United States v. Robert Stoddard, Jr.

FILED
NOT FOR PUBLICATION JAN 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10124
Plaintiff - Appellee, D.C. No. 4:09-cr-00918-CKJ-
BPV-1
v.
ROBERT LEROY STODDARD, Jr., MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted December 9, 2010
San Francisco, California
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Robert Leroy Stoddard, Jr. (“Stoddard”) appeals his conviction for felony
assault on a federal officer involving physical contact under 18 U.S.C. § 111(a)(1),
arguing that the conduct at issue, intentionally spitting on a federal corrections officer
engaged in his official duties, amounts only to a simple assault punishable by a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
maximum of one year’s imprisonment, rather than a felony punishable by a maximum
of eight years’ imprisonment, because: (1) the government failed to prove actual
physical contact between Stoddard and the officer; and (2) spitting is a mere simple
assault offense under Ninth Circuit precedent. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
A. Statutory Text
The current version of § 111, under which Stoddard was convicted, creates
three separate offenses: (1) misdemeanor simple assault and (2) felony assault
involving physical contact or intent to commit another felony, both included under §
111(a); and (3) felony assault involving a deadly or dangerous weapon or bodily
injury, included under § 111(b). 18 U.S.C. § 111; accord United States v. Rivera-
Alonzo, 584 F.3d 829, 833 & n.2 (9th Cir. 2009). Congress’s original goal in enacting
§ 111 “was to give ‘maximum protection to federal officers[,]’” United States v.
Sommerstedt, 752 F.2d 1494, 1497 (9th Cir. 1985) (emphasis added) (quoting United
States v. Feola, 420 U.S. 671, 684 (1975)), from “the wrongful use of any force
directed against them[,]” id.Section 111(a) was amended as part of the Court Security Improvement Act of
2007, Pub. L. No. 110-177, § 208(b), 121 Stat. 2534, 2538 (2008). Prior to
amendment, § 111(a) included the current misdemeanor simple assault offense and a
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felony offense subject to a maximum of eight years’ imprisonment in “all other cases”
not constituting simple assault or assault with a weapon or bodily injury under §
111(b). 18 U.S.C. § 111 (effective through Jan. 6, 2008).
However, as amended, § 111(a)(1) clearly dictates “that the line between
misdemeanors and felonies is drawn at physical contact or acting with the intent to
commit another crime[.]” United States v. Williams, 602 F.3d 313, 317 (5th Cir.
2010); see also 8 U.S.C. § 111(a)(1); United States v. Chapman, 528 F.3d 1215, 1219
(9th Cir. 2008). Thus, while the amended statute does not define simple assault, it
clarifies that for the purposes of § 111, an “assault, coupled with the presence of
physical contact . . . is not simple[,]” and “[u]nder § 111(a), as amended, assaults are
treated as felonies” as long as they involve physical contact or intent to commit
another felony. Chapman, 528 F.3d at 1219 (internal citations omitted) (emphasis
added). As such, any forcible assault against a federal officer involving physical
contact, committed without the use of a dangerous weapon and not resulting in bodily
injury, is a felony assault under § 111(a). Rivera-Alonzo, 584 F.3d at 833 & n.2.
B. Physical Contact
Stoddard nonetheless argues that spitting does not rise to the level of a felony
assault involving physical contact because it does not involve body-to-body touching.
However, the plain statutory text does not require such contact; it merely requires
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“physical contact.” 18 U.S.C. § 111(a). Cf. United States v. Ramirez, 233 F.3d 318,
322 (5th Cir. 2000) (interpreting former § 111(a) “all other cases” assault provision
to mean that “[a]ny physical contact [ ] by which a person ‘forcibly assaults . . .’ a
federal officer in the performance of his duties but which does not involve a deadly
weapon or bodily injury, falls into the” felony provision of subsection (a) (partial
emphasis added)).
Further, as Stoddard concedes, spitting constitutes an offensive touching
amounting to a common law battery where the spit makes contact with the victim. See
United States v. Lewellyn, 481 F.3d 695, 699 (9th Cir. 2007) (“[I]ntentionally spitting
in another person’s face easily falls within the scope of an offensive touching.”);
United States v. Masel, 563 F.2d 322, 323-24 (7th Cir. 1977) (finding spitting an
offensive touching because “[i]t is ancient doctrine that intentional spitting upon
another person is battery.”); United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir.
1974) (spitting is “a bodily contact intentionally highly offensive,” and therefore
qualified as a “forcible assault, or more exactly, a battery” amounting to a felony
offense under former version of § 111). Stoddard points to no authority, and the court
finds none, distinguishing between “physical contact” and “offensive touching.”
Additionally, other circuits, interpreting the pre-amendment “in all other cases”
assault provision consistently with § 111(a)’s post-amendment language, have
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determined that throwing bodily fluids or excrement onto a federal officer constitutes
felony assault involving physical contact, rather than simple assault involving no
bodily contact or touching, under an identical theory of assault as an attempted or
completed battery. See United States v. Martinez, 486 F.3d 1239, 1245-46 (11th Cir.
2007) (spraying urine on federal corrections officer involved actual physical contact
not resulting in bodily injury and not involving a deadly weapon, and therefore fell
under § 111(a)’s felony assault provision, rather than its simple assault provision);
Ramirez, 233 F.3d at 321-22 (“By hurling [a] urine-feces mixture onto Officer Griffin,
Ramirez committed an assault which involved physical contact, but not a deadly
weapon or bodily harm.” (emphasis added)). Indeed, the Fifth Circuit noted that
throwing human waste onto a corrections officer was “the very sort of physical but
non-injurious assault contemplated by the ‘all other cases’ provision” of the pre-
amendment § 111, which it construed to require physical contact like the current §
111(a). Ramirez, 233 F.3d at 322.
Spitting, like throwing urine or other bodily fluids, involves the type of non-
injurious physical contact contemplated by § 111(a)’s felony provision. As such,
Stoddard’s spitting conduct amounted to a completed battery, which amply supported
his conviction for an assault involving physical contact under this court’s adoption of
the common law theory of assault as an attempted battery. Cf. Lewellyn, 481 F.3d at
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697-98 (Since “an assault is attempted battery . . . proof of a battery will support
conviction of an assault” (internal quotations omitted)).
C. Spitting Is Not Confined to Simple Assault
Despite having conceded that spitting amounts to an offensive touching,
Stoddard argues that this court’s decision in Lewellyn definitively categorized spitting
as a misdemeanor simple assault, rather than a felony assault.
In Lewellyn, we found that the defendant’s actions in intentionally spitting on
a patient at a VA hospital amounted to a simple assault under 18 U.S.C. § 113(a)(5),
a statute similar and related to § 111. 481 F.3d at 696-99. However, we did not hold
that spitting may only be classified as a simple battery. Lewellyn was only charged
with simple battery, id. at 696, and § 113 did not contain any intermediate felony
assault offense between simple assault and assault involving a deadly or dangerous
weapon. As such, it does not appear that Lewellyn could have been charged under
any of the statute’s other assault offenses sections. See 18 U.S.C. § 113(a)(5). Thus,
Lewellyn’s holding was narrow and does not constrain our analysis here: the court
merely determined that spitting was sufficient to sustain a conviction for simple
assault under a theory of assault as an attempted battery. 481 F.3d at 698-99.
It is undisputed that Stoddard intended to and did spit at a federal officer
engaged in his official duties, and that the spit actually hit the officer in the face.
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Accordingly, Stoddard committed a forcible assault resulting in actual physical
contact, see 18 U.S.C. § 111(a)(1), and the uncontested evidence sufficed to sustain
the conviction, see Lewellyn, 481 F.3d at 698-99.
AFFIRMED.
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