red marks on on the victim's neck which could be considered a wound so that he could have been convicted of winegar without strangle me or really well but how could he have been convicted well that the judge didn't didn't eliminate the strangling requirement only  player that's a better question but i think that question was actually pretty good i'm sorry i was sorry the definition of strangling i contend complicates the case because what happens is that terms defined as a subsection and i'm thinking back to more than forty years ago when i went to law school and professor drummed into my head that act was intend it was a crime and if you look at the definition of strangling in the statute it contains intent as well as an act and if you break down strangling in and of itself which i try to do for it for this argument there be three elements first the defendant impeded the normal breathing or circulation of the blood of a person second the defendant did so by applying pressure to the throat or neck third that offended acted intentionally knowingly or recklessly the first problem is there's no assault and there but maybe the real problem is in looking back on on many years of practicing in federal court as well in montana state court every scrim the case i've been involved in the court the judge presents the jury the elements of the offense so here strangling has certain elements which weren't broken down and i suppose you could say on playing air well it wasn't objected to so the jury must must have found him guilty of strangling without going through each element but i think that's a problem here particularly when the definition of strangling uses these mental terms intentionally knowingly or recklessly  on the the it's sort of a variation of that bias question because the the the government proposed this instruction it was number sixteen that the defendant assaulted the victim by intentionally striking  and then went out giving the instruction that that we're talking about today that includes the word wound so either way that word was there wasn't a sneak attack seems like there was an opportunity to object to it i assure judge by his concern that if anything seems to me that by including the word wound that really the bar was raised it was me tougher for the government but setting that aside for a minute why there's there's there's no objection to this i that i can find in the government included the word wound and there was no objection there the government and i and the judge as you said think comes up with this instruction wounded and no objection right there's no objection and you know and i think the judge tried to make well that's that's the government's argument i guess i guess i just don't buy it but i don't mean you want to go back to first year law school which is for me was about i would say how much of that ancient time right well i remember from criminal law that what little there i remember that you know battery usually includes you know so i just if you look at those the statute uses assaults and all the ni circuit stock form definitions use a soft and then you bring in wound during the course of the trial i just think that's fair now but you had another argument you want to address that well this g there's been no determination that i know of by a court whether or not an assault by strangling us is a specific intent time crime or our general intent and the government included in maybe didn't have to i'm not even sure but they included the words intentionally in the indictment and so my argument is find clinton and clipping the words intentionally that made the it just all but the other words in the in the in the in the statute knowingly or recklessly creates another problem because a government charge intentionally although the again no objection strongly was to find with all three mil elements so the jury could have found mr lamont guilty of wreck of a reckless act and i would that would make him guilty under the statute strangling means intentionally knowingly or recklessly you can strangle somebody by recklessly impeding their flow under the statute right that's correct your honor so so i'm not understanding how this how to defend it was prejudiced by th getting back to what i said a few minutes ago i think the way the statute is worded it just confuses everything and i contend it confuse a jury and that's why there's plain error here there has to be confusion with the jury i'm in middle east the morning your honour's ryan weldon appearing on behalf of the united states i wanted to start with the use of the word intentional and just explain that for the court in the indictment there was the use of the word intentionally assaulted and in fact the jury instruction made it more difficult on the government because we were not required to just simply prove an assault we had to prove an actual wounding and of course under the strangulation statute you don't even need to prove that there was an actual injury under the intentionally strangled it did your ok to say recklessly strangled it did not it's not so there are three choices there under the statute that's what it shows you chose one of them and admitted the other two in the indictment yes your honor and in this case we were talking about an intentional by by including the word recklessly congress appears will broaden it to uncover both specific intent and general intent crimes which you only alleged a specific intent crime well no we did not allege a specific intent crime we allege that the act was intentional and i think the important distinction for that is that the result if you allege that the result is intentional that would be a specific intent crime were alleging that the act is intentional and we cited this in our brief and i think the the case that makes that the clearest is the skeet case and that's the example where you how do you make it generally intent crime a specific intent crime by the way you allege no you can't well i think the easy argument for that is that it would be mere surplus and that is also cited in every understand in our well if we say that it's intentional then of course if that's a heightened standard you can always prove the lesser standard based on the indictment language so when you said intentionally assaulted j f in the indictment you meant that he his acts were willful no i did not i mean what we meant were that his actions were intentional in other words they were not in the state he didn't tended to strangle her correct i did not count one was intentional assault by strangling correct as yet again to just we're just focusing on count one correct ok so a minute ago you said we alleged intentionally assaulted her and i'm understanding you to mean maybe just cut you off but i think that the indictment said intentionally assault by strangulation is that right that's exactly right it says intentionally assaulted j f an intimate partner or dating partner of the defendant by strangling ok so can you get back to judge by says question then about why this language of surpluses surplusage if you what you charge him was was an intentional act right and so i guess what i think we're starting to and i don't want to confuse the quarter cause any problems i am alleging not an intentional a specific intent crime we are alleging an in order to have an assault i can't trip and accidentally fall and then assault someone in the ski case i think provides the court with the best example of that where the issue was an individual who shot another man it actually went through his neck the bullet intimate and dating partner by strangling you because then i could potentially be here saying that i didn't allege an intentional act even though we're talking about it seems to me you made this really hard for yourself yes yes and i do i understand that when we have  injury but just to explain the rationale for the court in count two as well when you have assault resulting in serious bodily injury there's no mental state or definition in terms of intentionally recklessly or knowingly for assault resulting in serious bodily injury the government alleged intentionally because you have to have an assault resulting in serious bodily injury that's intentional the act must be intentional it can't and you have to it's not an issue here yes it is but i just wanted the court to be aware it's not me no it's not it is not addition i just wanted the court to be aware of that that's why the government alleged it in this particular way but as to mr lamont he actually received the benefit throughout the entire trial and we were required to prove the wounding in an assault can occur regardless of whether or not there is an injury of any kind in here mr lamont actually had to have the injury and of course when we have the terms intentional the one example that i would provide for the court is with the second degree murder and the malice aforethought where there must be killing either deliberately and intentionally or recklessly with extreme disregard and so those terms  already used in your jurisprudence and that's the exact same scenario here where you have intentional and deliberate and then you also have knowingly and recklessly you suggest to the judge that he include instruction of or he said well i suppose i did suggest that to him by my proposal to the court when i had intentionally striking are running or correct and so use that he did not and that's when he followed up in what they what judge morris did is he basically combined my proposed elements three and four and put them into the defendant intentionally wounded j f by strangling her now of course i made it more difficult on myself which was to the benefit of mr lamont sometimes i'm a glutton for punishment i know that we do not need to actually establish an injury in order for there to be a strange elation what i would propose for the court if this was something in terms of formulating an opinion is that it would be sufficient to simply say the defendant assaulted j f by strangling her that's what the statute says right yes at this and so it would probably be best to just follow that and then the follow up to that would be then you define strangling by just referring to it and you have the intentionally knowingly and recklessly once that definition is proposed the reason i state that is that this case it was tailored to the specific facts the reason there was no objection from the government is ultimately at the end it didn't matter because we did have a wounding and so judge moore harks correct so judge morris tailored this to the specific backs of the case i don't however want the court to be left with the impression that every strangulation there must be a wounding and an injury point again if you get back to the statutory definition of strangling it specifically says it doesn't matter if there's any intent to kill or basically an intent to seriously injure but i contend the way or read there has to be a specific intent to strangle basically a specific intent to impede the normal breathing or circulation of blood which i think is the essence of of strangling so why does there have to be an