Defendant-appellant James C. Kopp appeals from a judgment of conviction, filed on June 22, 2007, following a jury trial in the United States District Court for the Western District of New York (Arcara, C.J.), sentencing him principally to a term of life imprisonment for intentionally inflicting on a person, because that person was a provider of reproductive health services, an injury resulting in death, in violation of 18 U.S.C. § 248; and a term of imprisonment of ten years, to be served consecutively, for carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c) and (j).
Appellant raises at least eleven points in this appeal, some of which are presented in
Appellant, who in 2003 was convicted in state court of second-degree murder based on the same killing that is at issue in this case, argues first that the district court erred by allowing into evidence the statements he made to the reporters from the
Buffalo News
and to the state trial court during sentencing, contending that those statements were made when he was being represented by conflicted counsel in the state-court proceedings. He concedes, however, that his motion to suppress those statements was untimely. A party waives its ability to move to suppress evidence if it fails to do so by the pre-trial deadline set by the court, except that the district court may grant relief from that waiver “[f]or good cause.” Fed.R.Crim.P. 12(e). We review a district court’s denial of relief from a Rule 12(e) waiver for abuse of discretion or clear error.
See United States v. Crowley,
Appellant attempts to justify the untimeliness of his motion to suppress on the ground that he did not know at the time he withdrew his first motion that the district court would permit the government to introduce his statements in redacted form. Appellant’s choice to withdraw his original motion, however, was a quintessential strategic decision, as he withdrew that motion with the intention of getting the entirety of his statements, which included both self-serving exculpatory and non-relevant passages, in front of the jury. The fact that he later came to view that decision as a poor one is not sufficient, by itself, to establish cause.
See United States v. Yousef,
But even assuming that Appellant could establish cause, he has failed to show how he was prejudiced by the denial of his suppression motion.
See Crowley,
Appellant argues that the redacted portions of his statements should have been admitted because they “have a bearing on
mens rea,” see
Appellant’s Br. at 42-43, i.e., they were necessary to explain that he did not intend to kill Dr. Slepian. Whether Appellant intended to kill Dr. Slepian, however, is irrelevant. Section 248 requires only that Appellant have acted with intent to
injure
Dr. Slepian
because
he had provided reproductive health services.
See
18 U.S.C § 248(a)(1);
Sharpe v. Conole,
Appellant argues in his pro se brief that the district court erred when it (1) precluded him from asserting a justification defense based on his contention that “he was acting to save the lives of innocent ‘third party’ children” by preventing abortions, Appellant’s Pro Se Br. at 2, and (2) instructed the jury that it was not to consider a justification defense when evaluating whether Appellant acted unlawfully. Neither argument has any merit.
As an initial matter, this Court never has articulated the elements of ajustification defense in the context of § 248, and indeed “ ‘[i]t is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute.’ ” United States v. White, 552 F.3d 240, 246-47 (2d Cir.2009) (quoting United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 , 490,121 S.Ct. 1711 ,149 L.Ed.2d 722 (2001)). But even assuming arguendo that a justification defense was available as a general matter, the district court nonetheless was entitled to preclude that defense if “ ‘the evidence in support of such a defense would be legally insufficient.’ ” United States v. Williams,389 F.3d 402 , 404 (2d Cir.2004) (quoting United States v. Villegas,899 F.2d 1324 , 1343 (2d Cir.1990)). We review de novo the district court’s decision that the evidence is insufficient to warrant the presentation of a justification defense. See United States v. Hodge,103 Fed.Appx. 686 , 687 (2d Cir.2004).
It is plain that the evidence presented in this case was wholly insufficient to support either a “necessity” or “defense of others” justification defense under any reasonable articulation.
See, e.g., United States v. Turner,
Appellant’s challenge to the manner in which the district court charged the jury similarly is to no avail. The district court stated that “[a]n act is done unlawfully if it is done without justification or excuse. In this case, I have found as a matter of law that there is no basis for a justification defense to be considered by you in determining whether the defendant acted unlawfully.” This instruction did not take the question of whether Appellant acted unlawfully out of the jury’s hands. Rather, it merely prevented the jury from concluding that Appellant had not acted unlawfully based upon a defense that was not legally warranted by the evidence.
We have considered all of Appellant’s arguments on this appeal and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
. Assuming
arguendo
that the district court erred in redacting the statements, no prejudice resulted from that error.
See United States v. Garcia,