United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, STATES DISTRICT JUDGE
the Court is Margaret Mitchell's ("Appellant")
appeal pursuant to 18 U.S.C. § 3402 from her conviction
of simple assault in violation of 18 U.S.C. § 113(a)(5).
Appellant raises five issues on appeal: (1) whether spitting
constitutes simple assault as codified under §
113(a)(5); (2) whether part of Appellant's testimony was
improperly excluded because it was not hearsay; (3) whether
part of the Government's evidence was improperly admitted
because it was hearsay; (4) whether there was insufficient
evidence to convict her; and (5) whether her sentence was
procedurally unreasonable. ECF No. 19 at 1. For the reasons
set forth below, Appellant's conviction is
FACTUAL AND PROCEDURAL HISTORY
following facts were presented at trial. On October 6, 2017,
Appellant was working at the Langley Air Force Base
commissary when her ex-husband, Emmanuelle Mitchell
("Emmanuelle") came around 6:30 p.m. to drop off
their son, J.M. ECF No. 19 at 3, 4. Emmanuelle has full
physical custody of J.M., while Appellant had visitation
privileges every other weekend, and they are in a custody
dispute over J.M. Id. On that day, Emmanuelle and
Appellant were communicating via text message, and there was
confusion over when J.M. should be dropped off. Id.
at 3, 4. Emmanuelle asked Appellant when she was getting off
work, and she replied only with "You can leave."
Id. at 3. When Emmanuelle was leaving, he gave J.M.
a hug. Id. At this time, Appellant grabbed J.M. and
spit on Emmanuelle. Id.
then went to one of the managers of the commissary, Regina
Moody ("Moody"), and told her that Appellant had
spit on him, and showed her his wet shirt. Id. at
3-4. Moody also saw what appeared to be spit on the floor.
Id. at 4. However, Moody herself did not see the
confrontation between Appellant and Emmanuelle. Id.
December 29, 2017, the Government charged Appellant under
Criminal Information with simple assault in violation of 18
U.S.C. § 113(a)(5). ECF No. 5. A trial was held before
Magistrate Judge Douglas Miller on May 16, 2018. ECF No. 10.
At trial, the Government produced Emmanuelle and Moody as
witnesses. ECF No. 19 at 3. In her defense, Appellant
testified that it was actually Emmanuelle who spit on her,
and that she had filed a complaint against him. Id.
at 4. Magistrate Judge Miller found Appellant guilty and
sentenced her to eight months of probation, anger management,
and a $125 fine. ECF No. 10. Appellant filed her appeal the
same day. ECF No. 16. Appellant filed her brief on July 27,
2018, ECF No. 19, and the Government filed its reply on
August 27, 2018. ECF No. 20.
may appeal any conviction by a United States Magistrate Judge
to a United States District Judge. 18 U.S.C. § 3402;
Fed. R. Crim. P. 58(g)(2)(B). Such an appeal is not a new
trial, nor is it automatically reviewed de novo.
Fed. R. Crim. P. 58(g)(2)(D). Instead, "[t]he scope of
the appeal is the same as in an appeal to the court of
appeals from a judgment entered by a district judge."
Id. Findings of fact are reviewed for clear error.
United States v. Vankestern, 553 F.3d 286, 288 (4th
Cir. 2009) (quoting United States v. Bursey, 416
F.3d 301, 306 (4th Cir. 2005)). A finding is clearly
erroneous "'when although there is evidence to
support it the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.'" In re Bate Land & Timber
L.L.C., 877 F.3d 188, 198 (4th Cir. 2017) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573
of law are reviewed de novo. Vankestern, 553 F.3d at
288 (quoting United States v. Bursey, 416 F.3d 301,
306 (4th Cir. 2005)). However, when a defendant does not
contest the admission of evidence at trial, that issue is
reviewed for plain error. Fed. R. Crim. P. 52(b); United
States v. Benton, 523 F.3d 424, 429 (4th Cir. 2008)
(citing United States v. Olano, 507 U.S. 725, 731-32
(1993)). The plain error standard requires the individual to
show: "'(1) that the defect below was, in fact,
error; (2) that the error was "plain;" and (3) that
the error affected [his or her] "substantial
rights."'" Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). Moreover,
the Court "should not exercise its discretionary
authority to 'correct the forfeited error... unless [it]
seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.'" Id.
(alterations in original) (quoting United States v.
Olano, 507 U.S. 725, 732(1993)).
these appeals, "the sufficiency of evidence [is
reviewed] on appeal by viewing it and all [reasonable]
inferences 'in the light most favorable to the
Government.'" Vankestern, 553 F.3d at 288
(quoting United States v. Bursey, 416 F.3d 301, 306
(4th Cir. 2005)).
Spitting as Simple Assault under 18 U.S.C. §
first argues that spitting is not simple assault under §
113(a)(5). It is undisputed that "federal statutes
criminalizing 'assault' incorporate the
long-established common law definition of that
term.'" United States v. Passaro, 577 F.3d
207, 217-18 (4th Cir. 2009) (citing United States v.
Chestaro, 197 F.3d 600, 604-05 (2d Cir. 1999)). At
common law, assault is "either attempted battery or the
'deliberate infliction upon another of a reasonable fear
of physical injury.'" United States v.
Hampton, 628 F.3d 654, 660 (4th Cir. 2010) (quoting
United States v. Delis, 558 F.3d 177, 180-81 (2d
Cir. 2009)). The common law definition of battery includes
"'even the slightest offensive touching.'"
United States v. Castleman, 572 U.S. 157, 163 (2014)
(quoting Johnson v. United States, 559 U.S. 133, 139
(2010)). A completed assault has merged into the definition
of a battery. Hampton, 628 F.3d at 660 (quoting
United States v. Delis, 558 F.3d 177, 180-81 (2d.
Appellant was convicted of spitting on Emmanuelle. While the
parties argue over whether Appellant's saliva injured
Emmanuelle or not, the Court relies on the other vein of
assault's definition. There is ample case law suggesting
that spitting on someone is an "offensive
touching." United States v. Carthorne, 878 F.3d
458, 467-68 (4th Cir. 2017) (noting that spitting can
constitute assault and battery under Virginia law and citing
to Virginia Supreme Court cases holding such); United
States v. Llewellyn,481 F.3d 695, 699 (9th Cir. 2007)).
Given that battery includes a ...