In United States v. Do, --- F.3d ---, No. 19-30138 (9th Cir. 2021), the Court vacated convictions for two counts of unlawful use of a weapon (UUW) under Oregon law, Or. Rev. Stat. § 166.220(1)(a), which federal prosecutors assimilated into federal law by the Assimilative Crimes Act (ACA), 18 U.S.C. § 13(a).
"This appeal arises from a road rage incident on a highway in the Warm Springs Indian Reservation in central Oregon. Dat Quoc Do, who was a passenger in a car driven by his girlfriend, fired six shots in the air after a passenger in the car in front of him threw a plastic soda bottle at his car. Rather than charge Do under the federal assault statute, federal prosecutors invoked the Assimilative Crimes Act (“ACA” or “the Act”), 18 U.S.C. § 13(a), and assimilated into federal criminal law Oregon’s unlawful use of a weapon (“UUW”) statute, Or. Rev. Stat. § 166.220(1)(a). Do was tried and convicted in federal court of violations of Oregon law."
"The question before us is whether the government was permitted to borrow from Oregon law in this way. We conclude that it was not because assimilation is permitted only where necessary to fill gaps in federal criminal law on federal enclaves, and there was no such gap here."
"In determining whether the ACA assimilates a particular state criminal law, we apply the two-part test set out in Lewis v. United States. First, we ask whether the “defendant’s ‘act or omission [is] made punishable by any enactment of Congress.’” “If the answer to this question is ‘no,’ that will normally end the matter,” and the “ACA presumably would assimilate the statute.” Id. If, however, the answer to this first question is “yes,” we then ask a second question: “whether the federal statutes that apply to the ‘act or omission’ preclude application of the state law in question.” This second question is primarily one of legislative intent and requires us to probe whether the “applicable federal law indicate[s] an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue."
"Because Do’s conduct is punishable under the federal assault statute, we next ask whether that statute precludes application of Oregon’s UUW statute. We conclude that it does for three reasons: first, the federal assault statute and Oregon’s UUW statute “seek to punish approximately the same wrongful behavior,” Lewis, 523 U.S. at 165; second, the federal assault statute “reveal[s] an intent to occupy” the field of assault to the exclusion of Oregon’s UUW statute, id. at 164; and third, assimilating Oregon’s UUW statute into federal law would 'effectively rewrite an offense definition that Congress carefully considered.'"
