                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 10-50575
                Plaintiff-Appellee,           D.C. No.
               v.                         3:09-CR-03175-
ENRIQUE ACOSTA-SIERRA,                          JAH-1
             Defendant-Appellant.
                                             OPINION

       Appeal from the United States District Court
          for the Southern District of California
        John A. Houston, District Judge, Presiding

                Argued and Submitted
         December 7, 2011—Pasadena, California

                   Filed August 15, 2012

    Before: Dorothy W. Nelson, Ronald M. Gould, and
             Sandra S. Ikuta, Circuit Judges.

                 Opinion by Judge Nelson




                           9271
9274           UNITED STATES v. ACOSTA-SIERRA




                        COUNSEL

Jason I. Ser (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
                UNITED STATES v. ACOSTA-SIERRA              9275
James P. Melendres, Assistant U.S. Attorney (argued), Bruce
R. Castetter, Assistant U.S. Attorney, Chief, Appellate Sec-
tion, Criminal Division, Laura E. Duffy, United States Attor-
ney, Office of the United States Attorney, San Diego,
California, for the plaintiff-appellee.


                          OPINION

NELSON, Senior Circuit Judge:

  Defendant-Appellant Enrique Acosta-Sierra (“Acosta-
Sierra”), a 57-year-old native and citizen of Mexico who has
been diagnosed with paranoid schizophrenia, appeals from his
conviction, following a bench trial, of two counts of assault
on a federal officer in violation of 18 U.S.C. § 111.

   Acosta-Sierra raises four claims on appeal: (1) that the dis-
trict court’s findings of fact and conclusions of law pursuant
to Rule 23(c) of the Federal Rules of Criminal Procedure were
insufficient to find Acosta-Sierra guilty of assault on a federal
officer with a dangerous and deadly weapon in violation of 18
U.S.C. §§ 111(a)(1) & (b); (2) that the district court erred in
denying Acosta-Sierra’s motion for a judgment of acquittal
pursuant to Rule 29 of the Federal Rules of Criminal Proce-
dure; (3) that the district court erred when it concluded that
18 U.S.C. § 111 did not require the government to prove spe-
cific intent, and thereby precluded Acosta-Sierra from pre-
senting a diminished capacity defense; and (4) that the district
court erred when it precluded mental health evidence in sup-
port of Acosta-Sierra’s self-defense claim.

   We have jurisdiction pursuant to 18 U.S.C. § 1291. We
reverse in part, affirm in part, and remand to the district court
for further proceedings consistent with this opinion.

                    I.   BACKGROUND

  On June 18, 2009, Acosta-Sierra walked across the United
States border from Mexico at the San Ysidro, California, Port
9276               UNITED STATES v. ACOSTA-SIERRA
of Entry. While in a lane designated for vehicles, Acosta-
Sierra threw a baseball-size piece of jagged concrete in the
direction of United States Customs and Border Protection
Officer Abram Lopez, who was walking approximately seven
to eight feet in front of a closed, unmanned primary inspec-
tion booth.

   The rock did not strike Officer Lopez, though it came
within two feet of hitting his head. Officer Lopez did not see
Acosta-Sierra throw the rock or observe it travel through the
air. In fact, Officer Lopez only became aware of the rock
when he heard it hit the metal gate behind him, and bounce
off of the gate into the inspection booth. He did not fear
immediate bodily harm at the time he heard the rock hit the
gate. Instead, he felt stunned and confused.

  It was only after Officer Lopez heard the rock hit the gate,
repositioned himself to see from where the rock originated,
saw Acosta-Sierra walking in his general direction from six to
seven car lengths away, and observed his fellow officers mov-
ing to arrest Acosta-Sierra that Officer Lopez started to feel
“a little scared of the situation that was going on.” He did not
see Acosta-Sierra holding any other rocks at that time.

   Based on these events, the government charged Acosta-
Sierra with assault on a federal officer in violation of 18
U.S.C. §§ 111(a)(1) and (b) (“Count 2”).1 The government
alleged that Acosta-Sierra “did knowingly and intentionally
and forcibly assault . . . United States Customs and Border
Protection Officer A. Lopez, in that defendant did throw base-
ball size rocks at Agent Lopez while he was engaged in the
performance of his official duties, and in committing such
offense, did use dangerous and deadly weapons, to wit,
rocks.”
  1
   The government also charged Acosta-Sierra with illegal reentry after
deportation in violation of 8 U.S.C. § 1326 (“Count 1”), though the district
court subsequently dismissed this charge.
                UNITED STATES v. ACOSTA-SIERRA              9277
  On December 7, 2009, while awaiting trial, Acosta-Sierra
was transported to an individual holding cell at the court-
house. District Security Officer Mark Burrola approached
Acosta-Sierra in the holding cell to handcuff him and to trans-
port him to the courtroom. Acosta-Sierra walked backwards
toward the cell door with his hands behind his back so that
Officer Burrola could handcuff him, but when Officer Burrola
opened the cell door, Acosta-Sierra turned around and
punched Officer Burrola on the left side of his head. Although
Officer Burrola did not require medical attention, his “ear felt
hot.”

   In light of this incident, the government filed a Second
Superseding Indictment which added Count 3 and charged
Acosta-Sierra with assault on a federal officer in violation of
18 U.S.C. § 111(a)(1) for “punch[ing] Officer Burrola, while
Officer Burrola was engaged in the performance of his offi-
cial duties.”

   Prior to trial, the district court denied Acosta-Sierra’s in
limine motions seeking to introduce expert testimony that
Acosta-Sierra suffered from paranoid schizophrenia and delu-
sions of being subject to persecution and torture by govern-
mental authorities. The district court held that this evidence
was not admissible to prove a diminished capacity defense
because Section 111 is a general intent crime. The district
court also held that this evidence was inadmissible to present
a theory of self-defense because “there was no use of force,
let alone any excessive force, from which one might reason-
ably suggest that a cognizable theory of self-defense would
lie.” Acosta-Sierra waived his right to a jury trial due to these
rulings.

   Following a two-day bench trial, the district court found
Acosta-Sierra guilty on both counts of assaulting a federal
officer and denied his Rule 29 motion for a judgment of
acquittal. In finding Acosta-Sierra guilty of Count 2, the court
found beyond a reasonable doubt (1) that Acosta-Sierra inten-
9278            UNITED STATES v. ACOSTA-SIERRA
tionally used force in assaulting Officer Lopez, (2) that Offi-
cer Lopez was engaged in his official duties at the time of the
assault, and (3) that the baseball-size rock that Acosta-Sierra
threw constituted a dangerous or deadly weapon. As for the
first element, the district court found that “there was a display
of force” that “reasonably caused a person to fear immediate
bodily harm.” The district court also concluded that the gov-
ernment did not need to prove that Acosta-Sierra “intention-
ally used force against Officer Lopez or someone else”
because “this is a general intent crime, not a specific intent
crime.”

   In finding Acosta-Sierra guilty of Count 3, the court found
beyond a reasonable doubt that Acosta-Sierra intentionally
used force in assaulting Officer Burrola based on the “aggres-
sion” revealed by “the power of th[e] first punch” as well as
the “way [Acosta-Sierra] went after [Officer Burrola] to try to
hit him the second time.” The court further found that there
was no evidence that Officer Burrola applied any force, let
alone excessive force, such that a reasonable person would
consider self-defense necessary. In addition, the court found
“more than sufficient evidence was presented for the Court to
find beyond a reasonable doubt that Officer Burrola was per-
forming in the execution of his official function at the time of
the assault.”

  In November 2010, the district court sentenced Acosta-
Sierra to 60 months in prison on Count 2 and 36 months on
Count 3, with those terms to run concurrently, as well as three
years of supervised release. Acosta-Sierra then filed a timely
appeal.

              II.   STANDARD OF REVIEW

  We review mixed questions of law and fact de novo. See
United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th
Cir. 2000). We also review de novo a district court’s denial
of a motion for a judgment of acquittal based on insufficient
                UNITED STATES v. ACOSTA-SIERRA               9279
evidence. United States v. Chapman, 528 F.3d 1215, 1218
(9th Cir. 2008). In so doing, we must determine whether,
“after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[W]hen faced
with a record of historical facts that supports conflicting infer-
ences . . . [we] must presume—even if it does not affirma-
tively appear in the record—that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to
that resolution.” United States v. Nevils, 598 F.3d 1158, 1164
(9th Cir. 2010) (en banc) (internal quotation marks and cita-
tion omitted).

   Whether diminished capacity is a defense to a charged
offense is reviewed de novo. United States v. Vela, 624 F.3d
1148, 1154 (9th Cir. 2010). We review for abuse of discretion
a district court’s decision to admit or exclude scientific evi-
dence. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.
2002).

                       III.   ANALYSIS

                         A.   Count 2

   [1] Section 111 of 18 U.S.C. prohibits forcible assault on
a federal officer “while engaged in or on account of the per-
formance of official duties.” 18 U.S.C. § 111(a)(1). Because
Section 111 does not define assault, we have adopted the
common law definition of assault as either (1) “a willful
attempt to inflict injury upon the person of another,” or (2) “a
threat to inflict injury upon the person of another which, when
coupled with an apparent present ability, causes a reasonable
apprehension of immediate bodily harm.” Chapman, 528 F.3d
at 1219-20 (quoting United States v. Dupree, 544 F.2d 1050,
1051 (9th Cir. 1976)); see generally United States v. Turley,
352 U.S. 407, 411 (1957) (“[W]here a federal criminal statute
uses a common-law term of established meaning without oth-
9280               UNITED STATES v. ACOSTA-SIERRA
erwise defining it, the general practice is to give that term its
common-law meaning.”).

   The first type of common law assault is an attempt to com-
mit a battery. United States v. Bell, 505 F.2d 539, 540 (7th
Cir. 1974). For this type of assault, there need not be physical
contact with the intended victim, see Chapman, 528 F.3d at
1219 (explaining that “someone who threw a punch and
missed” would be guilty of assault under Section 111), or rea-
sonable apprehension on the part of the victim, see United
States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007)
(explaining that “a showing of fear on the part of the victim”
is not required under the attempted battery theory of assault).

   The second type of criminal assault, sometimes called an
“intent-to-frighten,”2 derives from the law of torts, Bell, 505
F.2d at 540, and recognizes the importance of protecting indi-
viduals from the mental disturbance of being put in reason-
able apprehension of bodily harm, Price v. United States, 156
F. 950, 953 (9th Cir. 1907) (citing Beach v. Hancock, 27 N.H.
223 (1853)). For this latter type of assault, one does not nec-
essarily need to be put in actual danger. Id. at 952-53. Even
if one is only put in reasonable apprehension of imminent
harm, the “suffering is the same in the one case as in the
other, and the breach of the public peace is the same.” Id.
(internal quotation marks and citation omitted).

   Although the two types of common law assault involve dis-
tinct elements, the difference between them often goes unno-
  2
    See Wayne R. LaFave, 2 Substantive Criminal Law § 16.3(a), at 565,
568 n.28 (2d ed. 2003) (characterizing the second type of assault as “inten-
tional scaring” or “intent-to-frighten,” though noting that the words
“scare” and “frighten” are sometimes used as shorthand “for the more
cumbersome but more accurate expression ‘causing reasonable apprehen-
sion of immediate bodily harm.’ ”) (quoting W. Prosser & W. Keeton,
Torts § 10, at 44 (5th ed. 1984)); see also United States v. Lee, 199 F.3d
16, 19 (1st Cir. 1999) (referring to this second type of assault as “assault
by menace”).
                   UNITED STATES v. ACOSTA-SIERRA                      9281
ticed because a violation of one type is usually a violation of
the other type as well. As a fitting example:

      If, with the intention of hitting X, D wrongfully
      threw a stone that X barely managed to dodge, then
      D would have been guilty of a criminal assault
      because he had attempted to commit a battery, and
      he would also have been liable in a civil action of
      trespass for assault because he had wrongfully
      placed X in apprehension of physical harm.

R. Perkins & R. Boyce, Criminal Law § 2, at 159 (3d ed.
1987). This example highlights the important nuances
between the two prongs of common law assault. The question
here is whether Acosta-Sierra is guilty of assault if the rock
he threw narrowly missed Officer Lopez, and Officer Lopez
did not see the rock or feel afraid until immediately after it
landed.

   Although Acosta-Sierra’s rock-throwing seems to be a
straightforward example of attempted battery, the district
court analyzed his conduct under only the “reasonable appre-
hension of harm” prong of common law assault. In conclud-
ing that the attempted battery prong did not apply to this case,
the district court was apparently misled by the Ninth Circuit
Pattern Jury Instructions in effect at the time of Acosta-
Sierra’s trial, which stated that an assault occurs only “when
one person intentionally [strikes] [wounds] another, or when
one person intentionally makes a display of force which rea-
sonably causes a person to fear immediate bodily harm.” 9th
Cir. Model Crim. Jury Instr. 8.2 (2008); but see Chapman,
528 F.3d at 1219 (holding that assault, for purposes of Section
111, incorporates the common law definition of assault).3
  3
   The instructions now correctly include attempted battery as a basis for
forcible assault by stating that “[t]here is a forcible assault when one per-
son intentionally strikes another, or willfully attempts to inflict injury on
another, or makes a threat coupled with an apparent ability to inflict injury
9282               UNITED STATES v. ACOSTA-SIERRA
   In concluding that Acosta-Sierra’s rock-throwing consti-
tuted assault under the “reasonable apprehension of harm”
prong, the district court made the following factual findings:

     Officer Lopez, while crossing through lane 12 in
     front of its closed gate, heard a very loud bang. At
     that moment, he shrugged and managed with his
     peripheral vision to see an object bounce off the top
     of the closed gate into one of the unmanned booths
     and then to the ground. He noticed that the object
     was a jagged-edged rock.

     At the time he heard the object hit the gate, he was
     stunned. He was still confused as to what was going
     on as he redirected his attention to see where the
     object was coming from. He then saw the defendant
     advancing towards him through the traffic lanes, and
     his confusion turned to feeling threatened and scared
     of the situation that was going on. He stated he was
     not too sure what would happen next. Officer Lopez
     considered the matter to be a serious event.

     On cross-examination, Lopez testified that he was
     not worried about being hurt because he was not
     aware he was being attacked. He did not necessarily
     fear any immediate bodily harm, but was confused at
     the time he heard the rock. He testified that he

on another which causes a reasonable apprehension of immediate bodily
harm.” 9th Cir. Model Crim. Jury Instr. 8.4 (2010) (emphasis added).
   The current pattern jury instructions do not, however, specify what level
of criminal intent the government must prove when an individual “makes
a threat coupled with an apparent ability to inflict injury on another which
causes a reasonable apprehension of immediate bodily harm.” As we
explain further in Part III.A.2, the requisite criminal intent under this the-
ory of assault is the intent to assault. See United States v. Juvenile Female,
566 F.3d 943, 947 (9th Cir. 2009); United States v. Kartman, 417 F.2d
893, 895 (9th Cir. 1969).
                UNITED STATES v. ACOSTA-SIERRA              9283
    became scared afterwards, after turning his attention
    towards the defendant.

   Based on these findings, the court concluded, first, that the
government did not need to prove that Officer Lopez subjec-
tively feared immediate bodily harm due to the rock throwing
because Section 111 requires a different level of proof than
that of Section 113, the general federal assault statute. The
district court then determined that “the events of hearing the
rock hit the gate behind [Officer Lopez] . . . watching it fall
behind him and turning to see the defendant advancing on him
created a display of force reasonably causing a person to fear
immediate bodily harm.” In the alternative, the district court
determined that these events actually “caused the victim to
sense the fear and harm.” By emphasizing that “the events
occurred within . . . fluid and seamless seconds,” the court
rejected Acosta-Sierra’s claim that Officer Lopez’s “feelings
of being threatened and scared” occurred after the rock hit the
gate. The court ultimately decided that the close proximity of
events sufficed “to create th[e] fear that satisfies the element
of 111.”

   We conclude that the district court erred in its application
of the “reasonable apprehension of harm” prong of common
law assault. However, because the evidence would have been
sufficient to convict Acosta-Sierra of attempted battery if the
district court had not relied on the erroneous model jury
instruction then in effect, we remand for retrial under the
proper standard. See United States v. Cote, 51 F.3d 178,
182-83 (9th Cir. 1995) (holding that the Double Jeopardy
Clause does not bar retrial when a conviction is reversed for
trial error such as an incorrect jury instruction, but the evi-
dence is not insufficient to sustain a conviction under the
proper standard).
9284              UNITED STATES v. ACOSTA-SIERRA
        1.   Reasonable Apprehension of Immediate
                         Bodily Harm

   [2] We first consider whether Acosta-Sierra’s rock throw-
ing constituted assault because it was “a threat to inflict injury
upon the person of another which, when coupled with an
apparent present ability, causes a reasonable apprehension of
immediate bodily harm.” Chapman, 528 F.3d at 1219-20
(quoting Dupree, 544 F.2d at 1051). We agree with the dis-
trict court that, for purposes of Section 111, a victim’s appre-
hension of immediate bodily injury must be determined by an
objective standard of reasonableness. Therefore, to prove
criminal assault under the “reasonable apprehension of harm”
prong, the evidence must permit an inference that a reason-
able person “standing in the official’s shoes,” that is, observ-
ing what the official observed, would have apprehended
imminent bodily injury. United States v. Walker, 835 F.2d
983, 987 (2d Cir. 1987); see also id. at 989 (describing the
reasonable apprehension requirement as an “objective stan-
dard”).4

   Acosta-Sierra argues that, to be convicted of assault, the
government must prove beyond a reasonable doubt that Offi-
cer Lopez also subjectively feared immediate bodily harm. In
so doing, Acosta-Sierra relies on United States v. Skeet, for
the proposition that “fear on the part of the victim” is a neces-
sary element of assault. 665 F.2d 983, 986, 987 (9th Cir.
1982). We disagree. Skeet involved an assault conviction
under 18 U.S.C. § 113, the general federal assault statute, and,
therefore, the court did not consider the enhanced protections
  4
    Contrary to the government’s argument, we have not previously
adopted an objective standard of reasonable apprehension of harm.
Although, in United States v. Jim, we stated that, if Section 111 were a
general intent crime, the “only issue would be whether a reasonable man
would find that the defendant’s actions should have put a federal officer
in apprehension of bodily harm,” 865 F.2d 211, 213 (9th Cir. 1989), this
was mere dicta. Our holding in Jim was limited to resolving whether Sec-
tion 111 is a general or specific intent crime. Id. at 215.
                UNITED STATES v. ACOSTA-SIERRA              9285
we have afforded federal officials under Section 111. See Jim,
865 F.2d at 213-15 (contrasting our construction of federal
forcible assault pursuant to Section 111 with the assault pro-
hibited under Section 113 in light of Congress’s intent, in
passing Section 111, “ ‘to protect both federal officers and
federal functions’ ” (quoting United States v. Feola, 420 U.S.
671, 679 (1975))). Moreover, even when construing assault in
contexts outside of Section 111, we have required that fear of
personal harm be reasonable. See Price, 156 F. at 953 (“We
have a right to live in society without being put in fear of per-
sonal harm. But it must be a reasonable fear of which we
complain.”) (internal quotation marks and citation omitted)
(emphasis added); see also Restatement (Second) of Torts
§ 24 (1965) (explaining that “[t]he apprehension which is suf-
ficient to make the actor liable [for assault] may have no rela-
tion to fear” and that “the heavyweight champion pugilist of
the world” may be put in the requisite apprehension by “a
scrawny individual who is intoxicated” even if the former is
“not at all afraid of the latter”).

   An objective standard strikes a balance between protecting
federal officials and their functions while also giving effect to
the common law theories underlying criminal assault. An
objective standard guards against liability for subjective but
unreasonable apprehension of imminent bodily harm, and, at
the same time, allows prosecution for assault when a reason-
able person in the federal official’s shoes would fear immedi-
ate injury, but the official happens to be particularly stoic or
confident in his ability to resist an attack.

   In this case, however, the district court found reasonable
apprehension based on information beyond what someone in
Officer Lopez’s shoes would know, explaining that it was
“not impressed with the position that the victim needs to see
the rock hurling in his direction or observ[e] a near miss and
be[ ] fearful instantaneously.” In so doing, the district court
applied an overly-broad construction of the reasonableness
9286            UNITED STATES v. ACOSTA-SIERRA
standard and conflated the two concepts of common law
assault.

   As noted previously, when an individual is charged with
assault as an attempted battery, the victim’s apprehension of
imminent harm is inconsequential. See, e.g., Skeet, 665 F.2d
at 987 (noting that fear on the part of the victim is not an
essential element of the assault charge which involved battery
based on a gunshot wound); Bell, 505 F.2d at 541 (noting that
when “an attempted battery is an assault, it is irrelevant that
the victim is incapable of forming a reasonable apprehen-
sion”); LaFave, 2 Substantive Criminal Law § 16.3(a), at 567
(stating that an attempted battery “may be committed though
the victim is unaware of his danger, as where A throws a rock
at, but misses, B who is asleep, or where A shoots from the
south at B who is facing north”) (emphasis added).

   [3] In contrast, for a criminal assault based on causing the
apprehension of imminent bodily injury, the common law
requires awareness of the threat. See generally LaFave, 2
Substantive Criminal Law § 16.3(b), at 569 (“It is not enough,
of course, to intend to scare the other without succeeding; if
the other fails to notice the threatened battery, the threatener,
not having succeeded in his plan, cannot be held guilty of
assault.”); Prosser & Keeton, Torts § 10 at 44 (“Since the
interest involved is the mental one of apprehension of contact,
it should follow that the plaintiff must be aware of the threat
of contact, and that it is not an assault to aim a gun at one who
is unaware of it.”); Restatement (Second) of Torts § 26, Com-
ment a (1965) (“The gist of the liability is the other’s knowl-
edge that the actor is attempting to commit a battery upon
him.”); see, e.g., State v. Barry, 124 P. 775, 777 (Mont. 1912)
(finding no assault where the defendant leveled a rifle at a
prosecutor who did not see the defendant until after the defen-
dant had been rendered harmless, because “it would seem
impossible for any reasonable man in [the prosecutor’s] posi-
tion to affirm that he was then in fear for his safety”).
                UNITED STATES v. ACOSTA-SIERRA              9287
   [4] Thus, contrary to the district court’s conclusion, an
objective reasonable person standard does not consider the
reasonable person who is aware of all the relevant circum-
stances. Rather, it considers the reasonable person who
observes what the official observes. The paradigmatic exam-
ple of a defendant brandishing an unloaded gun illustrates
why the district court’s standard does not best protect federal
officials in the performance of their functions. We have held
that “if within shooting distance one menacingly points at
another with a gun, apparently loaded, not loaded in fact, he
commits an assault the same as if it were loaded.” Price, 156
F. at 953 (internal quotation marks and citation omitted). At
the time the individual brandishes the weapon, it is reasonable
for a person in the victim’s shoes to apprehend immediate
bodily harm. Id. We do not presume knowledge, however,
beyond what one can observe when standing in the victim’s
shoes. Officers must be empowered to respond to apparent
threats of violence without first being required to learn or con-
firm all the relevant facts in an altercation, such as whether a
gun is in fact unloaded. To apply too high a standard of appre-
hension may, in certain circumstances, undermine protections
for federal officials.

   [5] The district court erred in concluding that Acosta-
Sierra caused a reasonable apprehension of immediate bodily
harm under an objective standard of reasonableness because
the district court did not limit its consideration to the facts
known to Officer Lopez. Officer Lopez did not see Acosta-
Sierra before he threw the rock and did not realize what had
happened until after the threat of imminent bodily harm had
passed. A reasonable person observing what Officer Lopez
observed, therefore, would not have been aware of any threat.
The district court erred in adopting an objective standard that
assumed knowledge beyond what one would reasonably
apprehend in Officer Lopez’s position.

  The district court’s alternative holding that Officer Lopez’s
subjective feeling of fear after the rock hit the gate and landed
9288               UNITED STATES v. ACOSTA-SIERRA
constituted the requisite apprehension of immediate bodily
harm was also in error. The district court found that, at the
time Officer Lopez heard the rock hit the gate behind him, “he
shrugged, was stunned, and was confused by the events,” and
it was not until “he turned and saw the defendant advancing
towards him” that “his confusion turned to feeling threatened
and being scared.” The district court concluded that these
facts were sufficient to demonstrate an expectation of imme-
diate bodily harm because of the “close proximity of time”
between “the bang [Officer Lopez] heard towards his back”
and his feeling of fear.

   [6] In reaching this conclusion, the district court failed to
recognize that the apprehension the officer must feel is appre-
hension of immediate bodily harm, not apprehension based on
past conduct. See Sheehan v. United States, 896 F.2d 1168,
1171 n.4 (9th Cir. 1990) (noting that, to trigger liability for
assault in torts, “a specific apprehension of imminent battery
is required” and therefore “apprehension of some other harm”
will not suffice); cf. United States v. Jacobs, 632 F.2d 695,
696-97 (7th Cir. 1980) (finding that a victim could not be
placed in apprehension of immediate bodily harm if he did not
see his assailant before being shot, and holding that events
immediately thereafter, including seeing defendant’s gun
pointed at the victim, constituted a separate assault based on
placing the victim in fear of a second gun shot); see generally
Webster’s Third New Int’l Dictionary, 1130, 1132
(unabridged ed. 1993) (defining “imminent” as “ready to take
place: near at hand: impending” and defining “impend” as “to
threaten from near at hand or as in the immediate future”).5
  5
    The justification for requiring that assault be based on a threat of
immediate bodily injury relates to common law theories of self-defense.
If an individual believes an attack is imminent, resorting to defensive
action is justified. See Price, 156 F. at 953; see generally Sheehan, 896
F.2d at 1171 n.4 (noting that, historically, “[a] cause of action for assault
[in torts] was provided to preserve the ‘king’s peace’ by punishing con-
duct likely to inspire retaliation by one who perceives himself threatened
by imminent battery”). In contrast, if the threatening conduct is completed
prior to the victim realizing what has transpired, the threat of bodily harm
has ceased and defensive action is not necessary, and therefore unjustified,
to avoid danger.
                   UNITED STATES v. ACOSTA-SIERRA                     9289
   Here, the district court never found that Acosta-Sierra’s
rock-throwing conduct caused Officer Lopez to fear imminent
bodily harm. In fact, the district court specifically found that
Officer Lopez “was not in fear when he heard the bang of the
object.” Although Officer Lopez stated that he started to feel
“threatened and scared of the situation that was going on”
soon after seeing the rock fall to the ground, this general feel-
ing of fear or unease is not the same as apprehension of an
imminent battery due to Acosta-Sierra’s throwing of the rock.
See Sheehan, 896 F.2d at 1171 n.4. Nor is there any evidence
that Officer Lopez feared that Acosta-Sierra would attack him
again. When Officer Lopez turned to observe Acosta-Sierra
“advancing on him,” Acosta-Sierra was still six to seven car
lengths away and did not appear to be carrying any rocks or
other weapons in his hands. He therefore did not have an “ap-
parent present ability” to immediately cause bodily harm to
Officer Lopez. Chapman, 528 F.3d at 1219-20.6

   [7] Because Officer Lopez did not become aware of the
threat until after it had dissipated, a reasonable person in his
position would not have apprehended immediate bodily
injury. Cf. United States v. Havelock, 664 F.3d 1284, 1304
(9th Cir. 2012) (Reinhardt, J., concurring) (noting, in the con-
text of threatening communications, that “[a] threat can refer
only to a future, not a past, act”). Accordingly, the district
court erred in concluding that Acosta-Sierra’s rock-throwing
conduct constituted assault under the “reasonable apprehen-
sion of harm” prong of common law assault.

                        2.    Criminal Intent

   [8] In finding Acosta-Sierra guilty of assault under the
  6
    Because we conclude that a reasonable official in Officer Lopez’s posi-
tion would not have feared immediate bodily harm based on Acosta-
Sierra’s post-rock throwing conduct, it is unnecessary to address Acosta-
Sierra’s argument that the district court’s reliance on such conduct created
a prejudicial variance.
9290            UNITED STATES v. ACOSTA-SIERRA
“reasonable apprehension of harm” prong, the district court
also erred by holding that the government “need not . . .
prove[ ]” that Acosta-Sierra intentionally used force against
Officer Lopez, and thereby reading criminal intent out of Sec-
tion 111 completely. To sustain a conviction for a violation of
Section 111, however, we “require[ ] intent to assault.” Juve-
nile Female, 566 F.3d at 947.

   [9] Although the standard for mental culpability under
Section 111 has been a source of confusion and debate within
and beyond our Circuit, see, e.g., Jim, 865 F.2d at 213, we
have long held that mens rea, “the evil purpose or mental cul-
pability which was the essential mental component of
common-law assault and battery,” is an essential element of
forcible assault under Section 111. Kartman, 417 F.2d at 895;
see also Feola, 420 U.S. at 685 (holding that a defendant need
not know that his victim is a federal officer to be held liable
under Section 111, so long as “he nonetheless knows from the
very outset that his planned course of conduct is wrongful”).

   [10] By finding Acosta-Sierra guilty of felony assault
without finding facts sufficient to justify that Acosta-Sierra
“knowingly and intentionally and forcibly” assaulted Officer
Lopez, as charged in the indictment, the district court essen-
tially turned this crime into a strict liability offense. However,
“[f]orcible assault [pursuant to Section 111] clearly does not
come within the class of ‘public welfare offenses’ which the
legislature might wish to punish regardless of the actor’s
intent.” Kartman, 417 F.2d at 895 n.4 (citations omitted). The
district court erred in holding that assault under the “reason-
able apprehension of harm” prong did not require a finding
that Acosta-Sierra intentionally used force against Officer
Lopez.

                     3.   Rule 29 Motion

  [11] Acosta-Sierra also claims that the district court erred
in denying his Rule 29 motion for a judgment of acquittal
                UNITED STATES v. ACOSTA-SIERRA             9291
based on insufficiency of the evidence. Although we reverse
his conviction on Count 2 because the district court applied an
incorrect standard of law, we must address the sufficiency of
the evidence supporting it, because if the evidence were insuf-
ficient, retrial would be barred by the Double Jeopardy
Clause. See United States v. Recio, 371 F.3d 1093, 1106 (9th
Cir. 2004). On the other hand, the Double Jeopardy Clause
“does not prevent the government from retrying a defendant
who succeeds in getting his conviction set aside . . . because
of some error in the proceedings leading to conviction.” Lock-
hart v. Nelson, 488 U.S. 33, 38-39 (1988). We disagree with
Acosta-Sierra that there was insufficient evidence to support
his conviction for assault under Count 2.

   Count 2 of the indictment charged Acosta-Sierra with
“knowingly and intentionally and forcibly assault[ing]” Offi-
cer Lopez by “throw[ing] baseball size rocks at Agent Lopez
while he was engaged in the performance of his official
duties” and using “dangerous and deadly weapons, to wit,
rocks” in committing the offense. The indictment did not,
therefore, distinguish between the two types of common law
assault. As discussed, the district court erred in holding that
Acosta-Sierra’s rock-throwing constituted assault under the
“reasonable apprehension of harm” prong of common law
assault because the district court applied an overly-broad stan-
dard of objective reasonableness, overlooked the requirement
that Officer Lopez fear immediate bodily injury, and failed to
find that Acosta-Sierra acted with the requisite criminal
intent.

  Nonetheless, we find that there was sufficient evidence to
convict Acosta-Sierra of assault in violation of Section 111(a)
and (b) under the attempted battery prong. The government
presented evidence that Acosta-Sierra hurled “with all of his
might” a baseball-size rock toward Officer Lopez, “missing
him by one to two feet at a point closest to Lopez’s head.”
Viewing the evidence in the light most favorable to the prose-
cution, a rational trier of fact could find based on circumstan-
9292            UNITED STATES v. ACOSTA-SIERRA
tial evidence that Acosta-Sierra saw Agent Lopez crossing
between the empty passenger lanes and deliberately threw the
rock at him. See United States v. Sommerstedt, 752 F.2d 1494,
1496 (9th Cir. 1985); cf. Feola, 420 U.S. at 684-86; see gen-
erally United States v. Beltran-Garcia, 179 F.3d 1200, 1205
n.4 (9th Cir. 1999) (recognizing that it is permissible for a fact
finder to infer that a person intends the natural and probable
consequences of acts done knowingly). Our cases make clear
that it is irrelevant under the attempted battery prong that the
rock did not strike Officer Lopez, see Chapman, 528 F.3d at
1219, and that Officer Lopez did not apprehend immediate
bodily harm, see Lewellyn, 481 F.3d at 697; Skeet, 665 F.2d
at 987. Acosta-Sierra concedes that Officer Lopez was
engaged in the performance of his official duties at the time
of the incident, see 18 U.S.C. § 111(a)(1), and does not chal-
lenge the district court’s holding that the rock constituted a
deadly or dangerous weapon, see 18 U.S.C. § 111(b).

   [12] Viewing the evidence in the light most favorable to
the prosecution, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that Acosta-Sierra
made a willful attempt to inflict injury upon Officer Lopez,
see Chapman, 528 F.3d at 1219-20, and that he did so with
the requisite “intent to assault,” Juvenile Female, 566 F.3d at
947. Because the Double Jeopardy Clause does not bar retrial
in these circumstances, see Cote, 51 F.3d at 182-83, we
remand for further proceedings consistent with this opinion.

                         B.   Count 3

           1.   Evidence of Diminished Capacity

  Acosta-Sierra contends that the district court erred when it
held that Section 111 is a general intent crime and, as a result,
impermissibly precluded Acosta-Sierra’s diminished capacity
defense. See United States v. Twine, 853 F.2d 676, 679 (9th
Cir. 1988) (holding that “diminished capacity, like voluntary
                UNITED STATES v. ACOSTA-SIERRA             9293
intoxication, generally is only a defense when specific intent
is at issue”).

   [13] Acosta-Sierra’s argument is foreclosed by United
States v. Jim, where we held that assault under Section 111 is
a general intent crime. 865 F.2d at 215. The defendant in Jim
was charged with three counts of assault on a federal officer
with a deadly weapon following an extended car chase in
which the defendant fired four gun shots at police officers. Id.
at 212. In determining whether the trial court erred in preclud-
ing the defendant from instructing the jury on the defense of
voluntary intoxication, we analyzed Section 111 based on the
elements of the statute and its purpose. First, we noted that
Section 111 appears to be a specific intent crime because the
common law definition of assault requires proving “willful-
ness.” Id. at 213 (citing United States v. Drew, 722 F.2d 551,
553 (9th Cir. 1983), for the proposition that “the element of
wilfulness renders an offense a specific intent crime”). We
then considered the statute in light of Congress’s purpose, and
concluded that applying a general intent test would better
serve the congressional purpose of “protect[ing] federal offi-
cers in the exercise of their official duties.” Id. at 215.

   Acosta-Sierra concedes that Jim deemed assault on a fed-
eral officer to be a general intent offense, but argues that our
decision in United States v. Chapman undermined the legal
analysis in Jim and, in so doing, changed the mens rea land-
scape for Section 111 offenses. In Chapman, we did not
address criminal intent at all. Chapman, 528 F.3d 1215. How-
ever, we did consider the plain language of the statute, and
determined that, by using the term “simple assault” in Section
111(a), “Congress strongly suggested that an assault was
required for a Section 111 conviction.” Id. at 1221; but see
Jim, 865 F.2d at 214 (relying, in part, on the fact that Section
111 prohibits “resisting, impeding, intimidating, and interfer-
ing with a federal officer,” in addition to prohibiting assault,
to conclude that, “Congress intended to prevent interference
with federal functions, not just assault on federal officers.”)
9294            UNITED STATES v. ACOSTA-SIERRA
(emphasis added). By construing Section 111 based only on
the plain language of the statute, Acosta-Sierra contends that
we implicitly rejected the congressional purpose analysis in
Jim and only Jim’s analysis based on the elements of the
offense remains intact. Consequently, Acosta-Sierra argues
that Section 111 must now be construed to require a showing
of specific intent. We disagree.

   [14] Although our decision in Chapman clarified the type
of conduct prohibited by Section 111, it did not make Section
111’s congressional purpose wholly irrelevant to resolving
other ambiguities in this “inartfully drafted” statute, Chap-
man, 528 F.3d at 1218, such as the requisite level of mens rea.
In resolving the complicated question of whether Section 111
requires proving specific or general intent, the majority of
Jim’s congressional purpose analysis was based on the
Supreme Court’s decision in United States v. Feola, which
noted that, in passing Section 111, “Congress intended to pro-
tect both federal officers and federal functions.” Jim, 865 F.2d
at 214 (quoting Feola, 420 U.S. at 679) (internal quotation
marks omitted). Because Jim is amply supported by the
Supreme Court’s reasoning in Feola, it has not been effec-
tively overruled by Chapman.

   Therefore, we do not find that our decisions in Chapman
and Jim are clearly irreconcilable. See Miller v. Gammie, 335
F.3d 889, 892-93 (9th Cir. 2003) (en banc) (holding that only
when “the reasoning or theory of our prior circuit authority is
clearly irreconcilable with the reasoning or theory of interven-
ing higher authority, [should a three-judge panel] consider
itself bound by the later and controlling authority, and . . .
reject the prior circuit opinion as having been effectively
overruled.”).

   [15] Because we are bound by our prior holding in Jim, the
district court did not err in precluding Acosta-Sierra from
introducing evidence as part of a diminished capacity defense.
See also Vela, 624 F.3d at 1156 (holding, post-Chapman, that
                UNITED STATES v. ACOSTA-SIERRA              9295
Section 111 is a general intent crime to which diminished
capacity is not a permissible defense).

           2.   Evidence of Self-Defense Theory

   Finally, Acosta-Sierra argues that the district court erred
when it excluded his mental health evidence in support of a
self-defense theory on Count 3. We disagree.

   [16] For purposes of Section 111, we have recognized that
an individual may make out an affirmative defense of self-
defense against a federal law enforcement official who uses
excessive force in a narrow range of circumstances. See
United States v. Span, 970 F.2d 573, 577 (9th Cir. 1992); see
also id. at 580 (noting that an individual has a limited right
to offer reasonable resistance to arrest that is triggered by the
officer’s bad faith or provocative conduct). To do so, how-
ever, a defendant must offer evidence to show: “(1) a reason-
able belief that the use of force was necessary to defend
himself or another against the immediate use of unlawful
force and (2) the use of no more force than was reasonably
necessary in the circumstances.” United States v. Urena, 659
F.3d 903, 907 (9th Cir. 2011) (quoting United States v. Biggs,
441 F.3d 1069, 1071 (9th Cir. 2006)). Moreover, an individ-
ual who is the attacker cannot make out a claim of self-
defense as a justification for an assault. Id.

   Here, Acosta-Sierra sought to introduce evidence through
expert testimony that, due to a psychotic breakdown related
to his schizophrenia, he honestly believed that jail officials,
marshals, and others were trying to poison his food and kill
him at the time of the assault on Officer Burrola.

   In support of this position, Acosta-Sierra relies on United
States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998), to
argue that mental health evidence is relevant and admissible
if it demonstrates why a defendant “reasonably believed”
force was about to be used on him. In Sanchez-Lima, the
9296            UNITED STATES v. ACOSTA-SIERRA
defendant submitted evidence that, following an attack by a
border patrol agent who Sanchez-Lima did not realize was a
federal official, another border patrol agent jumped out at
Sanchez-Lima from behind some shrubbery, in the dark, with-
out identifying himself. Id. at 547, 549. On this basis, “a ratio-
nal jury could conclude that Sanchez-Lima reasonably
believed that he was about to receive another beating.” Id. At
549.

   In contrast, the district court refused to allow Acosta-Sierra
to admit mental health evidence on his self-defense theory
because no objectively reasonable person in Acosta-Sierra’s
position would believe self-defense to be necessary to prevent
an imminent attack from Officer Burrola. As noted by the dis-
trict court, when Officer Burrola approached Acosta-Sierra to
handcuff him and escort him to court, there was no use of
force, let alone any excessive force, from which one might
reasonably suggest that a cognizable theory of self-defense
would lie. In fact, the evidence demonstrated that Acosta-
Sierra was the attacker.

  [17] While mental health evidence would have explained
why Acosta-Sierra subjectively believed that self-defense was
necessary under the circumstances, it would not have sup-
ported the proposition that his actions were objectively rea-
sonable. See, e.g., People v. Goetz, 68 N.Y.2d 96, 112 (1986)
(holding that the “he reasonably believes” language in self-
defense statute “retains an objective element” and thus the
court below erred in saying it merely required the defendant’s
belief to be “reasonable to him”).

  This objective standard is particularly important in the
penological context due to “the delicate situation faced by
correctional officers, who are required to make snap judg-
ments regarding the ‘very real threats [that] unrest presents to
inmates and prison officials alike, in addition to the possible
harms to inmates against whom force might be used.’ ”
               UNITED STATES v. ACOSTA-SIERRA             9297
United States v. Gore, 592 F.3d 489, 490, 493 (4th Cir. 2010)
(quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)).

   [18] Therefore, the district court did not abuse its discre-
tion in refusing to admit mental health evidence in support of
Acosta-Sierra’s theory of self-defense.

                   IV.   CONCLUSION

   The judgment of conviction on Count 2 is reversed, and the
judgment of conviction on Count 3 is affirmed. We remand
for further proceedings consistent with this opinion.

 REVERSED          in    part,    AFFIRMED         in    part,
REMANDED.
