by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that Oregon’s Unauthorized Use of a Weapon, Or. Rev. Stat. § 166.220(1)(a) (“UUW”) was improperly assimilated under the Assimilative Crimes Act, 18 U.S.C. § 13(a) (“ACA”) in the prosecution of Dat Quoc Do.

Do was a passenger in Thao Tran’s vehicle as the pair traveled on a single-lane highway through the Warm Springs Indian Reservation. A car pulled out in front of them and began driving very slowly with the occupants flashing their middle fingers at Do and Tran. The occupants of the lead vehicle also threw a plastic soda bottle at Tran’s vehicle. Do then removed a pistol from his backpack, lowered his window, and fired three shots toward the sky. Then as Tran passed the other vehicle, Do fired his gun three more times.

The Government charged Do with two counts of UUW under Oregon law, assimilated into federal law by the ACA. Before trial, Do filed a motion to dismiss the indictment, arguing that the federal assault statute, 18 U.S.C. § 113(a), precluded assimilation of Oregon’s UUW statute under the ACA. The U.S. District Court for the District of Oregon denied the motion. Do was convicted at trial and appealed.

The Ninth Circuit observed “the ACA ‘assimilates into federal law, and thereby makes applicable on federal enclaves ... certain criminal laws of the State in which the enclave is located.’” Lewis v. United States, 523 U.S. 155 (1998). This includes “Indian country.” United States v. Smith, 925 F.3d 410 (9th Cir. 2019). The “basic purpose” of the ACA is “borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves.” Lewis. The ACA “promotes the even-handed application of state law to local conduct that the federal law does not punish and, but for the situs being a federal enclave, would qualify as a local offense.” United States v. Waites, 198 F.3d 1123 (9th Cir. 2000).

Using the ACA, the Government charged Do with violating Oregon’s UUW which, in relevant part, punishes “[a]ttempt[ing] to use unlawfully against another ... any dangerous or deadly weapon.” To determine whether the ACA assimilates a particular state criminal law, courts must first determine whether the defendant’s act or omission is punishable by any enactment of Congress. Lewis. If so, then courts must determine whether the federal statutes that apply to the act or omission preclude application of the state law in question. Id.

The Court first determined that Do’s actions were undoubtably punishable as simple assault under 18 U.S.C. § 113(a)(5), defined as (1) “a willful attempt to inflict injury upon the person of another” 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.” United States v. Lewellyn, 481 F.3d 695 (9th Cir. 2007). Since Do’s conduct was punishable under the federal simple assault statute, did that statute preclude prosecution under Oregon’s UUW? The Court answered this question in the affirmative based on the three-factor test from Lewis.

First, both the federal statute and the UUW target approximately the same wrongful conduct—assault. This contravenes the purpose of the ACA, which is to “promote[] the even-handed application of state law to local conduct that the federal law does not punish and, but for the situs being a federal enclave, would qualify as a local offense.” (Emphasis added)

Second, the federal assault statute reveals an intent to occupy so much of the field as would exclude use of Oregon’s UUW statute. Lewis. That is, “the federal assault statute’s comprehensive definitions reveal Congress’s intent to fully occupy the field of assault on a federal enclave.” United States v. Rocha, 598 F.3d 1144 (9th Cir. 2010).

Finally, assimilating the UUW statute into federal law would “effectively rewrite an offense definition that Congress had carefully considered.” Lewis. Under federal law, assault with a dangerous weapon carries a maximum sentence of 10 years—but it requires proof that the defendant had an “intent to do bodily harm.” 18 U.S.C. § 113(a)(3). Under federal law, assault without intent to do bodily harm is “simple assault” and carries a maximum sentence of six months. Id. § 113(a)(5). By contrast, the UUW statute allows a maximum sentence of 5 years and does not require proof of intent to commit bodily harm.

The Government admitted that it could not prove Do had intent to do bodily harm, so it chose to prosecute him under the Oregon statute instead of the federal statute because the UUW carries a higher statutory maximum. The Court explained “the government may not ‘bypass[] ... lesser sentence charges’ under the federal statute by using a state statute with a higher maximum term of imprisonment.” Rocha. Doing so would impermissibly rewrite the Congressional framework of crime and punishment. Thus, the Court concluded Oregon’s UUW statute was improperly assimilated under the ACA.

Accordingly, the Court reversed and remanded for proceedings consistent with its opinion. See: United States v. Dat Quoc Do, 994 F.3d 1096 (9th Cir. 2021). 

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