United States v. Jordan Werk

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 28, 2021
• Docket: 20-30117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.