F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee,

v.

J O R D A N J A M E S L A

M O T T , D efendant-Appellant. No. 15-30012

D.C. No. 4:14-cr-00053-B MM-1

OPI NI ON

A ppeal from the United States District Court for the District of Montana B r ian M. Morris, District J u dg e, Presiding

Arg ued and Submitted J une 7, 2016 Seattle, W a shing ton

F iled Aug ust 2, 2016

B efore: Richard A. Paez , J a y S. B y bee, and Morg an Christen, Circuit J udg es.
Opinion by J udg e ChristenU N I T E D S T A T E S V

. L A M O T T 2

SUMMARY *

Crim inal Law

Affirming a convi ct i o n , the panel held that assault b y strang ulation under 18 U.S.C. § 113(a)(8) is a g e neral intent crime, and that the district court therefore did not plainly err by instructing the jury to disreg ard the defendant’s voluntary intox ication, which is irrelevant to his g uilt or innocence.

The panel held that the district court did not plainly e rr in

a way th a t a ffected the outcome of the proceeding s, when it instructed the jury that it must decide whether the defendant “wounded” the victim, rather than instructing it t o d e c ide whether he “assaulted” her.

COUNSEL

Daniel Donovan (arg

ued), Daniel Donovan, PC, Great F alls, Montana, for Defendant-Appellant.

Ry an Georg e W e ldon (arg ued), Assistant United States Attorney ; Michael W

. Cotter, U nited States Attorney ; Office of the U nited States Attorney
, Great F alls, Montana; for Plaintiff-Appellee.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. L A M O T T 3

OP INION

CHRI STEN, Circuit J udg e:

I n 2013, Co n gr ess added the offense of assault b y

s trang ulation to the federal assault statute, 1 8 U.S.C. § 1 1 3

. The following y ear a jury convicted J ordan L amott under this provision for nonfatally strang ling his g i r l f r i end. W e must decide whether the jury was properly instructed to disreg ard L amott’s voluntary intox ic a t i o n, which requires u s to determine whether § 113(a)(8) is a g eneral or specific intent crim e

. W e also must d ecide whether the court’s instruction to the jury

on assault by strang ulation violated L amott’s due
process rig h t s

. W e hold that a ssault by strang ulation under § 113(a)(8) is a g ener a l intent crime, and L amott’s intox ication was therefore irrelevant. We find no plain error in the court’s instruction on the element s o f t h e offense. According ly
, we affirm L amott’s conviction.

I.

Violence a g ainst Native American women in I ndian Country has reached alarming r at e s i n the past few decades. See United States v. Bryant
, 136 S

. C t

. 1 954, 1959 (2016). Recent studies sug g est that Native American w omen

ex p erience certain violent crimes at two and a half times the national averag e. I

d. (citing Dept. of J ustic e, Attorney General’s Advisory Committee on Americ an I ndian a nd Alaska N ative Children Ex posed to Vio l e nce, Ending Violence So Children Can Thrive 38 (Nov. 2 0 14)). Particularly pervasive among violent crime is nonfatal strang ulation by domestic partners. See N a n cy Glass e t al., No n

- F a tal Strangulation Is an Important Risk Factor for Homicide o

f W omen , 35 J

. Emerg ency Med. 329, 333 (2008).U N I T E D S T A T E S V

. L A M O T T 4

Nearly half of domestic violence victims report being choked. Id. at 330, 3 3 3

. R ecent studies show that althoug h nonfatal strang ulation often l e a v e s few visible sig ns of injury
, it can

cause severe phy sical, neurolog ical, and psy chologi cal complications and often forebodes future domestic h omicide. See Donald J

. Smith, J r. et al., Frequency and Relationship of Reported Symptomology in V ictims of I

n timate Partner Violence: The Effect of Multiple Strangulation Attacks
, 21 J

. Emerg ency Med. 323, 327–28 (2001); see also Glass, supra , at 3 2 9–33 (concluding that women w ho have been nonfatally strang led are over seven times more likely to b ecome a victim of homicide with the same p artn er). The recent increased focus on the dang ers of nonfatal strang ulation c onfirms what “[ s] urvivors of non-fatal strang u lation h ave k n o w n f o r y ears”: “Many domestic v iol e n c e offenders a nd r apists do not strang le their partners to kill them; they s t r a n gl e them to let them know they

can kill them—any

time they wish.” Casey Gwinn, S trangulation and the Law
, in The I nvestig ation a nd Prosecution of Strang u lation Cases 5, 5 (2013).

These concerns help e d motivate the reauthoriz ation in 2013 of the Violence Ag ainst W omen Act (VAW A). 159 Cong

. Rec. S480-02, S488 (daily e d

. Feb. 7, 2 013) (statement of Sen. Udall). I n r elevant part, the Act amended the federal assault statute to add a provision directed toward vict ims of nonfatal strang ulation by a domestic partner. Violence Ag ainst W omen Reauthoriz ation Act of 2013, Pub. L

. No. 113-4, 1 2 7 Stat. 5 4. The newly added section (a)(8) criminaliz es “[ a] ssault of a spouse, intimate partner, or dating partner by strang ling
, suffocating
, or attempting to strang le o r suffocate.” 18 U.S.C. § 113(a)(8).

J ust over a y ear after § 113(a)(8) was enacted, on March 28, 2014, J ordan L amott r e t u rned home with his g irlfriend,U N I T E D S T A T E S V

. L A M O T T 5

J .F
., and n onfatally strang led her several times. L amott a n d J

. F. are Native Americans and live on the B lackfeet I ndi a n Reservation in Montana.

Tha t evening the couple had been out with friends, a nd L amott had been drinking

. J .F

. testified that L amott became jealous o f one of J .F .’s f

riends, and w hen the couple r eturned
to L amott’s house, L amott p u s h e d J .F

. onto the bed in the living room a n d b ega n strang ling her. J .F

. foug ht back a nd scratched a t L a mott’s face. L amott then picked up J .F

. by her hair, hit her on the head, d ropped her on the bed, and b eg an strang ling her ag ain. L a mott lost his balance, and J .F

. momentarily escaped t o the bathroom. L amott e ntered the bathroom, g rabbed J .F

. by her leg s, and drag g ed her b ack t o the bed, where he strang led her ag ain until she passed out. At

some point J .F

. reg ained consciousness, left L amott’s house, and eventually

went to a hospital to receive treatment.

L amott was charg e d with: (1) assault by strang u l a t i on, 18 U.S.C. § 113(a)(8); and (2) assault resulting in serious bodily injury
, § 113(a)(6). The District of M ontana h ad jurisdiction u nder 18 U.S.C. § 1 153(a), which confers jurisdiction over f

ederal assaults committed b y an I ndian
ag ainst another I ndian in I ndian C ountry

. A fter a two-day trial, a jury convicted L amott on t h e ch a rg e of assault b y stran g u l a t i on, but hung o n the charg e of assault resulting in serious bodily injury
, which the g overnment later d ismissed. L amott was sentenced to 32 months’ imprisonment, and he timely ap p ea led. W e have jurisdiction under 28 U .S.C. § 1291.U N I T E D S T A T E S V

. L A M O T T 6

II.

L amott challeng es two jury instructions o n appeal. F irst, he arg ues th e c ourt erred by instructing the jury to d isreg ard evidence of his voluntary intox ication because, he contends, assault b y strang ulation is a specific intent crime. Second, he
arg ues the court erred by instructing the jury that, in o rder to convict, it must find L amott wounded J .F

. by strang ling her, rather than instructing that it must find L amott assaulted J .F

. by strang ling her, consistent with the statute and indictment. L amott did not object to either instruction, so o u r r eview is for plain error. S

ee F ed. R. Crim. P. 52(b).

A.

W e first a ddress L amott’s challeng e to the intox ication instruction. L amott concedes that voluntary intox ication is a defense to specific intent crimes, but not to g enera l intent crimes. See United States v. Jim
, 865 F .2d 211, 212 (9th Cir. 1989). Thus, we must decide whether assault b y strang ulation under § 1 1 3(a)(8) is a specific or g eneral intent crime.

“F ew areas of criminal law pose more difficulty than the
proper defin i t ion of the mens rea r equired for any particular crime.” United States v. Bailey
, 444 U.S. 394, 403 (1980). I n particular, the distinction between g eneral and specific intent “has been the source of a g ood deal of confusion.” Id. I n a crime r e q u i r i ng “ specific intent,” the g overnment must prove that the defendant subjectively intended or desired the proscribed act or r e s u l t

. See Jim
, 865 F .2d at 213. B y contrast, a g eneral intent crime requires o nly that the a ct was volitional (as opposed to accidental), and the defendant’s
state of mind is not o therwise relevant. See genera lly id. atU N I T E D S T A T E S V

. L A M O T T 7

212–13. The practic a l difference between the two is that certain defenses, like factual m istake and voluntary intox ication, can neg ate culpability f or specific intent crimes but not for g eneral intent crimes. United States v. GracidasUlibarry , 231 F .3d 1188, 1196 (9th Cir. 2000) (en banc).

To determine whether § 1 13(a)(8) is a g eneral or specific intent crime, we look first to the tex t o f the statute. See Jim
, 865 F

. 2d at 213. Section (a)(8) criminaliz es: ( 1) “assault[ ing ]

. . . a spouse, intimate partner, or dating partner”; ( 2 ) “ b y strang ling [ or] suffocating .” The statute does n o t s p e c ify a

mens rea requirement, nor does it define “ a ssault.” F or this

r e ason we have previously applied the common law definition

o f a s s a ult to § 113 crimes. See United States v. Lewelly n , 481 F .3d 695, 697 (9th Cir. 2007) (interpreting § 113(a)(5));

see also United States v. Shabani
, 5 1 3 U.S. 10, 13 (1994) (“[ A] b sent contrary i n d i c a t ions, Cong ress intends to a dopt the

common law definition o f statutory t er m s .”). Common law assault is d efined as “(1) ‘a willful attempt to inflict injury
upon the person of another,’ a lso known as ‘an attempt to commit battery ,’ or (2) ‘a threat to i n f lict injury upon the
person of another which, when coupled with an apparent pre s e nt a

bility
, causes a reasonable apprehension o f immediate bodily harm.’” Lewellyn
, 481 F .3d at 697 (quoting United States v. D upree , 544 F

. 2d 1 0 5 0
, 1051 (9th Cir. 1976)).

W e hav e p r e v i ously held that common law assault is a specific intent crime, see Jim , 865 F .2d at 213, but that does
not e nd our analy sis, for we must determin e w hether the statute’s contex t or leg islative history “g ive[ ] any indication that Cong ress intended n ot to incorporate the common law meaning of the term” into § 113(a)(8), Gracidas-Ulibarry
, 231 F .3d at 1 1 9 3 ; see also Jim
, 865 F .2d at 213–15U N I T E D S T A T E S V

. L A M O T T 8

( ex plaining that althoug h 18 U.S.C. § 111 incorporated th e

common law definition of assault r e q uiring specific intent, the statute’s contex t and leg islative history demonstra ted Cong r ess intended it be a g eneral intent crime).

Several factors indicate that Cong ress intended a ssault b y strang ulation to require a showing only of g eneral i n t e n t. F irst, three of the eig ht f ederal assa u l t offenses c ontain the words “with intent to,” but s e c t i o n (a)(8) does not. See § 1 13(a)(1), (a)(2), (a)(3). W hile not disposit i v e of the
g eneral vs. specific intent q u estion, where Cong ress “intend[ s] to leg islate a specific intent crime,” the statute ty pically uses the phrase “with the intent to.” United States

v. M eeker
, 5 2 7 F. 2 d 12, 14–15 (9th Cir. 1975) (alteration in orig inal) ( determining that i n t imidating any flig ht crew

me m b e r “ s o as to interfere w ith the p erformance

. . . of his duties” was a g eneral intent crime, in part because Cong ress used “so as to” rather than “with the in t e n t to” (emphasis added)). That the federal assault statute uses this phrase only in sections (a)(1)–(a)(3) is c onsistent with section (a)(8) requiring g eneral intent.

Second, while the statute does not define “assault,” it does define “ strang ling ” a s “ i n t e ntionally
, knowing ly
, o r recklessly impeding the n ormal breathing or circulation

. . . reg ardless of whether

. . . there is a

n y intent to kill or protractedly injure the victim.” § 113(b)(4). B ec ause strang ling c an b e done knowing ly
, or even recklessly
, and because the d efinition

ex p licitly disclaims the r e q uiremen t o f “ a ny intent to kill o r protractedly injure,” it is not likely C o n gress intended that “assau l t

. . . by strang ling ” require specific intent. See Gracidas-Ulibarry
, 231 F .3d at 1196 (“I n g eneral, ‘purpose’
correspon ds to the concept of specific intent, while ‘knowledg e’ corresponds to g eneral intent.”).U N I T E D S T A T E S V

. L A M O T T 9

Third, it appears Cong ress intended § 113 to operate not merely a s an assault s t atute but rather as an assault a nd battery statute, and battery is a g eneral intent crime. See United S tates v. Delis
, 558 F .3d 177, 180 (2d Cir. 2009). The
terms “ assault” and “battery ” took different meaning s at

common law, but in recent y ears “[ t] h e distinction b e t w een assault and batt e r y

. . . has been reg u larly elided,” and the words “have often been used interchang eably .” Id. at 181;

see a lso Voisine v. United States
, 13 6 S. Ct. 2272, 2281 n.5 (2016) (noting that recent developments “make[ ] t h e c o m m on law a bad match for the ordinary misdemeanor assault a nd battery statutes in Cong ress’s sig htline”). T h a t Cong ress meant “battery

” when it said “assault” in § 113 is evidenced by the fact that many of § 113’s provisions (including the o ne at issue in this case) r equire phy sical contact—a hallmark of

common law battery but not o f c ommon law assault. See United States v. W

a tts , 798 F .3d 650, 6 52–53 (7th Cir. 2 015) (“In 18 U.S.C. § 113(a), ‘assault’ pr imarily means common law ‘battery ,’” and, specifically
, “sub s e c t i o n[ ]

. . . (8) punish[ es] common law battery .”).

L ast, the leg islative record surrounding the passag e o f § 113(a ) ( 8) indicates Cong r ess intended that it require
ge n eral, not specific intent. Cong ress enacted the VA W A Reauthoriz ation Act of 2 0 1 3 in part to “decrease the incidence of violent crimes ag ainst I ndian women.” S. Rep. No. 112-265, at 1 ( 2 0 1 2 ) ; see also U nited States v. Bryant
, 136 S. Ct. 1954, 1959 (2016) (“‘ [ C ]ompared to all other
g roups in the United States,’ Native American w o men ‘ex perience the hig hest rates o f domestic violence.’” (quoting 151 Cong . Rec. 9061 (2005) (remarks of Sen. McCain))). I t

was concerned with “the g radual escalation of serio u s n e ss often a ssociated with domestic violence offenses,” 159 Cong

. Rec. E217-03, E218 (dail y e d

. Feb. 28, 2013) (statement o fU N I T E D S T A T E S V

. L A M O T T 10

Rep. J ackson L ee), a

nd soug ht t o “protect Native w omen from an epid e m ic of domestic violence

. . . by allowing F ederal prosecutors to seek toug her sentences f or perpetrators who strang le or suffocate their spouses or partners,” 159 Cong

. Rec. S480-02, S488 (dail y e d

. F eb. 7, 2 013) (statement of Sen. U dall). Thus, Cong ress was focused broadly o n the act of domestic abuse of Native women—not

on the mindset of defendants. This concern is best addressed with a g eneral intent statute. See U nited States v. Meeker
, 527 F .2d 1 2
, 1 4 ( 9th Cir. 1975) ( determining that a statute criminaliz ing assault of flig ht crew members re q u i re d only
g eneral intent, in part because Cong ress was concerned “not [ w ith] the f

ormation of a specific intent to interfere with aircraft operations but [ with] the criminal ac t o f a n assault, intimidation or threat upon airline personnel during flig ht”);

see also U

nited States v. J

im
, 865 F .2d 211, 2 14–15 ( 9th Cir. 1989) (determining 18 U .S.C. § 111 is a g eneral intent crime, in part because Cong ress was concerned with preventing the
act o f a ssault on federal officers rather than with the mindset of the defendant).

W e are persuaded by the tex t and history of section (a)(8) that Cong ress intended assault by s t ra n g ulation to require only g eneral intent. L amott’s voluntary in t o x i c ation was therefore n ot relevant to his g uilt or innoc e n c e, and the distr i c t court did not plainly err by instructing the jury to disreg ard it. 1

1 L am o t t co n ten d s th at ev en if § 1 1 3 (a)(8 ) is a g en eral in ten t crim e, th e g o v ern m en t co n v erted it to a sp ecif ic in ten t crim e b y c h a r g in g in th e in d ictm en t t

h at L am o t t “ in t en tio n ally a ss a ul t e d J .F.

. . . by stran g l in g .” W e d isag ree. “ In ten tio n ally ” ap p lies to th e act itself
, an d s e r v e s m erely
to d istin g u ish

n o n v olitio n al o r accid en tal co n d u ct. T h e req u i rem en t th at

an act b e d o n e “ in ten tio n ally ” is “ a p erf ectly ad eq u ate f

o rm u latio n o f th e id ea o f g en eral in ten t .” Un ited S t a tes v. S mith
, 6 3 8 F.2 d 1 3 1
, 1 33 (9 th Cir.U N I T E D S T A T E S V

. L A M O T T 11

B.

L amott also challeng es the jury instruction on assault b y strang ulation. He contends the prosecution was relieved of its burden to prove every element of t he offense bey ond a reasonable doubt because the district court instructed the jury that it must decide whethe r L amott “wounded” J .F
., rather than instructing it to decide whether L amott “assaulted” her. B ecause L a mott di d not object at trial, we review the instruction for plain error. F ed. R. Crim. P. 52(b).

The statue proscribes:

Assaul t o f a spouse, intimate partner, o r dating partner by stra n gling
, suffocating
, o r attempting to strang le or suffocate . . . .

§ 113(a)(8). Count I of the indictment charg ed that L amott:

[ I ] ntentionally a ssaulted J .F

. . . . by strang ling J .F

. , in violation of 18 U.S.C. §§ 1153(a) a nd 113(a)(8).

The g overnment proposed the j ury be instructed, in relevant part, that in order to co n v ict, it must find “the defendant assaulted J .F

. by intentionally striking or wounding her

. . . [ and] the defendant d id so by strang ling J .F .” L amott did not

1 9 8 1 ). A n d ev en if w e w ere to assu m e th at th e u s e o f “ in ten tio n ally ” in th e in d i ctm en t an d j u ry in stru ctio n req u ired th e j u ry to f in d s p ecif i c i n t en t, th at w o u ld b e “ a ‘ w in d f

all’ f o r th e d ef en d an t,” an d w o u ld “ n o t en title h im
to a dim in ish ed cap acity d ef en se, w h ich i s o n ly co g n izab le f o r sp ecif ic in ten t crim es.” Un ited S ta tes v. Ma rtin ez , 4 9 F.3 d 1 3 9 8
, 1 4 0 1 (9 th Cir. 1 9 9 5 ) (su p erced ed b y st a t ut e as stated in Un i ted S ta tes v. Ra n d o lp h
, 9 3 F.3 d 6 5 6 , 6 6 1 (9 th

Cir. 1 9 9 6 )).U N I T E D S T A T E S V

. L A M O T T 12

object t o the proposed instruction. The district court instructed the jury that to convict, it must find “the defendant intentionally wounded J .F

. by strang ling her.” Ag ain, L amott di d n ot object, but he now arg ues that the court should have required the jury to decide w hether “the defendant intentionally

assaulted J

. F

. by

strang ling her.”

W e a g r ee w i t h L amott that use of the word “assaulted” rather than “wounded” would have more closely tracked the indictment and the lang uag e of § 113(a)(8). B u t we disag r ee that the court plainly erred in a way that “aff e c t [ e d] the
outcome of the proceeding s.” United States v. Fuchs
, 218 F .3d 957, 962 (9th Cir. 2000) (quoting United S tates v

. B a r o n , 94 F

. 3d 1312, 1 318 (9th Cir. 1996)). I n addition t o instruc ting the jury that it must find L amott “intentionally wounded J .F

. by strang ling her,” the court also instructed that “strang ling means

. . . impeding the normal breathing o r circulation of the blood o f a person by apply ing pre s s u re to the throat or neck.” L amott d id n ot o bject to this instruction,

nor does he challeng e it on appeal, and the jury plainly f ound that L amott “strang led” J .F

. Given the c o u r t ’ s definition o f “strang ling
, ” we can conceive of no w ay t h a t L amott could have strang led J .F

. without assaulting her. This is true under

e ither common law definition of a ssault: the “attempt t o commit battery ” definition or the “reasonable a pprehension of immediate b odily harm” definition. See United States v

. Lewellyn
, 481 F .3d 6 95, 697 (9t h C ir. 2007). The district court’s inclusion of the word “wounded” may have been superfluous, b u t if any

thing
, the inclusion of “wounded” in the instruction required tha t t h e g overnment meet a h igher burden than w as necessary because section (a)(8) d o e s notU N I T E D S T A T E S V

. L A M O T T 13

require proof of a w o u n d o r injury

. That the jury found o ne here only reinforces that an assault occurred. 2

* * *

Cong r ess added section (a)(8) to the federal assault statute

as part of a w idespread ef f o r t to protect Native American

women from the g rowing p roblem o f domestic abuse. This

case falls squarely within the provision’s reach. B ecause assault by strang ulation is a g eneral intent crime, the court did
not err by instructing the jury to d i s r e gard L amott’s intox ication. Nor d o w e find p lain e rror in the court’s instruction on assault.

AF F IRMED.

2 Ev en if w e w ere u n co n v in ced th at th e co u rt’ s stran g u latio n in stru ctio n

ren d ered its su

b stit u t i o n o f “ w o u

n ded ” f o r “ assau lted ” h arm l ess, th e g o v ern m en t o f

f ers an o t h e r b a sis to af

f i rm : assau lt can b e estab lish ed b y p ro v in g b attery , an d w o u n d i n g co n stitu tes a b attery

. We h av e reco g n ized th at “ assau l t i s a n a t tem

p ted b attery an d p ro o f o f a b attery w ill su p p o rt

c o n v i c t i o n o f an assau lt.” Lewellyn
, 4 8 1 F.3 d at 6 9 7 (q u o tin g Un it e d S ta tes v. Du

p ree , 5 4 4 F.2 d 1 0 50
, 1 0 5 2 (9 th Cir. 1 9 7 6 )). W e h av e also

r e c o g n i zed t

h at “ assau lt b y

. . . w o u n din g [] is th e eq u i v alen t o f s im p l e b attery .” U

n i t e d S t a tes v. Ju ven ile Ma le
, 9 3 0 F.2 d 7 2 7
, 7 2 8 (9 t h Cir. 1 9 9 1 ) (q u o tin g Un ited S ta tes v. Kn i fe
, 5 9 2 F.2 d 4 7 2
, 4 8 2 (8 th C i r. 1 9 7 9 )). B e c a u se w ou n d in g is a b attery , an d p ro o f o f a b attery can su p p o rt a

co n v ictio n f

o r assau lt, an

y erro r in th e district co u rt’ s d ecisio n to rep l ace

“ assau lted ” w ith

“ w o u n d ed ” w as n o t p l ain

.