FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORDAN JAMES LAMOTT,

Defendant-Appellant.

No. 15-30012

D.C. No.

4:14-cr-00053-BMM-1

OPINION

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, District Judge, Presiding

Argued and Submitted June 7, 2016

Seattle, Washington

Filed August 2, 2016

Before: Richard A. Paez, Jay S. Bybee,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 UNITED STATES V. LAMOTT

SUMMARY*

Criminal Law

Affirming a conviction, the panel held that assault by

strangulation under 18 U.S.C. § 113(a)(8) is a general intent

crime, and that the district court therefore did not plainly err

by instructing the jury to disregard the defendant’s voluntary

intoxication, which is irrelevant to his guilt or innocence.

The panel held that the district court did not plainly err in

a way that affected the outcome of the proceedings, when it

instructed the jury that it must decide whether the defendant

“wounded” the victim, rather than instructing it to decide

whether he “assaulted” her.

COUNSEL

Daniel Donovan (argued), Daniel Donovan, PC, Great Falls,

Montana, for Defendant-Appellant.

Ryan George Weldon (argued), Assistant United States

Attorney; Michael W. Cotter, United States Attorney; Office

of the United States Attorney, Great Falls, Montana; for

Plaintiff-Appellee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. LAMOTT 3

OPINION

CHRISTEN, Circuit Judge:

In 2013, Congress added the offense of assault by

strangulation to the federal assault statute, 18 U.S.C. § 113. 

The following year a jury convicted Jordan Lamott under this

provision for nonfatally strangling his girlfriend. We must

decide whether the jury was properly instructed to disregard

Lamott’s voluntary intoxication, which requires us to

determine whether § 113(a)(8) is a general or specific intent

crime. We also must decide whether the court’s instruction

to the jury on assault by strangulation violated Lamott’s due

process rights. We hold that assault by strangulation under

§ 113(a)(8) is a general intent crime, and Lamott’s

intoxication was therefore irrelevant. We find no plain error

in the court’s instruction on the elements of the offense. 

Accordingly, we affirm Lamott’s conviction.

I.

Violence against Native American women in Indian

Country has reached alarming rates in the past few decades. 

See United States v. Bryant, 136 S. Ct. 1954, 1959 (2016). 

Recent studies suggest that Native American women

experience certain violent crimes at two and a half times the

national average. Id. (citing Dept. of Justice, Attorney

General’s Advisory Committee on American Indian and

Alaska Native Children Exposed to Violence, Ending

Violence So Children Can Thrive 38 (Nov. 2014)). 

Particularly pervasive among violent crime is nonfatal

strangulation by domestic partners. See Nancy Glass et al.,

Non-Fatal Strangulation Is an Important Risk Factor for

Homicide of Women, 35 J. Emergency Med. 329, 333 (2008). 
4 UNITED STATES V. LAMOTT

Nearlyhalf of domestic violence victims report being choked. 

Id. at 330, 333. Recent studies show that although nonfatal

strangulation often leaves few visible signs of injury, it can

cause severe physical, neurological, and psychological

complications and often forebodes future domestic homicide. 

See Donald J. Smith, Jr. et al., Frequency and Relationship of

Reported Symptomology in Victims of Intimate Partner

Violence: The Effect of Multiple Strangulation Attacks, 21 J.

Emergency Med. 323, 327–28 (2001); see also Glass, supra,

at 329–33 (concluding that women who have been nonfatally

strangled are over seven times more likely to become a victim

of homicide with the same partner). The recent increased

focus on the dangers of nonfatal strangulation confirms what

“[s]urvivors of non-fatal strangulation have known for years”: 

“Many domestic violence offenders and rapists do not

strangle their partners to kill them; they strangle them to let

them know they can kill them—any time they wish.” Casey

Gwinn, Strangulation and the Law, in The Investigation and

Prosecution of Strangulation Cases 5, 5 (2013).

These concerns helped motivate the reauthorization in

2013 of the Violence Against Women Act (VAWA). 

159 Cong. Rec. S480-02, S488 (daily ed. Feb. 7, 2013)

(statement of Sen. Udall). In relevant part, the Act amended

the federal assault statute to add a provision directed toward

victims of nonfatal strangulation by a domestic partner. 

Violence Against Women Reauthorization Act of 2013, Pub.

L. No. 113-4, 127 Stat. 54. The newly added section (a)(8)

criminalizes “[a]ssault of a spouse, intimate partner, or dating

partner by strangling, suffocating, or attempting to strangle or

suffocate.” 18 U.S.C. § 113(a)(8).

Just over a year after § 113(a)(8) was enacted, on March

28, 2014, Jordan Lamott returned home with his girlfriend,
UNITED STATES V. LAMOTT 5

J.F., and nonfatally strangled her several times. Lamott and

J.F. are Native Americans and live on the Blackfeet Indian

Reservation in Montana.

That evening the couple had been out with friends, and

Lamott had been drinking. J.F. testified that Lamott became

jealous of one of J.F.’s friends, and when the couple returned

to Lamott’s house, Lamott pushed J.F. onto the bed in the

living room and began strangling her. J.F. fought back and

scratched at Lamott’s face. Lamott then picked up J.F. by her

hair, hit her on the head, dropped her on the bed, and began

strangling her again. Lamott lost his balance, and J.F.

momentarily escaped to the bathroom. Lamott entered the

bathroom, grabbed J.F. by her legs, and dragged her back to

the bed, where he strangled her again until she passed out. At

some point J.F. regained consciousness, left Lamott’s house,

and eventually went to a hospital to receive treatment.

Lamott was charged with: (1) assault by strangulation,

18 U.S.C. § 113(a)(8); and (2) assault resulting in serious

bodily injury, § 113(a)(6). The District of Montana had

jurisdiction under 18 U.S.C. § 1153(a), which confers

jurisdiction over federal assaults committed by an Indian

against another Indian in Indian Country. After a two-day

trial, a jury convicted Lamott on the charge of assault by

strangulation, but hung on the charge of assault resulting in

serious bodily injury, which the government later dismissed. 

Lamott was sentenced to 32 months’ imprisonment, and he

timely appealed. We have jurisdiction under 28 U.S.C.

§ 1291.
6 UNITED STATES V. LAMOTT

II.

Lamott challenges two jury instructions on appeal. First,

he argues the court erred by instructing the jury to disregard

evidence of his voluntary intoxication because, he contends,

assault by strangulation is a specific intent crime. Second, he

argues the court erred by instructing the jury that, in order to

convict, it must find Lamott wounded J.F. by strangling her,

rather than instructing that it must find Lamott assaulted J.F.

by strangling her, consistent with the statute and indictment. 

Lamott did not object to either instruction, so our review is

for plain error. See Fed. R. Crim. P. 52(b).

A.

We first address Lamott’s challenge to the intoxication

instruction. Lamott concedes that voluntary intoxication is a

defense to specific intent crimes, but not to general intent

crimes. See United States v. Jim, 865 F.2d 211, 212 (9th Cir.

1989). Thus, we must decide whether assault by

strangulation under § 113(a)(8) is a specific or general intent

crime.

“Few areas of criminal law pose more difficulty than the

proper definition of the mens rea required for any particular

crime.” United States v. Bailey, 444 U.S. 394, 403 (1980). 

In particular, the distinction between general and specific

intent “has been the source of a good deal of confusion.” Id. 

In a crime requiring “specific intent,” the government must

prove that the defendant subjectively intended or desired the

proscribed act or result. See Jim, 865 F.2d at 213. By

contrast, a general intent crime requires only that the act was

volitional (as opposed to accidental), and the defendant’s

state of mind is not otherwise relevant. See generally id. at
UNITED STATES V. LAMOTT 7

212–13. The practical difference between the two is that

certain defenses, like factual mistake and voluntary

intoxication, can negate culpability for specific intent crimes

but not for general intent crimes. United States v. GracidasUlibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).

To determine whether § 113(a)(8) is a general or specific

intent crime, we look first to the text of the statute. See Jim,

865 F.2d at 213. Section (a)(8) criminalizes: (1) “assault[ing]

. . . a spouse, intimate partner, or dating partner”; (2) “by

strangling[ or] suffocating.” The statute does not specify a

mens rea requirement, nor does it define “assault.” For this

reason we have previouslyapplied the common law definition

of assault to § 113 crimes. See United States v. Lewellyn,

481 F.3d 695, 697 (9th Cir. 2007) (interpreting § 113(a)(5));

see also United States v. Shabani, 513 U.S. 10, 13 (1994)

(“[A]bsent contraryindications, Congress intends to adopt the

common law definition of statutory terms.”). Common law

assault is defined as “(1) ‘a willful attempt to inflict injury

upon the person of another,’ also known as ‘an attempt to

commit battery,’ or (2) ‘a threat to inflict injury upon the

person of another which, when coupled with an apparent

present ability, causes a reasonable apprehension of

immediate bodilyharm.’” Lewellyn, 481 F.3d at 697 (quoting

United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.

1976)).

We have previously held that common law assault is a

specific intent crime, see Jim, 865 F.2d at 213, but that does

not end our analysis, for we must determine whether the

statute’s context or legislative history “give[] any indication

that Congress intended not to incorporate the common law

meaning of the term” into § 113(a)(8), Gracidas-Ulibarry,

231 F.3d at 1193; see also Jim, 865 F.2d at 213–15
8 UNITED STATES V. LAMOTT

(explaining that although 18 U.S.C. § 111 incorporated the

common law definition of assault requiring specific intent,

the statute’s context and legislative history demonstrated

Congress intended it be a general intent crime).

Several factors indicate that Congress intended assault by

strangulation to require a showing only of general intent. 

First, three of the eight federal assault offenses contain the

words “with intent to,” but section (a)(8) does not. See

§ 113(a)(1), (a)(2), (a)(3). While not dispositive of the

general vs. specific intent question, where Congress

“intend[s] to legislate a specific intent crime,” the statute

typically uses the phrase “with the intent to.” United States

v. Meeker, 527 F.2d 12, 14–15 (9th Cir. 1975) (alteration in

original) (determining that intimidating any flight crew

member “so as to interfere with the performance . . . of his

duties” was a general intent crime, in part because Congress

used “so as to” rather than “with the intent to” (emphasis

added)). That the federal assault statute uses this phrase only

in sections (a)(1)–(a)(3) is consistent with section (a)(8)

requiring general intent.

Second, while the statute does not define “assault,” it does

define “strangling” as “intentionally, knowingly, orrecklessly

impeding the normal breathing or circulation . . . regardless

of whether . . . there is any intent to kill or protractedly injure

the victim.” § 113(b)(4). Because strangling can be done

knowingly, or even recklessly, and because the definition

explicitly disclaims the requirement of “any intent to kill or

protractedly injure,” it is not likely Congress intended that

“assault . . . by strangling” require specific intent. See

Gracidas-Ulibarry, 231 F.3d at 1196 (“In general, ‘purpose’

corresponds to the concept of specific intent, while

‘knowledge’ corresponds to general intent.”).
UNITED STATES V. LAMOTT 9

Third, it appears Congress intended § 113 to operate not

merely as an assault statute but rather as an assault and

battery statute, and battery is a general intent crime. See

United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009). The

terms “assault” and “battery” took different meanings at

common law, but in recent years “[t]he distinction between

assault and battery . . . has been regularly elided,” and the

words “have often been used interchangeably.” Id. at 181;

see also Voisine v. United States, 136 S. Ct. 2272, 2281 n.5

(2016) (noting that recent developments “make[]the common

law a bad match for the ordinary misdemeanor assault and

battery statutes in Congress’s sightline”). That Congress

meant “battery” when it said “assault” in § 113 is evidenced

by the fact that many of § 113’s provisions (including the one

at issue in this case) require physical contact—a hallmark of

common law battery but not of common law assault. See

United States v. Watts, 798 F.3d 650, 652–53 (7th Cir. 2015)

(“In 18 U.S.C. § 113(a), ‘assault’ primarily means common

law ‘battery,’” and, specifically, “subsection[] . . . (8)

punish[es] common law battery.”).

Last, the legislative record surrounding the passage of

§ 113(a)(8) indicates Congress intended that it require

general, not specific intent. Congress enacted the VAWA

Reauthorization Act of 2013 in part to “decrease the

incidence of violent crimes against Indian women.” S. Rep.

No. 112-265, at 1 (2012); see also United States v. Bryant,

136 S. Ct. 1954, 1959 (2016) (“‘[C]ompared to all other

groups in the United States,’ Native American women

‘experience the highest rates of domestic violence.’” (quoting

151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain))). It

was concerned with “the gradual escalation of seriousness

often associated with domestic violence offenses,” 159 Cong.

Rec. E217-03, E218 (daily ed. Feb. 28, 2013) (statement of
10 UNITED STATES V. LAMOTT

Rep. Jackson Lee), and sought to “protect Native women

from an epidemic of domestic violence . . . by allowing

Federal prosecutors to seek tougher sentences for perpetrators

who strangle or suffocate their spouses or partners,”

159 Cong. Rec. S480-02, S488 (daily ed. Feb. 7, 2013)

(statement of Sen. Udall). Thus, Congress was focused

broadly on the act of domestic abuse of Native women—not

on the mindset of defendants. This concern is best addressed

with a general intent statute. See United States v. Meeker,

527 F.2d 12, 14 (9th Cir. 1975) (determining that a statute

criminalizing assault of flight crew members required only

general intent, in part because Congress was concerned “not

[with] the formation of a specific intent to interfere with

aircraft operations but [with] the criminal act of an assault,

intimidation or threat upon airline personnel during flight”);

see also United States v. Jim, 865 F.2d 211, 214–15 (9th Cir.

1989) (determining 18 U.S.C. § 111 is a general intent crime,

in part because Congress was concerned with preventing the

act of assault on federal officers rather than with the mindset

of the defendant).

We are persuaded by the text and history of section (a)(8)

that Congress intended assault by strangulation to require

only general intent. Lamott’s voluntary intoxication was

therefore not relevant to his guilt or innocence, and the

district court did not plainly err by instructing the jury to

disregard it.1

1 Lamott contends that even if § 113(a)(8) is a general intent crime, the

government converted it to a specific intent crime by charging in the

indictment that Lamott “intentionally assaulted J.F. . . . by strangling.” 

We disagree. “Intentionally” applies to the act itself, and serves merely

to distinguish nonvolitional or accidental conduct. The requirement that

an act be done “intentionally” is “a perfectly adequate formulation of the

idea of general intent.” United States v. Smith, 638 F.2d 131, 133 (9thCir.
UNITED STATES V. LAMOTT 11

B.

Lamott also challenges the jury instruction on assault by

strangulation. He contends the prosecution was relieved of its

burden to prove every element of the offense beyond a

reasonable doubt because the district court instructed the jury

that it must decide whether Lamott “wounded” J.F., rather

than instructing it to decide whether Lamott “assaulted” her. 

Because Lamott did not object at trial, we review the

instruction for plain error. Fed. R. Crim. P. 52(b).

The statue proscribes:

Assault of a spouse, intimate partner, or

dating partner by strangling, suffocating, or

attempting to strangle or suffocate . . . .

§ 113(a)(8). Count I of the indictment charged that Lamott:

[I]ntentionally assaulted J.F. . . . by strangling

J.F., in violation of 18 U.S.C. §§ 1153(a) and

113(a)(8).

The government proposed the jury be instructed, in relevant

part, that in order to convict, it must find “the defendant

assaulted J.F. by intentionally striking or wounding her . . .

[and] the defendant did so by strangling J.F.” Lamott did not

1981). And even if we were to assume that the use of “intentionally” in

the indictment and jury instruction required the jury to find specific intent,

that would be “a ‘windfall’ for the defendant,” and would “not entitle him

to a diminished capacity defense, which is only cognizable for specific

intent crimes.” United States v. Martinez, 49 F.3d 1398, 1401 (9th Cir.

1995) (superceded by statute as stated in United States v. Randolph,

93 F.3d 656, 661 (9th Cir. 1996)).
12 UNITED STATES V. LAMOTT

object to the proposed instruction. The district court

instructed the jury that to convict, it must find “the defendant

intentionallywounded J.F. by strangling her.” Again, Lamott

did not object, but he now argues that the court should have

required the jury to decide whether “the defendant

intentionally assaulted J.F. by strangling her.”

We agree with Lamott that use of the word “assaulted”

rather than “wounded” would have more closely tracked the

indictment and the language of § 113(a)(8). But we disagree

that the court plainly erred in a way that “affect[ed] the

outcome of the proceedings.” United States v. Fuchs,

218 F.3d 957, 962 (9th Cir. 2000) (quoting United States v.

Baron, 94 F.3d 1312, 1318 (9th Cir. 1996)). In addition to

instructing the jury that it must find Lamott “intentionally

wounded J.F. by strangling her,” the court also instructed that

“strangling means . . . impeding the normal breathing or

circulation of the blood of a person by applying pressure to

the throat or neck.” Lamott did not object to this instruction,

nor does he challenge it on appeal, and the jury plainly found

that Lamott “strangled” J.F. Given the court’s definition of

“strangling,” we can conceive of no way that Lamott could

have strangled J.F. without assaulting her. This is true under

either common law definition of assault: the “attempt to

commit battery” definition or the “reasonable apprehension

of immediate bodily harm” definition. See United States v.

Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007). The district

court’s inclusion of the word “wounded” may have been

superfluous, but if anything, the inclusion of “wounded” in

the instruction required that the government meet a higher

burden than was necessary because section (a)(8) does not
UNITED STATES V. LAMOTT 13

require proof of a wound or injury. That the jury found one

here only reinforces that an assault occurred.2

* * *

Congress added section (a)(8) to the federal assault statute

as part of a widespread effort to protect Native American

women from the growing problem of domestic abuse. This

case falls squarely within the provision’s reach. Because

assault by strangulation is a general intent crime, the court did

not err by instructing the jury to disregard Lamott’s

intoxication. Nor do we find plain error in the court’s

instruction on assault.

AFFIRMED.

2 Even if we were unconvinced that the court’s strangulation instruction

rendered its substitution of “wounded” for “assaulted” harmless, the

government offers another basis to affirm: assault can be established by

proving battery, and wounding constitutes a battery. We have recognized

that “assault is an attempted battery and proof of a battery will support

conviction of an assault.” Lewellyn, 481 F.3d at 697 (quoting United

States v. Dupree, 544 F.2d 1050, 1052 (9th Cir. 1976)). We have also

recognized that “assault by . . . wounding[] is the equivalent of simple

battery.” United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.

1991) (quoting United States v. Knife, 592 F.2d 472, 482 (8th Cir. 1979)). 

Because wounding is a battery, and proof of a battery can support a

conviction for assault, any error in the district court’s decision to replace

“assaulted” with “wounded” was not plain.