     Case: 13-50603      Document: 00512655437         Page: 1    Date Filed: 06/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 13-50603                                   FILED
                                  Summary Calendar                              June 6, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CHARLES H. BRANCH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CR-199-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Charles H. Branch, following a bench trial before a magistrate judge, was
convicted, under 18 U.S.C. § 113(a)(4), of assaulting James Haushalter on
Lackland Air Force Base. The magistrate judge sentenced Branch to two years
of supervised probation. Branch appealed the conviction and sentence to the
district court. The district court affirmed the judgment of the magistrate
judge. On appeal, Branch argues that the evidence presented at trial was


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-50603    Document: 00512655437      Page: 2   Date Filed: 06/06/2014


                                 No. 13-50603

insufficient to support his conviction. In cases tried before a magistrate judge
and affirmed on appeal by the district court, this court “will affirm the
magistrate’s findings if they are supported by substantial evidence.” United
States v. Lee, 217 F.3d 284, 288 (5th Cir. 2000).
      “In order to convict a defendant of the crime of assault by striking,
beating, or wounding pursuant to 18 U.S.C. § 113(a)(4), the government must
prove that the defendant made physical contact with the victim.” United States
v. Estrada-Fernandez, 150 F.3d 491, 494 (5th Cir. 1998). Branch did not assert
in the district court and does not now assert that the evidence was insufficient
to show that he struck Haushalter.         Branch argues that his conduct was
justified under the doctrines of self-defense and necessity. Self-defense and
necessity are forms of the affirmative defense of justification. United States v.
Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The defendant bears the
burden of production in asserting affirmative defenses.        United States v.
Branch, 91 F.3d 699, 714 n.1 (5th Cir. 1996). If the defendant meets his burden
of production, the Government must negate the defense beyond a reasonable
doubt. Id.
      Branch’s affirmative defense arguments were rejected because Branch
acted as the aggressor in the confrontation, Haushalter did not escalate the
encounter nor did he introduce deadly force, and Branch did not withdraw from
the confrontation at any point. Branch has not shown that these findings were
not supported by substantial evidence. The evidence is sufficient to support
his conviction. The judgment of the district court is AFFIRMED.




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