812 F.2d 161 (4th Cir. 1987), 86-5547, United States v. Smith

Docket Nº:86-5547.
Citation:812 F.2d 161
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lewis D. SMITH, Defendant-Appellant.
Case Date:February 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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812 F.2d 161 (4th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Lewis D. SMITH, Defendant-Appellant.

No. 86-5547.

United States Court of Appeals, Fourth Circuit

February 20, 1987

Argued Nov. 14, 1986.

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Carlos M. Recio (Karl W. Pilger; Solomon, Foley & Moran, Houston, Tex., on brief) for defendant-appellant.

William G. Otis, Asst. U.S. Atty. (Constance Harriet Frogale, Asst. U.S. Atty., Alexandria, Va., Kimberly Houston, Third Year Law Student; Henry E. Hudson, U.S. Atty., Alexandria, Va., Barry Breen, Sp. Asst. U.S. Atty., Mary B. Fernan, Third Year Law Student on brief), for plaintiff-appellee.

Before WINTER, Chief Circuit Judge, RUSSELL, Circuit Judge, and McMILLAN, District Judge for the Western District of North Carolina, sitting by designation.

INDEX Page No. ---- I. The Conviction for the August 22, 1985, Assault on Albert Hertzog is Affirmed ..................... 163 II. The Conviction for the October 3, 1985, Assault on Linda Hopcraft is Affirmed ..................... 163 III. The Conviction for the October 3, 1985, Intentional Touching of Linda Hopcraft is Reversed ............ --- A. The "Intentional Touching" Conviction Is Reversed Because Congress Did Not Authorize The Airport Administrator To Impose Criminal Sanctions ............................. --- B. The "Intentional Touching" Conviction Should Be Reversed on the Additional Ground that the Airport Regulation Under Which Appellant Was Convicted Is Unconstitutional (NOT CONCURRED IN BY JUDGES WINTER AND RUSSELL) ................................................

McMILLAN, District Judge:


Lewis D. Smith appealed to this court from an order of the United States District Court for the Eastern District of Virginia, Alexandria Division, affirming appellant's conviction by a United States Magistrate on two charges of simple assault in violation of 18 U.S.C. Sec. 113, and one charge of

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violating 14 C.F.R. Sec. 159.94(g) (intentionally touching another person without that person's consent while engaged in non-commercial activity).

We AFFIRM both the assault convictions and REVERSE the conviction for "intentionally touching."

I. The Conviction for the August 22, 1985, assault on Albert Hertzog is Affirmed.--The evidence clearly supports appellant Smith's conviction of a simple assault on Albert Hertzog. On August 22, 1985, at Dulles International Airport, Smith was manning a table which displayed literature for the International Caucus of Labor Committees (J.App. 142). That organization is associated with Lyndon LaRouche (J.App. 247). Albert Hertzog, an engineer, accompanied by his sister, approached Smith's table. Hertzog and his sister engaged Smith in conversation about a sign which said, "Lasers Kill" (J.App. 142). An argument ensued in which Smith called Hertzog a Soviet agent (J.App. 144). Tempers flared. Smith pushed the table aside and lunged at Hertzog, pushing him several feet and pinning him on the floor (J.App. 150-151, 173, 186-187). Hertzog did not strike nor attempt to strike Smith (J.App. 151). Hertzog suffered minor rib injuries and some bruises.

The prosecution was lodged under 18 U.S.C. Sec. 113, which, in pertinent part, reads as follows:

Sec. 113. Assaults within maritime and territorial jurisdiction

Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:

* * *

* * *

(e) Simple assault, by fine of not more than $300 or imprisonment for not more than three months, or both.

Smith was convicted of simple assault under 18 U.S.C. Sec. 113(e), given a (suspended) sentence of 15 days imprisonment and fined $125.00. Smith's conviction of simple assault on Hertzog is amply supported by the evidence.

Before the district court, Smith moved to set aside his conviction for assaulting Mr. Hertzog (and his other two convictions as well), arguing that he was a victim of selective prosecution by the government because of his political beliefs. The district court denied his motion, and Smith appeals that ruling to this court.

We affirm the district court. Smith has shown neither that the prosecution of him was motivated by a discriminatory purpose nor that the prosecution had a discriminatory effect upon the class of speakers of which Smith was a member. Both are required to make a claim for selective prosecution. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

Evidence introduced by Smith of statements allegedly made to him by the arresting officer were relevant to the issue of discriminatory purpose. However, Smith made no showing that the arresting officer had in any way influenced the United States Attorney who actually made the decision to prosecute. Absent such a showing, Smith's selective prosecution claim rests on mere speculation as to the motives of the prosecutor.

The judgment of the district court as to the assault on Hertzog is AFFIRMED.

II. The Conviction for the October 3, 1985, assault on Linda Hopcraft is Affirmed.--On October 3, 1985, Linda Hopcraft, an airline passenger, passed Smith's table at Dulles Airport. A sign at the table said "Star Wars Is Better Than Aids." She stopped and asked Smith what the sign meant. Smith responded angrily, "Oh, people like you never understand what this says" (J.App. 211). Hopcraft persisted with more questions about the sign. This annoyed Smith. He answered one or two questions and then turned to his companion, Seth Taylor, and in a loud voice recited a scatological story about a woman sick with AIDS. Hopcraft, offended by this outburst, began to write down what Smith had said (J.App. 10, 214). Smith told his companion, Taylor, "I think we have an ADL member here. You better start taking her picture" (J.App. 215). Taylor took

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Hopcraft's photograph. She asked the two men what organization they represented. They did not tell her.

Hopcraft then saw a pink solicitation permit and reached over to pick it up and look at it (J.App. 216). She testified: "I tried to pick up the card. At that point the defendant grabbed my wrist and my arm" (J.App. 217). Hopcraft left the area and told "Airport Security" about the incident and made a formal written report. She said (J.App. 218) "I was at this point quite upset that he had grabbed me, and, second, ... they had taken my photograph several times and I was still not allowed to know who they were." Hopcraft said again (J.App. 229) that she was "quite upset" that Smith had grabbed her.

Smith was convicted of simple assault, given a (suspended) sentence of 15 days imprisonment and fined $125.00. The above evidence is sufficient to support the conviction under 18 U.S.C. Sec. 113(e) for the October 3, 1985, assault on Linda Hopcraft.

Before the district court, Smith argued that he used reasonable force in defending private property against a threatened taking by Ms. Hopcraft, and that his actions were consequently privileged. The district judge found that Smith had no property interest in the solicitation permit which he was required to display publicly, and he also found that the papers Ms. Hopcraft picked up off the table were on display to be picked up by the public. Accordingly, he found Smith's privilege claim without merit. That ruling is supported by the evidence. Smith's conviction for assaulting Ms. Hopcraft is AFFIRMED.

III. The Conviction for the October 3, 1985, "intentional touching" of Linda Hopcraft is...

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