United States v. Jordan Werk ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30117
Plaintiff-Appellee, D.C. No.
4:19-cr-00082-BMM-1
v.
JORDAN ALEXANDER WERK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted May 3, 2021
Seattle, Washington
Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,** District
Judge.
Jordan Alexander Werk appeals his jury conviction for assault of a
dating partner by strangling in violation of 18 U.S.C. § 113(a)(8). He argues that
assault by striking, beating, or wounding in violation of 18 U.S.C. § 113(a)(4) is a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
lesser included offense of assault of a dating partner by strangling. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the legal question of
whether the offense on which the instruction is sought is a lesser included offense
of the charged offense, United States v. Hernandez, 476 F.3d 791, 797 (9th
Cir. 2007), and we affirm.
A “defendant may be found guilty of . . . an offense necessarily included in
the offense charged.” Fed. R. Crim. P. 31(c)(1). A defendant is entitled to a lesser
included offense instruction if he shows that (1) the offense on which the
instruction is sought is a lesser included offense of the offense charged and (2) the
jury rationally could conclude that the defendant was guilty of the lesser included
offense but not of the greater offense. United States v. Torres-Flores, 502 F.3d
885, 887 (9th Cir. 2007). “[A]n offense is only a lesser included offense if its
elements are a subset of the elements of the greater offense.” United States v.
Miguel, 338 F.3d 995, 1005 (9th Cir. 2003) (citing Schmuck v. United States, 489
U.S. 705, 716–17 (1989)). “Where the lesser offense requires an element not
required for the greater offense, no instruction is to be given under Rule 31(c).”
Schmuck, 489 U.S. at 716. A lesser included offense instruction is permitted “only
in those cases where the indictment contains the elements of both offenses and
thereby gives notice to the defendant that he may be convicted on either charge.”
Id. at 718.
2
Werk was charged with assault of a dating partner by strangling in violation
of 18 U.S.C. § 113(a)(8). He contends that strangling necessarily includes
wounding, and therefore assault by wounding is a lesser included offense of assault
by strangling. The statute, however, defines “strangling” as “intentionally,
knowingly, or recklessly impeding the normal breathing or circulation of the blood
of a person by applying pressure to the throat or neck, regardless of whether that
conduct results in any visible injury.” 18 U.S.C. § 113(b)(4) (emphasis added).
The statute therefore is clear that a defendant need not cause injury – or, wounding
– in order to violate 18 U.S.C. § 113(a)(8). Neither is it necessary to beat or strike
a victim in order to violate 18 U.S.C. § 113(a)(8). Instead, applying sufficient
pressure to constrict breathing would be enough to violate that subsection.
Because the lesser offense requires an element – wounding – not required by
the greater offense, we do not need to decide whether a jury rationally could have
concluded that Werk was guilty of the lesser offense but not of the greater offense.
The District Court was not required to give a lesser included offense instruction.
AFFIRMED.
3