Fornes-Espinoza

MEMORANDUM *

Carlos Alberto Fornes-Espinoza, a federal prisoner, kicked correctional officer John Richey during a prison melee and was convicted by jury trial of one count of assault on a federal officer. 18 U.S.C. §§ 111 (a)(1), 1114. We reverse the conviction because the district court erroneously gave the jury a transferred intent instruction.

18 U.S.C. § 111 subjects to criminal liability anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [any federal officer] while engaged in or on account of the performance of official duties.” A defendant violates § 111 only if he intended to assault a person who is a federal officer; there is no violation if he intended to assault a third party but hit a federal officer by accident or honest mistake. United States v. Mon toya, 739 F.2d 1437 (9th Cir.1984). The government need not prove that the defendant had knowledge of the victim’s official status, but the government must prove *399 that the defendant intended to assault the person who was actually assaulted. Id. at 1438 . In Montoya, the defendant struck a United States ranger with a crutch, and explained that “he meant only to knock a can of…