                     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.




                                 14
