See United States v. Lee, 199 F.3d 16, 17 (1st Cir. 1999) (applying the common law definition of assault to the "Official Victim" enhancement we consider in this case, now located at U.S.S.G. § 3A1.2(c)(1)). It is worth noting that application of the common law meaning of "assault" provides us with the same result we reach by considering its common meaning. At common law, assault consisted of either attempted battery or the "deliberate infliction upon another of a reasonable fear of physical injury." United States v. Delis, 558 F.3d 177, 180-81 (2d Cir. 2009) (citing 3 William Blackstone, Commentaries on the Laws of England * 120; 2 Wayne R. LaFave, Substantive Criminal Law § 16.3, at 565-66, 568 (2d ed. 2003)). In contrast, common law battery consisted of "the unlawful application of force to the person of another," and required no specific intent to commit the act.

Courts that have interpreted the crime of simple assault under § 113(a)(5) have turned to the common law for guidance since Congress did not further define the offense. United States v. Shabani, 513 U.S. 10, 13 (1994); Chipps, 410 F.3d at 448; United States v. Delis, 558 F.3d 177, 179 (2d Cir. 2008); United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000); United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982). Neither the crime of simple assault nor the crime of assault by striking, beating or wounding requires that the defendant had an intent to injure.

Accordingly, federal courts seeking to construe the various assault offenses enumerated in § 113 have looked to the common law for guidance, examining the definitions of the "closely interrelated" common law crimes of assault and battery. United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009); United States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007); United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000); United States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974). At common law, the crime of assault had two definitions.

To determine the common-law definition, courts have considered scholarly commentary. See United States v. Delis , 558 F.3d 177, 180–81 (2d Cir. 2009) (relying on treatises to determine the common-law definition of assault); see also United States v. Molinar , 881 F.3d 1064, 1071 (9th Cir. 2017) (stating that the court’s interpretation of generic definitions of common-law crimes is "guided by scholarly commentary" (quoting United States v. Esparza-Herrera , 557 F.3d 1019, 1023 (9th Cir. 2009) )). Two forms of assault are recognized under the common law:

Common law assault consisted of either attempted battery or the "deliberate infliction upon another of a reasonable fear of physical injury." Id. at 660 (citing United States v. Delis, 558 F.3d 177, 180-81 (2d Cir. 2009) (internal citations omitted)). Common law battery consisted of "the unlawful application of force to the person of another and required no specific intent to commit the act." Id.

577 F.3d 207, 217-18 (4th Cir. 2009). The Fifth Circuit opinion in United States v. Delis is also instructive. 558 F.3d 177 (2d Cir. 2009). "Section 113(a)(5) criminalizes 'simple assault,' a term grounded in common law. Where, as here, a statute incorporates language with an accepted common-law definition, our construction of the statute is guided by that accepted meaning absent a clear contrary indication."

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.'"

The Second Circuit has prescribed that "simple assault" as used in the statute incorporates the common-law crimes of assault and battery. See United States v. Delis, 558 F.3d 177, 178 (2d Cir. 2009). "At common law, the crime of battery consisted of 'the unlawful application of force to the person of another,' including an offensive touching."

"Where, as here, a statute incorporates language with an accepted common-law definition, our construction of the statute is guided by that accepted meaning absent a clear contrary indication." U.S. v. Delis, 558 F.3d 177, 180 (2d Cir. 2009) (citation omitted). King's conviction includes the common-law term assault, and King proposes that the "offense of assault by striking, beating or wounding is the equivalent of simple battery."

Moreover, a jury could reasonably find by a preponderance of the evidence that Mr. Trump committed a simple assault by grabbing Ms. Leeds's breasts, kissing her, and pulling her toward him, all without her consent. See United States v. Delis, 558 F.3d 177, 184 (2d Cir. 2009) (concluding that simple assault, as governed by section 113 of Title 18, encompassed a "completed common-law battery," which included "offensive touching," and did not require a "specific intent to injure").[