United States v. Bayes

United States Court of Appeals
For the First Circuit

No. 99-2020

UNITED STATES,

Appellee,

v.

CHRISTOPHER JAMES BAYES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Boudin, Stahl, and Lynch,
Circuit Judges.

Daniel G. Lilley, with whom Daniel G. Lilley Law Offices,
PA, was on brief for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Jay
P. McCloskey, United States Attorney, was on brief for appellee.

April 21, 2000
 STAHL, Circuit Judge. Christopher Bayes was convicted

on one count of simple assault in violation of 18 U.S.C. §

113(a)(5) and 49 U.S.C. § 46506(1). On appeal, Bayes challenges

the sufficiency of the evidence to support his conviction and

also contests his sentence. For the following reasons, we

affirm.

I.

Background

As with any challenge to the sufficiency of the

evidence following a trial by jury, we recite the facts in the

light most favorable to the jury's verdict. See United States

v. DeMasi, 40 F.3d 1306, 1310 (1st Cir. 1994).

On June 5, 1999, Bayes boarded Delta Airlines Flight

64 from Atlanta, Georgia, to Manchester, England. Debbie

Parker, Mario Garcia, and Carron Smoak were the three flight

attendants apparently responsible for the section of the cabin

in which Bayes was seated. Before the plane left the gate,

Parker served Bayes a glass of champagne and a glass of orange

juice. When Garcia went to collect the two glasses a short

while later, Bayes responded by saying, "What are you, crazy?"

Although Garcia concluded that "we might have an unruly

passenger" on board, Parker gave Bayes another alcoholic

beverage once the plane was in the air.

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 About an hour into the flight, Parker and Smoak began

to distribute linen, flatware, and bread dishes by placing them

on each passenger's dining tray. After providing Bayes with

these items, Smoak asked him what kind of bread he wanted. As

Smoak "reached over [her service] cart to get the roll that he

said he wanted . . . [Bayes] put his hand on [her] buttocks and

rubbed [her] buttocks and grabbed at the bottom of [her]

buttocks." Bayes claimed to have touched Smoak by accident, but

Wade McCallon, a passenger seated nearby, later described what

had occurred as "reaching behind the flight attendant and

grabbing her in the rear end" and "squeezing."

Smoak immediately complained about Bayes's conduct to

her on-board supervisor, Susan Corbett, and to the on-board

Customer Service Coordinator, Christopher Yates. Although there

are conflicting accounts of exactly what happened next, there

was evidence that Bayes persisted in being unruly despite

periodic warnings from members of the crew. A scuffle ensued,

ending only after the captain dumped thousands of gallons of

fuel, diverted the aircraft in mid-flight, and made an

unscheduled landing so that Bayes could be taken off the plane

at Bangor International Airport in Maine.

Bayes was charged with five counts of simple assault

against Smoak, Garcia, Corbett, Yates, and a passenger named

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Rhine Blake. See 18 U.S.C. § 113(a)(5) (criminalizing "[s]imple

assault" within the special maritime and territorial

jurisdiction of the United States); 49 U.S.C. § 46506(1)

(incorporating the conduct proscribed by 18 U.S.C. § 113(a)(5)

as an offense within the special aircraft jurisdiction of the

United States). Bayes also faced one count of interfering with

a flight crew in violation of 49 U.S.C. § 46504. After a five-

day trial, a jury convicted Bayes of the assault against Smoak

but either acquitted him or failed to reach a verdict with

respect to the other charges. The district court sentenced

Bayes to six months in prison with a $10 special assessment and

a $5000 fine. This appeal followed.

II.

A.

Bayes supports his challenge to the sufficiency of the

evidence by arguing that the offense for which he was convicted

requires a specific kind of intent that the government failed to

prove. Before reaching this claim, however, we must consider

whether Bayes has preserved the issue for appellate review.

After the government rested its case at trial, Bayes

moved for a judgment of acquittal. See Fed. R. Crim. P. 29(a).

Although Bayes made his motion "on all counts," the arguments he

offered to support it spoke only to the other counts in the

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indictment and not to the charge of assaulting Smoak. When

pressed on the issue, Bayes's attorney conceded that "as far as

Carron Smoak's case [goes], the best view of the evidence would

be an assault. So, I'm not going to argue that that couldn't be

found by the jury." A few moments later, counsel confirmed that

Bayes was not moving for a directed finding with respect to that

charge because "if you believe [Smoak], there's sufficient

evidence for a jury to find [Bayes] guilty."

In any event, the district court refused to enter a

judgment of acquittal, the trial proceeded, and ultimately the

jury found Bayes guilty only of assaulting Smoak. After the

jury was released, Bayes filed a new motion for a judgment of

acquittal questioning the sufficiency of the evidence supporting

the charge of conviction. See Fed. R. Crim. P. 29(c) ("It shall

not be necessary to the making of such a motion that a similar

motion has been made prior to the submission of the case to the

jury."). Although this motion did put the relevant count of

conviction under scrutiny, it still failed to raise the question

of intent, merely arguing that none of the witnesses could have

seen the alleged attack. (Motion for Judgment of Acquittal

("The testimony of Carron Smoak failed to place her in a

position on the airplane where witnesses could have observed

that the alleged assault took place.").)

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 On appeal, Bayes now seeks to change hats. Rather than

claiming that no one could have witnessed the alleged assault,

Bayes contends that his offense of conviction requires a

specific kind of intent that the government failed to establish.

Because Bayes never brought this argument to the district

court's attention, we might consider it waived. See, e.g.,

United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("A

litigant cannot jump from theory to theory like a bee buzzing

from flower to flower. . . . [W]hen a party fails to raise a

theory at the district court level, that theory is generally

regarded as forfeited and cannot be advanced on appeal."), cert.

denied, 67 U.S.L.W. 3613 (1999).

But even in the face of procedural default, we retain

the discretion to correct "[p]lain errors or defects affecting

substantial rights." Fed. R. Crim. P. 52(b). We will exercise

this discretion only to correct (1) an error; (2) that is plain;

(3) that affects substantial rights; and (4) that "seriously

affect[s] the fairness, integrity, or public reputation of

judicial proceedings." United States v. Johnson, 520 U.S. 461,

467 (1997) (citations and internal quotation marks omitted)

(alteration in original). With this standard in mind, we turn

our attention to whether there has been a plain error or defect

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in this case and, if so, whether it warrants redress under Rule

52(b).

B.

Bayes contends that the evidence failed to support his

conviction for simple assault because the government did not

prove that he intended to injure Smoak or to threaten her with

harm when he touched her on the buttocks. Viewing the evidence

in the light most favorable to the jury's verdict, we consider

whether a rational juror could have found guilt beyond a

reasonable doubt. See United States v. Alicea-Cardoza, 132 F.3d

1, 5 (1st Cir. 1997).

Bayes was convicted of violating 18 U.S.C. § 113(a)(5),

which proscribes the crime of "[s]imple assault" but does not

define that term in any way. Although the statute neither

states nor suggests that simple assault requires the defendant

to have acted with a specific kind of intent, the district court

concluded that the offense demanded exactly that. As a result,

the court instructed the jury that "to prove simple assault, the

government must demonstrate [that] the defendant willfully

attempted to inflict injury upon the person of another or

threatened to inflict injury upon the person of another, coupled

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with an apparent present ability to do so, [and/or1] caused [a]

reasonable apprehension of immediate bodily harm."

If this instruction accurately described the level of

intent that § 113(a)(5) requires, then we might question whether

there was sufficient evidence on which to base a conviction.

The jury reasonably could have found that Bayes had touched

Smoak on the buttocks on purpose, given her testimony that he

had "put his hand on [her] buttocks and rubbed [her] buttocks

and grabbed at the bottom of [her] buttocks." McCallon

confirmed that Bayes had "reach[ed] behind [Smoak] and grabb[ed]

her in the rear end" and "squeez[ed]." But this testimony

merely supported the conclusion that Bayes had touched Smoak

deliberately; it did not necessarily demonstrate that Bayes had

intended to injure Smoak or to threaten her with harm when he

touched her. Likewise, while Smoak testified that Bayes's

conduct caused her to feel "frightened," it was at least

debatable whether Bayes intended that result.

Nevertheless, § 113(a)(5) merely prohibits "[s]imple

assault" without specifying a particular kind of intent as a

1
The trial court should have included a conjunction here to
indicate whether a "reasonable apprehension of immediate bodily
harm" was an additional element of simple assault or an
alternative basis for conviction. The trial transcript
indicates that the court failed to make this distinction, but
our resolution of the merits does not depend on the court's
intentions in this regard.

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textual element of the offense. The district court's

requirement that Bayes "willfully attempted to inflict injury

upon the person of another or threatened to inflict injury" does

not appear anywhere in the statutory language. Unlike §

113(a)(1) of the statute, which criminalizes "[a]ssault with

intent to commit murder," and § 113(a)(3), which prohibits

"[a]ssault with a dangerous weapon, with intent to do bodily

harm," a specific kind of intent is not inherent in the

statutory definition of the crime for which Bayes was convicted.

The fact that Congress enumerated a very specific type of intent

for some kinds of assault but not for others casts doubt on

whether "[s]imple assault" -- a term left undefined -- requires

an intent to cause harm or to threaten another with injury. See

United States v. Martin, 536 F.2d 535, 535-36 (2d Cir. 1976)

(per curiam).

We turn to the common law for additional guidance. See

United States v. Turley, 352 U.S. 407, 411 (1957) ("[W]here a

federal criminal statute uses a common-law term of established

meaning without otherwise defining it, the general practice is

to give that term its common-law meaning."). Assault had two

meanings at common law, "the first being an attempt to commit a

battery and the second [being] an act putting another in

reasonable apprehension of bodily harm." United States v. Bell,

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505 F.2d 539, 540 (7th Cir. 1974); see also United States v.

Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982). A battery, in

turn, did not require proof that the defendant intended to

injure another or to threaten her with harm. "The slightest

willful offensive touching of another constitute[d] a

battery . . . regardless of whether the defendant harbor[ed] an

intent to do physical harm." United States v. Williams, 197

F.3d 1091, 1096 (11th Cir. 1999); see also Burton v. Livingston,

791 F.2d 97, 99 (8th Cir. 1986) (noting that "a plaintiff may

seek redress and win damages under state law for any unwanted

touching under the common law of battery").

Thus, under the traditional view, "offensive touchings

(as where a man puts his hands upon a girl's body or kisses a

woman against her will . . .) w[ould] also suffice for battery"

in the absence of a valid justification or excuse. 2 Wayne R.

LaFave & Austin W. Scott, Jr., Substantive Criminal Law §

7.15(a), at 301-02 (1986). As Blackstone observed in his

Commentaries:

The lea[s]t touching of another's per[s]on
wilfully, or in anger, is a battery; for the
law cannot draw the line between different
degrees of violence, and therefore totally
prohibits the fir[s]t and lowe[s]t [s]tage
of it: every man's per[s]on being [s]acred,
and no other having a right to meddle with
it, in any the [s]lighte[s]t manner.

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3 Blackstone, Commentaries on the Laws of England 120 (Univ. of

Chicago Press ed. 1979) (1768) (alterations from old English).

Consistent with these principles, the common law

provided that an assault committed by way of a battery did not

require an intent to cause or to threaten an injury as long as

the defendant touched another in a deliberately offensive manner

without a valid reason to do so. See 2 LaFave & Scott, supra,

§ 7.16(a), at 37 n.13.1 (Supp. 1999). In Gates v. State, for

example, a Georgia court affirmed a conviction for "assault and

battery" based on evidence that the defendant "twice

deliberately 'touched,' 'tapped' or 'hit' [someone] on the

buttocks" without her consent. 138 S.E.2d 473, 474 (Ga. Ct.

App. 1964). Similarly, in Wood v. Commonwealth, the Virginia

Supreme Court affirmed a conviction for "assault and battery"

based on evidence that the defendant groped a minor in a

nonviolent but sexually offensive manner. 140 S.E. 114, 115-16

(Va. 1927). Likewise, in Guarro v. United States, the D.C.

Circuit observed that "[u]nless there is consent, it would seem

that a [nonconsensual] sexual touching is a sufficiently

offensive act to constitute an assault" under District of

Columbia law. 237 F.2d 578, 580-81 (D.C. Cir. 1956).

These cases do not control our decision, but they

provide useful guidance as to what constitutes an assault at

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common law. Collectively, the decisions support the conclusion

that, in a prosecution for simple assault under § 113(a)(5), it

is sufficient to show that the defendant deliberately touched

another in a patently offensive manner without justification or

excuse. Cf. United States v. Frizzi, 491 F.2d 1231, 1232 (1st

Cir. 1974) (concluding that spitting would support a conviction

for assaulting or otherwise impeding a federal officer in

violation of 18 U.S.C. § 111 because "[a]lthough minor, it is .

. . a bodily contact intentionally highly offensive"). We agree

with the views of some of our sister circuits in this regard.

See, e.g., Williams, 197 F.3d at 1096 (concluding that §

113(a)(5) does not require an intent to cause physical harm and

therefore covers the act of touching a minor in a nonviolent but

sexual manner); Martin, 536 F.2d at 536 (indicating that neither

"assault by striking, beating[,] or wounding" nor "simple

assault" requires an intent to do bodily harm); cf. United

States v. Masel, 563 F.2d 322, 324 (7th Cir. 1977) (affirming a

conviction for assaulting a member of Congress in violation of

18 U.S.C. § 351, based on evidence that the defendant "willfully

caused, by spitting, an offensive touching").

Against this background, it appears that the district

court's instructions to the jury overstated the government's

burden, to the defendant's benefit, by demanding proof of a

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higher level of intent than § 113(a)(5) actually requires. With

the correct standard in mind, we turn to the evidence in the

record. Although Bayes maintained that he had touched Smoak to

get her attention and that any contact with her buttocks was

accidental, there was an abundance of competing testimony that

he had "rubbed [her] buttocks and grabbed at the bottom of [her]

buttocks" and "squeez[ed]." Smoak testified that she felt

"angry," "surprised," and "frightened" when Bayes touched her.

In the face of this testimony, the jury was entitled to conclude

that Bayes had groped Smoak in a way that could not have been

accidental, that must have been deliberate, and that was

patently offensive. On these facts, the evidence amply

supported a conviction for simple assault under 18 U.S.C. §

113(a)(5). There was no plain error.

III.

Bayes also challenges the length of his prison

sentence. Because simple assault is punishable by a maximum of

six months in prison, either with or without a fine, see 18

U.S.C. § 113(a)(5), it constitutes a Class B misdemeanor that is

exempt from the United States Sentencing Guidelines ("the

Guidelines"), see U.S.S.G. § 1B1.9 & application note 1. We

will uphold a sentence for a non-Guidelines offense unless the

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sentence was "imposed in violation of law" or was "plainly

unreasonable." 18 U.S.C. §§ 3742(e)(1) & (4).

The district court sentenced Bayes to six months in

prison with a $10 special assessment and a $5000 fine. Bayes

concedes that this sentence was within the range that §

113(a)(5) permits, but argues that it was plainly unreasonable

to give him the maximum allowable term of imprisonment. In

support of this claim, Bayes contends that the district court

based its sentence entirely on conduct for which the jury either

acquitted him or failed to reach a verdict, when the court

instead should have focused on the assault for which he was

convicted.

Both the facts and the law belie Bayes's argument.

Although the district court considered "hung-jury conduct" in

order to determine Bayes's sentence, it also considered

"relevant conduct" that pertained directly to his offense of

conviction. Thus, contrary to what Bayes contends, the court

did not focus "only" on conduct for which he was never

convicted. In any event, the court's consideration of hung-jury

conduct was permissible as a matter of law. See 18 U.S.C. §

3661 (providing that "[n]o limitation shall be placed" on a

trial court's ability to consider the defendant's "background,

character, and conduct" in order to arrive at an appropriate

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sentence); see also United States v. Lombard, 102 F.3d 1, 5 (1st

Cir. 1996) (observing that even acquitted conduct may be taken

into account); cf. United States v. Watts, 519 U.S. 148, 153-54

(per curiam) (concluding that even under the Guidelines, courts

can consider "all other related conduct, whether or not it

resulted in a conviction").

In the final analysis, the district court understood

that its goal was to determine "what is an appropriate sentence

for the crime that the defendant was found guilty of." After

surveying the facts surrounding Bayes's case, the court

concluded that the defendant's unwillingness to accept

responsibility for assaulting Smoak, the impact of his conduct

on the "specific victim of the assault charge," and the risk

that his conduct posed on an airplane in mid-flight warranted

the imposition of the maximum allowable prison term. These

considerations properly reflected the interests of punishment,

deterrence, and public safety that a court ought to weigh at

sentencing. See 18 U.S.C. § 3553(a)(2)(A), (B), & (C). Against

this background, the district court's sentence was appropriate.

IV.

Conclusion

For the foregoing reasons, we affirm the defendant's

conviction and sentence.

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Affirmed.

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