Archive | assault

Sunday, September 9th, 2012

You Can Resist

United States v. Davis, No. 10-4104-cr (2d Cir. August 24, 2012) (Walker, Lynch, Droney, CJJ) 

Hoping to evade a drug arrest, Deitron Davis ran from an agent; during the chase the agent frequently caught up to him and struck him with a baton, but Davis – a very big guy – kept running. Eventually, other agents joined in. They caught Davis and pinned him to the ground, stomach down. He struggled and resisted being handcuffed, to no avail, but did not threaten or strike any of the agents. A jury convicted him both of the drug offense and of misdemeanor resisting arrest, in violation of 18 U.S.C. § 111(a). On appeal, however, the circuit agreed that the evidence was legally insufficient to make out this offense.  

The wording of § 111(a) is notoriously vexing: where the defendant “forcibly assaults resists, opposes, impedes, intimates, or interferes with” a …

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Sunday, April 26th, 2009

A Small Triumph

United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)

Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.

Background

Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use …


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Saturday, March 14th, 2009

Coffe, Tea or Jail?

United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)

On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face. He was charged with simple assault, in violation of 18 U.S.C. § 113(a)(5), and his defense was a lack of intent to injure. After a bench trial, a Magistrate Judge convicted him, holding that intent to injure was not an element of the offense, and finding that Delis had the intent to “engage in an offensive touching.” He appealed first to the district court, which affirmed, and then to the circuit, which affirmed as well.

Section 113(5) criminalizes “simple assault,” a term with common-law origins. At common law, a battery was the “unlawful application of force …

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