Petition for Writ of Certiorari — Daniel Jacob Werk, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2025

DANIEL JACOB WERK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RACHEL JULAGAY

Federal Defender

*David F. Ness

Assistant Federal Defender

Federal Defenders of Montana

104 2nd Street South, Suite 301

Great Falls, MT 59401

(406) 727-5328

*Counsel for Petitioner

SUBMITTED: October 10, 2025

QUESTION PRESENTED

Whether the Ninth Circuit erred in upholding the district court’s denial of

Petitioner’s Federal Rule of Criminal Procedure 29 motion for judgment of

acquittal.

ii

RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in the United States District Court for the

District of Montana and the United States Court of Appeals for the Ninth Circuit:

United States v. Daniel Jacob Werk, No. 24-3082 (9th Cir. July 15, 2025)

United States v. Daniel Jacob Werk, No. CR-22-108-GF-BMM-1 (D. Montana May, 2024)

No other proceedings in state or federal trial or appellate courts, or in this Court, are directly

related to this case.

iii

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ............................................................................................................. ii

RULE 14.1(b)(iii) STATEMENT.................................................................................................. iii

TABLE OF CONTENTS ............................................................................................................... iv

TABLE OF AUTHORITIES ...........................................................................................................v

OPINION BELOW ..........................................................................................................................1

JURISDICTION AND TIMELINESS OF THE PETITION...........................................................1

STATUTORY PROVISIONS INVOLVED....................................................................................2

STATEMENT OF THE CASE.................................................................................................... 2-9

REASONS FOR GRANTING THE PETITION ..................................................................... 10-12

CONCLUSION ..............................................................................................................................12

Appendix A – United States Court of Appeals

for the Ninth Circuit United States v. Daniel Jacob Werk,

No. 24-3082, 2025 WL 1937088 (9th Cir. July 15, 2025) ............................... 1a-5a

iv

TABLE OF AUTHORITIES

Supreme Court Opinions

Page(s)

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................................... 10

Ninth Circuit Opinions

Lyda v. United States, 321 F.2d 788, 794 (9th Cir. 1963) ........................................................10, 12

United States v. Arriaga-Segura, 743 F.2d 1434 (9th Cir. 1984) ................................................ 10

United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987)........................................................10

United States v. Shelton, 588 F.2d 1242, 1245 (9th Cir. 1978) ................................................10, 12

United States v. Tam, 240 F.3d 797 (9th Cir. 2001) .................................................................... 10

United States v. Werk, No. 24-3082, 2025 WL 1937088 (9th Cir. July 15, 2025) ........................ 1

United States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002) .....................................................10

United States Code

18 U.S.C. § 2243(a) ....................................................................................................................... 9

18 U.S.C. § 2243(d) ....................................................................................................................... 9

28 U.S.C. § 1254(1) ....................................................................................................................... 1

28 U.S.C. § 2243(a), (d) ................................................................................................................. 2

Federal Rules of Criminal Procedure

Fed. R. Crim. P. 29, (a) ........................................................................................................ passim

United States Sentencing Guidelines

USSG § 2A3.2(b)(1) ...................................................................................................................... 9

Other

RULE 14 .................................................................................................................................. iv, v

Charles A. Wright et al., FEDERAL PRACTICE AND PROCEDURE: CRIMINAL

2dD §467, at 660-61 & n. 23 (West 1982) ...............................................................................10

v

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2025

DANIEL JACOB WERK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

The Petitioner, Daniel Jacob Werk, respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The Court of Appeals’ unpublished memorandum upholding the denial of Werk’s Rule 29

motion is unpublished but can be accessed at United States v. Werk, 2025 WL 1937088 (9th Cir.

2025). It is also reproduced in the appendix. (App., infra, 1a-5a).

JURISDICTION AND TIMELINESS OF THE PETITION

The Ninth Circuit’s memorandum upholding Werk’s conviction was filed on July 15, 2025.

(App., infra, 1a-5a). This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

1

STATUTORY PROVISIONS INVOLVED

Federal Rule of Criminal Procedure 29(a) provides as follows:

After the government closes its evidence or after the close of all the evidence, the

court on the defendant’s motion must enter a judgment of acquittal of any offense

for which the evidence is insufficient to sustain a conviction. The court may on its

own motion consider whether the evidence is insufficient to sustain a conviction.

If the court denies a motion for a judgment of acquittal at the close of the

government’s evidence, the defendant may offer evidence without having

reserved the right to do so.

Title 18, Section 2243(a) provides that it is illegal for any person:

“. . . in the special maritime or territorial jurisdiction of the United States . . . [to]

knowingly engage in a sexual act with another person who – (1) has attained the

age of twelve years but has not attained the age of sixteen years; and (2) is at least

four years younger than the person so engaging . . .”.

Title 18, Section 2243(d) provides:

“In a prosecution under subsection (a) of this section, it is a defense, which the defendant

must establish by a preponderance of the evidence, that the defendant reasonably believed

that the other person had attained the age of sixteen years.”

STATEMENT OF THE CASE

A.

District Court Proceedings

1.

Factual Background

Daniel Werk comes from a good family who taught him the value of hard work and service

to his community. After graduating from high school, he attended college at the Salish Kootenai

College in Pablo, Montana. After graduation, he began attending the Aaniiih Nakoda College on

the Fort Belknap Indian Reservation. (CR 158; 2-ER-259). 1

The abbreviation “CR” refers to the district court’s docket. The number following “CR” refers

to the docket number of the document referred to. The abbreviation “ER” refers to the Excerpts

of Record filed in the Ninth Circuit followed by a citation to the page number in the Excerpts

that supports the stated assertion.

1

2

In the summer of 2021, Werk was a cultural liaison with the Tribal Historic Preservation

Office (THPO) on the Fort Belknap Indian Reservation. In addition to working for the THPO,

Werk was the project coordinator for the Grasslands Plant Restoration Project. In this position he

was responsible for consulting with tribal elders about native plants on the reservation, as well as

recruiting teenagers and young adults to work in fellowship positions. (CR 158; 2-ER-261-262).

Once the fellows were hired, Werk helped them prepare for their jobs by providing them with

initial training and helping them purchase the clothes and equipment they would need once they

were in the field. He also provided the fellows with transportation and helped supervise their work.

(CR 156; 3-ER-421, 3-ER-423-424).

Most of the fellows were between 16 and 25 years old but some were as young as 13 to 14.

(CR 156; 3-ER-424, CR 158; 2-ER-246-247, CR 156; 3-ER-262). Many of the fellows were

considered “at risk youth” but some were selected because they were “very promising in the

potential to go to college [and] could benefit from participating in the project.” (CR 158; 3-ER424, CR 156; 2-ER-252).

Jenna fell within both of these categories. Due to her childhood background, she likely

qualified as an “at risk youth.” But she was also very intelligent and mature for her age – “gifted”

according to some of the adults who worked with the Grasslands Project. (CR 156; 3-ER-427, CR

156; 3-ER-452). Commensurate with her maturity, Jenna looked and acted like she was over

fifteen.

(CR 156; 3-ER-427-428-452, CR 158; 2-ER-131-133).

“[S]he had the skills and

intelligence of a typical student working on a bachelor’s degree.” (CR 156; 3-ER-427).

Shortly before the Grasslands Project was scheduled to begin its field work, one of the

participants had to drop out of the fellowship program. With the program short on participants,

the fellow suggested that Werk hire Jenna in his stead. (CR 158; 2-ER-262-263). Acting on this

3

recommendation, Werk contacted Jenna over Facebook Messenger and asked if she would be

interested. After she expressed interest in joining the program, Werk asked Jenna for her birthdate

and she told him that she was born in October of 2004, which would have made her sixteen years

old. (CR 158; 2-ER-133, CR 158; 2-ER-263-264). She had hidden her date of birth in the “Basic

Info” section of her Facebook page, so Werk had no way of verifying her age when he hired her.

(CR 158; 2-ER-148-149-155). During trial, there was conflicting testimony as to whether Jenna

provided identification or filled out any forms that would have required her to divulge her

birthdate. Wendy Velman, a botanist employed by the Bureau of Land Management, who helped

out with the Grasslands Project, testified that the fellows were not required to fill out W-2 forms

or the like because the program only lasted five days. (CR 158; 2-ER-244). They may have been

required to fill out volunteer forms, but it does not appear that Jenna filled out such a form. (CR

156; 3-ER-408-409, CR 158; 2-ER-251-252). Other fellows testified either that they did not recall

filling out any forms or were never asked to do so. (CR 156; 3-ER-401, CR 158; 2-ER-183).

Jenna’s mother, however testified that she assisted Jenna in obtaining her birth certificate,

social security card, and tribal ID. These documents, she added, were required by the Grasslands

Project. (CR 158; 2-ER-163). But, whether or not they were provided to the project, Werk testified

that he never saw them. (CR 158; 3-ER-263-264).

Before the fellows began field work, they attended an orientation meeting at the THPO

office. (CR 156; 3-ER-425, CR 158; 2-ER-183-194-231-233). The meeting was attended by the

fellows, Werk, and his supervisors. (CR 156; 3-ER-397-399, CR 156; 3-ER-462, CR 158; 2-ER195). In total, the meeting was attended by about fifteen people. (CR 156; 3-ER-444-445). Some

of the participants in the meeting testified that the fellows were asked to introduce themselves by

stating their names, age, and the school they attended. (CR 156; 3-ER-398-425, CR 158; 2-ER-

4

184-185). One of the participants, Cristina Eisenberg, testified that she took notes of the meeting

– which were introduced as government’s exhibit 11—in which she recorded that Jenna was fifteen

years old. (CR 156; 3-ER-425). According to Eisenberg, Werk was present when Jenna was

speaking and given the layout and size of the room, was in a position to have heard her

introduction. (CR 156; 3-ER-455).

Eisenberg also testified that Werk was present when a reporter interviewed the fellows in

the field. She testified that when Jenna was interviewed, she told the reporter that she was fifteen

years old. Werk, according to Eisenberg, was present when Jenna spoke to the reporter. (CR 156;

3-ER-436-437).

Contrary to Eisenberg’s testimony, at least one attendee at the THPO meeting, Michael

Blackwolf who was Werk’s supervisor, did not recall that the participants gave their age during

their introductions. (CR 158; 2-ER-232). Werk, for his part, testified that he was in and out of the

meeting because he had other tribal business to attend to and did not recall Jenna’s introduction or

that she stated that she was fifteen years old. He was also distracted because he was responding

to emails. (CR 158; 2-ER-266. Werk’s testimony in this regard was supported, at least to some

extent, by Michael Blackwolf who testified that some of the other participants were in and out of

the meeting attending to other business, as well. (CR 158; 2-ER-232-233).

When the meeting was over, Werk gave the fellows a ride home. After dropping everyone

off, he asked Jenna to go to the bank with him. She agreed and they went to the bank, where Werk

withdrew $6,000. On the way to the bank, Jenna and Werk began flirting with one another. Jenna,

according to Werk, began touching her hand and leg. (CR 158; 2-ER-267). As the flirting

continued, Jenna teasingly showed Werk a fake ID that stated she was sixteen years old. (CR 158;

2-ER-160).

5

The two drove to a rural road and Werk asked Jenna if she would like to have sex on top

of the $6,000 he had just withdrawn. She told him she wasn’t interested in having sex on top of

the money and performed oral sex on him instead. (CR 156; 3-ER-463-464, CR 158; 2-ER-267).

The couple’s sexual encounter was interrupted when a car drove by, so Werk and Jenna drove to

Werk’s office, where they had sex on his desk. (CR 156; 3-ER-464-465, CR 158; 2-ER-268).

After they finished, Jenna went to the bathroom where she took a “selfie” using the mirror. Werk

then gave her a ride home. (CR 156; 3-ER-465-466).

The following week, Werk drove the female fellows to Billings to purchase the clothes and

equipment they would need when working in the field. Upon their return to the reservation, Werk

dropped the fellows off and then he returned to Jenna’s house and picked her up. The two then

drove out of town and had sex on a rural road. (CR 156; 3-ER-466-467). After having sex for a

second time, Jenna and Werk became enamored with one another and began seeing each other

regularly. (CR 156; 3-ER-468, CR 158; 2-ER-134-272).

Both Werk and Jenna were aware of the disparity in their ages and they spoke about it from

time to time. But neither was very concerned because large age disparities between couples is

fairly common in their community. Jenna’s parents had a large age differential – about sixteen

years. (CR 158; 2-ER-134-273). And Werk’s grandmother was married and pregnant by the time

she was fifteen. (CR 158; 2-ER-273).

At some point, Jenna became pregnant. Around the same time, her grandmother found out

about her relationship with Werk and reported it to law enforcement. (CR 158; 2-ER-135-136).

As a result of her report, both Jenna and Werk were interviewed by FBI Agent Justin Harken.

When she was interviewed by Harken, Jenna was angry with Werk because he wanted her

to have an abortion. (CR 158; 2-ER-141-142). At trial, she testified that her anger led her to lie

6

to Agent Harken about her relationship with Werk. She falsely told Harken that Werk knew she

was only fifteen when they began having sex. She also told Harken that Werk asked her to destroy

evidence of their relationship by deleting their text messages. (CR 158; 2-ER-136-138). Several

months later, Jenna appeared before a grand jury and, according to her trial testimony, falsely

testified that Werk knew she was only fifteen when they began having sex. (CR 158; 2-ER-139).

When she gave this false testimony, she was still angry with Werk for trying to persuade her to

terminate her pregnancy. (CR 158; 2-ER-141-142).

Werk initially denied any involvement with Jenna when he was interviewed by Harken.

But, after additional questioning, he admitted that he and Jenna had been in a relationship, but they

did not become involved sexually until after she turned sixteen. (CR 158; 2-ER-204-279-280).

At trial, Jenna testified that, as time went on, she began to feel guilty about lying to Agent

Harken and the grand jury. She didn’t want, what she termed as her “lies,” to ruin Werk’s life by

getting him prosecuted and sent to prison. (CR 158; 2-ER-147). To avoid this eventuality, she

sent an email to Agent Harken and informed him that she had been untruthful when she stated in

her interview and before the grand jury that Werk knew she was only fifteen when they began

having sex:

. . . when I met Daniel and he asked how old I was and I actually told him I was 16,

I wasn’t truthful with him. I also knew I had to be 16 to work the job too so that’s

what I said I was to everyone and him. I completely lied to him and had him

believing I was 16 because I knew that’s how old I needed to be to do the things I

wanted.

And that’s the reason why I emailed you today. I feel like I’m ruining his life when

he didn’t know how old I really was. I knew what I was doing with him and I did

it anyways. Just because of my hurt, I hurt him . . . someone who didn’t deserve

hurt even more.

When my mom and grandma asked me about what happened between us I wasn’t

honest with them too in hopes to not come across as a liar, when that’s what I

7

actually was. I was so hurt, confused, and scared. Scared to face the reality of who

I really was.

I know I should have told you all of this when you asked me if there was anything

to add, and I know I should have been truthful with everyone from the start. At the

time all of this was happening I was still so hurt and confused. It was scary for me.

I don’t want to feel like a bad person because of what I knowingly lied to him about.

I feel like it’s unfair because as far as he knew, what was going on between us

wasn’t wrong. And I had him believing it wasn’t by lying about who I was. I don’t

want to be someone who took away another person’s freedom because of the things

that I chose to hide from him. I wasn’t authentic to him, myself, you, my mom,

and grandma. I wasn’t honest to everyone involved in this situation to save my

reputation.

(CR 100; 2-ER-108-109)

After Harken received Jenna’s email, he called her into his office for another interview.

The interview, according to Harken was “confrontational.” Harken accused her of lying to protect

Werk because he was the father of her baby and she wanted to “keep him out of trouble.” Jenna

denied his accusation and stated that she was changing her statement because she wanted to “tell

the truth.” (CR 158; 2-ER-216).

As indicated above, Jenna’s trial testimony closely tracked the email she sent to Harken.

She testified that she lied when she told Harken and the grand jury – as well as her mother and

grandmother – that Werk knew she was underage when they began having sex. (CR 158; 2-ER139-140). She stated that she lied to Werk by telling him that she was sixteen – a lie that was

supported by a fake ID that she showed him. (CR 158; 2-ER-133-160). She was angry at Werk

when she lied to Harken and the grand jury because he wanted her to get an abortion. (CR 158; 2ER-141-142). She decided to disavow her previous statements and tell the truth at trial because

she felt bad about the lies she had spread and did not want Werk to get into trouble as a result of

her anger and untruthfulness.

8

2.

Procedural Background

In December of 2022, the Government obtained a single count Indictment charging Werk

with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). The charge arose out of an

allegation that Werk, who was 36 at the time, engaged in sexual acts with Jenna when she was

fifteen years old. (CR 2; 3-ER-481-482).

As previously stated, Werk acknowledged that he had sex with Jenna, but maintained that

he reasonably believed she was sixteen years old. In a prosecution under § 2243(a), it is a defense,

which must be established by a preponderance of the evidence, that the defendant reasonably

believed that the other person had attained the age of sixteen years. See, 18 U.S.C. § 2243(d).

At trial, Werk moved for a judgment of acquittal at the close of the government’s case. He

renewed his motion at the close of evidence. (CR 158; 2-ER-287). The court denied his motion

on both occasions. (CR 158; 2-ER-221-222, CR 158; 2-ER-275-276). Werk was ultimately

sentenced to a term of 46 months custody followed by five years of supervised release. Although

no fine or restitution was imposed, Werk was ordered to pay a $100 special assessment. (CR 143;

2-ER-106).

B.

Ninth Circuit Proceedings

On appeal, Werk raised two issues: (1) the district court erred in denying his motion for

acquittal under Federal Rule of Criminal Procedure 29 because, given Jenna’s recantation of her

pretrial statements that Werk knew she was fifteen, no juror could have rejected Werk’s defense

that he reasonably believed that Jenna was sixteen; and (2) the district court erred in applying a

sentence enhancement under 28 U.S.C. § 2A because the victim was not in his “custody, care, or

supervisory control.” The Ninth Circuit rejected both arguments and affirmed Werk’s conviction

and sentence

9

REASONS FOR GRANTING THE PETITION

THE NINTH CIRCUIT’S DECISION AFFIRMING WERK’S

CONVICTION IS INCONSISTENT WITH THIS COURT’S

PRECEDENT, AS WELL AS DECISIONS FROM OTHER

CIRCUITS.

Review of a defendant’s motion for a judgment of acquittal under Federal Rule of Criminal

Procedure 29 is very friendly to the government. In reviewing such a motion, a court “draw[s] all

reasonable inferences favorable to the government.” United States v. Arriaga-Segura, 743 F.2d

1434, 1435 (9th Cir. 1984); Jackson v. Virginia, 443 U.S. 307 (1979). It also “respect[s] the

exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary

conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all

such matters in a manner that supports the verdict.” United States v. Yoshida, 303 F.3d 1145, 1149

(9th Cir. 2002)(citing United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987).

But, that being said, courts have also observed that the granting of a Rule 29 motion may

be appropriate where a “witness’s qualifications are so shoddy that a verdict of acquittal should

[be] directed.” United States v. Matthews, 240 F.3d 806, 806 (9th Cir. 2000). This observation

recognizes the general rule that jurors retain the exclusive authority to judge the credibility of

witnesses. But, at the same time, it gives courts limited authority to grant a Rule 29 motion when

a witness’s testimony or previous statements are “incredible or unsubstantial on [their] face.”

United States v. Shelton, 588 F.2d 1242, 1245 (9th Cir. 1978)(citing Lyda v. United States, 321

F.2d 788, 794 (9th Cir. 1963). A trial court has the duty to grant a judgment of acquittal when, as

in this case, the evidence is so scant that the jury could only speculate as to the defendant’s guilt.

See, 2 Charles A. Wright et al., FEDERAL PRACTICE AND PROCEURE: CRIMINAL 2D §

467, at 660-61 & n. 23 (West 1982).

10

In this case, the Government’s chief witness gave several conflicting statements regarding

Werk’s knowledge of her age. Jenna told Agent Harken and the grand jury that Werk knew she

was under sixteen when they began their sexual relationship. But she disavowed those statements

when she testified at trial. The reason why she disavowed those statements are spelled out in her

email to Harken. Quite simply, she didn’t want false statements, which she made in a state of

pique, to send an innocent person to jail.

Jenna’s testimony and statements are inconsistent and irreconcilable. One may argue that

the jury could sort through the statements and testimony to determine the truth. But, in a case such

as this, such a task is impossible. There is no direct evidence that Werk was ever told Jenna’s

correct age. There was testimony that she stated her age in his presence at the orientation meeting

and to a reporter but there is nothing but conjecture to support a finding that he heard those

statements when they were made. Werk was in and out of the orientation meeting and/or was busy

checking his emails. In light of these circumstances, it is more likely than not that he was not

listening to and did not hear her introduction, particularly since he had already spoken to her and

been told she was sixteen. The statement to the reporter was made in the field when he was

working and distracted by other matters.

No one, obviously, was present during his sexual encounters with Jenna and therefore there

was no testimony – aside from Werk’s and Jenna’s – as to what was said about Jenna’s age. The

only thing that can be gleaned from those conversations is that Jenna showed him an ID before

they had sex that falsely recorded her age as sixteen.

Jenna, although remarkable for her intelligence and sophistication, was only a teenager

when she became involved with Werk. The fact that their relationship was discovered was

embarrassing and difficult to acknowledge. She was also angry at Werk. She had reasons to lie

11

about the timing

to tell the truth

Given

jury

at Werk's

recantation

conflicting

or the statements

statements

to Harken,

States v. Shelton,

statements,

inculpating

Werk,

are, to put it bluntly,

In light

the jury

she made to her family

588 F.2d 1242,

794 (9I'I Cir. 1963).

It was only after she had a moral

awakening

that she decided

trial.

all of Jenna's

testimony

Her previous

of their relationship.

when

could not legitimatelyrely

and Agent

viewed

"incredible"

together

with

to arrive

her trial

and "unsubstantial"

1245 (9f'l Cir. 1978)(citing

of this fact, the Ninth

Harken

Circuit

Lyda

v. United

erred in upholding

on her grand

at its verdict.

testimony

on their face."

States,

and

United

321 F.2d 788,

the denial

of Werk's

Rule 29 motion.

CONCLUSION

The Petitioner,

for certiorari

Daniel

and reverse

Jacob Werk,

the judgment

respect'fully

requests

that the Court

of the court of appeals.

Respectfully

VID

F. NESS

ASSiStant Federal

Counsel

October

10, 2025

12

Defender

of Record

grant this petition