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United States v. Do

United States District Court, D. Oregon

March 11, 2019

UNITED STATES,
v.
DAT QUOC DO, Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE

         Defendant is charged with two counts of unlawful use of a weapon in violation of Or. Rev. Stat. § 166.220(1)(a), assimilated into federal law under the Assimilative Crimes Act, 18 U.S.C. § 13, and the Indian Country Crimes Act, 18 U.S.C. § 1152. According to the government, Defendant, who is not a Native American (Indian), intentionally attempted to use a dangerous and deadly weapon unlawfully against three Native American (Indian) females by personally discharging a firearm at or near a car driven by one of them and in which the other two were passengers. This allegedly took place on the Warm Springs Indian Reservation in Oregon. A jury trial is scheduled to begin March 13, 2019.

         Defendant requests that the Court give the jury a “lesser included offense” instruction for the offense of recklessly endangering another person in violation of Or. Rev. Stat. § 163.195(1). The government opposes Defendant's request, arguing that the crime of recklessly endangering another person is not a lesser included offense of the charged offense. The government, however, requests that the Court reserve ruling on this issue until after the close of all evidence. In contrast, Defendant asks the Court to at least make a preliminary ruling before trial begins to provide the parties some direction in framing their presentations of evidence. The Court accepts Defendant's request regarding timing but agrees with the government on the merits. For the reasons that follow, the Court provisionally rules that it will not give the jury a lesser included offense instruction, but Defendant has leave to seek reconsideration of this decision at the final instruction conference.

         Even though Defendant is charged with two counts of violating Oregon state law, because this case is in federal court under the Assimilative Crimes Act and the Indian Country Crimes Act the legal standard for determining whether a lesser included offense instruction is appropriate is a matter of federal law. United States v. Pluff, 253 F.3d 490, 494 (9th Cir. 2001) (rejecting “the notion that the incorporation of state law for the definition of offenses under the Assimilative Crimes Act extends to ‘the whole criminal and constitutional law' of the state in which the offense occurred”). Under federal law, courts apply a two-step test to determine whether one offense is a lesser included offense of another. Under the first step, “one offense is not ‘necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense. When the lesser offense requires an element not required for the greater offense, no instruction is to be given.” Schmuck v. United States, 489 U.S. 705, 716 (1989). If the elements of the purported lesser included offense are a subset of the elements of the charged offense, the Court then proceeds to the second step and evaluates whether “the evidence would permit a jury rationally to find [Defendant] guilty of the lesser offense and acquit [him] of the greater.'” United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) (quoting Schmuck, 489 U.S. at 716).

         “The elements test requires a ‘textual comparison of criminal statutes,' an approach that . . . lends itself to ‘certain and predictable' outcomes.” Carter v. United States, 530 U.S. 255, 261 (2000) (quoting Schmuck, 489 U.S. at 720). The elements of the lesser included offense must be contained in the greater offense; it is not enough that the elements “be so related that in the general nature of these crimes, . . . proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.” Schmuck, 489 U.S. at 716 (describing and rejecting “inherent relationship” test).

         Defendant is charged in this case with two counts of unlawful use of a weapon. “A person commits the crime of unlawful use of a weapon if the person: ‘(a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon.'” Or. Rev. Stat. § 166.220(1)(a). The elements of the charged offense can be stated as:

(1) attempting to use or carrying or possessing with intent to use
(2) unlawfully
(3) against another
(4) any dangerous or deadly weapon.

         The Oregon Supreme Court has explained that, in this context, “‘use' refers both to employment of a weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury.” State v. Ziska, 355 Or. 799, 811 (2014) (emphasis added).

         Defendant seeks a lesser included offense instruction for the offense of recklessly endangering another person. “A person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” Or. Rev. Stat. § 163.195. The elements of this offense can be stated as:

(1) engaging in ...

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