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 to the person of another.” That offense did not require the specific intent to injure or touch offensively, only a general intent to commit the unlawful act. Common-law assault, on the other hand, was either an attempted battery or the deliberate infliction upon another of a “reasonable fear of physical injury,” and was a specific intent crime.

But the terms assault and battery have long been used “interchangeably.” Even at common law, a completed battery, performed with only a general intent, or even one that arose from mere criminal negligence, also constituted an assault. Thus, the common-law definition of simple assault includes a completed common-law battery, which does not require a specific intent to injure.

This conclusion is supported by the statutory language itself. Subsections 1 through 3 of § 113(a) expressly require a particular specific intent. The omission of a specific intent element from § 113(a)(5) suggests this section does not require the specific intent to injure.

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