in violation of

21 U.S.C. § 841(

a)(1). Section 841(a)(1) ma kes it unlawful for a person knowingl

y and intentionall

y to possess with intent to distribute a controlled substance . The statute on it s face sets forth t

he specific intent,

“with intent to distribute. ” We held that the district court did not abuse its discretion i n prohibiting Came

ron from prese

nting “unarticul

ated psychiatri

c evidence” to demonstrate tha

t she did not intend to distribute “crack” cocaine. Id. 1067-1068.8

We found that Cameron

failed to demon

strate how her psy

chiatric evidence

would negate intent and not m

erely present

a dangerously co

nfusing theory of

defense more akin to j ustification and exc use than a “lega

lly acceptable

theory of lack o f

mens rea .” Id. 1067. Cameron ’s interpre tation of § 841(a)(1 ) clearly sho ws why Etting er’s interpretation of § 111 is erroneous. On its face, the statute Cameron was charged under details the spe

cific intent requir

ement to be sati sfied for conviction . Section 111, under which Ettinger is charged, does not contain specific intent language. In Unite d Stat es v. Wi lliams , 197 F.3d 1091 (11th Cir. 1999), Williams was charged under 18 U.S.C. § 2244(a)(1) and convicted of abusive sexual conduct with a child. W

e found that § 2244(a) (1) encompasse s all of the elem ents of simple assault under 18 U.S.C. § 113(a)(5). In discussing whether the district court erred in not gi

ving a lesser include

d offense instructio

n on simple assaul

t under § 113 we held Section 113 ident ifies seven kinds of assault. See 18 U.S.C. § 113( a). For some of these of

fenses, the statute

specifically sets forth a specifi c intent requirement. See 18 U.S.C. § 113( a)(1) (assault with intent to commit murder); [an

d] 18 U.S.C.§ 113(a)(3) (assa ult with a dangerous w

eapon and intent to dobodily harm) [emphasis added].” Id. 1096. We distinguished the

subsections of § 113 iden tifying assault by

striking,9

beating or wounding,

assault resulting in se

rious bodily injur

y, and simple assault as containing no language setting out a “specific intent” req uirement. Id. 1096. We further noted that other courts have recognized this omission and concluded that “no specific inten t element exists for assau lt by striking, beatin g or wounding, United States v. M

artin , 536 F.2d 535, 535-5 6 (2nd Cir. 1976), a nd assault resulting in serio us bodily injury. United States v. J uvenile Male , 930 F.2d 727, 728-29 (9th Cir. 1991).” Id. 1096. The specifi c intent sections of § 113 contain the words intend to and the sections that d o not have a “spe

cific intent” elem

ent do not contain these expli

cit “intent” w

ords. Similarly , 18 U.S.C. § 111 does not contain expli cit “intend to” w

ording on its face and is a “general int ent” statute. See Grossman , 113 F.3d at 1451-52.

(1) United States v. F eola The Supreme Court has held that § 111 does not embody an unexpressed requirement that an assailant be aware that his victim is a federal officer. United States v. F eola , 420 U.S. 671, 684, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1974). Feola

teaches that the defendant’s stat e of knowledge

only requires an intent to assault,

not an intent to assault a federal officer

. Id. However, this does not imply

that the defendant’s s

tate of knowledge is

never a relevant c

onsideration10 under § 111. The statute does require a criminal intent, and there may well be circum

stances in which ignor

ance of the offici

al status of the person assaulted or resisted negates the very existence of mens rea . For example, where an officer fails to identify him self or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directe d either at the defe

ndant or his property. In a

situation of that kind,

one might be jus

tified in exerting an element of r

esistance and an hone st mistake of f act would not be consistent with crim

inal intent. Id. 686. In order to incur cr

iminal liability

under § 111, Ettinge

r must “en

tertain merely the

criminal inten

t to do the acts” spec

ified in § 111, to for

cibly assault, resist, oppose, im

pede, intimida

te or interfere w

ith a federal off

icer “while engaged in or on account of the performance of official duties.” Id. See also 18 U.S.C. § 111(a)(1). A federal grand jury returned a one count indictment charging that Ettinger “did knowingly

and wilfully,

forcibly assau

lt, resist, oppose,

impede, intim

idate and interfere wi

th a federal corr

ectional officer

, while the officer was engaged in the performa

nce of his official

duties and did thereby

inflict bodily inj ury upon him, in violation

of 18 U.S.C. § 111(a) and (b)” [R 1:1]. The distr ict court did not err when it ruled that the indictment charging Ettinger under 18 U.S.C. § 111(a) and (b) was a “

general intent” cr

ime which pre

cluded Ettinger fr

om raising a “diminished capacity” defense. The evidence in this case clear ly shows that11

Ettinger intended to and did assault federal Officer Turner. This is a clear application of Feola . Ettinger, a f ederal detainee,

was being lawfull

y moved by federal officers in a prison shakedown room when, without provocation, he struck Officer Turner. In other words, Ettinger’s actions exem plified the “criminal intent” § 111 require s pursuant to Feola

. See Feola , 420 U.S. 671 at 686. The district court

record of procee

dings concerning Etti

nger’s Notice of Diminished Capacity Defens e and the Governm ent’s Motion For R

econsideration supports the district court’s ruling, and shows the following uncontested circumstance s. Ettinger had been arrested and cha rged with impor

tation and possession of cocaine

with intent to distrib

ute and he was in pre

trial detention on these charges. S

tephen Barnes, a correction officer at the Federa l Detention Center in M iami, was assi gned to wor k at the “visi ting room.” [R 2:35-36, 39] Barnes and two othe

r staff mem

bers escorted Ett

inger and another inm

ate from the SHU to the visiting ro om. Both Ettinger and the o ther inmate were handcuffed. [R2:40-41, 43] P

rior to entering the

visiting room, on

e must pass throug

h a holding area, then a “sh akedown” a rea. [R2:44 -45, 48] Officer Barnes and Etting er were the first to enter t he shakedown room. [R2:46, 51] Of

ficer Turner e

ntered the shakedow

n room next, nei

ther speaking to nor touching Ettinger

. [R2:51, 80-81, 8 4] Officer F erguson, Office r Williams a

nd12

another inmate then entered the room. [R2:50-51, 84] After O fficer Williams left the room, Of

ficer Turner st

ood facing the exit door

and was about to lea

ve to speak with Officer William s when Ettinger str

uck him on the bac

k of his head. [R2:84-85 , 96; R3:22 -23] As soon as Officer Bar nes had remov ed Ettinge r’s hand-cuffs, Ett

inger spun around and r

an toward Officer Turner, who was standing facing the door, and s truck Turn er. [R2:51- 52, 85-86 ] The blow cau sed Turner’s head to strike the door

which he was standi

ng next to. [R2:52-53;

R3:25-28] As a result of the attac

k Turner had a hea

dache and some s

welling. Turner ’s doctor testified that he ha

d found a lesion on the ba ck of Turner’s

head, some sw

elling in the forehead area and that those wer e consistent with blun

t trauma to the head. [R2:52-3; R3:25-28] Officer Ferguson ran over to Ettinge r, grabbed him

, and took him dow

n to the ground. [R2:55, 86] Ettinger stated “I told you I was going to get you.” [R2:55, 67, 87] Both Officers Barnes and Ferguson testified that Ettinger had made this state

ment about “

getting” Turner.[R2:55, 86-87] H owever, Barnes

did not include Ettinger ’s remarks in his own report m

ade after the att

ack. [R2:70-72] Barnes did report t

he statement to

FBI Agent Nau one

week after the a

ttack. [R2:80] Ettinger co ntended i n his dist rict court Response T o The Govern ment’s13

Motion For Reconside

ration that this Court

has already de

termined that § 111 is a specific int

ent statute. Etti

nger cited our decis

ion in United States v. Gonzalez , 122 F.3d 1383 (11th C ir. 1997), to suppor

t his proposition. Thi s contention is in correct. Gonzalez is not a case which d etermines wh

ether § 111 is a general or specific in tent crime. It merely applies a Feola “general inte

nt” analysis to dete

rmine whethe

r the circumst

ances of the case,

as viewed by the evidence presented, supports the conviction for the crime charged, or whether there were ju stifiabl e circumstan ces which wo uld show t hat the defendant’s actions were not cons istent with criminal int ent. Despite Gonzalez ’s application of Feola ’s “general intent” analysis, Ettinger argues that Gonzalez held that the attem pted or threatened i

njury under § 111 must be “an intentional act willfully done without legal excuse,” and therefore that language indicate s § 111 is a specific i ntent crime. Id. at 1386. This “ targeted” lang uage f

rom Gonzalez does not imply that a defendant nee

d have any heightened level of i

ntent to violate § 111. In fact, even thou gh Gonzalez was decided after Feola , the “targeted” language was taken by the Gonzalez court from Burke v. United States , 400 F.2d 866, 867 (5th Cir. 1968), a case decided before, and without the benef

it of the Suprem

e Court’s analy

sis of § 111 in Feola . We did, howev er, apply a gen eral inten t analysis wh en we affirmed Go nzalez’s14

criminal liabi

lity under § 111. The evidence esta blished that he me

rely had the general criminal intent to forcibly assault three U.S. Marshals by use of a Blazer automobile. See Feola , 420 U.S. 686. The circumst ances presented in Gonzalez did not indicate any

justified resista

nce or mistake

of fact that m

ay negate the criminal intent required by § 111, and there was no evidence presented that supported a conten tion that Gonzalez d id not act in a knowi ng and willful manner. Gonzalez argued t

hat there was insuf

ficient evidence t

o establish the charged offenses.Although the grand j ury indicted Gon zalez for “f

orcibly assaulting three Un

ited States Marsha

ls by use of a dang

erous weapon (the Blazer),” he contended that the evide nce did not establish th

at he intentionally directed force a

t the three federa

l officers he alle

gedly tried to as sault with his Blazer. Instea

d, Gonzalez argu

ed that the evidence

was consistent wit

h his contention (mad

e at trial) that he

was “sim ply driving, hea

d down, attem

pting to flee.” Gonzalez , 122 F.3d at 1386. The facts and circumstances of Gonzalez did not su pport Gonz alez’s argument nor do they support Ettinger’s reading of Gonzalez . A federal wa rrant was issued for Gonzalez ’s arrest. Id. at 1384. Federal marshals surveilled a motel and the room therein where t hey believed Gonzalez was st aying. Id. at 1385. Marshals blockaded a

ll entrances to the m

otel which included a

parking garage15

and lot. Id. The officers obse rved a Blazer aut

omobile leaving t

he parking spot in the garage assigned to the suspect’s room and the Blaz er proceeded throu

gh the parking l ot until h is path was blocked b y a city police c ar and a U.S. Ma rshal’s vehicle. Id. The Blazer stoppe d and the agents ye

lled “[p]oli

ce. Everyon

e out of the vehicle.” Id. At this point the drive

r of the Blazer tr

ied to flee the park

ing lot “seem

ingly without regard for persons and vehicles in its path.” Id. The agents at the scene began firing at the Bl azer and the Blazer nearly hit two different agents. Id. The Blazer momentarily paused at a chain link fence behind which sat two U .S. Marshals’ vehicles bl ocking the Blazer’s pat h. Id. The Blazer’s occupants were again instructed to st

op and get out of the veh icle. Instead, t

he Blazer repea

tedly rammed the fence, finally bre aking through and hitting the deputy marshals’ car. Id. The Blazer eve

ntually ran agr

ound and the occupants w ere apprehended a

nd arrested. Id. The three U.S.

Marshals that Gonz

alez allegedly

assaulted with his ve

hicle each testified in de

tail about the circu

mstances that l

ed them to think tha

t the Blazer’s drive

r intentionally t

ried to hit them i

n his attempt to f

lee the parking garage. We he

ld that based on this tes

timony a re

asonable jury

could easily conclude that Gonza

lez’s act of dri

ving the Blazer at t

he marshals w

as intentional,16

and on these circumstanc es the evidence was suf ficient to suppor t this convictio n. Id. at 1386. That is, that Gonzalez posse ssed the “gener al intent” to hit the officers. Specifically, his intent was “knowing and willful,” and his actions were not the result of an hon

est mistake of f

act or justified r

esistance that woul

d not be consistent with cri minal intent. Feola , 420 U.S. at 686 . Neither Gonza lez nor Ettinger were j ustified or mist aken with regard t

o their respective

assaults on the federal officer

s and their actions w

ere each consisten

t with a “gener

al intent” to assault, as mandated by § 111

. We have held that

18 U.S.C. § 115,

a similar fed

eral assault statut

e, is a general intent rath er than a specific inte nt crime. United States v. B erki , 936 F.2d 529, 532 (11th Cir.), cert. denied , 503 U.S. 988 (1992). (§ 115 involves threatening a fede

ral judge and is not a

specific intent cr

ime because th

e statute did not require the defendant to know th at he was threatening a federal judge). We have also cite

d Feola in determining t

hat criminal li

ability under § 111 was not based on whether the d efendant knew that hi s victim was a federal officer. United States v. Alvarez , 755 F.2d 830, 842 (1 1th Cir. 1985), cert. denied , 475 U.S. 905 (1985). (We ad

opted Feola ’s reasoning that t he statute require s only an intent to assault and not a spec

ific intent to assaul

t a federal officer). Further, other circuits have found that 18 U.S.C. § 111 is a general int ent crime. United States v. Kimes ,17

246 F.3d 800, 809 (6 th Cir.), cert. denied , 122 S.Ct. 823 (20 02). (§ 111 is a general intent crime and t he defense of diminished capacity does not apply). See also , United States v. R

icketts , 146 F.3d 492, 496 (7 th Cir. 1998); United States v. Kleinbart , 27 F.3d 586, 592 (D.C. Cir.), cert. denied , 513 U.S. 978 (19 94); United States v. Oakie , 12 F.3d 1436, 1443 ( 8th Cir. 1993); United States v. J im , 865 F.2d 211, 213 (9th Cir.), cert. denied , 493 U.S. 827 (1989). Ettinger alleges t

hat the following cir

cuits have found § 111 to be a specific intent statute. In United States v. T aylor , 680 F.2d 378, 381 (5 th Cir. 1982), the Fifth Circuit held that the district court had not erred by instructing the jury that defendant must h

ave had a “wil

lful intent” when he

hit a postal worker. In United States v. Sim

monds , 931 F.2d 685, 687 (1 0th Cir. 1991), the court held that the district court recognized that § 111 was a “specific i ntent” statute, how

ever, it defined the intent re

quired to comm

it a violation of § 111 in “general inte nt” terms. That is, that the defendant acted “knowingly and w illfully.” Id. In United States v. Caruan

a , 652 F.2d 220, 223 (1st Cir. 1981), the court determined that there was suffic

ient evidence adm

itted at trial to fin

d that the defendant w

illfully released dogs on fed eral marshals with the inte nt to frighten them. These cases do not specifically de al with whether § 1 11 is a general or specific intent cr

ime in order to determine wh ether diminishe

d capacity can

be18

argued to negate the mens rea requirement o f the statute. Th e rationale of these cases is not germ

ane to our case and t

hey are not bindin

g on us. We agree

with the reasoning of the cir

cuits that have held th

at § 111 is a “gene

ral intent” statute

and that a “dim

inished capacity

defense” is not avai

lable to a charge und

er this section. (2) Eleventh Circuit Patt ern Jury Instruction 1.2 Next, Ettinger contends that the language of Eleventh Circuit Pattern Jury Instruction

Criminal 1.2 (

“Pattern Inst

ruction 1.2") im

plies that § 111 is a specific intent cr

ime because it

states that “th

e Defendant acte

d knowingly and wilfully.” O

ur pattern instructi

ons are not precede

nt and cannot solely

foreclose the construction of the necessary elements of a crime as st ated in the statute

. Moreover, the languag e of Pattern Instructi on 1.2 is consiste nt with our holdin g. The terms “

knowingly and wi

lfully” do not def

ine “specific

intent.” Wher

e no specific intent ele

ment is appare

nt on the face of the

statute, the crim

e is one of general intent. See Grossman , 131 F.3d 1451-52. T he language of § 111 only requires the knowin g commission of the act. Furthermore, “[t]he word ‘ willfully’ means that a person or entity charged as a defendant know

ingly and intentiona

lly comm itted acts which co

nstitute the offen se cha rged a nd th at suc h acts were n ot commi tted a ccide ntall y or by s ome mistake.” United States v. P hillips , 19 F.3d 1565, 1577 ( 11th Cir. 1994). I t is19

clear from the facts before us that Ettinger willfully hit Officer Turner in the back of his head. Etting

er’s words aft

er the act and the a

ct itself are a cl

ear indication of a deliberate intentional act and not an honest mistake or accident. Therefore, Ettinger’s conduct met the g eneral intent requi rement of § 111. In his argument to this court on appeal, Ettinger does not brief a “ Gonzalez ” argument (as h

e did in the district court) to support his “ diminished capa

city defense” but, inste

ad, contends in his appellate brief that “the trial cour t erred in its decision as not only does the language of the statute dictate that 18 U.S.C. § 111(a)(1) is a spe

cific intent crim

e but also that Patte

rn Instruction 1.2 of

this Circuit makes it clear

that specific intent is an element of the offense.” He further supports his argum

ent by pointing to an

other general jur

y instruction give

n by the district court whic

h defined the word “

willfully” as the term is used in the indictment or in the instructions. Ettinger’s appe

llate argumen

t then states his disagr

eement with th

e reasoning of Kimes , supra , and claims th ere is a circuit split as to whether 18 U.S.C. § 111(a)(1) is a genera l intent statute, citing Simmonds , Taylor and Caruana , supra . He finally concludes stating that

“the apparent

circuit split is irrelevant . . .given Pattern Jury Instruction 1.2. I

n this Circuit there

appears to be no dispute that 1 8 U.S.C. § 111(a)(1) is viewed as a specific intent cr ime.”20

[Appellant’s Brief at 14.] Ettinger’s arg

ument is incom

plete and erroneous.

To begin with, the portion of the jury

instructions given in th

is case by the dis

trict court with reference to the

government’ s burden of proof necessary to convic t under 18 U.S.C. § 111(a

)(1) are in substan

ce the same as

Pattern Instructi

on 1.2. But this is not a case questioning the correctness of the instruction as given to the jury, rather Ettinger argues tha

t the Eleventh Circ

uit has, by adopti

ng Pattern Instruct

ion 1.2, viewed 18 U.S. C. § 111(a)(1) as a specific intent c

rime. So we

must look not only to the instruction as given by the district court (which is consistent with Pattern Instruction 1.2) but

also to Pattern Inst

ruction 1.2. The pertinent part of E leventh Circuit Pattern Jury Instruction 1.2 (1997) provides as follows (each paragraph has been designated with a letter in brackets for convenience of discussion): [A.] The Defendant can be found guilty o f the offense of as saulting a Federal officer

[with a deadly

weapon] [infli

cting bodily injur

y] only if all of the follow

ing facts are prove

d beyond a reason

able doubt: [B.] First : That the Defenda nt forcibly assa

ulted the person described in the indic

tment; [C.] Second : That the person assaulted was a Federal officer, as

described above, then engaged in the performance of an official duty,

as charged; [D.] Third : That the Defenda nt acted knowingly

and willfully; a

nd21

[E.] Fourth : That in so acting the Defendant [used a

deadly or dangerou s weapon] [in flicted bo dily injury]. [F.] The term “

forcible assault” means any w illful attempt or threat to inflict injury

upon someone else , when coupled wit h an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person caus e to expect imm ediate bodily harm even though the threat or attem pt is not actually

carried out and the victim is not a

ctually injure

d. [G.] It is not necessary

to show that the Def

endant knew that the

person being forcibly a

ssaulted was, at t

hat time, a F ederal officer carrying out an official duty

so long as it is establis

hed beyond a rea

sonable doubt that the victim

was, in fact, a

Federal officer

acting in the course of perform

ing an official duty

and that the Defen

dant willfully committed a forcible assault upon the officer. [H.] On the other hand, t he Defendant woul

d not be guilty of a

willful assault if the evide

nce leaves you w

ith a reasonable doubt

concerning whether the Def

endant knew the vict

im to be a Fede

ral officer and that the Defendant

only acted beca

use of a reasonable , good faith belief that se lf defen se was ne eded to protec t again st an as sault b y a private citizen. The district court ’s added general instruction defining “

willfully” as used in the indictment a

nd the instructions, a

nd cited by Ettin

ger in support of his argument, pro

vided: The word willful

ly, as that ter

m is used in the In

dictment or in th

ese Instructions, m

eans that the act w

as committ

ed voluntarily an

d purposefully, w

ith a specific inten

t to do something the

law forbids; that is, with bad purp ose either to disob ey or disregard the law. Court’s Instruct

ions To The Jury

, page 10.22

Reviewing these ins

tructions it is clear

that, as stated in ou

r discussion above, the mer

e use of “will

fully” in the inst

ructions does not indica

te that this Circuit views 18 U .S.C. § 111 as a g eneral intent statut

e. More to the point

, it is brutally clear

that when this Circ

uit adopted Pattern I

nstruction 1.2 it wa

s carefully follow ing th e instr uction given b y Feola . Critical holdings of Feola are incorporated in Pattern Instruction 1.2 at paragraphs [G] and [H] set forth above. Paragraph [G] sets out the Feola holding that § 111 does not require that an assailant be awar

e that his victim

be a federal off

icer, and that all

that is required is that the assailant intended to commit an assaul t. Feola , 420 U.S. at 684. Paragraph [H] incorporates the Feola holding that while the

defendant’s stat

e of mind is a relevant consideration under § 111, there may be circum stances in which ignorance of the official status of the person assaulted negates the very existence of mens rea . Id. at 686. The district court ’s general instr uction defining “

willfully,” a

s used in the indictment and in

structions, is also consistent with Feola

. Id. 686. All Feola requires is that the assailant intend t o commit an assault. Id. 684. The use of the term “specific intent” in the general instruction is unnecessary and wrong. As set out in this opinion, ther

e is no need under § 111 t o show specific inte

nt to commit an assault, in fac

t, the assault is a br

each of the law.The only intent a nd state of23

knowledge necessary is t o commit the assault. Accordingly,

we affirm the district court a nd hold that 18 U.S. C. § 111 is a “general” int

ent statute and that a

“diminishe

d capacity def

ense” is not availabl

e to an offense charged un der § 111. B. Prior Consistent St atement “A district court is granted broad discretion in deter

mining the adm

issibility of a prior consistent

statement under

Fed. R. Evid. 801(d)(1)(B) and w ill not be reversed absent a clear showing of an abuse of discretion.” United States v. Prieto , 232 F.3d 816, 819 (1 1th Cir. 2000), cert. denied , 122 S.Ct. 345 (2001). Ettinger argues tha

t the district court e

rred in allowing the

introduction of Barnes’s testim

ony about the state

ment he gave the

FBI agent. This

argument fails. The plain language of Rule 801( d)(1)(B) states: (d) Statements which are not hearsay. A statem ent is not hearsay if - (1) Prior statem

ent by witness.The declarant te stifies at the tria l or hearing and is subje

ct to cross-exam

ination concerning the

statement, and the statement is . . . (B) consistent wit

h the declarant’ s testimony a nd is offered to reb

ut an express or im

plied charge agains

t the declarant of r

ecent fabrication or improper i nfluence or motive. Fed. R. Evid. 801(d)(1)(B). Barnes’s stateme nt contained in the FBI report was admissible as a prior consistent statement. Barnes testified at trial and was24

therefore subje

ct to cross exam

ination. The state

ment was consi stent with Barnes’s testim

ony because both i

n his testimony

and in the FBI repor

t, he indicated that shortl

y after the al

tercation, Ettin

ger stated some

thing regarding telling Turner he w

as “going to get him

.” Furtherm

ore, during cross- examination, Ettinger i mplied that Barnes had fabricated hearing su ch a statemen t. Barnes’s statement made to the FBI agent was therefore adm itted properly to rebut an implied charge of recent fab rication, pursuant to Fed. R. Evid. 801(d)(1) (B). Thus, the d istrict co urt did no t abuse its discretio n by admitting Barnes’s statement contained in the FBI report. C. Motion For Mistrial This Court reviews the district court’s denial of a motion for mistrial for an abuse of discretion

. United States v. Diaz , 248 F.3d 1065, 110 1 (11th Cir. 2001). Typically , a defendant is en

titled to a grant of m

istrial only upon a

showing of substantial prejud ice. United States v. C hastain , 198 F.3d 1338, 1352 (11th Cir. 1999), cert. denied , 532 U.S. 996 (2001). However, a showing a prejud

ice is not required where the defendant claims that a mistrial was m andated because of an actual conflict of in terest. United States v. Martinez , 630 F.2d 361, 362 (5th Cir. 1980), cert. denied , 450 U.S. 922 (1981). Ettinger argues tha

t the district court e

rred in denying hi s motion for25

mistrial when the court granted a post-trial motion for his attorney to withdraw based on the same grounds. This contention will succeed only if there was an actual conflict at

the time the co

urt initially den

ied Ettinger’s m

otion. In order to show an actual conf

lict, Ettinger m

ust “make a

factual showing of inconsistent interests” or point to “specific instances in the record” to suggest that an actual impairment of his interests ex ists. United States v. N ovaton , 271 F.3d 968, 1010- 11 (11th Cir. 2001) , cert. denied , 122 S.Ct. 2345 (2 002). Ettinger fa ils to show that an actual confl

ict of interest exis

ted. In actuality

, Ettinger conce

des that only a potential conflict

existed because of t

he likelihood that def

ense counsel would be called to testify against Ettinger in a future prosecution. The district court specifically s

tated that if an ac

tual conflict arose

that prohibited the defense from zealously repr

esenting Ettinger,

it would take that int

o account after the

trial and act accordingly . Because no actu al conflict existed,

the district court di

d not abuse its discretion by refusing to grant E ttinger’s mot

ion. III. CONCLUSION We hold that 18 U.S.C. § 111 is a general intent statute and that the district court did not err in denying Ettinger a diminished capacity defense. The district court did not err in a

dmitting Barnes ’ prior consistent statement and i

n denying26

Ettin ger’s motio n for a mistri al. We a ffirm. AFFIRMED.