UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4011

JULIANNE MALVEAUX,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-95-360)

Submitted: December 26, 1996

Decided: January 29, 1997

Before NIEMEYER and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Leonard E. Birdsong, Stephanie Cobb Williams, Despina Tahmin,

CHAVERS & BIRDSONG, CHARTERED, Washington, D.C., for

Appellant. Helen F. Fahey, United States Attorney, LeDora Knight,

Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Julianne Malveaux appeals from the judgment order of the district

court finding her guilty of assaulting an airline attendant during a

flight, in violation of 49 U.S.C. § 46506 (1994) and 18 U.S.C.

§ 113(a)(4) (1994). Initially, Malveaux contends that the district court

erred by denying her motion for acquittal because the evidence was

insufficient to support her conviction. Because Malveaux made this

motion at the close of the Government's case, but did not renew it at

the close of her case, we need only consider whether Malveaux's conviction resulted in a manifest miscarriage of justice. See United States

v. Vaquero, 997 F.2d 78, 82 (5th Cir. 1993).

The evidence in this case, however, firmly supported the district

court's finding of guilt. The pertinent statute proscribes assault by

striking, beating, or wounding. The statute has been construed by

courts to be akin to a common law simple battery, requiring physical

contact. See United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir.

1982); United States v. Iron Shell, 633 F.2d 77, 88 (8th Cir. 1980).

Several witnesses testified that Malveaux grabbed and shook the victim in this case. In fact, Malveaux conceded that she grabbed the victim, but claimed that her actions were defensive. Accordingly, we

conclude that there was ample evidence of sufficient physical contact

in this case to support Malveaux's conviction.

Malveaux also contends that the district court erred by denying her

motion to dismiss this case as a vindictive prosecution, and by denying her motion for discovery of Government files containing information which might have supported a selective prosecution claim. We

disagree. While Malveaux's brief implies that the Government's decision to bring federal charges following the dismissal of a state battery

charge against her is suspicious in view of her work as a civil rights

advocate and past criticisms of law enforcement agencies, there is no

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dispute that the state charges were dropped for lack of jurisdiction.

Thus, there is no basis for concluding that the Government preferred,

as Malveaux also implies, to prosecute her in federal court in order

to subject her to more stringent penalties. Moreover, we note that

Malveaux faced similar penalties whether convicted in state or federal

court.

We also conclude that the district court properly denied

Malveaux's motion for discovery because she failed to produce any

evidence tending to prove that her prosecution had a discriminatory

effect. See United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996).

She pointed to no similarly situated persons of a different race whose

actions did not result in prosecution, but merely sought discovery

based on counsel's belief, from a review of other assault cases, that

a large number of the defendants in those cases were minorities. This

was plainly insufficient to meet the "rigorous" evidentiary threshold

for obtaining discovery to support a selective prosecution claim. Id.

Finally, we reject Malveaux's contention that the Government went

outside the scope of rebuttal in submitting evidence to rebut her character evidence intended to show that she was not a combative person.

The Government's evidence related to Malveaux's prior altercations

with two men. The rebuttal evidence tended to show that Malveaux

pushed an elderly man to the ground after he was involved in a minor

traffic accident with Malveaux, and that she verbally berated another

man who mistakenly came to the door of her home believing it to be

the home of a friend who lived two doors down from her in a complex

of townhouses apparently having a similar appearance. As this evidence clearly tends to rebut the claim that Malveaux is a noncombative person, we find no error.

Accordingly, the judgment order of the district court is affirmed.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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