United States v. Lavelle Watts , 798 F.3d 650 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2944
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAVELLE WATTS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 158-1 — John J. Tharp, Jr., Judge.
____________________
ARGUED JUNE 1, 2015 — DECIDED AUGUST 20, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. The defendant, Watts, was convict-
ed by a jury of assault with a dangerous weapon with intent
to do bodily harm, in violation of 18 U.S.C. § 113(a)(3). He
was sentenced to five years in prison (half the statutory max-
imum for his offense). He challenges the conviction and sen-
tence on a variety of grounds, some too slight to require ex-
tended, or even any, discussion.
2 No. 14-2944
The assault (and there undoubtedly was an assault) oc-
curred in a courtroom in the Chicago federal courthouse at
the end of the trial of a civil rights suit brought by Watts
against a police officer whom Watts accused of having bro-
ken his arm in the course of arresting him. When the judge
announced the verdict, which was in favor of the officer,
Watts stood up, picked up the 44 lb. chair that he’d been sit-
ting on, and swinging it in a 180 degree arc to gain momen-
tum hurled it at the officer, who was sitting only two or
three feet away. The chair struck the officer on his head, face,
left arm, left shoulder, and back, injuring him, though he
was not rendered unconscious and apart from numbness in
one of his fingers his injuries appear to have healed. Pande-
monium broke out in the courtroom, all recorded on video.
Several jurors fled. Watts shouted “Now we’re even,” and
later told two Deputy U.S. Marshals, “I chucked a chair at
him. I cracked his ass. I socked his ass. I told him now we’re
even.”
We need to set forth the entire text of 18 U.S.C. § 113(a) in
order to explain our resolution of the principal issue raised
by the defendant, which concerns the jury instructions. We
italicize the two subsections on which the jury was instruct-
ed:
(a) Whoever, within the special maritime and territorial
jurisdiction of the United States, is guilty of an assault
shall be punished as follows:
(1) Assault with intent to commit murder or a vio-
lation of section 2241 or 2242, by a fine under this
title, imprisonment for not more than 20 years, or
both.
No. 14-2944 3
(2) Assault with intent to commit any felony, ex-
cept murder or a violation of section 2241 or 2242,
by a fine under this title or imprisonment for not
more than ten years, or both.
(3) Assault with a dangerous weapon, with intent to do
bodily harm, by a fine under this title or imprisonment
for not more than ten years, or both.
(4) Assault by striking, beating, or wounding, by a
fine under this title or imprisonment for not more
than 1 year, or both.
(5) Simple assault, by a fine under this title or impris-
onment for not more than six months, or both, or if the
victim of the assault is an individual who has not at-
tained the age of 16 years, by a fine under this title or
imprisonment for not more than 1 year, or both.
(6) Assault resulting in serious bodily injury, by a
fine under this title or imprisonment for not more
than ten years, or both.
(7) Assault resulting in substantial bodily injury to
a spouse or intimate partner, a dating partner, or an
individual who has not attained the age of 16 years,
by a fine under this title or imprisonment for not
more than 5 years, or both.
(8) Assault of a spouse, intimate partner, or dating
partner by strangling, suffocating, or attempting to
strangle or suffocate, by a fine under this title, im-
prisonment for not more than 10 years, or both.
This is a badly drafted statute. Neither “assault” nor
“simple assault” is defined, nor “dangerous weapon.” (Nor
do we find the terms defined elsewhere in Title 18.) The
common law, both civil and criminal, distinguishes between
“assault” and “battery.” Assault is an intentional threatening
4 No. 14-2944
gesture (such as pointing a gun at a person or trying but fail-
ing to strike him with one’s fist) that does not, however, re-
sult in physical contact with the victim.* Battery is an inten-
tional, unconsented-to, injurious or otherwise offensive
physical contact with the victim (a completed assault, so to
speak): “Although the word ‘assault’ is sometimes used
loosely to include a battery, and the whole expression ‘as-
sault and battery’ to mean battery, it is more accurate to dis-
tinguish between the two separate crimes, assault and bat-
tery, on the basis of the existence or non-existence of physi-
cal injury or offensive touching.” Wayne R. LaFave, 2 Sub-
stantive Criminal Law § 16.1 (2d ed., Westlaw database up-
dated Sept. 2014) (footnotes omitted).
The breadth of the term “offensive touching” needs to be
noted, though this is not an offensive-touching case. “The
least touching of another’s person wilfully, or in anger, is a
battery; for the law cannot draw the line between different
degrees of violence, and therefore totally prohibits the first
and lowest stage of it: every man’s person being sacred, and
no other having a right to meddle with it, in any the slightest
*In the first reported common law case of assault, “W. came in the night
to the house of the said I., and would have bought some wine, but the
door of the tavern was closed; and he struck on the door with a hatchet,
which he had in his hand, and the woman plaintiff put her head out at a
window and ordered him to stop; and he perceived her and struck with
the hatchet, but did not touch the woman.” The judge ruled: “There is
harm, and a trespass for which they shall recover damages, since he
made an assault upon the woman, as it is found, although he did no oth-
er harm.” I. de S. and Wife v. W. de S., Y.B. Liber Assisarum, 22 Edw. 3, f.
99, pl. 60 (1348 or 1349). But in Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng
Rep. 684 (1699), the court held that it was not an assault to place one’s
hand on one’s sword and say, “If it were not assize-time, I would not
take such language from you,” because the words negated the threat im-
plied by his grabbing his sword.
No. 14-2944 5
manner.” United States v. Stewart, 568 F.2d 501, 505 (6th Cir.
1978) (quoting 3 W. Blackstone, Commentaries on the Laws of
England 120 (E. Christian ed. 1822)). “Groping” a woman or
child—sexually offensive but not violent physical contact—is
a common example. See, e.g., United States v. Bayes, 210 F.3d
64, 69 (1st Cir. 2000); United States v. Williams, 197 F.3d 1091,
1096–97 (11th Cir. 1999).
Oddly, the government has tried in this case to narrow
the range of crimes covered by the statute by arguing that a
merely offensive touching is not simple assault. It cites cases
such as United States v. Vallery, 437 F.3d 626, 631–32 (7th Cir.
2006), that say that assault requires an intent to injure. But
the judges in those cases, unlike Bayes and Williams, were not
faced with having to decide whether an intent to inflict a
merely offensive rather than injurious physical contact suf-
fices to make the assailant guilty of simple assault. In 18
U.S.C. § 113(a), “assault” primarily means common law
“battery,” although it could include a common law “as-
sault”—for example had Watts flung the chair at the officer
intending to hit him but missed, so that there was no physi-
cal contact. Subsections (1) through (3), (5), and (8) of the
statute punish common law assault and common law bat-
tery, while subsections (4), (6), (7), and (in part) (8) punish
common law battery.
It would help if the statute defined “assault,” “assault
with a dangerous weapon, with intent to do bodily harm,”
and “simple assault.” Relying on the 2012 Seventh Circuit
Pattern Criminal Jury Instruction defining assault (though
with reference to bank robbery and related crimes defined in
18 U.S.C. § 2113 rather than § 113(a)), the judge instructed
the jury that “assault” means “to intentionally attempt or
6 No. 14-2944
threaten to inflict bodily injury upon another person with
the apparent and present ability to cause such injury that
creates in the victim a reasonable fear or apprehension of
bodily harm. An assault may be committed without actually
touching, striking, or injuring the other person.” The instruc-
tion is not as clear as it could be, because it does not say that
actually touching, etc. is also an assault, though the second
sentence implies that an assault may involve an actual
touching, striking, or injuring of the victim, because if an as-
sault may be committed without touching the intended vic-
tim, then equally it may be committed with a touching re-
sulting.
As for the meaning of “assault with a dangerous weapon,
with intent to do bodily harm” (subsection (a)(3) of the stat-
ute, the first of the two subsections under which Watts was
charged), the judge told the jury that it means “first, that the
defendant assaulted the victim; second, that the defendant
acted with the intent to do bodily harm to the victim; third,
that the defendant used a dangerous weapon; and fourth,
that the assault took place on federal property.”
The judge didn’t bother to define “simple assault” (sub-
section (a)(5) of the statute, the other subsection under which
Watts was charged) for the jury, but said only that to find
simple assault it would have to find “that the defendant as-
saulted the victim” and “that the assault took place on fed-
eral property.”
Although the instructions, like the statute on which they
are based, leave something to be desired in the way of clari-
ty, at least the jury was told that to convict of the more seri-
ous of the two offenses charged it had to find that the assault
had been committed with a dangerous weapon and been in-
No. 14-2944 7
tended to do bodily harm—and the evidence that Watts had
intended to do bodily harm to his victim with a dangerous
instrumentality—namely a heavy chair flung from a yard
away or less—was compelling. Of course a chair is not a
“weapon” in the most common sense of the word, but it can
be and in this case was used as a weapon. It would be better
if the statute stated that “dangerous weapon” includes ob-
jects used, though not designed to be used, as weapons. But
it is not a fatal infirmity. The judge told the jury that “a dan-
gerous weapon or device means any object that has the po-
tential or capability to endanger life or to inflict great bodily
harm,” and that was good enough. Many objects not intend-
ed as weapons nevertheless can be and frequently are used
as weapons—sometimes lethal weapons (think of kitchen
knives, two-by-fours, and piano wire). United States v.
Schoenborn, 4 F.3d 1424, 1432–33 (7th Cir. 1993).
A criminal defendant is entitled to a lesser-included of-
fense instruction when a reasonable jury could convict him
of the lesser offense but acquit him of the greater. United
States v. McCullough, 348 F.3d 620, 624 (7th Cir. 2003). Be-
cause Watts argued (preposterously) at trial that he didn’t
intend to injure the officer by throwing a chair at him, he re-
quested and received a simple assault instruction. He com-
plains that the instruction was erroneous because it defined
assault as requiring an intent to threaten, or attempt, to do
bodily harm, while an assault may also be committed by a
person who intends to threaten or attempt to make offensive
rather than injurious physical contact with the victim. True,
but irrelevant. Assaults intended only to result in an offen-
sive touching of the intended victim are such acts as spitting
at him, knocking his hat off his head, or urinating on his face
while he’s unconscious. See, e.g., United States v. Delis, 558
8 No. 14-2944
F.3d 177, 181–83 (2d Cir. 2009); United States v. Lewellyn, 481
F.3d 695, 698–99 (9th Cir. 2007); United States v. Whitefeather,
275 F.3d 741, 742–43 (8th Cir. 2002). Whatever mere offensive
touching is, it isn’t flinging a heavy chair at your enemy sit-
ting two or three feet away from you (“piece of shit” and
“racist bitch” were among the epithets that the defendant
hurled at his victim immediately before, during, or after the
assault).
Unsurprisingly in this video age, the entire incident in
the courtroom was captured on video, leaving no possible
doubt that the defendant was guilty of an offense punished
in section 113(a)(3), namely assault with a dangerous weap-
on with intent to inflict bodily harm. The jury was properly
instructed that it must not even consider the lesser offense
punished in (a)(5) (but not defined in it, defined—
incorrectly—only in the judge’s instructions) unless it decid-
ed to acquit the defendant of the greater offense. So having
found the defendant guilty of (a)(3) it had no business con-
sidering (a)(5). The judge needn’t have given a “simple as-
sault” instruction at all, because no reasonable jury could
have acquitted the defendant of assault with a dangerous
weapon with intent to inflict bodily harm yet convicted him
of simple assault. United States v. McCullough, supra, 348 F.3d
at 624–28.
The simple-assault instruction was not only superfluous;
it was mischievous. Were there jurors who sympathized
with the defendant, maybe believing he’d been terribly vic-
timized by the police officer whom he assaulted, or just hat-
ing police, they might nevertheless be reluctant to acquit
given the weight of the evidence of guilt. They might try in-
stead to negotiate a compromise with the other jurors—
No. 14-2944 9
acquit of the greater offense, convict of the lesser, though the
evidence of the greater offense was overwhelming and of the
lesser nonexistent.
Watts’ lawyer did not invite jury nullification, but did try
to sell the jury on the proposition that his client’s attack on
the police officer had merely been an “impulsive display,”
devoid of any intention of harming the officer. But intent can
be formed in an instant; people can and do kill on impulse;
and impulse is not inconsistent with premeditation. It’s
enough that Watts aimed the chair at the officer. By taking
the “impulse” line, moreover, the lawyer opened the door to
the officer’s testifying about an earlier incident, in which he
had been threatened in a jail by Watts, who had been medi-
tating revenge against the officer for real or imagined
wrongs for a long time, beginning with an arrest of Watts by
the officer in 2009. Although the officer should not have
mentioned in his testimony that the threat had been made in
a jail, implying that Watts had a previous arrest and maybe
conviction, the slip-up was harmless given the overwhelm-
ing evidence of Watts’ guilt.
The officer also testified that Watts had committed an
“aggravated battery” by throwing the chair at him. The
statement might have confused the jury, as the term was not
in the statute and was not included in the instructions, had
not the officer explained that “aggravated battery” was
simply the state law term for assaulting a police officer.
The defendant objects not only to his conviction but also
to the severity of the sentence. Actually he was let off pretty
lightly. The judge could well have given him the statutory
maximum of ten years—which would have been under the
applicable guidelines range of 130 to 162 months. The range
10 No. 14-2944
included an upward adjustment pursuant to U.S.S.G.
§ 3A1.2(b) because the offense was motivated by the victim’s
being a government employee, namely a police officer who
had aroused the defendant’s wrath by the exercise of police
authority over him. See, e.g., United States v. Williams, 520
F.3d 414, 424–25 (5th Cir. 2008); United States v. Talley, 164
F.3d 989, 1003–04 (6th Cir. 1999). Watts challenges the “offi-
cial victim” enhancement on the ground that he was en-
gaged in a personal vendetta against the officer to which the
latter’s status as an “official victim” was irrelevant. But the
enhancement is designed to protect government officers in
the performance of their official duties. Watts assaulted a po-
lice officer in revenge for actions taken by the officer in his
official role.
To cap a vendetta against a police officer by hurling a
heavy chair at him from such a short distance that you can’t
miss hitting him, in a courtroom during a trial at the very
moment when the jury’s verdict acquitting the officer of vio-
lating Watts’ civil rights is read—injuring the officer while
screaming abuse and by his act and words causing jurors to
scatter in fear—is a grave criminal act, especially against the
background of the assailant’s dense criminal history. That
history consists of 23 convictions for traffic violations result-
ing from his repeatedly driving on a suspended license and
without required insurance, along with convictions for bat-
tery, retail theft, residential burglary, possession of illegal
drugs, and contempt of court.
A dangerous person, a dangerous example of a holder of
grudges against the police, a person with no regard for the
decorum of the courtroom or for the law itself, a scofflaw, a
No. 14-2944 11
violent person—his conviction and (in the circumstances,
relatively light) punishment are
AFFIRMED.