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CRM 1500-1999

1610. Assault -- 18 U.S.C. 351(e)

The assault provision of 18 U.S.C. § 351(e) divides assault into two categories: those that result in personal injury, which are punishable by 10 years of imprisonment and a fine; and all others, which are punishable by one year of imprisonment and a fine. The applicable fine is determined by the provisions of 18 U.S.C. § 3571. The legislative history of the section shows that the lower penalty was intended for situations in which a person strikes with his or her fist at a Member of Congress without landing the blow, or strikes only with an open hand and causes no lasting injury.

Absent a statutory definition of assault, the courts have looked to the common law and have concluded that an "assault" is:

An attempt with force or violence to do a corporal injury to another; may consist of any act tending to such corporal injury, accompanied with such circumstances as denotes at the time an intention, coupled with present ability, of using actual violence against the person.

Guarro v. United States, 237 F.2d 578, 580 (D.C. Cir. 1956). But, of course, an assault can also be committed "merely by putting another in apprehension of harm whether or not the actor actually intends to inflict, or is capable of inflicting that harm." Ladner v. United States, 358 U.S. 169, 177 (1958). Proof of this form of assault requires establishment of a reasonable apprehension of the immediate application of force to the victim. Note also that a condition in an offer of violence may negate the element of apprehension. For an excellent discussion of this concept, see Watts v. United States, 402 F.2d 676 (D.C. Cir. 1968), rev'd on other grounds, 394 U.S. 705 (1969). While the conviction of assaulting a Congressman requires proof that the defendant willfully caused an offensive touching, it is not necessary to prove a more severe injury. See also United States v. Masel, 563 F.2d 322 (7th Cir. 1977), cert. denied, 445 U.S. 927 (1978) (spitting into the face). Throwing eggs at a Congressman running for President was an assault under the statute and did not constitute protected symbolic political speech. See United States v. Guerrero, 667 F.2d 862 (10th Cir. 1981), cert. denied, 456 U.S. 964 (1982).

As the statute does not provide for aggravated assaults, involving use of deadly or dangerous weapons without inflicting personal injury, application of the attempted homicide provision should be considered in those cases where the penalty for simple assault appears unsuitable.

[cited in JM 9-65.700]