U.S.A v. Rocha, No. 08-50175.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBYBEE
Citation598 F.3d 1144
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Victor ROCHA, also known as Vap1 Mono, also known as Victor Rosales, Defendant-Appellant.
Docket NumberNo. 08-50175.
Decision Date18 March 2010

598 F.3d 1144

UNITED STATES of America, Plaintiff-Appellee, v. Victor ROCHA, also known as Vap1 Mono, also known as Victor Rosales, Defendant-Appellant.

No. 08-50175.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Nov. 3, 2009.
Filed March 18, 2010.


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Gene D. Vorobyov, Law Office of Gene Vorobyov, CA, for the defendants-appellants.

Thomas P. O'Brien, United States Attorney, Sheri Pym, Antoine F. Raphael (argued), Sean K. Lokey, Assistant United States Attorneys, for the plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:05-cr-00069-VAP1.

Before: T.G. NELSON, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

BYBEE, Circuit Judge:

After participating in a brawl in a federal correctional facility that resulted in the death of a fellow inmate, Victor Rocha was convicted on two counts: (1) assault committed by means of force likely to produce great bodily injury under California Penal Code § 245, as assimilated into federal law by the Assimilated Crimes Act, 18 U.S.C. § 13; (2) assault with a dangerous weapon under the federal assault statute, 18 U.S.C. § 113(a)(3). Rocha appeals both convictions, arguing, first, that the Assimilated Crimes Act did not properly assimilate the California statute and, second, that there was insufficient evidence supporting his conviction of assault with a dangerous weapon. We are compelled to agree, and we conclude that the federal assault statute precludes application of California Penal Code § 245 and that the evidence presented to the jury that Rocha used his bare hands to perpetrate the assault cannot support a conviction under the federal assault statute for assault with a dangerous weapon. We reverse his convictions.

I

On the evening of April 11, 2005, Victor Rocha was ironing clothes on the first floor of a prison block in the United States Penitentiary in Victorville, California. Above him, a group of inmates entered David Fischer's cell, and a fight erupted. The attacking inmates stabbed Fischer four times inside his cell before Rocha joined the fray. The fight surged into the hall where Rocha, observing the fight from below, ran to join it, presumably because his friends were involved in Fischer's attack.1 A security videotape reveals that Fischer was backing away from his attack-

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ers when Rocha came up from behind him, reached down, grabbed the six-foot-seven, three hundred pound Fischer by his feet, and pulled his feet out from under him, causing Fischer's body to slam down onto the concrete floor. Rocha continued to fight with Fischer, and other inmates continued kicking Fischer while he was on the ground.

An unidentifiable group of inmates then tried, unsuccessfully, to pick up Fischer and throw him over the second floor railing, a drop of about thirteen feet to the waiting concrete floor.2 Fischer later died from this senseless violence; his autopsy revealed that four stab wounds caused his death, but that he also had an abrasion on his forehead, a contusion over his right eye, and a narrow abrasion on his right eyelid.

The government charged Rocha with assault committed by means of force likely to produce great bodily injury under California Penal Code § 245, as assimilated into federal law by the Assimilated Crimes Act, 18 U.S.C. 8 13. The government also charged Rocha with assault with intent to commit murder and assault with a dangerous weapon under the federal assault statute, 18 U.S.C. § 113(a)(1) and (3). After a jury trial, the jury acquitted Rocha of the charge of assault with intent to commit murder, 18 U.S.C. § 113(a)(1), but convicted him of the other two assault counts. The district court sentenced Rocha to an eighty-seven month term of imprisonment, finding that Rocha's attack was unpro voked, brutal, and gang related. Rocha timely appealed.

II

We first consider the validity of Rocha's conviction under the Assimilated Crimes Act ("ACA" or "Act"), 18 U.S.C. § 13. The ACA states, in relevant part:

Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State... in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13(a). Using the ACA, the government charged Rocha with violating California Penal Code § 245, which punishes "assault by any means of force likely to produce great bodily injury." Cal. Pen. Code § 245(a)(1). Whether the ACA properly assimilates the California assault statute is a question of law reviewed de novo. See United States v. Souza, 392 F.3d 1050, 1052 (9th Cir.2004).

[1, 2] Congress enacted the original version of the ACA in 1825, a time when federal law punished relatively few crimes. Due to the dramatic increase in federal criminal law, 3 we are regularly confronted with the question of whether the ACA has been rendered meaningless because, by its own language, the ACA applies only if the

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"act or omission" in question is not made punishable by "any enactment of Congress." 18 U.S.C. § 13(a); see Souza, 392 F.3d at 1052-53; United States v. Waites, 198 F.3d 1123, 1127-28 (9th Cir.2000). In Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998), the Supreme Court addressed when the ACA makes state law applicable to federal enclaves. In Lewis, the defendant urged a literal reading of the ACA, arguing that if any enactment by Congress punished the behavior at issue, the ACA could not assimilate the state law. The government, on the other hand, argued that the ACA could assimilate the state law unless the federal and state law criminalized precisely the same behavior. Id. at 159-60, 162, 118 S.Ct. 1135. Explaining that "[t]he ACA's basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves, " id. at 160, 118 S.Ct. 1135, the Court declined to adopt either of the parties' competing interpretations. Instead, the Court established a two-part test for analyzing whether the ACA properly assimilates a particular state criminal law into federal law:

[T]he ACA's language and its gap-filling purpose taken together indicate that a court must first ask the question that the ACA's language requires: Is the defendant's act or omission made punishable by any enactment of Congress. If the answer to this question is "no, " that will normally end the matter. The ACA presumably would assimilate the statute. If the answer to the question is "yes, " however, the court must ask the further question whether the federal statutes that apply to the "act or omission" preclude application of the state law in question....

Id. at 164, 118 S.Ct. 1135 (internal quotation marks, ellipses, and citations omitted) (emphasis in original). The Court gave three examples of when a federal enact ment precludes application of a state law: if the state law "interfere[s]" with federal policy, "effectively rewrite[sj" a definition that "Congress carefully considered, " or if the federal statute reveals an intent to occupy "so much of a field as would exclude use of the particular state statute at issue." Id. We consider each part of the test in turn.

A

In applying this two-part test, we ask first whether Rocha's conduct was made punishable by any enactment of Congress. We easily conclude that his conduct was made punishable by an enactment of Congress, specifically by the federal assault statute, 18 U.S.C. § 113. The federal assault statute defines and punishes seven forms of assault: (1) assault with intent to commit murder, (2) assault with intent to commit any felony except murder, (3) assault with a dangerous weapon, (4) assault by striking, beating, or wounding, (5) simple assault, (6) assault resulting in serious bodily injury, and (7) assault resulting in substantial bodily injury to a person under the age of sixteen. 18 U.S.C. § 113(a)(l)-(7). "Because § 113 does not define assault, we have adopted the common law definitions: (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, 697 (9th Cir.2007) (internal quotation marks omitted).

Rocha slammed Fischer to the ground by grabbing Fischer's feet out from under him, Rocha continued to fight with Fischer once Fischer was on the ground, and Rocha may have been one of the inmates who tried to throw Fischer over the railing. Rocha's bodily contact with Fischer is clearly grounds for an assault charge un-

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der one or more of the provisions of 18 U.S.C. § 113(a). Indeed, both parties agree that Rocha's conduct was punishable under the federal assault statute, although they disagree over which sections cover his acts: Rocha admits that his behavior could have been punished as assault by striking, beating, or wounding, or simple assault, 18 U.S.C. § 113(a)(4), (5), and the government, in fact, charged Rocha with assault with intent to commit murder and assault with a dangerous weapon. See id. § 113(a)(1), (3).

The government argues, however, that the state statute was properly assimilated under the ACA because the federal assault statute does not fully cover Rocha's conduct. The government argues that California Penal Code § 245, which punishes assault "by any means of force likely to produce great bodily injury, " covers conduct that the federal statute does not by looking at the quantum of force involved in the attack. Because the federal statute requires an actual injury to result instead of a likely...

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54 practice notes
  • United States v. Christie, Nos. 11–2106
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 11, 2013
    ...the state law convictions.I We review de novo whether a state law crime was properly assimilated under the ACA. United States v. Rocha, 598 F.3d 1144, 1147 (9th Cir.2010). In Lewis, the Supreme Court established a two-step approach for determining whether the ACA permits the assimilation of......
  • United States v. Reza-Ramos, No. 11–10029.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 9, 2016
    ...applicable here, where the alleged crime occurred on the Tohono O'odham reservation.As we recently explained, see United States v. Rocha, 598 F.3d 1144, 1147–48 (9th Cir.2010), our analysis of whether a defendant in a federal enclave can be charged with violating a state criminal statute un......
  • United States v. Lopez, No. 19-10017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 6, 2021
    ...the same wrongful behavior, [thus] counseling against application of the ... [Guam] statute through the ACA." United States v. Rocha , 598 F.3d 1144, 1150 (9th Cir. 2010). Both statutes target 4 F.4th 745 the sexual penetration of minors, and application of both the Guam statute and the fed......
  • United States v. Chansley, Case No. 21-cr-3 (RCL)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 8, 2021
    ...peaceful purposes may be turned into dangerous weapons" when used in a manner likely to cause bodily harm. United States v. Rocha , 598 F.3d 1144, 1154 (9th Cir. 2010).Under this definition, the Court finds that a six-foot pole with a metal spearhead fixed to the top is, undoubtedly, a dang......
  • Request a trial to view additional results
55 cases
  • United States v. Christie, Nos. 11–2106
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 11, 2013
    ...the state law convictions.I We review de novo whether a state law crime was properly assimilated under the ACA. United States v. Rocha, 598 F.3d 1144, 1147 (9th Cir.2010). In Lewis, the Supreme Court established a two-step approach for determining whether the ACA permits the assimilation of......
  • United States v. Chansley, Case No. 21-cr-3 (RCL)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 8, 2021
    ...peaceful purposes may be turned into dangerous weapons" when used in a manner likely to cause bodily harm. United States v. Rocha , 598 F.3d 1144, 1154 (9th Cir. 2010).Under this definition, the Court finds that a six-foot pole with a metal spearhead fixed to the top is, undoubtedly, a dang......
  • State v. Steen, No. 141A19
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 18, 2020
    ...requires an external instrument.Our holding in Hinton is consistent with the law in most other jurisdictions. See United States v. Rocha, 598 F.3d 1144, 1155 (9th Cir. 2010) ("Most states have determined that body parts cannot be considered a dangerous or deadly weapon."). A majority of jur......
  • United States v. Reza-Ramos, No. 11–10029.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 9, 2016
    ...applicable here, where the alleged crime occurred on the Tohono O'odham reservation.As we recently explained, see United States v. Rocha, 598 F.3d 1144, 1147–48 (9th Cir.2010), our analysis of whether a defendant in a federal enclave can be charged with violating a state criminal statute un......
  • Request a trial to view additional results

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