                                                                               FILED
                             NOT FOR PUBLICATION                                JAN 04 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 10-10124

               Plaintiff - Appellee,               D.C. No. 4:09-cr-00918-CKJ-
                                                   BPV-1
  v.

ROBERT LEROY STODDARD, Jr.,                        MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted December 9, 2010
                             San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.


       Robert Leroy Stoddard, Jr. (“Stoddard”) appeals his conviction for felony

assault on a federal officer involving physical contact under 18 U.S.C. § 111(a)(1),

arguing that the conduct at issue, intentionally spitting on a federal corrections officer

engaged in his official duties, amounts only to a simple assault punishable by a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
maximum of one year’s imprisonment, rather than a felony punishable by a maximum

of eight years’ imprisonment, because: (1) the government failed to prove actual

physical contact between Stoddard and the officer; and (2) spitting is a mere simple

assault offense under Ninth Circuit precedent. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

A.    Statutory Text

      The current version of § 111, under which Stoddard was convicted, creates

three separate offenses: (1) misdemeanor simple assault and (2) felony assault

involving physical contact or intent to commit another felony, both included under §

111(a); and (3) felony assault involving a deadly or dangerous weapon or bodily

injury, included under § 111(b). 18 U.S.C. § 111; accord United States v. Rivera-

Alonzo, 584 F.3d 829, 833 & n.2 (9th Cir. 2009). Congress’s original goal in enacting

§ 111 “was to give ‘maximum protection to federal officers[,]’” United States v.

Sommerstedt, 752 F.2d 1494, 1497 (9th Cir. 1985) (emphasis added) (quoting United

States v. Feola, 420 U.S. 671, 684 (1975)), from “the wrongful use of any force

directed against them[,]” id.

      Section 111(a) was amended as part of the Court Security Improvement Act of

2007, Pub. L. No. 110-177, § 208(b), 121 Stat. 2534, 2538 (2008).           Prior to

amendment, § 111(a) included the current misdemeanor simple assault offense and a


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felony offense subject to a maximum of eight years’ imprisonment in “all other cases”

not constituting simple assault or assault with a weapon or bodily injury under §

111(b). 18 U.S.C. § 111 (effective through Jan. 6, 2008).

      However, as amended, § 111(a)(1) clearly dictates “that the line between

misdemeanors and felonies is drawn at physical contact or acting with the intent to

commit another crime[.]” United States v. Williams, 602 F.3d 313, 317 (5th Cir.

2010); see also 8 U.S.C. § 111(a)(1); United States v. Chapman, 528 F.3d 1215, 1219

(9th Cir. 2008). Thus, while the amended statute does not define simple assault, it

clarifies that for the purposes of § 111, an “assault, coupled with the presence of

physical contact . . . is not simple[,]” and “[u]nder § 111(a), as amended, assaults are

treated as felonies” as long as they involve physical contact or intent to commit

another felony. Chapman, 528 F.3d at 1219 (internal citations omitted) (emphasis

added). As such, any forcible assault against a federal officer involving physical

contact, committed without the use of a dangerous weapon and not resulting in bodily

injury, is a felony assault under § 111(a). Rivera-Alonzo, 584 F.3d at 833 & n.2.

B.    Physical Contact

      Stoddard nonetheless argues that spitting does not rise to the level of a felony

assault involving physical contact because it does not involve body-to-body touching.

However, the plain statutory text does not require such contact; it merely requires


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“physical contact.” 18 U.S.C. § 111(a). Cf. United States v. Ramirez, 233 F.3d 318,

322 (5th Cir. 2000) (interpreting former § 111(a) “all other cases” assault provision

to mean that “[a]ny physical contact [ ] by which a person ‘forcibly assaults . . .’ a

federal officer in the performance of his duties but which does not involve a deadly

weapon or bodily injury, falls into the” felony provision of subsection (a) (partial

emphasis added)).

      Further, as Stoddard concedes, spitting constitutes an offensive touching

amounting to a common law battery where the spit makes contact with the victim. See

United States v. Lewellyn, 481 F.3d 695, 699 (9th Cir. 2007) (“[I]ntentionally spitting

in another person’s face easily falls within the scope of an offensive touching.”);

United States v. Masel, 563 F.2d 322, 323-24 (7th Cir. 1977) (finding spitting an

offensive touching because “[i]t is ancient doctrine that intentional spitting upon

another person is battery.”); United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir.

1974) (spitting is “a bodily contact intentionally highly offensive,” and therefore

qualified as a “forcible assault, or more exactly, a battery” amounting to a felony

offense under former version of § 111). Stoddard points to no authority, and the court

finds none, distinguishing between “physical contact” and “offensive touching.”

      Additionally, other circuits, interpreting the pre-amendment “in all other cases”

assault provision consistently with § 111(a)’s post-amendment language, have


                                          4
determined that throwing bodily fluids or excrement onto a federal officer constitutes

felony assault involving physical contact, rather than simple assault involving no

bodily contact or touching, under an identical theory of assault as an attempted or

completed battery. See United States v. Martinez, 486 F.3d 1239, 1245-46 (11th Cir.

2007) (spraying urine on federal corrections officer involved actual physical contact

not resulting in bodily injury and not involving a deadly weapon, and therefore fell

under § 111(a)’s felony assault provision, rather than its simple assault provision);

Ramirez, 233 F.3d at 321-22 (“By hurling [a] urine-feces mixture onto Officer Griffin,

Ramirez committed an assault which involved physical contact, but not a deadly

weapon or bodily harm.” (emphasis added)). Indeed, the Fifth Circuit noted that

throwing human waste onto a corrections officer was “the very sort of physical but

non-injurious assault contemplated by the ‘all other cases’ provision” of the pre-

amendment § 111, which it construed to require physical contact like the current §

111(a). Ramirez, 233 F.3d at 322.

      Spitting, like throwing urine or other bodily fluids, involves the type of non-

injurious physical contact contemplated by § 111(a)’s felony provision. As such,

Stoddard’s spitting conduct amounted to a completed battery, which amply supported

his conviction for an assault involving physical contact under this court’s adoption of

the common law theory of assault as an attempted battery. Cf. Lewellyn, 481 F.3d at


                                          5
697-98 (Since “an assault is attempted battery . . . proof of a battery will support

conviction of an assault” (internal quotations omitted)).

C.    Spitting Is Not Confined to Simple Assault

      Despite having conceded that spitting amounts to an offensive touching,

Stoddard argues that this court’s decision in Lewellyn definitively categorized spitting

as a misdemeanor simple assault, rather than a felony assault.

      In Lewellyn, we found that the defendant’s actions in intentionally spitting on

a patient at a VA hospital amounted to a simple assault under 18 U.S.C. § 113(a)(5),

a statute similar and related to § 111. 481 F.3d at 696-99. However, we did not hold

that spitting may only be classified as a simple battery. Lewellyn was only charged

with simple battery, id. at 696, and § 113 did not contain any intermediate felony

assault offense between simple assault and assault involving a deadly or dangerous

weapon. As such, it does not appear that Lewellyn could have been charged under

any of the statute’s other assault offenses sections. See 18 U.S.C. § 113(a)(5). Thus,

Lewellyn’s holding was narrow and does not constrain our analysis here: the court

merely determined that spitting was sufficient to sustain a conviction for simple

assault under a theory of assault as an attempted battery. 481 F.3d at 698-99.

      It is undisputed that Stoddard intended to and did spit at a federal officer

engaged in his official duties, and that the spit actually hit the officer in the face.


                                           6
Accordingly, Stoddard committed a forcible assault resulting in actual physical

contact, see 18 U.S.C. § 111(a)(1), and the uncontested evidence sufficed to sustain

the conviction, see Lewellyn, 481 F.3d at 698-99.

      AFFIRMED.




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