FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 21, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14849

Non-Argument Calendar

________________________

D. C. Docket No. 05-00071-CR-DHB-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ROBERTO ALEJANDRO FRANCISCO-GUTIERREZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

 (September 21, 2007)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

After a jury trial, Roberto Alejandro Francisco-Gutierrez appeals his

convictions for one count of assault, in violation of 18 U.S.C. § 113(a)(6), and
2

three counts of cruelty to a child, in violation of 18 U.S.C. §§ 7 and 13, and

O.C.G.A. § 16-5-70(a) and (b). After review, we affirm.

I. BACKGROUND

Because Gutierrez challenges the sufficiency of the evidence, we first review

the evidence presented at trial.

A. Events of February 8 and 9, 2005

Gutierrez is married to Tiffany Hines, a soldier in the United States Army. 

In February 2005, Gutierrez, Hines and their seven-month old daughter, C.G., lived

in military housing on Fort Gordon, a military base near Augusta, Georgia. 

Gutierrez watched C.G. during the day while his wife was at work.

On February 8, 2005, Hines came home from work at lunchtime and noticed

that C.G. was quiet and not as active as she normally was. C.G. also cried when

Hines picked her up. Gutierrez told Hines that C.G. “was just sore.”

The next morning Hines noticed that C.G.’s arm was swollen and had a

disagreement with Gutierrez over whether they should take C.G. to the hospital. 

Gutierrez convinced Hines to wait to see if the swelling would subside.

During the day, Gutierrez asked a neighbor, Lee Anna Sayers, if she would

babysit C.G. for an hour while he helped another neighbor move. Sayers agreed. 

Before Gutierrez left, he told Sayers that C.G.’s arm was injured as a result of a
Two other neighbors, who had watched C.G. for Gutierrez on occasion, also testified at

1

trial. These neighbors stated that when Gutierrez would drop C.G. off, he would often fail to

provide any supplies such as a bottle or diapers. In addition, C.G. and her clothes were very

dirty and smelled of sour milk. One neighbor described Gutierrez providing a bottle that had

mold growing in the formula.

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bug bite and that he had already taken C.G. to a doctor. Gutierrez advised Sayers

to leave C.G. in her car seat and try not to touch the arm because it was irritated.

After Gutierrez left, Sayers noticed that the bottle Gutierrez had provided

was dirty and that the formula inside it was “chunky” at the bottom as if it had

been refilled without first being cleaned. Sayers emptied the bottle, cleaned it and

filled it with fresh formula. In addition, C.G.’s car seat and blanket were dirty and

smelled like old formula and “spit up.” When Sayers took C.G. out of the car

1

seat, Sayers noticed that C.G.’s arm was swollen to more than twice the size of her

other arm. C.G. became very upset when Sayers touched her elbow. Gutierrez

returned for C.G. approximately four hours later.

That evening, Gutierrez and Hines brought C.G. to the emergency room at

Eisenhower Army Medical Center at Fort Gordon. Dr. Ivey Shuman diagnosed

C.G. with a fracture in her right arm above the elbow and referred her to an

orthopedist. Gutierrez explained to Dr. Shuman that he had placed C.G. in a car

seat on a couch and C.G. had fallen over. Gutierrez also offered this explanation to

his wife for the first time. Dr. Shuman was concerned about C.G.’s injury because
4

it was not consistent with a fall and suspected that the injury may have been the

result of abuse.

Once C.G. was admitted to the hospital, she was examined by Dr. Jason

Lanham, the chief resident for inpatient services. Gutierrez told Dr. Lanham that

he had placed C.G. unrestrained in a car seat on a sofa about three feet off the

ground. Gutierrez said that he left the room for a moment, heard C.G. crying and

returned to find C.G. on the ground. When Dr. Lanham obtained C.G.’s history

from her parents, they indicated that there had been no past injuries or illnesses. 

However, after reviewing x-rays, Dr. Lanham discovered a break in C.G.’s left

clavicle that was healing, which meant that it did not occur at the same time as the

break in C.G.’s right elbow. Gutierrez told Dr. Lanham that, on another occasion

three weeks earlier, C.G. “was in a car seat unrestrained on the sofa and had fallen

out of the car seat on to the floor.” Dr. Lanham opined that C.G.’s injuries were

the result of abuse rather than an accidental fall given the type and locations of the

fractures and C.G.’s young age.

Dr. Thomas Gibson, the chief of pediatric orthopedic surgery, performed

surgery to repair C.G.’s broken bone in her right arm. According to Dr. Gibson,

the three fractures most highly suggestive of child abuse are fractures to the

humerus, clavicle and ribs, all of which C.G. sustained. Dr. Gibson opined that
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C.G.’s injuries were the result of abuse because they would not be caused by the

fall described by Gutierrez.

Dr. Clarence Joe, a radiologist, reviewed C.G.’s x-rays. Dr. Joe noted a

healing clavicle fracture, two rib fractures and two fractures in C.G.’s right arm. 

One of C.G.’s arm fractures, an oblique fracture of the proximal humerus, was the

result of a twisting motion. The other arm fracture was a horizontal fracture of the

distal humerus, which was caused by a direct blow. The rib fractures were more

likely caused by pressing a finger into the rib rather than from a fall. Based on

C.G.’s having suffered multiple fractures that were in different stages of healing,

Dr. Joe opined that the injuries were an indication of child abuse.

B. Interviews on February 10 & 11, 2005

On the evening of February 10, Sergeant Vanessa Kahn of the Fort Gordon

Military Police (“MP”) received a call from emergency room physicians reporting

possible child abuse. Sergeant Kahn met Gutierrez and Hines at the hospital and

then directed Gutierrez to meet her at the military police investigator’s office. 

At 1:30 a.m. that same evening, Sergeant Kahn advised Gutierrez of his

Miranda rights, interviewed Gutierrez and then took his written statement. In his

statement, Gutierrez averred that on February 8, he had placed C.G. in her car seat

but forgot to place the safety restraint around her. Gutierrez placed the car seat on
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the couch and then ran to the kitchen to turn off the stove. Gutierrez heard a crash,

and C.G. began to cry. Gutierrez ran to the living room and found C.G. laying on

the floor with her car seat on top of her. When Gutierrez picked C.G. up, she

stopped crying and went to sleep.

The following afternoon, Gutierrez was interviewed by Agent Brian

Wilhelm, an investigator with the Criminal Investigation Division (“CID”) at Fort

Gordon. After Agent Wilhelm advised Gutierrez of his Miranda rights, Gutierrez

said that C.G. had fallen out of her car seat, off the couch, and onto the floor of

their home. Gutierrez admitted that he sometimes got angry and yelled and that he

had punched holes in the walls of his residence. Gutierrez stated that he got

frustrated being a first-time father and “had some anger management problems.” 

Gutierrez admitted turning music up loud so he would not hear C.G. cry.

Agent Wilhelm asked Gutierrez if he had mentioned C.G.’s arm injury to

any neighbors, and Gutierrez said he had not. Agent Wilhelm then advised

Gutierrez that he had already spoken with Sayers and that Gutierrez had told

Sayers that C.G.’s arm was swollen from a bug bite. Gutierrez admitted that he

had lied to Agent Wilhelm and then terminated the interview.

Another CID investigator, Edward Lee Harris, went to Gutierrez’s residence

on February 10 and took photographs of, among other things, the sofa from which
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Gutierrez claimed C.G. had fallen. Harris estimated that the seat of the sofa was a

little less than a foot off the ground. According to Harris, the residence was dirty

and had a foul smell. Harris also observed a number of patched holes in a door and

the walls and a damaged door frame.

Hospital staff also notified Jessica Carraballo, an investigator with the

Department of Children and Family Services, who came to the hospital to conduct

an investigation. Carraballo interviewed Gutierrez, who told Carraballo that C.G.’s

arm was injured at home when she fell from her car seat, off the sofa and onto the

floor. Gutierrez said that he picked C.G. up and held her until she stopped crying

and that he had not noticed any injury at that time. Later that day, however, a

neighbor who was caring for C.G. pointed out to Gutierrez that C.G. had a bruised

arm. Gutierrez then waited for his wife to come home from work to take C.G. to

the hospital.

C. Indictment and Trial

Gutierrez was indicted by a grand jury for: (1) assault on C.G. resulting in

serious bodily injury, namely fracturing her right arm, in violation of 18 U.S.C.

§ 113(a)(6) (Count One); (2) willfully depriving C.G. of necessary sustenance to

the extent that her well-being was jeopardized, in violation of 18 U.S.C. §§ 7 and

13 and O.C.G.A. § 16-5-70(a) (Count Two); (3) maliciously causing C.G.
8

excessive physical and mental pain by failing to seek immediate and necessary

medical attention for injuries suffered to C.G.’s right arm (Count Three) and for

injuries to C.G.’s ribs and clavicle (Count Four), in violation of 18 U.S.C. §§ 7 and

13 and O.C.G.A. § 16-5-70(b). Gutierrez pled not guilty. After a trial, the jury

found Gutierrez guilty on all four counts. 

Gutierrez filed a motion for a judgment of acquittal, arguing that the

government had failed to prove that Gutierrez was responsible for C.G.’s injuries

or that the offenses had occurred on land subject to federal jurisdiction, i.e., Fort

Gordon. The district court denied the motion, concluding that the jury’s verdict

was supported by the evidence. Gutierrez filed a motion to arrest the judgment,

arguing that the district court lacked jurisdiction over him because the government

had failed to prove that the offenses occurred at Fort Gordon. The district court

denied the motion.

The district court sentenced Gutierrez to 84 months’ imprisonment. 

Gutierrez timely filed this appeal.

II. DISCUSSION

A. Sufficiency of the Evidence

Gutierrez does not challenge the sufficiency of the evidence on the three

counts of cruelty to a child. Instead, Gutierrez challenges the sufficiency of the
Section 113(a)(6) states: 2

(a) Whoever, within the special maritime and territorial jurisdiction of the United States,

is guilty of an assault shall be punished as follows:

....

(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment

for not more than ten years, or both.

18 U.S.C. § 113(a)(6).

9

evidence only as to the assault count as to C.G.’s arm fractures.

To convict under 18 U.S.C. § 113, the government must establish that the

individual “assaulted” another person in the territorial jurisdiction of the United

States. 18 U.S.C. § 113(a); United States v. Williams, 197 F.3d 1091, 1096 (11th

Cir. 1999). Gutierrez was charged with assault under § 113(a)(6), which provides

that an “assault” that results in “serious bodily injury” is punished by

“imprisonment for not more than ten years.” 18 U.S.C. § 113(a)(6). Section 113 2

does not define “assault,” but this Court has given the term its common law

meaning. Williams, 197 F.3d at 1096. Further, we have concluded that an

“assault” within the meaning of § 113 includes a common law battery defined as a

willful, offensive touching, regardless of the intent to do physical harm. Id.

Here, we first conclude that there is ample evidence to support Gutierrez’s

assault conviction. Gutierrez not only was taking care of C.G. immediately before

his wife discovered the baby’s swollen arm, but was reluctant to take C.G. to the
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

3

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

10

hospital. Gutierrez did not dispute that C.G. had the charged broken arm, but gave

different explanations for the injury before and during the investigation. 

Specifically, Gutierrez told his wife that C.G. was merely sore, told his neighbor

that C.G. had suffered a bug bite and told doctors and investigators that C.G. had

fallen out of the car seat on the couch and onto the floor. Expert testimony by

doctors indicated that C.G.’s arm fractures were the result of a direct blow and a

twisting motion and were inconsistent with the explanation Gutierrez had given

them. Doctors also testified that they believed C.G.’s injury was due to abuse

given the nature of the injury and C.G.’s very young age. This evidence

considered cumulatively was sufficient for a jury to conclude that Gutierrez caused

C.G.’s arm fractures.

Additionally, there is no merit to Gutierrez’s claim that the government

failed to show territorial jurisdiction. Although territorial jurisdiction is an

essential element of the offense, the government must establish the location of a

criminal activity only by a preponderance of the evidence. See United States v.

Bowers, 660 F.2d 527, 531 (5th Cir. 1981) (concluding that the government

established subject matter jurisdiction by proving by a preponderance of the

evidence that the defendant abused her child on a military base). The parties 3
to October 1, 1981.

In his argument, Gutierrez uses interchangeably the terms subject matter jurisdiction and 4

venue. To the extent Gutierrez argues that the Southern District of Georgia, Augusta Division,

was an improper venue for him to be tried, he has waived that argument by failing to raise it in

the district court. See United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).

The government argues that Gutierrez’s statement was not a confession for purposes of 5

Jackson v. Denno because it was not inculpatory. See 18 U.S.C. § 3501(e) (codifying Jackson v.

Denno and defining a confession as “any confession of guilt of any criminal offense or any selfincriminating statement made or orally given or in writing”). Because we conclude that

Gutierrez failed to allege facts warranting a hearing in any event, we need not resolve whether

Gutierrez’s statement was a confession.

11

stipulated that Fort Gordon was subject to the territorial jurisdiction of the United

States. Based on the evidence presented, a reasonable jury could also find by a 4

preponderance of the evidence that the assault occurred in Gutierrez’s home on

Fort Gordon military base. Therefore, the district court had subject matter

jurisdiction and properly denied Gutierrez’s motion for a judgment of acquittal and

motion to arrest the judgment.

B. Statement to Sergeant Kahn

Gutierrez argues that the district court erred when it refused to hold a

Jackson v. Denno hearing before admitting his written statement taken by Sergeant

Kahn. 

5

Under Jackson v. Denno, “[a] defendant objecting to the admission of a

confession is entitled to a fair hearing in which both the underlying factual issues

and the voluntariness of his confession are actually and reliably determined.” 
12

Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 1783 (1964). Such a

hearing, to be conducted outside the presence of the jury, “is constitutionally

mandated for a defendant who timely urges that his confession is inadmissible

because not voluntarily given.” United States v. Davidson, 768 F.2d 1266, 1270

(11th Cir. 1985). However, we will not remedy a district court’s failure to hold a

Jackson v. Denno hearing unless the defendant “allege[s] facts which would, if

proven true, indicate the involuntariness of his confession.” Id.

Here, Gutierrez failed to allege facts indicating that his statement given to

Sergeant Kahn was involuntary. After the return of the superseding indictment,

Gutierrez filed a motion to suppress stating that, “[s]ince discovery and defense

investigation are still incomplete, the Defendant files this Motion in general form

to preserve h[is] right to challenge the legality of any search or seizure of evidence

that the Government might introduce against hi[m] at trial as well as any

statements.” The district court later directed Gutierrez to particularize his

suppression motion within ten days or a hearing would not be scheduled on his

suppression motion. Gutierrez did not file a more particularized motion.

At trial, Gutierrez objected to the admission of the statement during the

government’s direct examination of Sergeant Kahn. Specifically, Gutierrez’s

counsel stated that “if they are going to attempt to introduce this statement I will
13

ask that we have a Jackson v. Denno hearing before it is introduced before the

jury.” Gutierrez’s counsel did not articulate the basis for suppression or identify

any facts suggesting that Gutierrez’s statement was involuntary. After the district

court denied Gutierrez’s impromptu request for a Jackson v. Denno hearing,

Gutierrez renewed his objection, but did not argue that the statement was

involuntary.

In addition, none of the evidence presented at trial indicates that Gutierrez’s

statement was involuntary. Sergeant Kahn met with Gutierrez at the hospital and

directed him to meet her at the military police statement to give a statement.

Gutierrez drove himself to the military police station, completed his statement

within a half hour, and was irritated but cooperative. The interview took place in

an office within the military police station with only Sergeant Kahn present. An

MP patrolled the halls outside as a security measure. Sergeant Kahn advised

Gutierrez of his Miranda rights, including his right to remain silent. Gutierrez then

executed a Miranda waiver, which also advised him that he could remain silent. 

Sergeant Kahn reviewed Gutierrez’s version of events with him a couple of

times and then asked Gutierrez to write it down on the narrative portion of the

statement form. Gutierrez did so. Sergeant Kahn then completed the question and

answer portion of the statement form. Gutierrez was permitted to verify the
It is unclear whether Gutierrez is contending that he also was entitled to a hearing on a 6

claim that his statement was being offered in violation of Miranda v. Arizona, 384 U.S. 436, 86

S. Ct. 1602 (1966). See United States v. Arbolaez, 450 F.3d 1283, 1292 (11th Cir. 2006). 

However, Gutierrez did not ask for a Miranda hearing in the district court, and the record here

shows Gutierrez knowingly and voluntarily waived his Miranda rights.

14

questions and answers and initialed each to show that he agreed with the answers

Sergeant Kahn had written. The affidavit portion of the statement, which Gutierrez

signed, avers that Gutierrez was not threatened or forced to give a statement. 

On appeal, the only fact Gutierrez points to in support of his claim that he

was entitled to a Jackson v. Denno hearing is that Sergeant Kahn admitted on cross

examination that during the interview Gutierrez was not free to leave the military

police station. The mere fact that Gutierrez was in police custody when he gave

his statement does not, alone, establish coercion. See United States v. Thompson,

422 F.3d 1285, 1296 (11th Cir. 2005) (explaining that a finding of involuntariness

under the Fifth Amendment’s Due Process Clause requires as a prerequisite

coercive government conduct such as “subjecting the accused to an exhaustingly

long interrogation, the application of physical force or the threat to do so, or the

making of a promise that induces the confession” (quotation marks omitted)). On

this record, we cannot say the district court erred in denying Gutierrez’s request for

a Jackson v. Denno hearing.6

C. Motion for a Mistrial
15

Gutierrez contends that testimony elicited by the government about his

decision to terminate his interview with Agent Wilhelm impermissibly commented

on Gutierrez’s decision to invoke his right to remain silent. According to

Gutierrez, the district court should have granted his motion for a mistrial after this

testimony was given.

During trial, Agent Wilhelm was cross-examined vigorously about his

failure to take notes or otherwise record his interview with Gutierrez. When first

asked why he had not taken notes, Agent Wilhelm responded, “Generally what we

[at CID] do is we ask the suspect to type up a narrative which in this case the

interview ended before we had a chance to do that.” Later, when defense counsel

pressed Agent Wilhelm about his failure to record important aspects of Gutierrez’s

interview, Agent Wilhelm responded, “As I said under the normal procedure we

have a typed narrative recounting his facts of the case and in this case we didn’t get

to that point because he terminated the interview.”

During redirect examination, the government asked Agent Wilhelm whether

it was his normal procedure to obtain a written statement from a suspect he had

interviewed. Gutierrez’s counsel objected, and the district court stated that it

would allow the question and suggested that the matter be addressed at the next

opportunity without the jury present. The following exchange then occurred:
16

Q. When you are interviewing someone do they have the

right to terminate that interview before giving you that

written statement?

A. Yes.

Q. Is that what happened in this case?

A. Yes.

At the next break, outside the presence of the jury, Gutierrez objected to the

government referring to Gutierrez’s voluntarily terminating the interview and

moved for a mistrial. The district court concluded that Gutierrez’s crossexamination had invited the testimony, overruled the objection and denied the

motion for a mistrial.

Under Doyle v. Ohio, a prosecutor’s “use for impeachment purposes of [a

defendant’s] silence, at the time of arrest and after receiving Miranda warnings,

violate[s] the Due Process Clause of the Fourteenth Amendment.” 426 U.S. 610,

619, 96 S. Ct. 2240, 2245 (1976). However, not every mention of a defendant’s

post-Miranda silence is a Doyle violation. See United States v. Stubbs, 944 F.2d

828, 834-35 (11th Cir. 1991). Rather, a Doyle violation occurs when “the

statement was manifestly intended or was of such character that a jury would

naturally and necessarily take it to be a comment on the failure of an accused to

testify.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). “The

question is not whether the jury possibly or even probably would view the remark

in this manner, but whether the jury necessarily would have done so.” United
We review for an abuse of discretion a district court’s denial of a motion for a mistrial 7

based on an improper comment on the defendant’s right to remain silent. Knowles, 66 F.3d at

1163. We have held that “[a] defendant is entitled to a grant of mistrial only upon a showing of

substantial prejudice.” Chastain, 198 F.3d at 1352.

17

States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995) (quotation marks omitted). 

The district court must consider the remark in context to determine the prosecutor’s

motive and the impact upon the jury. Id.7

 Given the context in which the testimony was elicited, we conclude that

there was no Doyle violation. Agent Wilhelm’s testimony that Gutierrez

terminated the interview was elicited twice by Gutierrez’s own counsel during

cross-examination without any objection. Gutierrez’s counsel effectively

impeached Agent Wilhelm by inferring that Agent Wilhelm had been negligent at

best and possibly underhanded in failing to take notes during the interview. The

government’s questions on redirect were intended to rehabilitate Agent Wilhelm by

clarifying that Agent Wilhelm had acted in accordance with CID policy during the

interview, and that the failure to memorialize the interview in writing was not the

result of either negligence or some nefarious plan, but because Gutierrez ended the

interview before that could happen. See United States v. Rodriguez-Cardenas, 866

F.2d 390, 394 (11th Cir. 1989) (explaining that a prosecutor may use redirect

examination “to rebut false impressions that arise from cross-examination”). 

In sum, it does not appear from the record that the government’s purpose
This Court reviews for abuse of discretion a district court’s supplemental charge in 8

response to a jury question. United States v. Delgado, 56 F.3d 1357, 1363 (11th Cir. 1995). We

review the challenged jury instruction in the context “of the entire jury charge, in light of the

indictment, evidence presented and argument of counsel to determine whether the jury was

misled and whether the jury understood the issue.” United States v. Johnson, 139 F.3d 1359,

1366 (11th Cir. 1998) (quotation marks omitted).

18

was to comment upon Gutierrez’s decision to invoke his right to remain silent. 

Nor can we say that the government’s questions and Agent Wilhelm’s answers on

redirect were “of such a character” that the jury necessarily would have taken them

to be a comment on Gutierrez’s decision to invoke his right to remain silent. 

Therefore, the district court properly denied Gutierrez’s motion for a mistrial.

D. Jury Instruction

Finally, Gutierrez contends that the district court erred in giving a

supplemental jury instruction on the meaning of the term “intentional assault.”8

During the initial jury charge, the district court instructed the jury on the

elements of an assault under 18 U.S.C. § 113(a)(6). Specifically, the district court

explained, among other things, that the government was required to prove these

three elements of an assault under 18 U.S.C. § 133(a)(6): (1) that Gutierrez

intentionally assaulted C.G.; (2) that Gutierrez intentionally assaulted C.G. within

the territorial jurisdiction of the United States; and (3) that, as a result of the

assault, C.G. suffered a serious bodily injury. After retiring to deliberate, the jury

sent a note to the district court stating, “Need judge to define ‘intentional assault’
19

page twelve of instructions.” The parties agreed that the jury was probably

confused by the fact that a § 113(a) assault encompasses the common law concepts

of both assault and battery and agreed that the district court should clarify this

point.

The jury was brought into the courtroom. The district court first reminded

the jury of its earlier charge and advised the jury not to consider any part of the

instructions as more important than other parts. The district court then reread the

instructions regarding a § 113(a)(6) offense and the definition of the words

“knowingly” and “wilfully.” The district court next explained the common law

concepts of assault and battery, as follows:

What does assault mean? . . . 

Under the English common law there were the two related

concepts that I am sure you have heard many, many times and perhaps

you’ve wondered what exactly it was and I am going to explain it to

you. What I’m talking about is assault and batter[y] and very

commonly these terms are used together, in conjunction with each

other and almost meaning the same thing.

An assault, generally, is to put someone in fear of being

harmed. You can do that lunging at someone, charging at someone,

pointing a gun at someone or something like that. I use those only as

examples of the concept.

Now, a battery is the extension or the culmination of an assault.

A battery is the actual unlawful touching of someone. It can be

something as minor [as] a simple touching. It can be a touching in an

inappropriate place. Or a battery might be a touching or a blow

sufficient to produce a serious bodily injury. So, you can say that a

battery always includes an assault, but that an assault is or may be the

preamble of a battery.
20

The district court also explained how these common law concepts applied in a

§ 133(a) offense, as follows:

Now, I don’t want to try to dissect the federal law or tell you

exactly what the purposes of the Congress were, but I will tell you that

this concept of assault in federal law goes back a long way and it is

my belief, – I can’t tell you this is the law, but it is my belief – that the

people that wrote the federal statute were trying to simplify it and

trying to say basically we are distinguishing between assault and

battery. We are carrying that common law distinction into the federal

juris prudence [sic]. We are going to use just one word and we are

going to use assault. If you think the attempt toward simplification

has created confusion that is your business.

My point right now is that in the federal law assault and battery

are the same thing. A battery being a completed assault, if you would.

An individual may commit an assault either by an intentional

and voluntary act which does injury to another person or an

intentional voluntary act which is a threat to do it. So, the definition

of assault is broader in the law in the federal sector than is involved in

this case.

The district court then explained that the government’s case involved an alleged

completed assault that produced an actual injury, rather than just a threat of injury:

Quite clearly under the evidence, under the argument and under

the theory of [the] Government’s case the prosecution is alleging in

the indictment and has argued not that the Defendant Gutierrez put

baby [C.G.] in fear of an injury[.] [T]o the contrary the theory of the

Government’s case is that conduct of the defendant actually produced

an injury to the child. So, here in this case the theory of the

Government, the allegations and the argument, is that the child was

actually injured as a result of this alleged assault.

While one might commit an assault under federal law by

threatening an injury if the individual has at the same time the

apparent present ability to produce an injury that’s not what we are

talking about here. Quite clearly and simply the Government argues
21

and its theory of the case is that the conduct of the Defendant

Gutierrez actually produced an injury.

Finally, the district repeated the instruction relating to the three elements of a

§ 113(a)(6) offense. After a sidebar, the district court reminded the jury not to

single out any of his instructions as having special significance and reiterated that

the term “intentional” meant a purposeful act and did not require the government to

prove that the defendant intended all the consequences resulting from the act:

Members of the jury, I’m not going to tell you again that you should

not single out any one of my instructions alone as having any special

significance or any one of my instructions alone as stating the law, but

I will tell you with respect to this concept of intentional, which is one

of the words you focused on in your question, it is not necessary that

the Government prove that the defendant intended all of the

consequences that might flow from an act. It is only necessary that

the Government prove beyond a reasonable doubt that the defendant

did the act or the thing which the law forbids on purpose. That it was

done intentionally and not as a result of a mistake or accident.

After the jury left the courtroom, Gutierrez objected “to that portion of the charge

that dealt with the proof offered by the Government” and “to the last part of the

charge dealing with the intent to cause harm to the victim.”

On appeal, Gutierrez argues that the district court erred in giving the

supplemental instruction by: (1) misstating the law of “assault”; and (2)

interjecting the judge’s opinions about the Government’s theory of the case. With

regard to the first argument, we conclude that the district court did not misstate the
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law on the meaning of “intentional assault.” Although § 113 does not define

“assault,” this Court has given the term its common law meaning and has

concluded that assault can be “a battery, an attempted battery, or an act that puts

another in reasonable apprehension of receiving immediate bodily harm.”

Williams, 197 F.3d at 1096. Furthermore, a § 113 assault by battery includes the

“least touching of another’s person wilfully” and does not require an intent to do

bodily harm. Id.

We also do not agree that the district court’s comments “had the effect of

inferring to the jury that the Government had established its burden of proof in the

case.” The district court’s supplemental instruction explained the multiple

concepts encompassed within the term “assault” under § 113. The district court’s

clarification as to the government’s theory of the case merely advised the jury that

it need not consider the other definitions of assault because the government had

proceeded only on the theory that an assault by battery had been committed.

AFFIRMED.