UNITED STATES v. WERK (2021)

MEMORANDUM **

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 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, 109 S.Ct. 1443, 103 L.Ed.2d 734 (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, 109 S.Ct. 1443. 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, 109 S.Ct. 1443.

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.