9th Circuit Reverses Road Rage Conviction

United States v. Dat Quoc Do, Docket: 19-30138, Opinion Date: April 19, 2021. The Ninth Circuit reversed defendant's conviction 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). Defendant's conviction stemmed from a road rage incident where defendant, 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. The panel concluded that assimilation is permitted only where necessary to fill gaps in federal criminal law on federal enclaves, and there was no such gap here. In this case, defendant's conduct of firing his gun six times while tailgating and subsequently passing the other car is undoubtedly punishable as simple assault under 18 U.S.C. 113(a)(5) and may also be punishable as assault with a dangerous weapon under 18 U.S.C. 113(a)(3) if he possessed the requisite intent to do bodily harm; the federal assault statute and Oregon's UUW statute seek to punish the same wrongful behavior; the federal assault statute occupies the field of assault to the exclusion of Oregon's UUW statute; and assimilating Oregon's UUW statute would rewrite the federal assault statute's offense definitions.