Monday, April 20th, 2009

Kopp Out

United States v. Kopp, No. 07-797-cr (2d Cir. April 6, 2009) (Kearse, Katzmann, CJJ, Chin, DJ) (per curiam)

James Charles Kopp was sentenced to life plus ten after a jury convicted him of killing an abortion provider, in violation of 18 U.S.C. § 248, and discharging a firearm in connection with a crime of violence. He raised a host of issues on appeal, all of which were quickly dispatched by the court.

First, he complained that some of his pretrial statements were improperly admitted because they occurred when he was represented by conflicted counsel. But since his motion to suppress the statements was untimely, he was not entitled to relief. Moreover, he testified at trial and admitted the killing, which was in substance the content of the statements he sought to have suppressed.

He also complained that the admission of redacted versions of the statements violated the rule of completeness because the omitted portions went to his “mens rea” and would have shown that he did not intend to kill the doctor. But intent to kill is not an element of the offense – the statute only requires an intent to injure.

Finally, he complained that the district court erred in precluding him from asserting, and the jury from considering, a justification defense. According to the circuit, it is not clear that a federal court can recognize a necessity defense that is not provided by statute. But even if it can, here the district court correctly concluded that the evidence in support of such a defense was legally insufficient.

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