United States v. Lewellyn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30185
Plaintiff-Appellee,
v.  D.C. No.
CR-05-06050-WFN
JEFFREY PAUL LEWELLYN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted December 5, 2006*
Seattle, Washington
Filed March 7, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer,** District Judge.
Opinion by Judge McKeown
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a).
**The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
2633
UNITED STATES v. LEWELLYN 2635
COUNSEL
Amy H. Rubin, Federal Defenders of Eastern Washington and
Idaho, Spokane, Washington, for the defendant-appellant.
Thomas J. Hopkins, Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.
OPINION
McKEOWN, Circuit Judge:
Jeffrey Paul Lewellyn appeals his conviction for simple
assault under 18 U.S.C. § 113(a)(5) for intentionally spitting
on a patient while on the grounds of the Veterans Administra-
tion Medical Center in Walla Walla, Washington. The issue
2636 UNITED STATES v. LEWELLYN
we consider is whether intentionally spitting on another per-
son constitutes simple assault within the meaning of the stat-
ute. We hold that the statute encompasses such conduct under
the theory of assault as an attempted battery. Accordingly, we
affirm the conviction.
FACTUAL BACKGROUND
Lewellyn was charged with committing simple assault
within the special maritime and territorial jurisdiction of the
United States, in violation of 18 U.S.C. §§ 7(3)1 and
113(a)(5). The amended information charged Lewellyn under
two alternative theories, namely that Lewellyn: (1) intention-
ally touched or made physical contact with a male patient in
a patently offensive manner without justification or excuse,
specifically by spitting on the male patient, or
(2) intentionally threatened to inflict injury upon a male
patient, and displaying an apparent present ability to do so,
caused that male patient reasonable apprehension of immedi-
ate bodily harm.
According to the trial testimony, in the fall of 2004 the vic-
tim was visiting the Veterans Administration Medical Center
to see a doctor. As he was leaving the hospital, he ran into
Lewellyn. During their conversation the victim told Lewellyn
that he had a prescription for Sudafed, which was dangerous
for him to possess because he was a recovering drug addict
who had previously used Sudafed to make methamphetamine.
Lewellyn then asked the victim about the process for extract-
ing ephedrine out of Sudafed. The victim, who was in a drug
rehabilitation program and was concerned about relapsing,
1
The incident took place on the grounds of the Veterans Administration
Medical Center in Walla Walla, Washington, which is within the special
maritime and territorial jurisdiction of the United States. See 18 U.S.C.
§ 7(3); United States v. Dixon, 273 F.3d 636, 638 (5th Cir. 2001) (holding
that crimes committed at a Veterans Affairs medical facility fall within
federal jurisdiction under 18 U.S.C. § 7(3)).
UNITED STATES v. LEWELLYN 2637
reported this conversation to a counselor at the medical cen-
ter. A month or so later, the victim, who was working on the
hospital grounds, saw Lewellyn in a van and started talking
to him. Lewellyn called the victim a snitch. The victim
responded that “I don’t feel it was right, you trying to get me
to relapse, knowing that I want to stay clean,” and then he
called Lewellyn a “low-life piece of shit.” The victim claims
that Lewellyn got out of the van, walked toward him and
looked like he was going to throw a punch at him. Instead,
Lewellyn got right up in his face and spit on him.
The case was tried in a two-day bench trial before a magis-
trate judge. The magistrate judge found the following key
facts, which are not disputed on appeal: During the incident
in question, Lewellyn and the victim were standing within
inches of one another; Lewellyn, intending to spit on the vic-
tim, attempted to do so and some spittle hit the victim in the
face.
The magistrate judge found Lewellyn guilty of simple
assault in violation of 18 U.S.C. § 113(a)(5) under the theory
of assault as an attempt to commit a battery and declined to
make any findings under the alternate theory of assault by
threat of immediate bodily injury.2 Lewellyn was sentenced to
two years of probation, 50 hours of community service and a
$10 special assessment.
ANALYSIS
The statute in question, entitled “assaults within maritime
and territorial jurisdiction,” provides in relevant part:
(a) Whoever, within the special maritime and terri-
torial jurisdiction of the United States, is guilty of an
assault shall be punished as follows . . . (5) Simple
2
Similarly, we need not address this alternate theory, despite the govern-
ment’s urging that we do so.
2638 UNITED STATES v. LEWELLYN
assault, by a fine under this title or imprisonment for
not more than six months, or both, or if the victim
of the assault is an individual who has not attained
the age of 16 years, by fine under this title or impris-
onment for not more than 1 year, or both.
18 U.S.C. § 113(a)(5).3
[1] Because § 113 does not define “assault,” we have
adopted the common law definitions:4 (1) “a willful attempt to
inflict injury upon the person of another,” also known as “an
attempt to commit a battery,” 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.” United States v. Dupree, 544 F.2d
1050, 1051 (9th Cir. 1976); see also United States v. Juvenile
Male, 930 F.2d 727, 728 (9th Cir. 1991) (same).5
In affirming Lewellyn’s conviction under the first theory—
assault as an attempt to commit a battery—the district court
3
In 1994, § 113 was renumbered so that the introduction became para-
graph (a), and previous paragraphs (a) through (f) became subsections (1)
through (6). See Violent Crime Control and Law Enforcement Act of 1994
Pub. L. No. 103-322 § 170201(c)(4)-(6). Thus, “simple assault,” formerly
codified at § 113(e), was renumbered as § 113(a)(5).
4
See United States v. Turley, 352 U.S. 407, 411 (1957) (“[W]here a fed-
eral criminal statute uses a common-law term of established meaning
without otherwise defining it, the general practice is to give that term its
common-law meaning.”); see also Morrissette v. United States, 342 U.S.
246, 263 (1952).
5
Nearly all of the other circuits apply these same common-law defini-
tions of assault. See, e.g., United States v. McCulligan, 256 F.3d 97, 103-
04 (3d Cir. 2001); United States v. Ashley, 255 F.3d 907, 911 n.4 (8th Cir.
2001); United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000); United
States v. Williams, 197 F.3d 1091, 1096 (11th Cir. 1999); United States
v. Chestaro, 197 F.3d 600, 605 (2d Cir. 1999); United States v. Calderon,
655 F.2d 1037, 1038 (10th Cir. 1981); United States v. Bell, 505 F.2d 539,
540 (7th Cir. 1974); Shaffer v. United States, 308 F.2d 654, 655 (5th Cir.
1962).
UNITED STATES v. LEWELLYN 2639
defined simple assault as “physical contact that is done in a
patently offensive manner without justification or excuse.”
We review de novo this interpretation of the statute. United
States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003)
(en banc).
Lewellyn argues that it would be an extension of Ninth Cir-
cuit law to include “spitting” among the conduct prohibited
under the theory of simple assault as an attempt to commit a
battery. The government counters that an unwanted, offensive
touching—such as spitting on another person—is encom-
passed within the definition.
[2] Under the common law, “an assault is an attempted bat-
tery and proof of a battery will support conviction of an
assault.” Dupree, 544 F.2d at 1052. Thus, a defendant may be
convicted of assault if he commits “a willful attempt to inflict
injury upon the person of another.” Id. at 1051. The mens rea
requirement is that the volitional act be willful or intentional;
an intent to cause injury is not required. United States v.
Skeet, 665 F.2d 983, 986-87 (9th Cir. 1982). Neither is a
showing of fear on the part of the victim required under this
theory of assault. Id. at 987.
[3] At common law, battery did not require intent to injure,
only that the offensive touching was willful. As Blackstone
observed:
The least touching of another’s person willfully, or
in anger, is a battery; for the law cannot draw the
line between different degrees of violence, and there-
fore totally prohibits the first and lowest stages of it:
every man’s person being sacred, and no other hav-
ing a right to meddle with it, in any the slightest
manner.
WILLIAM BLACKSTONE, 3 BLACKSTONE’S COMMENTARIES 120
(Rothman Reprints reprint 1969) (St. George Tucker ed.
1803).
2640 UNITED STATES v. LEWELLYN
[4] The cases determining the scope of § 113(a)(5) are con-
sistent with Blackstone’s description of battery. Even a seem-
ingly slight, but intentional, offensive touching can suffice for
a battery. For example, the First Circuit affirmed a defen-
dant’s conviction under § 113(a)(5) under the battery theory
for intentionally touching a flight attendant on the buttocks.
United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000). On
appeal, the defendant argued that the government failed to
prove that he intended to injure the victim by touching her
buttocks. Id. at 67. The court disagreed, holding that intent to
injure the victim was not required, but rather, “in a prosecu-
tion for simple assault under § 113(a)(5), it is sufficient to
show that the defendant deliberately touched another in a
patently offensive manner without justification or excuse.” Id.
at 69. The court reasoned that at common law, battery did not
require the intent to injure, but only that the offensive touch-
ing was willful. Id. at 68-69. Because the touching was inten-
tional and patently offensive, the court upheld the conviction.
Id. at 69.
Even a bump from a chair may qualify as common law
battery—and thus simple assault—according to the Eleventh
Circuit. In United States v. Williams, the defendant, who
worked in a computer center on an Army base, was accused
of touching a minor child in a sexual manner. 197 F.3d 1091,
1092-93 (11th Cir. 1999). At trial the defendant testified that
he merely bumped against the victim with his chair while she
was using his computer; thus, he claimed that he was entitled
to an instruction on simple assault under § 113(a)(5) as a
lesser included offense of abusive sexual contact. Id. at 1093.
The court of appeals concluded that refusal to give an instruc-
tion on simple assault was error because a jury could have
found the alleged physical contact had not been sexual in
nature, but merely a “willful offensive touching of another”
which would constitute “common law battery (and, thus,
§ 113(a)(5) assault).” Id. at 1096. See also United States v.
Whitefeather, 275 F.3d 741, 742-43 (8th Cir. 2002) (affirming
a conviction for simple assault under § 113(a)(5), where
UNITED STATES v. LEWELLYN 2641
defendant urinated on the face of a person who was sleeping
and unaware of the conduct); United States v. Patch, 114 F.3d
131, 133 (9th Cir. 1997) (affirming defendant’s conviction for
simple assault where the district court concluded that defen-
dant’s push of a deputy sheriff to break free of his hold was
an unlawful touching that satisfied the minimum requirements
of § 113(a)(5)); United States v. Smith, 812 F.2d 161, 163-64
(4th Cir. 1987) (affirming conviction for simple assault under
§ 113(a)(5) where defendant grabbed a woman’s wrist and
arm to stop her from reviewing his trade show permit).
[5] As these cases demonstrate, noninjurious but inten-
tional, offensive contact (even if relatively minor) satisfies the
requirement for simple assault under the battery theory.
Although the district court, referencing the indictment and cit-
ing Bayes, injected the term “patently” into the definition (as
in “patently offensive”), this word was not part of the
standard at common law nor do we believe it essential to the
definition.6 Nonetheless, as Lewellyn was charged with “pa-
tently offensive” conduct, we have no trouble concluding that
the spitting here was patently offensive.
[6] As a matter of common sense, intentionally spitting in
another person’s face easily falls within the scope of an offen-
sive touching. Although this precise issue has not been
addressed under § 113(a)(5), spitting on a person has been
held to constitute assault in violation of two other federal
assault statutes. In United States v. Masel, the Seventh Circuit
6
The notion of “patently offensive” speech or conduct is most familiarly
found in First Amendment jurisprudence, employment cases and other
limited contexts. See, e.g., Miller v. California, 413 U.S. 15, 24 (1973)
(holding that a statute regulating obscene speech must be limited to works
that depict or describe sexual conduct “which, taken as a whole, appeal to
the prurient interest in sex, which portray sexual conduct in a patently
offensive way, and which, taken as a whole, do not have serious literary,
artistic, political, or scientific value”); Walker v. Thompson, 214 F.3d 615,
626 (5th Cir. 2000) (concluding that patently offensive racist remarks in
workplace supported Title VII hostile work environment claim).
2642 UNITED STATES v. LEWELLYN
affirmed under 18 U.S.C. § 3517 the assault conviction of a
defendant who spit in the face of a Congressman. 563 F.2d
322, 323-24 (7th Cir. 1977). The court held that under the bat-
tery theory, the “defendant willfully caused, by spitting, an
offensive touching,” which was sufficient to constitute an
assault. Id. at 324.
The second reported spitting case arose under 18 U.S.C.
§ 111.8 The First Circuit affirmed the conviction of a defen-
dant for spitting in the face of an on-duty, in-uniform U.S.
postal worker during a traffic incident. United States v. Frizzi,
491 F.2d 1231, 1231-32 (1st Cir. 1974). The court observed:
“We do not think it could be ruled that spitting in the face is
not forcible assault, or, more exactly, a battery falling within
the statutory description ‘forcibly assaults, resists, opposes,
impedes, intimidates or interferes.’ ” Id. at 1232 (quoting
§ 111). Although spitting in one’s face is minor, the court rea-
soned that “it is application of force to the body of the victim,
7
Section 351, entitled “Congressional, Cabinet, and Supreme Court
assassination, kidnapping, and assault; penalties” provides in relevant part:
(e) Whoever assaults any person designated in subsection (a) of
this section shall be fined under this title, or imprisoned not more
than one year, or both; and if the assault involved the use of a
dangerous weapon, or personal injury results, shall be fined under
this title, or imprisoned not more than ten years, or both.
18 U.S.C. § 351(e).
8
Section 111, entitled “Assaulting, resisting, or impeding certain offi-
cers or employees,” provides in relevant part:
(a) In general. Whoever — (1) forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any person designated in
[18 U.S.C. § 1114] while engaged in or on account of the perfor-
mance of official duties . . . shall, where the acts in violation of
this section constitute only simple assault, be fined under this title
or imprisoned not more than one year, or both, and in all other
cases, be fined under this title or imprisoned not more than 8
years, or both.
18 U.S.C. § 111.
UNITED STATES v. LEWELLYN 2643
a bodily contact intentionally highly offensive,” and thus
assault within the meaning of § 111. Id.
[7] We agree with these courts that intentionally spitting on
another person is an offensive touching that rises to the level
of simple assault under the theory of assault as an attempted
or completed battery. We therefore hold that intentionally
spitting on another person falls within the ambit of “assault”
under 18 U.S.C. § 113(a)(5).
AFFIRMED.