United States v. Mitchell
| Decision Date | 20 December 2018 |
| Docket Number | CRIMINAL ACTION NO. 4:18-cr-40 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MARGARET MITCHELL, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Before the Court is Margaret Mitchell's ("Appellant") appeal pursuant to 18 U.S.C. § 3402 from her conviction of simple assault in violation of 18 U.S.C. § 113(a)(5). Appellant raises five issues on appeal: (1) whether spitting constitutes simple assault as codified under § 113(a)(5); (2) whether part of Appellant's testimony was improperly excluded because it was not hearsay; (3) whether part of the Government's evidence was improperly admitted because it was hearsay; (4) whether there was insufficient evidence to convict her; and (5) whether her sentence was procedurally unreasonable. ECF No. 19 at 1. For the reasons set forth below, Appellant's conviction is AFFIRMED.
The following facts were presented at trial. On October 6, 2017, Appellant was working at the Langley Air Force Base commissary when her ex-husband, Emmanuelle Mitchell ("Emmanuelle") came around 6:30 p.m. to drop off their son, J.M. ECF No. 19 at 3, 4. Emmanuelle has full physical custody of J.M., while Appellant had visitation privileges every other weekend, and they are in a custody dispute over J.M. Id. On that day, Emmanuelle and Appellant were communicating via text message, and there was confusion over when J.M. should be dropped off. Id. at 3, 4. Emmanuelle asked Appellant when she was getting off work, and she replied only with "You can leave." Id. at 3. When Emmanuelle was leaving, he gave J.M. a hug. Id. At this time, Appellant grabbed J.M. and spit on Emmanuelle. Id.
Emmanuelle then went to one of the managers of the commissary, Regina Moody ("Moody"), and told her that Appellant had spit on him, and showed her his wet shirt. Id. at 3-4. Moody also saw what appeared to be spit on the floor. Id. at 4. However, Moody herself did not see the confrontation between Appellant and Emmanuelle. Id.
On December 29, 2017, the Government charged Appellant under Criminal Information with simple assault in violation of 18 U.S.C. § 113(a)(5). ECF No. 5. A trial was held before Magistrate Judge Douglas Miller on May 16, 2018. ECF No. 10. At trial, the Government produced Emmanuelle and Moody as witnesses. ECF No. 19 at 3. In her defense, Appellant testified that it was actually Emmanuelle who spit on her, and that she had filed a complaint against him. Id. at 4. Magistrate Judge Miller found Appellant guilty and sentenced her to eight months of probation, anger management, and a $125 fine. ECF No. 10. Appellant filed her appeal the same day. ECF No. 16. Appellant filed her brief on July 27, 2018, ECF No. 19, and the Government filed its reply on August 27, 2018. ECF No. 20.
Individuals may appeal any conviction by a United States Magistrate Judge to a United States District Judge. 18 U.S.C. § 3402; Fed. R. Crim. P. 58(g)(2)(B). Such an appeal is not a new trial, nor is it automatically reviewed de novo. Fed. R. Crim. P. 58(g)(2)(D). Instead, "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Id. Findings of fact are reviewed for clear error. United States v. Vankestern, 553 F.3d 286, 288 (4th Cir. 2009) (quoting United States v. Bursey, 416 F.3d 301,306 (4th Cir. 2005)). A finding is clearly erroneous "'when although there is evidence to support it the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" In re Bate Land & Timber L.L.C., 877 F.3d 188, 198 (4th Cir. 2017) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
Findings of law are reviewed de novo. Vankestern, 553 F.3d at 288 (quoting United States v. Bursey, 416 F.3d 301, 306 (4th Cir. 2005)). However, when a defendant does not contest the admission of evidence at trial, that issue is reviewed for plain error. Fed. R. Crim. P. 52(b); United States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)). The plain error standard requires the individual to show: "'(1) that the defect below was, in fact, error; (2) that the error was "plain;" and (3) that the error affected [his or her] "substantial rights."'" Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). Moreover, the Court "should not exercise its discretionary authority to 'correct the forfeited error . . . unless [it] seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (alterations in original) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
During these appeals, "the sufficiency of evidence [is reviewed] on appeal by viewing it and all [reasonable] inferences 'in the light most favorable to the Government.'" Vankestern, 553 F.3d at 288 (quoting United States v. Bursey, 416 F.3d 301, 306 (4th Cir. 2005)).
Appellant's first argues that spitting is not simple assault under § 113(a)(5). It is undisputed that "federal statutes criminalizing 'assault' incorporate the long-established common law definition of that term.'" United States v. Passaro, 577 F.3d 207, 217-18 (4th Cir. 2009)(citing United States v. Chestaro, 197 F.3d 600, 604-05 (2d Cir. 1999)). At common law, assault is "either attempted battery or the 'deliberate infliction upon another of a reasonable fear of physical injury.'" United States v. Hampton, 628 F.3d 654, 660 (4th Cir. 2010) (quoting United States v. Delis, 558 F.3d 177, 180-81 (2d Cir. 2009)). The common law definition of battery includes "'even the slightest offensive touching.'" United States v. Castleman, 572 U.S. 157, 163 (2014) (quoting Johnson v. United States, 559 U.S. 133, 139 (2010)). A completed assault has merged into the definition of a battery. Hampton, 628 F.3d at 660 (quoting United States v. Delis, 558 F.3d 177, 180-81 (2d. Cir. 2009)).
Here, Appellant was convicted of spitting on Emmanuelle. While the parties argue over whether Appellant's saliva injured Emmanuelle or not, the Court relies on the other vein of assault's definition. There is ample case law suggesting that spitting on someone is an "offensive touching." United States v. Carthorne, 878 F.3d 458, 467-68 (4th Cir. 2017) (); United States v. Llewellyn, 481 F.3d 695, 699 (9th Cir. 2007)). Given that battery includes a completed assault, and that "even the slightest offensive touching" is a battery, spitting can be considered assault under § 113(a)(5).
Hearsay is any out-of-court statement that is offered as evidence "to prove the truth of the matter asserted." Fed R. Evid. 801(c). Hearsay statements are generally inadmissible, Fed. R. Evid. 802, but certain out-of-court statements are excluded from the hearsay definition, Fed. R. Evid. 801(d), or are exceptions to the general rule of inadmissibility. Fed. R. Evid. 803-04. If an out-of-court statement is offered for another reason besides to prove the truth of the matter asserted, such as to demonstrate the testifying witness's belief or state of mind, then thatstatement does not fall under the definition of hearsay and is therefore admissible. United States v. Leake, 642 F.2d 715, 720 (4th Cir. 1981) (citing United States v. Carter, 491 F.2d 625, 628-29 (5th Cir. 1974)).
At trial, Appellant testified that J.M. asked to hug Emmanuelle before they went their separate ways. ECF No. 17 at 40:20-21. The Government objected to this statement as hearsay, and Magistrate Judge Miller sustained that objection. Id. at 40:22-23. Appellant claims that this statement should have been ruled admitted because "[t]he purpose of this statement was to demonstrate why Ms. Mitchell continued to engage in a conversation with her [ex-]husband, and to explain the resulting argument that ended with her husband spitting on her." ECF No. 19 at 11. The Government claims that even if that statement is not hearsay, it is still irrelevant and therefore inadmissible. ECF No. 20 at 11; Fed. R. Evid. 401. Appellant's trial attorney did not contest the objection, and therefore this issue is reviewed for clear error. Fed. R. Crim. P. 52(b); Benton, 523 F.3d at 429.
J.M.'s statement was made outside of any judicial proceeding. When Appellant testified about J.M.'s statement, she was not using it to show that J.M. wanted to hug Emmanuelle, but rather why she continued to interact with Emmanuelle. Therefore, the statement does not meet the definition of hearsay. Fed. R. Evid. 801(c). While the Government is correct that J.M.'s statement "is not a 'consequential fact,'" the Government also offered the same facts in Emmanuelle's testimony. See ECF No. 17 at 17:6-10. If J.M.'s statement was irrelevant under Appellant's testimony, then it would also be irrelevant when Emmanuelle testified.
Either way, the Government ignores part of the relevancy analysis: "Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence." Fed. R. Evid. 401(a). Relevancy is a "comparatively low" threshold. United States v. Recio, 884F.3d 230, 235 (4th Cir. 2018) (quoting United States v. Kiza, 855 F.3d 596, 604 (4th Cir. 2017)). J.M.'s statement at least had the tendency to prove that Appellant continued to talk with Emmanuelle despite her desire to continue working. Therefore, the statement is relevant under Rule 401.
The hearsay determination here was also plain error. The well-settled definition of hearsay is that the statement must not only be an out-of-court statement but it must also be used to prove the truth of the matter asserted. The trial court seemingly relied on the out-of-court nature of...
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