                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 15-30012
          Plaintiff-Appellee,
                                        D.C. No.
             v.                  4:14-cr-00053-BMM-1

JORDAN JAMES LAMOTT,
        Defendant-Appellant.              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

Nearly half 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. Gracidas-
Ulibarry, 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 previously applied 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 contrary indications, 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 bodily harm.’” 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, or recklessly
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 (9th Cir.
                    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
intentionally wounded 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.
