U.S. v. Juvenile Male, 90-30259

Citation930 F.2d 727
Decision Date11 April 1991
Docket NumberNo. 90-30259,90-30259
PartiesUNITED STATES of America, Plaintiff/Appellee, v. JUVENILE MALE, Defendant/Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Steven R. Milch, Donald L. Harris, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Mont., for defendant/appellant.

C. Ed Laws, Asst. U.S. Atty., Billings, Mont., for plaintiff/appellee.

Appeal from the United States District Court for the District of Montana.

Before BROWNING, WRIGHT and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

Juvenile Male appeals the district court's judgment of juvenile delinquency pursuant to 18 U.S.C. Secs. 5031-5042 based upon the finding that he committed an assault resulting in serious bodily injury in violation of 18 U.S.C. Sec. 113(f). We affirm.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 1153. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

ISSUE

Whether the district court erred in determining that the juvenile committed an assault resulting in serious bodily injury in violation of 18 U.S.C. Sec. 113(f).

STANDARD OF REVIEW

The facts are undisputed and the issue is one of statutory interpretation. Therefore, we review the district court's determination de novo. See United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir.1989).

FACTS

On the night of July 21, 1989, the juvenile attended a party with a large group of teenagers. Three of the teenagers robbed him when he left the party. The juvenile returned home, took his father's rifle and one shell and positioned himself along a path he believed his assailants and the rest of his drinking companions would use. The juvenile crouched in the weeds along the The teenagers were walking in two groups. When a group of silhouettes passed in front of him and continued to his right, the juvenile stood up, held the rifle at waist level, pointed it to the left of the group, shouted that they should not "mess around" with him, and then discharged the rifle. He did not see or hear anyone in the direction that he shot. However, the second group of teenagers was in his line of fire and the victim was shot in the shoulder. Although most of the first group of teenagers either heard the juvenile yell his warning or saw him pointing the gun before he shot, the victim neither heard nor saw the juvenile before she was hit.

path with the rifle. The night was dark and visibility at the site was poor.

It is undisputed that: (1) the juvenile did not intend to shoot the victim, (2) he intended to discharge his rifle, and (3) he intended to scare the first group of teenagers.

DISCUSSION

The district court found that the juvenile had committed a violation of 18 U.S.C. Sec. 113(f). Section 113 provides:

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

(a) Assault with intent to commit murder, by imprisonment for not more than twenty years.

(b) Assault with intent to commit any felony, except murder or a felony under chapter 109A, by fine of not more than $3,000 or imprisonment for not more than ten years, or both.

(c) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by fine of not more than $1,000 or imprisonment for not more than five years, or both.

(d) Assault by striking, beating, or wounding, by fine of not more than $500 or imprisonment for not more than six months, or both.

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

(f) Assault resulting in serious bodily injury, by fine of not more than $10,000 or imprisonment for not more than ten years, or both.

18 U.S.C. Sec. 113 (1988).

Because "assault" is not defined in the statute, we have construed it to be equivalent to common law assault. United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.1976). Thus, for the purposes of section 113, we have held that:

"[A]n assault is committed by either a wilful attempt to inflict injury upon the person of another, or by 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. Jim, 865 F.2d 211, 213 (9th Cir.) (emphasis in original) (quoting Dupree, 544 F.2d at 1051), cert. denied, --- U.S. ----, 110 S.Ct. 93, 107 L.Ed.2d 58 (1989).

At common law, proof of a battery would support a conviction for attempted battery, i.e., assault, only when the battery was intentional. See W.R. LaFave & A.W. Scott, Criminal Law Sec. 80, at 603 n. 4 (1972). However, the term "assault" as used in section 113(f) must be understood to include battery. See United States v. Knife, 592 F.2d 472, 482 (8th Cir.1979) (113(d), "assault by striking, beating or wounding," is the equivalent of simple battery); United States v. Stewart, 568 F.2d 501, 504 n. 6 (6th Cir.1978) (113(d) is simple battery and not a type of common law assault since it contemplates some form of contact); United States v. Masel, 563 F.2d 322, 323 (7th Cir.1977) (analysis of 18 U.S.C. Sec. 351; if statute contemplates that an injury may result from the "assault" it prohibits, Congress intended to include "battery" within the term "assault"), cert. denied, 435 U.S. 927, 98 S.Ct. 1496, 55 L.Ed.2d 523 (1978)....

To continue reading

Request your trial
17 cases
  • U.S. v. Doe, 97-30042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Febrero 1998
    ...a federal criminal statute provides a source from which statutory precision may be derived") (citation omitted); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991) ("Because 'assault' is not defined in the statute, we have construed it to be equivalent to common law assault.")......
  • United States v. Jackson, 16-1200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 6 Julio 2017
    ...(6th Cir. 1978) ); see also United States v. Estrada-Fernandez, 150 F.3d 491, 494 n.1 (5th Cir. 1998) ; United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir. 1991).26 United States v. McCulligan, 256 F.3d 97, 103 (2001) (quoting Chestaro, 197 F.3d at 605 ).27 18 U.S.C. § 113(b)(1)(A)-......
  • United States v. Birdinground, Cause No. CR 03-017-BLG-SPW
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • 2 Julio 2018
    ...of Mrs. Secor, support a finding of assault resulting in serious bodily injury to her son." Id. Similarly, in United States v. Juvenile Male, 930 F.2d 727 (9th Cir. 1991), "the juvenile did not intend to shoot the victim." Juvenile Male, 930 F.2d at 728. After shouting a warning, he intenti......
  • United States v. Birdinground, Cause No. CR 03-017-BLG-SPW
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • 28 Junio 2018
    ...of Mrs. Secor, support a finding of assault resulting in serious bodily injury to her son." Id. Similarly, in United States v. Juvenile Male, 930 F.2d 727 (9th Cir. 1991), "the juvenile did not intend to shoot the victim." Juvenile Male, 930 F.2d at 728. After shouting a warning, he intenti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT