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Ff«n. Robert Wsldmsn Fi*; (889) 501-3613 T©:+12024M5H2 Fax: +1202494B142 Page 2 of B ^/2•*t20M S,:Vi 

?! nilv'EMT OF 

':;:-.PGRTATiCrl 

U-S. Department of Transportation 

Federal Aviation Administration .; '. TH 2? A '/ 03 

OFFICE OF HEARINGS 

WASIIINQTON, D.C. 

IN THE MATTER OF- * 

* FAA Docket No. CP 09 EA 0010 

fviARY woorreN * 

REPLY TO COMPLAINANT'S MEMORANDUM OF LAW 

The Court asked counsel to provide memoranda of law on the definition of 

"assault" as used in 49 USC 463i8<a) with specific attention to the element of 

intent. 

Respondent filed a Memorandum on approximately November 23, 2010. On 

December 17, 2010 Complainant filed a iviemorandum, received by Respondent on 

December 20. Herein Respondent replies to Complainant's Memorandum. 

The Complainant's Memorandum addresses tv»^o issues but not the issue 

requested by the Court, The Complainant's Memorandum addresses, one, whether 

the allegation of "assauH:'' includes "battery" as well and, two, whether scienter is a 

required eierr^ntthat must be proven by the complainant, and specifically whether 

the respondent had to know if the person assaulted was a federal officer to make out 

a violation of 14 CFR 91.11. 

Both of these two issues are off the point and not responsive to the Court's 

query. As to the element of battery, the Respondent has never raised this defense 

and accepts that as a matter of federal common law (as well as the common law of 

Maryland and the law of most if not alt states), when one is charged with "assault," 

that includes the allegation of battery as well. That formality of pleading vanished 

long ago. 
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From: Rob*r(W«ldmon F« : (886) SOl-3613 To:+120249351.<2 Fix ; +1202<183S1'12 Pago 3 of 8 W-i/JO n 5:i» 

As to the issue of scienter, the Respondent has not raised this issue either. 

The Complainant's Memo addresses the issue whether a passenger could be found 

to have violated §91.11 when the passenger claimed not to have known the 

recipient of the assault was a crewmenriber. Respondent has never raised this 

defense, either in extensive correspondence with the agency nor with the Court in the 

pretrial conference. Furthermore, the Complainant cites to regulatory law as found 

by the Administrator of the agency when here the charge is federal statutory law. 49 

USC §46318(3). Complainant stands on the foundation as stated in her initial 

Memorandum. 

In her Memorandum she answered the query. What is the intent required to 

find a violation of §46318{a) allegingan assault? The answer is that a wilful 

attempt to inflict injury is required.^ Mere accidental touching^ is nota "willful 

attempt to inflict injury," Nor is careless behavior. Nor is willfully reckless conduct. 

There mustbe a wi'tful intent. And that Intent must include the intent to inflict injury. 

Respectfully submitted, 

Roberta Waidman. Esq. 

113 Ridgely Ave. 

Annapolis. Md 21401 

410-268-5050 

Attorney for Respondent 

' If ihere ii> conlacl ihoa^e is a ballery. If (hvR; is no contact, there is an assault. 

^ "Urxwaiited touching" focijses on ihe willingness o£ the recipienl and nol on (he 

intent of" the actor. UII]CR.S the defense of consent is raised, tliis concept is imniateriai. 
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From: RobMtVAIdmin F»B: (886) 501-3613 To:+12024936142 Fw: +i2C3iiS3S1-i2 Pl0« 4 of 9 3/2-i;20l1 5:13 

I hereby certify Uiit on tins 20'" day of peoember, 201 o , I mailed by email and firsi: class rn»il M copy 

ot theforeRoinfito: 

judKO ponnit^ A Yortor, Cuicf Administrative Low Judge 

L'S Department of Transpcrtation 

Office of Hearings M-20 Room E ^2-:^:^c) 

J20 0 N«w Jersey Av e SC 

Washington. DC 20590 

Christian L.Lt;wcrt^n7 

rederal Aviation Admin»tr»tion 

Office of Acting Regiony' Counsel 

1 Aviation Plazy 

Jamaica, NY 11434 

pobcrt H. Waidman 
04/21/201 1 17:1 1 FAX 2024935142 FAA + DMS @|0O5/00S 

From: Robert Wildman PB«'(SBB) SC1-36l3 To +12Ci2<J93SiJ2 FIK ; +1202i«5U 2 Pngn 5 of B 3/24/2011 S:i3 

IJ^ W OFFICliOF 

ROBERT HENR Y WALDMA N 

113 RiDGiiLY AVENUE 

ANNAf'OLls, MARYLAND 21401 

4iO-2(38-505o-'ATiTjapoUs rh-wnldTna.n (a3rhwaldtruLrL.com 888-50i-36i3-F:ix 

The infonnation i3i iLii.'; fax is confidenTial. Ir is intemled only for the named reci|iient. if you come irno 

possession of li^is fax and are not the named lecipiem, do not distribute, disscminaw, or publisli it in any 

way; it is prnhibited todo so. PleasenorifyThe sender if you aiisiakenly receive this fax. niank you. 

By Fax 

Date: March 24, 2011 

To: Stephanie McClain, Hearings Docket Clerk 202-493-5142 

Judge Ronnie A. Yodcr 202-366-7536 

Christian Lewereiiz 718-553-3273 

Re; In the Matter of Mary Woottcn >AA Docket No. CP 09 EA 0010 

Dear Madam CJlerk, 

Judge Yoder*s office ititbrmed me that you had not received copies of the 

attached. 1 am forwarding here copies of Respondent's Memorandum of Law and 

Reply to Complainant's Mctnorandum of Law. 

1 am not forwarding copies to Judge Yoder or to Mr. Lcwcrcnz as they 

received copies when the documents were originally filed on 19 Noveinber 2010 

and 20 December 2010, respectively. 

If there are any questions, please do not hesitate to call. 

Yours, 

/s/ 

Robert H. Waldinan 

Coimscl for Respondent 
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Frofn: Rob«rt WiWfnBPi Fax:(e9a)S01-3613 To"+12024935142 FH«: +12024935142 PtB» 6 of « 3/24/20115:13 

U.S. Department of Transportation 

Federal Aviation Administration 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER Of: * 

* FAA Docket No. CP 09 EA 0010 

MARYWOOTTEN * 

* 

..oOo.. 

MEIVIORANDUM OF LAW 

The Court asked counsel to provide memoranda of iavv on the definition of 

"assault" as used in 49 USC 46318(a) vvith specific attention to the element of 

intent. Respondent Mary Wootten fiies the foilowing in support 

The te;^t of 49 USC § 46318(a) provides: 

a) General ruIe.--An individual who physically assaults orthreatensto 

physically assault a memberof the flight c^ew or cabin crew of a civil 

aircraft or any other individual on the aircraft, ortakes any action that 

poses an imminent threat to the safety of the aircraft or other 

individuals on the aircraft is liable to the United States Government for 

a civil penalty of not more than $25,000. 

The only cited reference to §46318 is Tahaira. 2010 WL 987740, * 2 (D.O.T.). 

In Tahaira, Judge Goodwin stated: 

The term "assault" is not defined in section 46318. It is well-settled, 

however, that when a statute uses a common-law term such as 

"assault" without defining it, the Lerm must be taken to mean the 

same thing It means at common law. US. v. Turiey. 352 U.S. 407. 411 

(1957). The common-law definition of ''assault" includes two distinct 

concepts. The first is an attempt to commit a battery. The second 

consists of "a threat to infiict injury upon the person of another which, 

when coupled with an apparent present ability, causes a reasonable 

apprehension of immediate bodily harm." U.S. v. Dupree. 544 F.2d 

1050. 1051 (9 Cir. 1976). 
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(d. atl6 , •* 

In U.S. V. Dupree 544 F.2d 1050 (9"^ Cir. 1976) the Ninth Circuit briefly noted 

the history of common law assauft and then defined the elements of the federal 

common law of assault. 

Assault had two meanfngs at common law. A criminal assault was an 

attempt to commit a battery. 1W. Hawkins, Pleas of the Crown 110 

{Sth ed. 1824); R. Perkins, Criminal Law 114 (2d ed. 1969). A tortious 

assault was an act which put another in reasonable apprehension of 

immediate bodily harm. R. Perkins, id. at 114. 

Both concepts of assault have t>ecome recognized as criminal 

assaults, R. Perkins, supra at 116-17; W. LaFave & A. Scott, Criminal 

Law. s 82 (1972), and are included under the federal definition of 

assault. See United States v. Bell, supra; United States v, Rizio, 409 

F.2d 400 (7th Cir.), cert, denied. 396 U.S, 911, 90 S.Ct. 226. 24 

L.Ed.2d 187 (1969). Thus an assault is committed by either a willful 

attempt to inflict injury upon the person of another, or by a threat to 

inflict injury upon the person of another which, when coupled with an 

apparent present ability, causes a reasonable apprehension of 

immediate bodily harm. See United States v. Ball, supra; United States 

V. Rizzo, supra; Brundage v. United States. 365 F.2d 616 (10th Cir. 

1966); Shaffer v. United States, 308 F.2d 654 (Sth Cir, 1962), cert, 

denied, 373 U.S. 939, 83 S.a. 1544, 10 L.Ed.2d 694 (1963); Price v. 

United States, 156 F. 950 (9lh Cir. 1907). 

id. at 1051-1052. 

Mere accidental touching is not a "willful attempt to inflict injury." Nor is 

careless behavior. Nor is willfully reckless conduct, There must be a willful intent. 

And that intent must include the intent to inflict injury. 

' Counsel requests leave of the Court to note that the behavior in Tahaira 

included repeated negative interactions with the respondent absolute refusalsto 

take a seat during descent, constant clearing her from the exit row, and two clear 

willful assaults, by one of which the attendant almost fell to the ground and did in 

fact sustain injuries. The judge characterized her behavior as "belligerent and 

defiant." The penally was $6,000. 
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From: Robert Waldman FM : (699) 501-3S13 To:+12024935142 F« : +1202A8351 « Paje 9 or 9 3/2^/20115:13 

Judge Goodwin noted that the FAA has defined "assault" differently. 

The Administrator also has stated that an assault is an unwanted 

touching. Howard Gotbetter, FAA Order No. 2000-17 (August 11, 

2000), p. 11. The agency also has defined "assault" as a "harnnfui or 

offensive intentional contact." 

Tahaira at 16. 

Judge Goodwin did not, however, base his decision on these two formulations. 

Rather, he grounded his decision in the elements stated in Dupree. 

(jDunsel notes that the FAA may have the authority to define the elements of 

regulatory violations but it does not have the authority to overrule o circuit court of 

appeal. When the FAA decides to allege a violation of statutory law, it must abide by 

the decisions of the courts and not the pronouncements of the agency. 

Respectfully submitted, 

Robert H. Waldman, Esq. 

113 Ridgely Ave. 

Annapolis, Md 21401 

410-268-5050 

Attorney for Respondent 

I htjreby certify that on this day ot , 2010 , I rnailftd by first cla5i> mail a copy of the 

foregoing to: 

Judge Ronnie A Yodcr. Chicr Administraiivo Low Judge 

us DepnrtmonT of Transportation 

Office of Hearings M-20 Room E 12-320 

.1200 New Jersey Avo.. SC 

Washington, OC 20590 

Chri<;tlan L. Lewsren? 

federal Avlarltrm AdrnmstrnTlon 

Office of Acting Regional CounsGl 

1 Aviation Plaza 

Jamsica, NY 11434 

Robi^rt H. W?jldrTinn