U.S. v. Delis

• Decision Date: 05 March 2009
• Docket Number: Docket No. 08-0641-cr.
• Citation: 558 F.3d 177
• Parties: UNITED STATES of America, Appellee, v. Pierre DELIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

558 F.3d 177

UNITED STATES of America, Appellee, v. Pierre DELIS, Defendant-Appellant.

Docket No. 08-0641-cr.

United States Court of Appeals, Second Circuit.

Argued: November 21, 2008.

Decided: March 5, 2009.

Sylvia Shweder (Susan Corkery and Carolyn Pokorny, Assistant United States Attorneys, of counsel), for Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

Before: McLAUGHLIN, CALABRESI, LIVINGSTON, Circuit Judges.

LIVINGSTON, Circuit Judge:

Defendant-Appellant Pierre Delis appeals from a February 1, 2008 decision of the United States District Court for the Eastern District of New York (Cogan, J.) affirming the July 12, 2007 judgment of conviction for simple assault in violation of 18 U.S.C. § 113(a)(5) and the associated sentence of time served plus a $10 fine entered after a bench trial before Magistrate Judge Joan M. Azrack. This appeal raises the question of whether simple assault, as criminalized by 18 U.S.C. § 113(a)(5), includes an offensive touching in the absence of any specific intent by the perpetrator to inflict injury upon the victim of the crime. Because we conclude that "simple assault," as used in § 113(a)(5), incorporates both of the common-law crimes of assault and battery, we hold that an offensive touching does constitute simple assault regardless whether the perpetrator possessed any specific intent to injure.

BACKGROUND

On September 24, 2006, Delis was a passenger aboard American Airlines Flight 65 from Zurich, Switzerland, to John F. Kennedy Airport in New York City. While on the flight, he became involved in a loud and angry altercation with flight attendant Louisa Williams-Beauvil, during the course of which it is undisputed that Delis, at the least, pushed the flight attendant's hand away from his face. When the flight landed in New York City, Delis was arrested. A complaint was initially filed charging Delis with assaulting a flight crew member in violation of 49 U.S.C. § 46504. Subsequently, the Government filed a misdemeanor information charging Delis with simple assault in violation of 18 U.S.C. § 113(a)(5) as made applicable to the special aircraft jurisdiction of the United States by 49 U.S.C. § 46506(1).

On March 7, 2007, a bench trial regarding this charge was conducted before Magistrate Judge Azrack. At trial, several witnesses, including both Delis and Williams-Beauvil, gave varying accounts of the confrontation that nevertheless concurred in major respects. Approximately ninety minutes into the flight, Williams-Beauvil began to distribute meals to the passengers. Each passenger was given an option of chicken or beef. While some passengers, including Delis, were still waiting for meals, the flight crew ran out of chicken. After Williams-Beauvil informed Delis that no chicken remained, they began a discussion that quickly escalated into a loud argument.

Williams-Beauvil testified that Delis shouted obscenities and then struck her. She indicated that the blow landed "just under her left breast." App. 32. After being struck, she instinctively grabbed Delis's chin and he then pushed her hand away. Nestor Quecuty, another flight attendant, testified that he approached the pair when he heard screaming and that, at the time he arrived, Williams-Beauvil and Delis were arguing about whether Delis had called Williams-Beauvil an offensive epithet. From the aisle behind Delis's seat, Quecuty observed Williams-Beauvil place her finger about ten inches from Delis's face. Quecuty then saw Delis, "with his right arm and [an] open hand, [take] a swing at" Williams-Beauvil, making contact with her arm. Id. 104.

Yet another witness, a passenger, testified that he observed Delis object when he learned that Williams-Beauvil had no more chicken. An argument ensued and grew louder. The passenger eventually observed Delis "push[] [Williams-Beauvil] backwards." Id. 121.

Delis did not dispute that he had an argument with Williams-Beauvil about the in-flight meal choice. Rather, he claimed that Williams-Beauvil pointed her finger at him and that he simply pushed her hand away from his face. Immediately thereafter, he was restrained by another member of the flight crew. Delis further asserted that he remained calm throughout the remainder of the flight.

Following the completion of testimony, the Government and Delis's counsel delivered their summations. Delis's counsel contended during his summation that Delis's actions, as described by the majority of the testifying witnesses, were "consistent with an intent to get [Williams-Beauvil's] arm out of his face and not an attempt to injur[e] or cause harm, which is a requirement for assault." Id. 187. The Magistrate Judge responded that "an offensive contact" is a proper predicate for a simple assault, asserting further that she "d[id] not believe that simple assault requires an intent to inflict injury" and that, in this case, "[t]here [was] an intent—an intent to engage in an offensive touching." Id. 187-88, 193. Thereafter, the Magistrate Judge found Delis guilty of simple assault, noting that "the Government's proof satisfie[d] the elements of the crime of simple assault." Id. 207. Following a sentencing hearing, she entered a judgment imposing a sentence of time served and a $10 fine.¹

Delis appealed his conviction to the United States District Court for the Eastern District of New York, arguing that an intent to injure is a required element of simple assault. The District Court rejected this argument. Noting that, at common law, an assault could be committed by means of a completed battery, which did not require an intent to injure, the court determined that conviction for simple assault pursuant to 18 U.S.C. § 113(a)(5) does not require a showing of any such specific intent. The District Court then affirmed Delis's conviction, relying in particular upon the Magistrate Judge's finding that Delis had possessed the intent to engage in an offensive touching.

DISCUSSION

The basic federal assault statute was initially enacted as part of a general overhaul of the federal criminal code in 1909. See Act of Mar. 4, 1909, ch. 321, § 276, 35 Stat. 1088, 1143 (criminalizing, inter alia, "[w]hoever shall assault another with intent to commit any felony," "[w]hoever shall unlawfully strike, beat, or wound another," and "[w]hoever shall unlawfully assault another"). It currently provides, in pertinent part, that:

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, by imprisonment for not more than twenty years.

(2) Assault with intent to commit any felony, except murder or [sexual abuse], 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, and without just cause or excuse, 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 six months, or both.

(5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both....

18 U.S.C. § 113(a); see also 49 U.S.C. § 46506(1) (extending the reach of § 113 to the "special aircraft jurisdiction of the United States"). It is well established that the specific intent to injure is not an element of "[a]ssault by striking, beating, or wounding" under § 113(a)(4). See United States v. Martin, 536 F.2d 535, 535-36 (2d Cir. 1976) (per curiam). Delis argues, however, that the specific intent to injure or threaten is a required element of simple assault under § 113(a)(5). As this appeal presents a matter of statutory interpretation, which is purely a question of law, our review is de novo. See United States v. Santos, 541 F.3d 63, 67 (2d Cir.2008).

As always, our analysis " `begins with the plain language of the statute.'" Id. (quoting Universal Church v. Geltzer, 463 F.3d 218, 223 (2d Cir.2006)). Section 113(a)(5) criminalizes "[s]imple assault," a term grounded in the common law. Where, as here, a statute incorporates language with an accepted common-law definition, our construction of the statute is guided by that accepted meaning absent a clear contrary indication. See United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). Given that the common-law crimes of battery and assault were closely interrelated, we consider it necessary to examine the traditional definitions of both crimes in construing § 113(a)(5).

At common law, the crime of battery consisted of "the unlawful application of force to the person of another," including an offensive touching. 2 Wayne R. La-Fave, Substantive Criminal Law § 16.2, at 552 (2d ed.2003); see also 3 William Blackstone, Commentaries on the Laws of England *120 (defining battery as "the unlawful beating of another" and noting that "[t]he 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 manner"). Common-law battery did not require any specific intent either to injure or to touch offensively, but rather only a more general intent to commit the unlawful act or, indeed, mere recklessness or criminal negligence. See 6A C.J.S. Assault § 85 (2008) (describing battery as a "general intent crime" that requires only "the intentional performance of an unlawful act" and noting that "[w]anton and reckless conduct may substitute for ... intentional conduct"); 2 LaFave, supra, § 16.2, at 556 ("[B]attery may be committed by conduct amounting to criminal negligence which...