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
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. § 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 unprovoked, 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,
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
[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,
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)(1)-(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,
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
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 injury, the government argues that the federal statute does not adequately cover Rocha’s conduct. Even if true, this argument is misplaced. Under the first prong of the
Lewis
test, we inquire only if there is
any
applicable federal law covering the conduct; we do not inquire into whether
every
conceivable charge against defendant is covered. We were confronted with the same question in
Hockenberry v. United States,
B
Because we conclude that Rocha’s actions were punishable under the federal assault statute, we turn to the second prong of the
Lewis
inquiry: whether the federal enactment precludes the application of the state statute. The 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.”
Lewis,
We think it “fairly obvious” as well that 18 U.S.C. § 113 — which punishes “assaults within [the special] maritime and territorial jurisdiction” of the United States — precludes application of California Penal Code § 245. Section 245 cannot be assimilated under the ACA for three con
The federal assault statute is a general assault statute, applicable to the “special maritime of territorial jurisdiction of the United States.” 18 U.S.C. § 113. The statute begins by making it a crime to commit “an assault” in a federal enclave. It then sets forth detailed prescriptions for the punishment of different forms of assault:
Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:
(1) Assault with intent to commit murder, by imprisonment for not more than twenty years.
(2) Assault with intent to commit any felony, except murder, ... by a fine under this title or imprisonment for not more than ten years, or both.
(3) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by a fine under this title or imprisonment for not more than ten years, or both.
(4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment for not more than six months, or both.
(5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 1 year or both.
(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.
(7) Assault resulting in substantial bodily injury to an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 5 years, or both.
18 U.S.C. § 113(a)(1)-(7). This is a comprehensive statute. Although there are other formulations Congress might have adopted, in § 113 Congress addressed key policy questions such as choosing to punish assault of a person younger than sixteen-years-old more severely than of an adult, to punish assault done with a murderous intent more severely than any other intent, and to punish actual injury instead of likely injury. By enacting a comprehensive federal assault statute, Congress demonstrated its “intent to occupy so much of a field as would exclude use of the particular state statute at issue.”
Lewis,
The federal assault statute is comprehensive in a way the amalgam of federal theft statutes are not, as we explained in
Souza,
Unlike Souza, in Rocha’s case, there is simply no gap to fill. Rocha’s actions are specifically covered by the federal assault statute in one way or another. In Souza, the federal statute covered theft generally, while the state statute specifically punished the act of breaking into a car and taking property. Here, not only does § 245 cover nearly identical ground as § 113, it is arguably more general than the federal assault statute because it punishes assault by means of force likely to produce great bodily injury while the federal statute defines specific forms of assault and requires actual injury or some kind of intent. Compare CAL. PEN. CODE § 245 with 18 U.S.C. § 113(a). The comprehensive nature of the federal assault statute reveals that Congress intended to occupy the field of assault at the exclusion of California’s assault statute.
Along similar lines, there is no gap to fill in federal law because both the federal and state statutes “seek to punish approximately the same wrongful behavior,”
Lewis,
Even more clearly than in
Waites,
the California assault statute and the federal assault statute punish the same wrongful behavior — assault. California Penal Code § 245(a)(1) punishes “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” Cal. Pen. Code § 245. The federal assault statute likewise punishes “[a]ssault with intent to commit murder,” “[a]ssault with a dangerous weapon, with intent to do bodily harm,” and “[a]ssault by striking, beating, or wounding.” 18 U.S.C. § 113(a)(1), (3), (4). Thus, we need not look far into Congress’s legislative intent in passing the federal assault statute in concluding that it intended the
Finally, California Penal Code § 245 cannot be properly assimilated under the ACA because adopting California’s definition of assault “would effectively rewrite an offense definition that Congress carefully considered.”
Lewis,
Most relevant to Rocha is that California distinguishes assault by whether the force used was
likely
to cause a great bodily injury, whereas the federal statute has no such distinction. The federal statute distinguishes assault by whether an
actual
serious injury occurred, whether a defendant had murderous intent, whether a defendant used a weapon, or whether a defendant beat, struck, or wounded the victim.
Compare
Cal. Pen. Code § 245
with
18 U.S.C. § 113(a). Under the federal definitional scheme, if the government cannot prove a defendant had a murderous or felonious intent, that the defendant used a dangerous weapon, or that the defendant caused serious bodily injury (all of which carry a maximum sentence of ten or twenty years), the government can charge a defendant only with “[a]ssault by striking, beating, or wounding” or “simple assault” (both of which carry a maximum sentence of six months). This was Rocha’s situation. He used his hands to knock Fisher to the ground and continued fighting. There was some evidence that Rocha may have been one in the group that attempted to throw Fischer over the railing. The jury, however, acquitted Rocha of the charge of assault with murderous intent and the serious bodily injury that Fischer received resulted from his stabbing wounds. The government bypassed the lesser sentence charges of assault by striking, beating, or wounding or simple assault under the federal statute and attempted to convict Rocha under the California statute, which could result in a maximum term of imprisonment of four years, instead of six months under the federal statute. Since the “differences among elements of the crime[ ][of assault]” between California Penal Code § 245 and 18 U.S.C. § 113 “amount only to those of name, definitional language, or punishment,” the ACA does “not apply.”
Lewis,
We reverse Rocha’s conviction under the ACA because it improperly assimilated California Penal Code § 245. Congress has enacted a comprehensive assault statute by which it has fully occupied the law of assault within federal enclaves.
III
We next consider whether there is sufficient evidence to support Rocha’s conviction of assault with a dangerous weapon. 18 U.S.C. § 113(a)(3). As a general matter, whether an object “constitutes a dangerous weapon in a particular case is a question of fact for the jury” because it is
At trial, the government presented evidence that Rocha used his hands to force David Fischer to the ground. Rocha then brought a motion for judgment of acquittal on the charge of assault with a dangerous weapon.
See
Fed. R. Crim. P. 29(a) (stating “[a]fter the government closes its evidence ..., the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction”). The court took the motion under consideration and submitted the case to the jury. The jury returned a special verdict, finding that Rocha used his hands, but not the concrete floor, as a dangerous weapon and convicting him of assault with a dangerous weapon. Rocha appeals the denial of his motion to dismiss under Rule 29 and claims that the evidence was insufficient to sustain his conviction. “We ... review de novo the denial of[his] Rule 29 motion for acquittal, but the test to be applied is the same as for a challenge to the sufficiency of the evidence.”
Riggins,
The hurdle to overturn a jury’s conviction based on a sufficiency of the evidence challenge is high. We must find that under the federal assault statute no rational jury could have convicted Rocha of assault with a dangerous weapon based on evidence that he used his hands alone to force Fischer to the ground.
See United States v. Barron-Rivera,
Section 113(a)(3) punishes “[a]ssault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by ... imprisonment for not more than ten years....” 18 U.S.C. § 113(a)(3). Title 18 gives neither a definition of “assault” nor “dangerous weapon.” We adopted the common law definition of assault as “a willful attempt to inflict injury upon the person of another also known as an attempt to commit a battery,”
Lewellyn,
The determination whether an object constitutes a “dangerous weapon” turns not on the object’s latent capability alone, but also on the manner in which the object was used. Objects that are not dangerous weapons per se are deemed to be “dangerous weapons” within the meaning of [18 U.S.C. § 113(a)(3)] when used in a manner likely to endanger life or inflict great bodily harm. Thus, the term “dangerous weapon” is not restricted to such obviously dangerous weapons as guns, knives, and the like, but can include virtually any object given appropriate circumstances.
Riggins,
Recently, in
Smith,
we reaffirmed
Riggins
and adopted a multi-faceted test for determining whether an object is a dangerous weapon. In
Smith,
we held that a knife made from a prisoner’s melted-down plastic trays qualified as a dangerous weapon and that a rational juror could have found that the defendant used his crude weapon in a way to cause great bodily harm.
Smith,
Our own cases, and those of our sister circuits, have focused on the question of when objects that are not manufactured to be used as weapons may, nevertheless, be utilized as a “dangerous weapon.” In
Riggins,
for example, we held that there was sufficient evidence to support the conviction of a mother who beat her two-year-old son with a belt and shoe. Although belts and shoes are not weapons
per se,
we concluded that “the belt and shoe were dangerous weapons in the manner in which they were used.”
Riggins,
We are faced with a more difficult question than whether iron pipes, chairs, shoes, or belts may be converted into dangerous weapons. All of these cases focus on “objects” and do not consider whether body parts, or, more specifically, bare hands can be considered dangerous weapons by a rational trier of fact. We have identified only two cases in the federal courts of
In
United States v. Sturgis,
it must be left to the jury to determine whether, under the circumstances of each case, the defendant used some instrumentality, object, or (in some instances) a part of his body to cause death or serious injury. This test clearly invites a functional inquiry into the use of the instrument rather than a metaphysical reflection on its nature.
Id at 788. The court concluded that “teeth may also be a dangerous weapon if they are employed as such.” Id. The court held that substantial evidence existed for the jury to find that the defendant used teeth as a dangerous weapon — the defendant was HIV positive and used his teeth, potentially, as a means of transmitting the HIV virus. Id. Declining to establish a bright-line rule about body parts used as weapons under the federal statute, the court decided to leave the determination as to whether body parts could be dangerous weapons to the jury. Id. Judge Hall dissented. In his view, Congress’s use of the word “weapon” “connote[d] an object or instrument and it strains the boundaries of ordinary usage to call body parts ‘objects.’ Punch, kick or bite another, and you are guilty of assault; strike or stab another with an object, and you are guilty of assault with a weapon.” Id. at 789 (Hall, J., dissenting).
The Eighth Circuit has also found that the mouth and teeth could be dangerous weapons.
United States v. Moore,
The state courts have divided over the question of whether body parts can constitute dangerous or deadly weapons for purposes of their respective assault and battery statutes. Most states have determined that body parts cannot be considered a dangerous or deadly weapon.
State v. Flemming,
to prove aggravated assault, the State would need only show that, during the commission of a simple assault, the defendant displayed a deadly weapon. Under the State’s broad definition of ‘deadly weapon,’ the defendant’s fists and feet would inevitably be displayed. Thus, the defendant becomes both the perpetrator and the deadly weapon, the simple assault becomes aggravated assault, and the misdemeanor becomes a felony.
Id.
at 198;
see also Bachelor,
Other states, although a clear minority, have allowed body parts to be considered dangerous or deadly weapons.
State v. Allen,
Here, the jury found that Rocha used only his bare hands in attacking Fischer. At trial, the government argued that Rocha used both his hands and the concrete floor as dangerous weapons in assaulting Fischer. The jury was instructed in a special verdict to check whether it unanimously found beyond a reasonable doubt that Rocha used “his hands” or “a concrete floor” or both as a dangerous weapon. Rejecting the government’s claim that Rocha used the concrete floor as a weapon, the jury found Rocha used only his hands as a weapon and convicted him of assault with a dangerous weapon. The jury also understood that the parties stipulated that Rocha did not stab Fischer and that Fischer’s stabbing wounds caused his death.
Although we appreciate the simplicity of the Fourth Circuit’s decision to leave all questions of what constitutes a “dangerous weapon” to the jury, in the end we do not think the statute will bear such an interpretation. Section 113(a)(3) punishes “[a]ssault with a dangerous weapon with intent to do bodily harm.” There are three separate elements described in this phrase: (1) an assault, (2) the use of a dangerous weapon, and (3) the intent to do bodily harm. We do not think that we can give independent meaning to each of these terms if the mere use of a body part is a “dangerous weapon.” We find it difficult to see how someone could be accused of assault without using a body part in some way. If the assault is made with the intent to do bodily harm, it appears that every assault with intent to do bodily harm would satisfy § 113(a)(3) without any independent showing of the use of a “dangerous weapon.” This reading would blur the line Congress drew between simple assault and various forms of aggravated assault subject to a more severe penalty.
We do not think the statutory scheme allows such a construction. Congress has separately punished “assault by striking, beating, or wounding;” “assault resulting in serious bodily injury;” and “simple assault.” 18 U.S.C. § 113(a)(4), (5), and (6). As we think of the potential uses of various parts of the body — head butting, body slamming, scratching, punching, strangling, elbowing, kneeing, kicking — each assaultive act can be accomplished without an additional weapon, tool, or equipment such as helmets, pads, or shoes. Yet each act becomes more potent with the use of a separate implement. We think that when Congress used the term “dangerous weapon” it contemplated generally the situation in which the defendant used a weapon or utilized some other object as a weapon to augment the force of his physical assault. We thus agree with Judge Hall’s observation that, in general, “a weapon is something with which one can ‘be armed,’ something one can pick up and use. Beer bottles, chairs, telephone receivers swung on a cord — all these clearly come within the ordinary meaning of weapons.”
Sturgis,
IV
We reverse Rocha’s conviction under the ACA because the ACA improperly assimi
REVERSED.
Notes
. The parties stipulated at trial that Rocha was “acquainted and associated with” the inmates who beat and stabbed Fischer.
. The only eyewitness to the fight, Office Walters, could not identify which inmates were involved in the attempt to throw Fischer over the railing, and the video surveillance is too poor to shed light on the identity of the perpetrators.
. See ABA Task Force on Federalization of Criminal Law, Report, (1998) (reprinted in 11 Fed. Senten. Rptr. 194 (1999)) ("The Task Force concluded that the evidence demonstrated a recent dramatic increase in the number and variety of federal crimes. Although it may be impossible to determine exactly how many federal crimes could be prosecuted today, it is clear that of all federal crimes enacted since 1865, over forty percent have been created since 1970.... [M]uch of the recent increase in federal criminal legislation significantly overlaps crimes traditionally prosecuted by the states.”).