U.S. v. Masel, 77-1022
| Decision Date | 13 September 1977 |
| Docket Number | No. 77-1022,77-1022 |
| Citation | 563 F.2d 322 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bennett MASEL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mark A. Frankel, Madison, Wis., for defendant-appellant.
David C. Mebane, U. S. Atty., David J. Kline, Atty. U. S. Dept. of Justice, Washington, D.C., Grant C. Johnson, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.
Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and GRANT, Senior District Judge. *
The appellant, Bennett Masel, was convicted of assaulting a Member of Congress in violation of 18 U.S.C. § 351(e). He was sentenced to fifteen days imprisonment. Execution of the sentence was stayed by the trial court pending the outcome of this appeal. Masel challenges this conviction on the grounds that the jury instructions permitted conviction for an offense the statute should not be construed to cover, and, alternatively, erroneously omitted requiring proof of an intent to injure.
On March 30, 1976 Senator Henry M. Jackson arrived at the Dane County Regional Airport in Madison, Wisconsin. The appellant was at the airport for the purpose of demonstrating his disapproval of Senator Jackson's alleged relationship to the armament industry.
At the trial several witnesses testified that they saw the appellant spit into Senator Jackson's face while the Senator was shaking hands with supporters who had come to meet him. Other witnesses testified that the appellant had admitted doing the spitting. A photograph of the Senator caught the spit as it arrived on his cheek. Neither Senator Jackson nor the defendant was called to testify.
There was ample proof for a jury to find that Masel intended to spit in the Senator's face and successfully did so.
18 U.S.C. § 351 is entitled Congressional assassination, kidnapping, and assault; penalties. Its subsections prescribe penalties for offenses directed at Members of Congress, including killing, kidnapping, and attempts and conspiracies for such purposes, as well as assault.
Subsection (e) provides:
Whoever assaults any person designated in subsection (a) of this section shall be fined not more than $5,000, or imprisoned not more than one year, or both; and if personal injury results, shall be fined not more than $10,000, or imprisoned not more than ten years, or both.
Defendant would read the assault offense as confined to an attempt to commit a battery or an act putting another in reasonable apprehension of bodily harm. See U. S. v. Rizzo, 409 F.2d 400, 402-03 (7th Cir. 1969). Accordingly, he argues, proof of battery (successful culmination of an attempt) is proof of activity not proscribed by the statute.
The district court concluded that assault, in this statute, had a broader meaning. "Because the statute contemplates that personal injury may result from the 'assault,' it is clear that Congress intended to include 'battery' within the term 'assault'."
Accordingly, the district court instructed, in effect, that if the jury found a battery had been committed, defendant should be convicted of the charge of assault.
The challenged instruction was:
An assault is the willful and unlawful touching, however slight, of another person by an aggressor or by a substance put in motion by an aggressor. The touchings which constitute assaults include willful and unlawful offensive touchings. In this case the Government must prove beyond a reasonable doubt that the defendant Masel willfully and unlawfully caused, by spitting, an offensive touching of a member of Congress of the United States.
There are five elements which must be proved beyond a reasonable doubt: First, that Henry Jackson, at the time of the alleged offense, was a member of Congress of the United States; two, that Bennett Masel spit in the face of Henry Jackson; three, that Senator Jackson did not consent to being spat upon by the defendant; four, that the spitting in the face constituted an offensive touching; and five, that Bennett Masel did this act both willfully and unlawfully.
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...Cir. 1981). In the third, the defendant received a 15-day sentence for spitting on a senator at an airport. See United States v. Masel , 563 F.2d 322, 322–23 (7th Cir. 1977). These prison terms were similar to Boucher’s, but the offense conduct was quite different—as the Government argues, ......
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