U.S. v. Bayes

• Citation: 210 F.3d 64
• Decision Date: 06 March 2000
• Docket Number: No. 99-2020,99-2020
• Parties: (1st Cir. 2000) UNITED STATES, APPELLEE, V. CHRISTOPHER JAMES BAYES, DEFENDANT, APPELLANT. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 64

210 F.3d 64 (1st Cir. 2000)

UNITED STATES, APPELLEE,

V.

CHRISTOPHER JAMES BAYES, DEFENDANT, APPELLANT.

No. 99-2020

United States Court of Appeals For the First Circuit

Heard March 6, 2000

Decided April 21, 2000

Daniel G. Lilley, with whom Daniel G. Lilley Law Offices, Pa, was on brief for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Jay P. McCloskey, United States Attorney, was on brief for appellee.

Before Boudin, Stahl, and Lynch, Circuit Judges.

STAHL, Circuit Judge.

Christopher Bayes was convicted on one count of simple assault in violation of 18 U.S.C. § 113(a)(5) and 49 U.S.C. § 46506(1). On appeal, Bayes challenges the sufficiency of the evidence to support his conviction and also contests his sentence. For the following reasons, we affirm.

I. Background

As with any challenge to the sufficiency of the evidence following a trial by jury, we recite the facts in the light most favorable to the jury's verdict. See United States v. DeMasi, 40 F.3d 1306, 1310 (1st Cir. 1994).

On June 5, 1999, Bayes boarded Delta Airlines Flight 64 from Atlanta, Georgia, to Manchester, England. Debbie Parker, Mario Garcia, and Carron Smoak were the three flight attendants apparently responsible for the section of the cabin in which Bayes was seated. Before the plane left the gate, Parker served Bayes a glass of champagne and a glass of orange juice. When Garcia went to collect the two glasses a short while later, Bayes responded by saying, "What are you, crazy?" Although Garcia concluded that "we might have an unruly passenger" on board, Parker gave Bayes another alcoholic beverage once the plane was in the air.

About an hour into the flight, Parker and Smoak began to distribute linen, flatware, and bread dishes by placing them on each passenger's dining tray. After providing Bayes with these items, Smoak asked him what kind of bread he wanted. As Smoak "reached over [her service] cart to get the roll that he said he wanted... [Bayes] put his hand on [her] buttocks and rubbed [her] buttocks and grabbed at the bottom of [her] buttocks." Bayes claimed to have touched Smoak by accident, but Wade McCallon, a passenger seated nearby, later described what had occurred as "reaching behind the flight attendant and grabbing her in the rear end" and "squeezing."

Smoak immediately complained about Bayes's conduct to her on- board supervisor, Susan Corbett, and to the on-board Customer Service Coordinator, Christopher Yates. Although there are conflicting accounts of exactly what happened next, there was evidence that Bayes persisted in being unruly despite periodic warnings from members of the crew. A scuffle ensued, ending only after the captain dumped thousands of gallons of fuel, diverted the aircraft in mid-flight, and made an unscheduled landing so that Bayes could be taken off the plane at Bangor International Airport in Maine.

Bayes was charged with five counts of simple assault against Smoak, Garcia, Corbett, Yates, and a passenger named Rhine Blake. See 18 U.S.C. § 113(a)(5) (criminalizing "[s]imple assault" within the special maritime and territorial jurisdiction of the United States); 49 U.S.C. § 46506(1) (incorporating the conduct proscribed by 18 U.S.C. § 113(a)(5) as an offense within the special aircraft jurisdiction of the United States). Bayes also faced one count of interfering with a flight crew in violation of 49 U.S.C. § 46504. After a five-day trial, a jury convicted Bayes of the assault against Smoak but either acquitted him or failed to reach a verdict with respect to the other charges. The district court sentenced Bayes to six months in prison with a $10 special assessment and a $5000 fine. This appeal followed.

II.

A.

Bayes supports his challenge to the sufficiency of the evidence by arguing that the offense for which he was convicted requires a specific kind of intent that the government failed to prove. Before reaching this claim, however, we must consider whether Bayes has preserved the issue for appellate review.

After the government rested its case at trial, Bayes moved for a judgment of acquittal. See Fed. R. Crim. P. 29(a). Although Bayes made his motion "on all counts," the arguments he offered to support it spoke only to the other counts in the indictment and not to the charge of assaulting Smoak. When pressed on the issue, Bayes's attorney conceded that "as far as Carron Smoak's case [goes], the best view of the evidence would be an assault. So, I'm not going to argue that that couldn't be found by the jury." A few moments later, counsel confirmed that Bayes was not moving for a directed finding with respect to that charge because "if you believe [Smoak], there's sufficient evidence for a jury to find [Bayes] guilty."

In any event, the district court refused to enter a judgment of acquittal, the trial proceeded, and ultimately the jury found Bayes guilty only of assaulting Smoak. After the jury was released, Bayes filed a new motion for a judgment of acquittal questioning the sufficiency of the evidence supporting the charge of conviction. See Fed. R. Crim. P. 29(c) ("It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury."). Although this motion did put the relevant count of conviction under scrutiny, it still failed to raise the question of intent, merely arguing that none of the witnesses could have seen the alleged attack. (Motion for Judgment of Acquittal ("The testimony of Carron Smoak failed to place her in a position on the airplane where witnesses could have observed that the alleged assault took place.").)

On appeal, Bayes now seeks to change hats. Rather than claiming that no one could have witnessed the alleged assault, Bayes contends that his offense of conviction requires a specific kind of intent that the government failed to establish. Because Bayes never brought this argument to the district court's attention, we might consider it waived. See, e.g., United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("A litigant cannot jump from theory to theory like a bee buzzing from flower to flower.... [W]hen a party fails to raise a theory at the district court level, that theory is generally regarded as forfeited and cannot be advanced on appeal."), cert. denied, ___ U.S. ___, 119 S.Ct. 1370, 143 L.Ed.2d 530 (1999).

But even in the face of procedural default, we retain the discretion to correct "[p]lain errors or defects affecting substantial rights." Fed. R. Crim. P. 52(b). We will exercise this discretion only to correct (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." United States v. Johnson, 520 U.S. 461, 467 (1997) (citations and internal quotation marks omitted) (alteration in original). With this standard in mind, we turn our attention to whether there has been a plain error or defect in this case and, if so, whether it warrants redress under Rule 52(b).

B.

Bayes contends that the evidence failed to support his conviction for simple assault because the government did not prove that he intended to injure Smoak or to threaten her with harm when he touched her on the buttocks. Viewing the evidence in the light most favorable to the jury's verdict, we consider whether a rational juror could have found guilt beyond a reasonable doubt. See United States v. Alicea- Cardoza, 132 F.3d 1, 5 (1st Cir. 1997).

Bayes was convicted of violating 18 U.S.C. § 113(a)(5), which proscribes the crime of "[s]imple assault" but does not define that term in any way. Although the statute neither states nor suggests that simple assault requires the defendant to have acted with a specific kind of intent, the district court concluded that the offense demanded exactly that. As a result, the court instructed the jury that "to prove simple assault, the government must demonstrate [that] the defendant willfully attempted to inflict injury upon the person of another or threatened to inflict injury upon the person of another, coupled with an apparent present ability to do so, [and/or ¹] caused [a] reasonable apprehension of immediate bodily harm."

If this instruction accurately described the level of intent that § 113(a)(5) requires, then we might question whether there was sufficient evidence on which to base a conviction. The jury reasonably could have found that Bayes had touched Smoak on the buttocks on purpose, given her testimony that he had "put his hand on [her] buttocks and rubbed [her] buttocks and grabbed at the bottom of [her] buttocks." McCallon confirmed that Bayes had "reach[ed] behind [Smoak] and grabb[ed] her in the rear end" and "squeez[ed]." But this testimony merely supported the conclusion that Bayes had touched Smoak deliberately; it did not necessarily demonstrate that Bayes had intended to injure Smoak or to threaten her with harm when he touched her. Likewise, while Smoak testified that Bayes's conduct caused her to feel "frightened," it was at least debatable whether Bayes intended that result.

Nevertheless, § 113(a)(5) merely prohibits "[s]imple assault" without specifying a particular kind of intent as a textual element of the offense. The district court's requirement that Bayes "willfully attempted to inflict injury upon the person of another or threatened to inflict injury" does not appear anywhere in the statutory language. Unlike § 113(a)(1) of the statute, which criminalizes "[a]ssault with intent to commit murder," and § 113(a)(3), which prohibits "[a]ssault with a dangerous weapon, with intent to do bodily harm," a specific kind of intent is not inherent in the statutory definition of the crime for which Bayes was convicted. The fact that Congress enumerated a very specific type of intent for some kinds of assault but not for others casts doubt on whether "[s]imple assault" -- a term left undefined -- requires an...