     Case: 10-51150     Document: 00511662887         Page: 1     Date Filed: 11/10/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        November 10, 2011

                                       No. 10-51150                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

REYNOLDO GONZALES
a/k/a Reynaldo Gonzales
                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 5:10-CR-119-1


Before JONES, Chief Judge and DAVIS and DeMOSS, Circuit Judges.
PER CURIAM:*
        Defendant Reynoldo Gonzales appeals his conviction for “assault by
striking, beating, or wounding” in violation of 18 U.S.C. § 113(a)(4). He was
convicted in a bench trial by a Magistrate Judge, all of whose findings were
upheld by the District Judge who affirmed the defendant’s conviction. Gonzales
was sentenced to three (3) months in federal prison and ordered to pay a fine.
He timely appealed. We affirm.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 10-51150


                                    FACTS
      The district court set forth the relevant facts in its order affirming the
conviction:
            Reynaldo Gonzales, hereinafter Appellant, was married to the
      Complainant, Jessica Gonzales. They had two children together:
      Megan Gonzales (Age 10) and Rey Lewis Gonzales (Age 7). The
      parties separated in 2004. The Atascosa County District Court
      rendered a child support order and visitation order on April 19,
      2005. The parties briefly reconciled, but separated again in April,
      2009.
             On July 4, 2009, Complainant arrived at Appellant’s home to
      visit her children, who at that time resided with Appellant. The
      child support order at issue is a standard possession order
      indicating that Appellant was entitled to exclusive possession of the
      children on the first, third and fifth weekends of every month, from
      Friday at 6:00 p.m/ until Sunday at 6:00 p.m. During periods of
      summer vacation from school, Appellant was also entitled to
      exclusive possession of the children, from 6:00 p.m. on July 1, 2009
      until 6:00 P.m. on July 31, 2009. When Complainant arrived at
      Appellant’s home, the parties’ son entered her car and Complainant
      drove off.
            On July 4, 2009, Appellant drove to the home of
      Complainant’s brother on Fort Sam Houston Military Post to
      retrieve his son. When Complainant and the son arrive at Fort Sam
      Houston where Appellant was waiting, Appellant approached his
      son, grabbed his hand, and began leading him in the direction of the
      vehicle. Complainant attempted to stop Appellant by pushing him
      on the shoulder. Appellant responded by pushing Complainant
      against the vehicle located behind her. This impact left a dent in
      the rear panel of the vehicle. No further physical contact occurred
      between Appellant and Complainant. Appellant attempted to walk
      away.
            Complainant’s brother, Isaac Frias, approached Appellant and
      physically restrained him. Complainant continued to try to
      separate Appellant from the parties’ son. Appellant and Mr. Frias
      physically fought for a period of time until military personnel


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                                   No. 10-51150

      separated them. Appellant sustained injuries requiring medical
      treatment as a result of the physical altercation.


                           STANDARD OF REVIEW
      Gonzales argues that the evidence was insufficient to support his
conviction, for three reasons: (1) shoving his ex-wife into her car does not
constitute “striking” her, as required by the statute; (2) his assault was justified
by self defense, as his ex-wife initiated the altercation by pushing him first; and
/ or (3) his assault was justified by necessity, specifically his need to use force to
prevent his ex-wife from taking their child from him when he had lawful custody
of the child at the time. As part of his third argument, Defendant also asserts
the Magistrate Judge erred by refusing to admit the couple’s custody order
showing Defendant had (sole) visitation rights to the child the weekend of the
crime.
      Defendant moved for a judgment of acquittal at the close of the
Government’s case, and at the close of the evidence, asserting all of the grounds
raised here. Accordingly, he preserved all of these issues for review. See United
States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). We will reverse the
conviction only if a reasonable trier of fact could not conclude from the evidence
that the elements of the offense were established beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The evidence, both direct and
circumstantial, is viewed in the light most favorable to the verdict. See United
States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).
                                    ANALYSIS
I. There was sufficient evidence to support the elements of the charged
crime, 18 U.S.C. § 113(a)(4)




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       Defendant was charged under 18 U.S.C. § 113(a)(4) with “assault by
striking, beating, or wounding.”1 The district court concluded Defendant’s
assault–where he shoved his wife into the front of her car forcefully enough to
dent the car and bruise her–was not a beating or a wounding, but that it did
constitute “striking.”         The district court relied on the Merriam Webster
definitions of “to strike” as either “to aim and usually deliver a blow, strike, or
thrust” or “to come in contact forcefully [with],” and “to thrust” as “to push or
drive with force.”2 It concluded that Defendant aimed and delivered a forcible
thrust to his ex-wife, which satisfied the statute’s “striking” requirement.
       Defendant disagrees. He contended at trial and continues to assert here
that a push is not a strike. He argues his conduct is encompassed not by 18
U.S.C. § 113(a)(4)–the sole provision under which he was charged–but by 18
U.S.C. § 113(a)(5), which criminalizes “simple assault.” He cites United States
v. Delis,3 a Second Circuit case, in support of his position. There, the court
upheld a conviction for simple assault under 18 U.S.C. § 113(a)(5)4 when the
defendant pushed an airline attendant’s “hand.” In affirming the conviction for


       1
          18 U.S.C. § 113. Assaults within maritime and territorial jurisdiction
(a) Whoever, within the special maritime and territorial jurisdiction of the United States, is
guilty of an assault shall be punished as follows:
        ...
        (4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment
        for not more than six months, or both.
       2
           Merriam-Webster’s Collegiate Dictionary (11th ed. 2010).
       3
           558 F.3d 177 (2nd Cir. 2009).
       4
          18 U.S.C. § 113. Assaults within maritime and territorial jurisdiction
(a) Whoever, within the special maritime and territorial jurisdiction of the United States, is
guilty of an assault shall be punished as follows:
        ...
        (5) Simple assault, by a fine under this title or imprisonment for not more than six
        months, or both, or if the victim of the assault is an individual who has not attained the
        age of 16 years, by fine under this title or imprisonment for not more than 1 year, or
        both.

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simple assault, the court in dicta compared 18 U.S.C. § 113(a)(5) and §113(a)(4).
It concluded that § 113(a)(4) “does not reach a wide variety of conduct
traditionally encompassed within the definition of common-law battery, such as
. . . shoving.”5
       Defendant raised Delis to the district court, which considered and rejected
it.6 We conclude that it was rational for the district court to find that pushing
or thrusting a victim into an automobile with sufficient force to dent the vehicle
and bruise the victim constitutes “striking.” This conclusion comports with the
plain meaning of the statute and the dictionary definition of the word “strike.”
Defendant’s argument to the contrary is without merit.
II. Self-Defense and Necessity
       We conclude that the district court correctly rejected Gonzales’ defenses
of Self-Defense and Necessity.
       In summary, the evidence fully supports the district court’s conclusion that
the force exerted by Gonzales was not “remotely equal” to the force applied by
his ex-wife. Although she pushed the defendant on the shoulder, this single
push did not justify the disproportionate force he used in response.
       The district court also correctly rejected Defendant’s necessity defense,
which he argued applied because he was protecting his fundamental right to the
possession of his child. However, as the district court held, Gonzales had a
reasonable, legal alternative to violating the law–recourse to the courts, which
are fully able to enforce a child custody order. The defendant’s conduct therefore
was not justified by the defense of necessity.




       5
           Id., at 181-82.
       6
           United States v. Gonzales, 2010 WL 4736316, at *3 (W.D. Tex. 2010).

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                                No. 10-51150

                              CONCLUSION
     For the reasons given above, and the reasons assigned in the district
court’s thorough order of November 16, 2010, we affirm the conviction.
     AFFIRMED




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