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United States v. Do

United States District Court, D. Oregon

November 28, 2018

UNITED STATES OF AMERICA,
v.
DAT QUOC DO, Defendant.

          Billy J. Williams, United States Attorney, and Benjamin Tolkoff and Paul Maloney, Assistant United States Attorneys, United States Attorney's Office, Of Attorneys for United States of America.

          Gerald M. Needham and Elizabeth G. Daily, Assistant Federal Public Defender, Office of the Federal Public Defender, Of Attorneys for Defendant.

          OPINION AND ORDER ON MOTION TO DISMISS

          Michael H. Simon, United States District Judge.

         Defendant Dat Quoc Do (“Do”) has moved to dismiss the indictment, which charges him with Unlawfully Using a Weapon as defined by Or. Rev. Stat. (“ORS”) 166.220(1)(a) and as assimilated by 18 U.S.C. § 13 (Counts 1 and 2) and with Carrying and Using a Firearm during and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 3 and 4). Counts 1 and 2 are the predicate crimes of violence on which Counts 3 and 4 respectively rest. Do argues that this federal court lacks jurisdiction over Counts 1 and 2 of the indictment because the Indian Country Crimes Act (“ICCA”) does not permit federal prosecution of a state crime committed in Indian Country by the Assimilative Crimes Act (“ACA”). Do argues in the alternative that even if the ICCA does permit federal prosecution of a state crime committed in Indian Country by the ACA, this specific state crime is precluded from assimilation based on the federal assault statute in 18 U.S.C. § 113. Do also argues that the state crime of Unlawful Use of a Weapon under ORS § 166.220 is not a “crime of violence” that may be used as a predicate offense for § 924(c)(1)(A) because the Oregon definition of “attempt” is broader than the federal generic definition of attempt; thus, Do argues, the Court should dismiss Counts 3 and 4. For the reasons that follow, the Court rejects Do's arguments regarding Counts 1 and 2, but accepts his arguments regarding Counts 3 and 4. Accordingly, Counts 3 and 4 are dismissed.

         A. Jurisdiction over Unlawful Use of a Weapon as assimilated by the ACA

         Do acknowledges that the ICCA gives the United States the ability to prosecute the “general laws of the United States” in Indian Country. 18 U.S.C. § 1152 (1948). Do argues, however, that the ACA, which the Government is using in this case to assimilate Oregon state law into federal law, is not such a “general law” of the United States.

         Do's argument on this point is foreclosed by Ninth Circuit precedent. In United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977), the Ninth Circuit addressed the same argument, albeit raised by an amicus curiae, rather than by the defendant in that case. The Ninth Circuit explained:

Amicus, ignoring appellants' concession that the A.C.A. is a general law of the United States made applicable to Indian reservations by 18 U.S.C. § 1152, argues that the A.C.A. is not applicable to crimes committed in Indian country and therefore the court below was without jurisdiction to hear the case. The district court rejected this argument made below and held that the A.C.A. was applicable by its own terms to Indian reservations, as well as incorporated by 18 U.S.C. § 1152.
Amicus argues that Williams v. United States, 327 U.S. 711 (1946) did not decide the question of whether the A.C.A. is applicable to Indian country. We disagree. In Williams the petitioner, a married white man, was convicted of having had sexual intercourse, within an Indian reservation, with an unmarried Indian girl who was over the age of 16 but under 18 years of age. This act was made punishable under the laws of the State of Arizona and was incorporated as a federal crime under the provisions of 18 U.S.C. § 468 (the predecessor to 18 U.S.C. § 13). The Supreme Court's initial statement was “(t)his case turns upon the applicability of the Assimilative Crimes Act, . . . .” Since it was undisputed that the act took place within an Indian reservation, the threshold question necessarily decided was whether the A.C.A. even applied to Indian country. Amicus' argument that the court merely assumed its applicability without deciding the question is belied by the court's own words. The court stated:
“It is not disputed that this Indian reservation is ‘reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof,' or that it is ‘Indian country' within the meaning of Rev.Stat. § 2145. (the predecessor to 18 U.S.C. § 1152). This means that many sections of the Federal Criminal Code apply to the reservation, including not only the Assimilative Crimes Act, . . ..” 327 U.S. at 713 (emphasis added)
We would also note that the Williams court's ultimate decision, that the A.C.A. did not apply to the particular crime charged because the precise acts were made penal by Federal law and therefore the State's laws could not be incorporated, would never have been reached had the court felt that the A.C.A. did not apply to any crime committed upon Indian lands.
Our own review of the language of 18 U.S.C. § 13 and 18 U.S.C. § 1152 convinces us that the district court was correct in holding that the A.C.A., by its own terms and through § 1152, is applicable to Indian country.

Id. at 1365 n.1. Because Marcyes is binding on this Court, we reject Do's first argument that the ACA is not a “general law” of the United States applicable in Indian Country.

         The second argument made by Do relating to Counts 1 and 2 is that the state crime of Unlawful Use of a Weapon is precluded from assimilation under the ACA by the federal assault statute. The Supreme Court in Lewis v. United States, 523 U.S. 155, 164 (1998), set forth a two- part test for determining when the ACA may be used to make a state law applicable to federal enclaves. Under the first prong of the Lewis test, the court inquires only whether the “defendant's ‘act or omission . . . [is] made punishable by any enactment of Congress.'” Id. (quoting 18 U.S.C. § 13(a) (emphasis in original)). If the answer is no, then the state law may be assimilated by the ACA. If the answer is yes, however, the court must then ask the question of whether the federal statute that applies to that “act or omission” precludes application of the state law in question. Id. In answering that second question, the Supreme Court gave three examples of when a federal enactment precludes application of a state law: (1) application of the state law “would interfere with the achievement of a federal policy”; (2) application of the state law “would effectively rewrite an offense definition that Congress carefully considered”; or (3) the “federal statutes reveal an intent to occupy so much of a field as would exclude use of the particular state statute at issue.” Id.

         Do argues that the Oregon crime of Unlawful Use of a Weapon, ORS 166.220(1)(a), is precluded from assimilation under the ACA by the federal assault statute because Do's conduct can be punished as a simple assault under the federal statute and because Congress intended to occupy the entire field of assault under the comprehensive federal assault statute. In other words, Do argues that both ...


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