Revised August 28, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-10661 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAIME ESTRADA-FERNANDEZ; JOSE VALENZUELA-HERNANDEZ,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ August 10, 1998 Before KING and DAVIS, Circuit Judges, and VANCE,* District Judge.
PER CURIAM:
Defendants-appellants Jaime Estrada-Fernandez and Jose
Valenzuela-Hernandez appeal their convictions for assault with a
dangerous weapon pursuant to 18 U.S.C. § 113(a)(3). They contend
that the district court erred in failing to give certain lesser-
included-offense instructions to the jury. For the reasons set
forth below, we affirm the district court’s judgment of
conviction and sentence as to Jose Valenzuela-Hernandez, and we
* District Judge of the Eastern District of Louisiana, sitting by designation. reverse the district court’s judgment of conviction and sentence
as to Jaime Estrada-Fernandez.
I. FACTUAL & PROCEDURAL BACKGROUND
On December 22, 1996, correctional officer Lt. Travis
Gilbreath was notified that there was smoke in one of the prison
units at the Federal Correctional Institute at Big Spring, Texas.
Gilbreath and other officers went to the unit and discovered that
some of the fire extinguishers had been discharged, causing a
large cloud. At the bottom of a stairwell within the unit,
Gilbreath discovered a pool of blood and parts of broken broom
and mop handles. He then observed a group of twenty to thirty
inmates with broken broom and mop handles and pipes chasing
another inmate down a nearby stairwell. The inmate being pursued
fell to the ground and the other inmates began beating him with
the objects they carried.
Gilbreath began pulling inmates off of the fallen inmate and
ordering them to stop the beating. As Gilbreath pulled the
second or third inmate away, that inmate struck him on the arm.
Further, as he attempted to gain control of that inmate, another
inmate struck him in the back three or four times. Gilbreath
later identified Jaime Estrada-Fernandez (Estrada) as the inmate
who struck him on the arm. James Soles, another correctional
officer who was on the scene, later identified Jose Valenzuela-
Hernandez (Valenzuela) as the inmate who struck Gilbreath in the
2 back.
Gilbreath testified at trial that Estrada hit him with a
broken broom or mop handle that was approximately one and one-
half to two inches in diameter. Soles testified that Valenzuela
hit Gilbreath on the back with a similar object. As a result of
the blows, Gilbreath suffered (1) redness in his upper back; (2)
redness, tenderness, and swelling in his lower back; and (3) an
abrasion on his right arm. In addition, one of the blows to his
back broke a portion of his flashlight carrier and bent his
handcuffs.
Estrada and Valenzuela each filed a Notice of Alibi prior to
trial in which each asserted that he was not present at the scene
of the altercation. At trial, Estrada testified that he was
cleaning the telephone area when he noticed a group of people
running. In addition, he testified that later some prison guards
called him names, threw him to the ground, and handcuffed him.
Valenzuela and two other inmates testified that Valenzuela was
either in his room or on the balcony of his room during the
incident.
At the conclusion of the trial, Estrada requested that the
district court instruct the jury on the offenses of (1) assault
by striking, beating, or wounding and (2) simple assault, each of
which he claimed qualified as a lesser-included offense. The
district court denied his request, and he objected to that
denial. Valenzuela did not request either of the lesser-
3 included-offense instructions, and he did not object to the
district court’s refusal to include them in the jury charge.
Estrada and Valenzuela each appeals the district court’s
judgment of conviction and sentence, arguing that the district
court erred in refusing to include the instructions requested by
Estrada.
II. DISCUSSION
Valenzuela and Estrada contend that the district court erred
in failing to instruct the jury on the offenses of “[a]ssault by
striking, beating, or wounding” pursuant to 18 U.S.C. § 113(a)(4)
and “[s]imple assault” pursuant to 18 U.S.C. § 113(a)(5). They
argue that each of these offenses constitutes a lesser-included
offense of the crime of which they were convicted--“[a]ssault
with a dangerous weapon, with intent to do bodily harm, and
without just cause or excuse.” 18 U.S.C. § 113(a)(3).
Federal Rule of Criminal Procedure 31(c) states that a
defendant “may be found guilty of an offense necessarily included
in the offense charged.” FED. R. CRIM. P. 31(c). In Schmuck v.
United States, 489 U.S. 705 (1989), the Supreme Court explained
that courts should apply an “elements” test to determine whether
a lesser-included-offense instruction was proper in a given case.
Id. at 716; United States v. Browner, 937 F.2d 165, 168, 172 (5th
Cir. 1991) (interpreting Schmuck to adopt a “strict statutory
elements test”). Under the elements test, “one offense is not
4 ‘necessarily included’ in another unless the elements of the
lesser offense are a subset of the elements of the charged
offense.” 26 MOORE’S FEDERAL PRACTICE § 630.32[4] (Daniel R.
Coquillette et al eds., 3d ed. 1998) (citing Schmuck, 489 U.S. at
716). Since the adoption of that test, we have explained that a
district court
may give a lesser-included offense instruction if, but only if, (1) the elements of the offense are a subset of the elements of the charged offense, and (2) the evidence at trial permits a jury to rationally find the defendant guilty of the lesser offense and acquit him of the greater.
United States v. Lucien, 61 F.3d 366, 372 (5th Cir. 1995); see
also United States v. Harrison, 55 F.3d 163, 166 (5th Cir. 1995).
This court applies a two-tiered standard of review when
determining whether a district court erred in its application of
this test: “the first prong is reviewed de novo, the second for
abuse of discretion.” Lucien, 61 F.3d at 372; see also Harrison,
55 F.3d at 167.
In determining, under the first prong of the test, whether
an offense constitutes a lesser-included offense with respect to
the charged offense, we compare “the statutory elements of the
offenses in question, and not . . . [the] conduct proved at
trial.” Schmuck, 489 U.S. at 716-17. Therefore, regardless of
the evidence adduced at trial, “[w]here the lesser offense
requires an element not required for the greater offense, no
instruction is to be given under Rule 31(c).” Id. at 716.
5 In order to convict a defendant of assault with a dangerous
weapon pursuant to 18 U.S.C. § 113(a)(3), the government must
prove that the defendant (1) assaulted the victim1 (2) with a
dangerous weapon (3) with the intent to do bodily harm. 18
U.S.C. § 113(a)(3); see also United States v. Guilbert, 692 F.2d
1340, 1343-44 (11th Cir. 1982). In order to convict a defendant
of the crime of assault by striking, beating, or wounding
pursuant to 18 U.S.C. § 113(a)(4), the government must prove that
the defendant made physical contact with the victim. Guilbert,
692 F.2d at 1344. Because physical contact with the victim is
not an element of assault with a dangerous weapon, assault by
striking, beating, or wounding does not qualify as a lesser-
included offense of that crime. As the Tenth Circuit has
explained,
Under the elements test, the offense of striking beating or wounding is simply not a lesser included
1 Section 113 does not define the term “assault.” Courts have therefore used the common-law definitions of both criminal and tortious assault when interpreting the statute. See United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982) (noting that both of the traditional common-law definitions of “assault” apply to 18 U.S.C. § 113 because the statute does not define the term); United States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974) (“When a federal criminal statute uses a common law term without defining it, the term is given its common law meaning.”); cf. United States v. Stewart, 568 F.2d 501, 504 (6th Cir. 1978) (noting that the term “simple assault” in § 113 is “no doubt intended to embrace the common law meaning of that term”). Therefore, in order to prove the defendant guilty of assault, the government must show (1) that the defendant attempted to commit a battery on the victim or (2) that the defendant put the victim in reasonable apprehension of immediate bodily harm. See Guilbert, 692 F.2d at 1343; Bell, 505 F.2d at 540.
6 offense of assault with a dangerous weapon. Assault by striking, beating or wounding under 18 U.S.C. § 113(a)(4) . . . requires a physical touching and is the equivalent of simple battery. However, assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) . . . only requires proof of an assault with a dangerous weapon, with the intent to cause bodily harm. The offense does not require proof of any physical contact. Consequently, a defendant may commit assault with a dangerous weapon without committing assault by striking, beating or wounding.
United States v. Duran, 127 F.3d 911, 915 (10th Cir. 1997)
(citations omitted), cert. denied sub nom, 118 S. Ct. 1389, and
cert. denied, 118 S. Ct. 1389 (1998); see also Guilbert, 692 F.2d
at 1345 (noting that § 113(d) is not a lesser-included offense of
§ 113(c) because it “requires some kind of actual physical
contact with the victim [whereas] conviction under subsection (c)
can be based upon an act that merely places the victim in
reasonable apprehension of imminent bodily harm”). Therefore, we
conclude that neither Estrada nor Valenzuela was entitled to a
lesser-included-offense instruction for the crime of assault by
striking, beating, or wounding.
Estrada and Valenzuela also contend that they were entitled
to a lesser-included-offense instruction as to the crime of
simple assault pursuant to 18 U.S.C. § 113(a)(5). In order to
prove a defendant guilty of simple assault, the government need
only show that the defendant assaulted the victim. In a prior
case, we have approved of the district court’s giving a lesser-
included-offense instruction on the crime of simple assault where
the defendant was charged with assault on a federal officer with
7 a dangerous weapon under a statute similar to the one at issue in
this case. See United States v. Bey, 667 F.2d 7, 11 (5th Cir.
Unit B 1982). Thus, we conclude that the offense of simple
assault under § 113(a)(5) does constitute a lesser-included
offense of assault with a dangerous weapon.
We next turn to consideration of the second prong of the
test for whether the defendants were entitled to a lesser-
included-offense instruction on the offense of simple assault. A
lesser-included-offense instruction is proper only when the
evidence adduced at trial would permit a rational jury to find
the defendant guilty of the lesser offense and to acquit him of
the greater. See Lucien, 61 F.3d at 372; Harrison, 55 F.3d at
167.
As it involves a factual inquiry, we generally review the
district court’s application of this prong of the test for abuse
of discretion. See Lucien, 61 F.3d at 372; see also Harrison, 55
F.3d at 167. However, Valenzuela did not request any lesser-
included-offense instructions. In addition, he did not object
when the district court declined to include the lesser-included-
offense instructions requested by Estrada, and, in response to a
question by the court regarding any objections he might have to
the jury charge, Valenzuela’s attorney stated, “Your Honor, I
have no objection to the court’s charge.” Therefore, we review
Valenzuela’s claim only for plain error. See United States v.
Stafford, 983 F.2d 25, 26 (5th Cir. 1993) (“When an omission from
8 a jury charge is raised for the first time on appeal, we review
only for plain error.”). “‘Error in a charge is plain only when,
considering the entire charge and evidence presented against the
defendant, there is a likelihood of a grave miscarriage of
justice.’” Id. (quoting United States v. Sellers, 926 F.2d 410,
417 (5th Cir. 1991)).
Valenzuela contends that he was entitled to a lesser-
included-offense instruction on the offense of simple assault
because there was a question of fact as to whether the broom or
mop handle he used to hit Gilbreath constituted a dangerous
weapon. At trial, however, Valenzuela focused exclusively on an
alibi defense. He testified that he was in his room at the time
of the fight and that he had nothing to do with the incident. In
addition, two other inmates, Hector Valenzuela-Rivera and Ruben
Rodriquez-Pando, testified that they observed Valenzuela in his
room during the incident.2 Moreover, during his cross-
examination of Soles, Valenzuela’s attorney attempted to
demonstrate that Soles could have mistaken another inmate who was
involved in the incident for Valenzuela.
“In deciding whether to request [a lesser-included-offense]
instruction, defense counsel must make a strategic choice:
giving the instruction may decrease the chance that the jury will
2 The government and defense counsel also stipulated that another inmate, Enrique Rodriquez, would have testified that he observed Valenzuela in his room during the incident.
9 convict for the greater offense, but it also may decrease the
chance of an outright acquittal.” United States v. Dingle, 114
F.3d 307, 313 (D.C. Cir.), cert. denied, 118 S. Ct. 324 (1997);
see also Stafford, 983 F.2d at 27 (“A criminal defendant is
entitled to make a strategic choice to forgo the lesser included
offense instruction.”); United States v. Lopez Andino, 831 F.2d
1164, 1171 (1st Cir. 1987). In this case, we are persuaded that
Valenzuela made just such a choice when he focused exclusively on
an alibi defense at trial and neither requested any lesser-
included-offense instructions nor objected when the court denied
Estrada’s request for them. Therefore, we conclude that it was
not plain error for the court to fail to give a lesser-included-
offense instruction in Valenzuela’s case.
Estrada argues that he was entitled to a lesser-included-
offense instruction on the offense of simple assault for two
reasons. First, he contends that, based on the evidence adduced
at trial, the jury might have concluded that he assaulted
Gilbreath but that he did so without a broom or mop handle.
Second, he argues that the jury might have concluded that he
assaulted Gilbreath with a broom or mop handle, but that such an
object was not a dangerous weapon under the circumstances.
Because Estrada objected to the district court’s failure to
include a lesser-included-offense instruction on simple assault
in the jury charge, we review its decision not to include such an
instruction for abuse of discretion.
10 In order to be entitled to a lesser-included-offense
instruction, a defendant must “demonstrate that given the
evidence at trial, a rational jury could find him or her guilty
of the lesser offense, yet acquit of the greater.” 26 MOORE’S
FEDERAL PRACTICE, supra, § 630.32[4]. We have explained that
“‘[w]hile a defendant’s request for a lesser-included offense
charge should be freely granted, there must be a rational basis
for the lesser charge and it cannot serve merely as a device for
defendant to invoke the mercy-dispensing prerogative of the
jury.’” Harrison, 55 F.3d at 168 (alteration in original)
(quoting United States v. Collins, 690 F.2d 431, 438 (5th Cir.
1982)). However, “it is now beyond dispute that the defendant is
entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the
lesser offense and acquit him of the greater.” Keeble v. United
States, 412 U.S. 205, 208 (1973); see also United States v.
Chase, 838 F.2d 743, 747 (5th Cir. 1988); 2 CHARLES ALAN WRIGHT,
FEDERAL PRACTICE & PROCEDURE: CRIMINAL § 498, at 795 (2d ed. 1982)
(“There is no doubt but that a defendant is entitled to an
instruction about the lesser offense as a matter of right if the
evidence would permit the jury to find him guilty of that
offense.” (footnotes omitted)).
Although Estrada, like Valenzuela, presented an alibi
defense, other evidence adduced at trial would have permitted a
rational jury to convict him of simple assault and acquit him of
11 assault with a dangerous weapon. During cross-examination,
Estrada’s attorney impeached Gilbreath by questioning him about
his initial incident report in which he did not mention the use
of a broom or mop handle during the assault by Estrada. In
addition, he questioned Gilbreath about the government’s
inability to produce the broom or mop handle at trial. Finally,
Estrada testified that he “didn’t use any weapons,” when asked
whether he “intentionally using a dangerous weapon assault[ed]
officer Travis Gilbreath.”3
Estrada also disputed whether a broom or mop handle, under
the circumstances of this case, constituted a dangerous weapon
within the meaning of 18 U.S.C. § 113(a)(3). In United States v.
Bey, we addressed a similar issue. The defendants in Bey were
charged with assault on a federal officer with a dangerous weapon
pursuant to 18 U.S.C. § 111 (1976). 667 F.2d at 8. Over the
objections of the defendants, the court instructed the jury on
3 Estrada also testified that he was not involved in the altercation at all. However, the jury was entitled to believe none, all, or any part of his testimony. See 2 WRIGHT, supra, § 498, at 799 (“In determining whether to instruct on the lesser offense, the court must take into account the possibility that the jury might reasonably believe defendant only in part or might make findings different from the version set forth in anyone’s testimony.”); cf. Chase 838 F.2d at 747 (“‘[E]ven where the defendant presents a totally exculpatory defense, the [lesser- included-offense] instruction should nevertheless be given if the prosecution’s evidence provides a “rational basis” for the jury’s finding the defendant guilty of a lesser offense.’” (quoting United States v. Payne, 805 F.2d 1062, 1067 (D.C. Cir. 1986))). Therefore, the jury might have discredited Estrada’s testimony denying any involvement in the altercation, but it might also have credited his testimony denying the use of a weapon.
12 the lesser-included offense of simple assault, and the jury
convicted the defendants of that offense. Id. at 11. The
defendants appealed, arguing that a mop handle was necessarily a
dangerous weapon and therefore no lesser-included-offense
instruction was warranted. Id. We disagreed, and we affirmed
the convictions, reasoning that
what constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use to “‘ * * * endanger life or inflict great bodily harm.’” Factors relevant to this determination include the circumstances under which the object is used and the size and condition of the assaulting and assaulted persons. A dangerous weapon is an object capable of doing serious damage to the victim of the assault; the jury could reasonably have found that the mop handles were not under the circumstances dangerous weapons.
Id. (omission in original); see also United States v. Schoenborn,
4 F.3d 1424, 1433 (7th Cir. 1993) (“Whether or not an object
constitutes a dangerous weapon under § 113(c) is a question of
fact and necessarily depends on the particular circumstances of
each case.”); United States v. Hamilton, 626 F.2d 348, 349 (4th
Cir. 1980) (“Whether an article should be deemed a weapon depends
not only upon the nature of the article but the intent with which
it is used or conveyed by the individual. This is ordinarily a
question to be determined by the jury . . . .” (citing United
States v. Barnes, 569 F.2d 862, 863 (5th Cir. 1978))).
As Estrada presented evidence sufficient for the jury to
find that he assaulted Gilbreath without a broom or mop handle
and as any broom or mop handle that he did use may or may not
13 have constituted a dangerous weapon under the circumstances,
Estrada was entitled to an instruction on the offense of simple
assault. The district court thus abused its discretion in
denying Estrada’s request for such an instruction.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment of conviction and sentence as to Hernandez, and we
REVERSE the district court’s judgment of conviction and sentence
as to Estrada.