Tuesday, April 27, 2021

US v. Do, No. 19-30138 (4-19-21)(McKeown w/Watford & Rothstein).

This appeal is whether, in a road rage case on the Warm Springs Reservation in Oregon, using the Assimilative Crimes Act (ACA), 18 U.S.C. § 13(a), rather than using a federal assault statute, was proper. The 9th holds it was not and reverses the conviction.

The 9th explains that ACA is to fill in gaps in federal criminal law in enclaves. A two-part test is used: does a federal statute apply? And if so, whether the federal statute precludes application of the state law. Here, the federal assault statute would apply to the conduct (firing six shots at a car as a road rage incident escalated). The federal statute precludes assimilation of state law because the federal statute and the state statute seek to punish approximately the same behavior; the federal statute reveals an intent to occupy the field of assault; and assimilating the state statute would effectively rewrite an offense defined by Congress.

Interesting analysis of the “approximate” harm. The statutes need not be exact; nor analogous. Form is not elevated over substance. Here, the state statute deals with assaultive conduct with a dangerous weapon, as does the federal statute. As for rewriting, the federal statute requires an intent to do bodily harm, while the state statute does not. The federal statute has a max of 10 years; the state statute has a max of 5 years. Without the intent to do bodily harm, which is arguable as the shots were in the air, the government could only get simple assault (six months max). The government admitted at argument it wanted the higher state max. This is not a good enough reason to end run the federal statutes.

Congrats to AFPDs Elizabeth Daily and Gerald Needham, Oregon FPD (Portland). 

The decision is here:




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