Defendant-Appellant Pierre Delis appeals from a decision of the United States District Court for the Eastern District of New York (Cogan, J.) affirming a judgment of conviction for 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) entered by a Magistrate Judge following a bench trial. Delis contends principally that the District Court erred in concluding that an offensive touching constitutes simple assault even in the absence of any specific intent of the perpetrator to injure the victim of the crime.
The opinion of the court was delivered by: Livingston, Circuit Judge
Argued: November 21, 2008
Before: McLAUGHLIN, CALABRESI, LIVINGSTON, Circuit Judges.
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.
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 injure[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.*fn1
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 ...