                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.

                            Angelo Eugene WILLIAMS, Defendant-Appellant.

                                                No. 98-8986.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                                Dec. 8, 1999.

Appeal from the United States District Court for the Southern District of Georgia.(No. CR498-43), B. Avant
Edenfield, Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS*, Senior District Judge.

        EDMONDSON, Circuit Judge:

        Defendant Angelo Eugene Williams, under 18 U.S.C. § 2244(a)(1), was convicted of abusive sexual

contact in the territorial jurisdiction of the United States. We vacate the conviction and sentence and remand.

                                              BACKGROUND

        This case arises from an incident at the Hunter Army Airfield Youth Center ("Youth Center") in

October 1997. At that time, Defendant was employed as a computer specialist at the Youth Center, a

recreational facility for children living on the base. Defendant's duties included maintaining the Youth Center

computer room and supervising children's use of the computers.

        According to the Government's evidence at trial, Defendant engaged in abusive sexual contact with

K.T., a ten year-old female, in the Youth Center computer room on October 14, 1997. The Government's

evidence established that K.T. arrived at the Youth Center and that she went to the computer room. In the

computer room, K.T., with Defendant's permission, seated herself at Defendant's computer terminal.

        K.T. testified that, while sitting at Defendant's terminal, Defendant touched her leg and chest and

asked her for a kiss. An Army investigator testified that K.T. told him that Defendant touched her chest,



   *
    Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge for the Middle District of Georgia, sitting
by designation.
buttocks, and vaginal area. The Government also introduced a statement in which Defendant admitted that

he rubbed the inside of K.T.'s leg, that he hugged her, that he touched her chest and buttocks, and that he

asked her to kiss him.

        At trial, Defendant testified that K.T. had indeed come to the computer room and that he had

permitted her to use his computer. He testified, however, that after K.T. had used his computer for some time,

he asked her to get up because he needed to use the computer. He stated that, as he instructed K.T. to leave

his terminal, he rolled toward her in a roll-away chair, hitting her leg with his hand. K.T., according to

Defendant, then moved away from the terminal, but later returned and attempted to use Defendant's computer

again. Defendant said that he, at that point, grabbed K.T.'s shoulder and instructed her to leave his computer

alone. Defendant testified that K.T. used another computer for some time and then left the computer room.

Defendant admitted giving an incriminating statement to investigators, but he denied the statement was true,

explaining that he caved in to the investigator's promise that he could "put this thing behind [him]" if he made

a statement.

        Defendant requested at trial that the district court give a lesser included offense jury instruction on

simple assault (18 U.S.C. § 113(a)(5)). The court refused to give the instruction, explaining that "[t]he

evidence does not fit." Defendant was then convicted of violating § 2244.

                                                DISCUSSION

        Defendant asserts five grounds for his appeal.1 We find it necessary to address two of Defendant's

contentions here. First, we address Defendant's claim that the Speedy Trial Act was violated in his case and,

concluding that this claim has merit, vacate the conviction. Second, because the Government may seek to




  1
   Defendant claims that the district court erred by refusing to: (1) dismiss the indictment under the Speedy
Trial Act; (2) charge the jury on assault as a lesser included offense; (3) appoint an expert to testify on
whether Defendant fit the profile of a child molester; (4) admit favorable evidence of a Georgia Department
of Family and Children's Services (DFACS) report regarding Defendant; and (5) allow Defendant to ask
K.T.'s sister whether she would believe K.T. under oath with regard to the crime charged.

                                                       2
retry Defendant for this offense, we also address Defendant's claim that the district court erred in refusing to

give an instruction on assault as a lesser included offense of abusive sexual contact.

1.           THE SPEEDY TRIAL ACT

             Defendant contends that the district court erred by denying his motion to dismiss the indictment

under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.2 In particular, Defendant argues that the district court,

in finding that the seventy-day limitation had not been violated in Defendant's case, improperly excluded from

its Speedy Trial Act calculation twenty days allowed for the filing of pretrial motions. We agree that these

days were improperly excluded.3

             The Speedy Trial Act provides that a defendant must be brought to trial within seventy days of the

filing of his indictment, or his first appearance before a judicial officer, whichever is later. United States v.

Davenport, 935 F.2d 1223, 1227 (11th Cir.1991). Certain periods, however, are excluded from the

seventy-day limit. United States v. Schlei, 122 F.3d 944, 985 (11th Cir.1997). "Any period of delay resulting

from other proceedings concerning the defendant" must be excluded from the seventy-day calculation. 18

U.S.C. § 3161(h)(1).

             In this case, the Magistrate Judge voluntarily ordered that all pretrial motions be filed no later than

twenty days after the Defendant's arraignment.4 The district court excluded this twenty-day period from its

Speedy Trial Act calculations. The Government urges that this exclusion was proper under § 3161(h)(1) and

our decision in United States v. Mejia, 82 F.3d 1032 (11th Cir.1996). We disagree.




         2
     The remedy for violation of the Speedy Trial Act's seventy-day limitation period is dismissal of the
indictment. 18 U.S.C. § 3162(a)(2).
     3
   We review the district court's construction and interpretation of the Speedy Trial Act de novo. We review
the district court's factual determinations on excludable time for clear error. United States v. Schlei, 122 F.3d
944, 984 (11th Cir.1997).
         4
    Defendant took full advantage of the twenty-day deadline, filing several discovery motions on the
twentieth day. This fact, however, has no bearing upon our analysis. See United States v. Mejia, 82 F.3d
1032, 1036 (11th Cir.1996) ("Whether motions are actually filed during the extension is unimportant.").

                                                           3
        In Mejia, we decided that, where a defendant moved for, and the court granted, an extension of time

for filing additional pretrial motions, the district court properly excluded the extension period from Speedy

Trial Act calculations. Id. at 1035-36. We reasoned that such an extension falls within § 3161(h)(1)'s

language about "[a]ny period of delay resulting from other proceedings concerning the defendant." Id. It does

not follow from Mejia, however, that the twenty-day period in the instant case is excludable.5

        Instead, we think that Mejia presented a case different from the present case. In Mejia, the defendant

sought and obtained an extension of time in which to file his motions. Id. at 1035. Implicit in the term

"extension" is the notion that the defendant sought additional time not normally permitted for the filing of

motions. In other words, he sought to delay the forward progression of the proceedings. That an extension

of time in which to file motions will work a delay in bringing the defendant to trial seems likely.

         Here, on the other hand, there was no extension of time; twenty days after arraignment was the

original deadline set by the court for filing pretrial motions. Moreover, twenty days after arraignment is, by

local rule, the ordinary time allowed for the filing of motions in the Southern District of Georgia. See S.D.

Ga. Local Criminal Rule 12.1. Therefore, even if the Magistrate by order had entered no deadline in this case,

the parties would have had twenty days after the arraignment to prepare and to file their pretrial motions. In

our view, such a routine time prescription is no "delay" in bringing the defendant to trial. To qualify as an

excluded period under § 3161(h)(1), the period must constitute a "delay." 18 U.S.C. § 3161(h)(1).

        Moreover, the twenty-day period in this case was hardly extraordinary or specifically-tailored to the

needs of this case. It was not the result of a motion to enlarge the time to file motions. Instead, it was "based

merely upon the entry of a standard scheduling order." See United States v. Hoslett, 998 F.2d 648, 656 (9th

Cir.1993). An exclusion based on a case-specific determination that additional time is needed for the



  5
    The court in Mejia expressly declined to comment on a case more like the instant one, where the district
court sua sponte sets a deadline for the filing of pretrial motions. See Mejia, 82 F.3d at 1036 n. 3 ("[W]e
decide nothing today about whether extensions for the preparation and filing of pretrial motions granted by
the court upon motion of the government or by the court sua sponte result in excludable days under §
3161(h)(1)").

                                                       4
disposition of pretrial motions is one matter; an across-the board exclusion of twenty days in every case

arising in a judicial district is quite another. See id. Therefore, Mejia does not control the outcome of this

case.

        Because our duty is to carry out the intent of Congress, we must look to the language of the statute

itself. As noted previously, § 3161(h)(1) requires a "delay" as a prerequisite to exclusion. On this record,

we see no indication that the judge's setting of a deadline for the filing of motions worked a "delay" within

the meaning of the statute.

        We also look to the structure of the statute as a whole. The Speedy Trial Act makes allowance for

the delay occasioned by the exigencies of particular cases. The automatic exclusions of § 3161(h)(1)(A)-(J)

take account of the delay that may result from an array of particular pretrial circumstances. In addition, §

3161(h)(8)(A) excludes delay resulting from a continuance where the court specifically finds that the interests

of justice furthered by the continuance outweigh the interests of the public and the defendant in a speedy trial.

But, none of the exclusion provisions of the Act specifically address the situation in this case; and, they do

not indicate, in our view, an intention on the part of Congress to allow for broad, across-the-board exclusions

created by a district court's standard scheduling practices or local rule.6 See generally 18 U.S.C. §

3161(h)(8)(C) (providing that no continuance "because of general congestion of the court's calendar" is

excludable).




    6
     If the customary time allowances for the filing of motions resulted in excludable time, each judicial
district, in effect, would be free to amend the Speedy Trial Act by local rule. For example, considering its
local rule, it appears that in the Southern District of Georgia the seventy-day limit always (or almost always)
would be transformed into a ninety-day limit. We are unable to believe that Congress intended that result.


                                                       5
         The twenty days allowed for the filing of pretrial motions were not properly excludable in this case.7

Therefore, more than seventy—at least eighty-one—non-excludable days elapsed between the Defendant's

first appearance and the commencement of his trial. The trial court thus erred in denying Defendant's motion

to dismiss the indictment under the Speedy Trial Act.

2.       LESSER INCLUDED OFFENSE

         Defendant also asserts, on appeal, that the district court erred in declining to instruct the jury on

assault as a lesser included offense of abusive sexual contact. We agree. And, because the Government may

re-indict and retry Defendant for abusive sexual contact, and because the pertinent evidence in a new trial

may be like the evidence in this trial, we address the issue.

         To establish that the district court erred in refusing to give the lesser included offense instruction,

Defendant must satisfy a two-part test. First, he must show that the charged offense encompasses all of the

elements of the lesser offense ( the "elements" test). Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct.

1443, 1450, 103 L.Ed.2d 734 (1989). Second, he must establish that the district court abused its discretion

in failing to give the instruction. An abuse of discretion may occur where the evidence would permit the jury

rationally to acquit the defendant of the greater, charged offense and convict him of the lesser. United States

v. Cornillie, 92 F.3d 1108, 1109 (11th Cir.1996). Applying this two-part test, we believe that the district

court erred in this case when it refused to instruct the jury on assault as a lesser included offense.



     7
     We follow the Sixth and Ninth Circuits. See United States v. Moran, 998 F.2d 1368, 1370-71 (6th
Cir.1993); United States v. Hoslett, 998 F.2d 648, 656 (9th Cir.1993). We recognize that the Seventh Circuit
has said that a sua sponte scheduling order, however routine, setting a deadline for filing motions results in
excludable time. United States v. Montoya, 827 F.2d 143, 153 (7th Cir.1987). The Seventh Circuit's decision
in Montoya is grounded in the premise that "[i]f the defendant believes no time or less time is needed he can
so advise the court and the case may proceed without regard to possible pretrial motions." Id. We disagree,
for we believe that "the burden should not be on the defendant to take affirmative steps to keep the
speedy-trial clock running." Moran, 998 F.2d at 1371. The duty to comply with the Speedy Trial Act lies
with the courts, not with defense counsel.

                 By the way, the Government does not contend, nor does the record suggest, that defense
         counsel in this case should have known, when the twenty-day deadline was announced, that a
         violation of the seventy-day limit would necessarily occur.

                                                       6
        First, abusive sexual contact with a child, under 18 U.S.C. § 2244(a)(1), encompasses all of the

elements of simple assault under 18 U.S.C. § 113(a)(5). The elements of abusive sexual contact with a child

under § 2244(a)(1) are: (1) in the special maritime and territorial jurisdiction of the United States, (2) the

defendant intentionally (3) touched the genitalia, anus, groin, breast, inner thigh, or buttocks (4) of a child

less than twelve years of age (5) "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person." 18 U.S.C. § 2244(a)(1); 18 U.S.C. § 2246(3).

         A person commits assault under § 113 when, (1) in the special maritime and territorial jurisdiction

of the United States, (2) he "assaults" another person. 18 U.S.C. § 113(a). Section 113 does not define

"assault", so we give that term its meaning at common law. United States v. Guilbert, 692 F.2d 1340, 1343

(11th Cir.1982). At common law, an assault was either a battery, an attempted battery, or an act that puts

another in reasonable apprehension of receiving immediate bodily harm. See id. Given the arguments of the

parties in this case, we focus on assault committed by a battery.

         The Government contends that abusive sexual contact with a child does not encompass all of the

elements of common law battery; the Government says that battery requires an intent to do bodily harm. We

disagree. In his Commentaries, Blackstone observed:

        The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the
        line between different degrees of violence, and therefore totally prohibits the first and lowest stage
        of it: every man's person being sacred, and no other having a right to meddle with it, in any the
        slightest manner.

United States v. Stewart, 568 F.2d 501, 505 (6th Cir.1978) (quoting 3 Blackstone, Commentaries on the Law

of England 120 (E. Christian ed., 1822)). Case law is in accord with Blackstone: the intention to do bodily

harm is not a necessary element of battery. State v. Duckett, 306 Md. 503, 510 A.2d 253, 257 (1986). The

slightest willful offensive touching of another constitutes a battery at common law, regardless of whether the

defendant harbors an intent to do physical harm. See Gates v. State, 110 Ga.App. 303, 138 S.E.2d 473, 473-

74 (1964) (affirming battery conviction on evidence that defendant intentionally "tapped" woman on buttocks




                                                       7
in public store); Wood v. Commonwealth, 149 Va. 401, 140 S.E. 114, 116 (1927) (affirming conviction for

assault and battery where defendant fondled fourteen year-old girl).

        Furthermore, the view that common law battery (and, thus, § 113(a)(5) assault) does not contain an

intent to harm element is borne out by § 113 itself. Section 113 identifies seven kinds of assault. See 18

U.S.C. § 113(a). For some of these offenses, the statute specifically sets forth a specific intent requirement.

See 18 U.S.C. § 113(a)(1) (assault with intent to commit murder); 18 U.S.C. § 113(a)(3) (assault with a

dangerous weapon and intent to do bodily harm). The subsections identifying assault by striking, beating or

wounding, assault resulting in serious bodily injury, and simple assault (the subsection at issue in this case),

however, contain no language setting out a specific intent requirement. The courts have recognized this

omission, concluding that no specific intent element exists for assault by striking, beating, or wounding,

United States v. Martin, 536 F.2d 535, 535-36 (2d Cir.1976), and assault resulting in serious bodily injury.

United States v. Juvenile Male, 930 F.2d 727, 728-29 (9th Cir.1991).

         Our view of assault is also consistent with authorities recognizing that sex offenses frequently

encompass simple assault as a lesser included offense. See United States v. Eades, 633 F.2d 1075, 1077 (4th

Cir.1980) ("[T]he great majority of the offenses proscribed by Maryland's sexual offense statutes may be said

to encompass simple assault as a lesser included offense."); see also Sills v. State, 36 Ga.App. 103, 135 S.E.

758, 758 (1926) ("An assault or assault and battery is necessarily involved in every case of rape."). Thus, we

conclude that simple assault under § 113(a)(5) is a lesser included offense of abusive sexual contact under

§ 2244(a)(1).

         Next, we must decide whether an evidentiary basis exists for a rational jury to have found Defendant

guilty of simple assault but not guilty of abusive sexual contact.8 We believe such a basis does exist.

Defendant testified that he hit the victim, K.T., on the leg with his hand. Defendant further testified that he

grabbed K.T.'s shoulders. Defendant testified that K.T. responded to being struck on the leg by stating: "Oh,

   8
    Excerpts from Defendant's testimony at trial are reprinted in the Appendix to this opinion to show more
fully the evidentiary basis for a jury instruction on assault.

                                                       8
Mr. Williams, you didn't have to push me. Mr. Angelo, you didn't have to push me." We conclude that such

testimony, if accepted by a jury, could give a rational factfinder a sufficient basis upon which to find that

Defendant did touch K.T., and that the touching was offensive and not consented to by her, but that the

touching was not of a sexual nature. Thus, the jury could decide that Defendant committed simple assault,

rather than abusive sexual contact. 18 U.S.C. § 113(a)(5); 18 U.S.C. § 2244(a)(1).

                                               CONCLUSION

         Because we conclude that the district court erred in denying Defendant's motion to dismiss the

indictment for violation of the Speedy Trial Act, we VACATE the conviction and sentence and REMAND

to the district court with directions to dismiss the indictment without prejudice.9

         VACATED AND REMANDED.

                                                 APPENDIX

                               SELECTED TESTIMONY OF DEFENDANT

Q:       What happened, if anything ... as far as [K.T.]? Do you remember anything about the 14th?

A:       Yes, she was on, she was on my system playing the games. And Ms. McMillan, the director, had
         come and told me about a roster, because we were planning some trips. She had sent it to Fort
         Stewart, but she didn't type it. I had to type it for her.

                 So, I asked [K.T.] to get up. Now, I don't allow anybody to sit in my chair. It is like one of
                 those big roll away chairs. And as I sit in my chair, I rolled towards [K.T.]. And with the
                 back of my hand, I hit the chair and part of her leg. And the chair flew away, just, you
                 know, because it had, it had rollers on it.

                 Okay. So, I mean, my chair had rollers on it. So, when I rolled over there, I hit her chair.
                 And that chair moved some distance, because they are regularly like homeroom chairs, you
                 know, that they use. Right?

                 So, the chair slid and her reaction, you know how kids are, "Oh, Mr. Williams, you didn't
                 have to push me. Mr. Angelo, you didn't have to push me." I said, "No, I didn't push you.
                 You just need to put meat on your bones." That's all, which I tease all the kids all the time,
                 you know, in various ways, the different ways.



     9
   The preexisting case law of this Circuit was not certain on whether or not the twenty days in this case
would be excludable. The charged offense is a serious one. The delay in going to trial was not great.
Therefore, the indictment should be dismissed without prejudice. See 18 U.S.C. § 3162(a)(2).

                                                      9
                So, I got down at the system and started typing. And I had a phone call.

Q:     Who?

A:     Yes, as a matter of fact, I had a phone call from the director asking me about the roster. So, as I was
       walking away, I saw [K.T.] getting ready to sit back down to finish her game. And that's when I
       turned and said, "No, honey, you can't mess with it now, because I have opened up some of my
       admin stuff, and I don't want you to mess with any of it."

(R2:144-46).

Q:     Okay. When you said you touched her, when you grabbed her, where did you grab her?

A:     On her shoulders.

(R2:146).

Q:     Did you in fact touch [K.T.] in a sexual manner?

A:     No, sir, I didn't.

Q:     Did you touch her on her breast?

A:     No, sir, I didn't.

Q:     Did you touch her on the vaginal area, on the crotch?

A:     No, sir, I didn't.

Q:     Did you touch her on her inner thigh?

A:     No, sir, I didn't.

Q:     Okay. Did you touch her on the buttocks?

A:     No, sir, I didn't.

Q:     Did you have any bent to touch her in a sexual manner?

A:     No, I didn't. No, I didn't.

(R2:153-54).




                                                    10
