                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2786
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
            v.                           * District Court for the District of
                                         * Minnesota.
Randall Gene Whitefeather,               *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: December 14, 2001

                                   Filed: January 7, 2002
                                    ___________

Before MURPHY and HEANEY, Circuit Judges, and PIERSOL,1 District Judge.
                          ___________

MURPHY, Circuit Judge.

      Randall Gene Whitefeather was found guilty of simple assault on the Red Lake
Reservation in violation of 18 U.S.C. § 113(a)(5) (2000). On his appeal,
Whitefeather contends that the district court2 improperly instructed the jury on the


      1
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota, sitting by designation.
      2
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
definition of simple assault and that he was denied effective assistance of counsel.
We affirm.

       A group of children and adults gathered one evening at a campfire by a wooded
trail on the reservation to consume marijuana and alcoholic beverages, and fourteen
year old M.R. joined in the party and subsequently passed out beside the fire. When
Whitefeather arrived at the campfire after considerable drinking, he asked who the
girl was lying by the fire. He was told it was M.R., whereupon he walked over and
urinated on her face. M.R. testified at trial that she was not conscious during the
incident. One witness told Whitefeather to stop, but he just laughed. Whitefeather
was later charged with simple assault and convicted after a jury trial. The district
court sentenced him to 10 months based on an offense level of 6 and a criminal
history category of IV. He now seeks a new trial.

      Whitefeather contends that the district court erred by instructing the jury that
simple assault is

      [A]ny intentional or knowing harmful or offensive bodily touching or
      contact, however slight, without justification or excuse, with another's
      person, regardless of whether physical harm is intended or inflicted. It
      is not necessary that the victim have a reasonable apprehension of bodily
      harm.

He charges that this instruction defines simple battery rather than simple assault.

       A challenged jury instruction is reviewed for abuse of discretion. United States
v. Parker, 32 F.3d 395, 400 (8th Cir. 1994), and a conviction will be affirmed "if the
instructions, taken as a whole, fairly and adequately convey the law applicable to the
case." United States v. McDougal, 137 F.3d 547, 558 (8th Cir. 1998). Trial courts are
given considerable discretion in choosing the form and language of jury instructions,
United States v. Jerde, 841 F.2d 818, 820 (8th Cir. 1988), and a defendant is not

                                         -2-
entitled to a particularly worded instruction so long as the necessary subject matter
is covered adequately. United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987).

      Section 113 sets out penalties for a wide range of offenses described as assault,
from the very serious (assault with intent to commit murder, § 113(a)(1)) to simple
assault in § 113(a)(5). See 18 U.S.C. § 113(a)(1)-(7) (2000). The subsection for
simple assault is the only one which states the name of the offense without further
description. Subsection (a)(4) applies to assault "by striking, beating, or wounding,"
conduct similar to a battery at common law. The term "assault" in § 113 is considered
to be more inclusive than under the common law and encompasses elements that
would have fallen under traditional definitions of battery as well as assault. See
United States v. Dupree, 544 F.2d 1050, 1052 (9th Cir. 1976); United States v.
Anderson, 425 F.2d 330, 333 (7th Cir. 1970).

       Although our court has not decided the precise issue raised by Whitefeather,
we suggested in United States v. Ashley, 255 F.3d 907, 911 n.4 (8th Cir. 2001), that
a person could be charged with assault under 18 U.S.C. § 113 even though the facts
would also correspond to a battery. The First Circuit considered the exact subsection
at issue here in a buttocks grabbing case and held that simple assault under
§ 113(a)(5) requires only a showing "that the defendant deliberately touched another
in a patently offensive manner without justification or excuse." United States v.
Bayes, 210 F.3d 64, 69 (1st Cir. 2000). In another offensive touching case, the
Eleventh Circuit concluded that the act of touching a minor in a nonviolent sexual
manner amounted to simple assault under § 113(a)(5). United States v. Williams, 197
F.3d 1091, 1095-96 (11th Cir. 1999). We conclude that Whitefeather's conduct fit
within simple assault under § 113(a)(5) and that the district court did not abuse its
discretion by the way in which it instructed the jury on the offense.

     Whitefeather also claims that he was denied effective assistance because his
counsel failed to call to the stand some individuals on the government witness list

                                         -3-
who did not testify at trial. The government responds that this claim is not ripe for
review but that in any event the other witnesses would only have been cumulative and
that Whitefeather cannot show prejudice under Strickland v. Washington, 466 U.S.
668, 687 (1984). Ineffective assistance of counsel claims should generally be raised
in collateral post conviction proceedings under 28 U.S.C. § 2255. United States v.
Dubray, 727 F.2d 771, 772 (8th Cir. 1984) (per curiam); see also United States v.
Stevens, 149 F.3d 747, 748 (8th Cir.), cert. denied, 525 U.S. 1009 (1998) (exception
where record sufficiently developed by hearing on a motion for new trial). Since
Whitefeather's claim is premature, we decline to reach it.

      For these reasons, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -4-
