## Facts

- Victor Rocha, a federal inmate, participated in a group assault on inmate David Fischer inside a federal prison.
- Four inmates attacked and stabbed Fischer; Rocha approached from behind, pulled Fischer’s feet out from under him, and joined the continuing attack while Fischer was on the ground.
- Fischer died from injuries sustained during the assault.
- Rocha was charged with (1) assault by means of force likely to produce great bodily injury under California Penal Code § 245, applied in federal court through the Assimilated Crimes Act (ACA), 18 U.S.C. § 13, and (2) assault with a dangerous weapon under 18 U.S.C. § 113(a)(3).
- On the § 113(a)(3) count, the government argued that Rocha’s hands, the concrete floor, or both functioned as the “dangerous weapon.”
- A jury convicted Rocha on both counts in federal district court; he appealed.

## Issues

1. Whether the ACA could assimilate California’s assault-by-force-likely-to-produce-great-bodily-injury offense for conduct in a federal prison, or whether federal assault law already “made punishable” the conduct so as to bar assimilation.
2. Whether tripping a victim with bare hands so the victim strikes a concrete floor satisfies the “dangerous weapon” element of 18 U.S.C. § 113(a)(3).

## Decision

- The Ninth Circuit affirmed the conviction under California Penal Code § 245 as assimilated through the ACA.
- The court held that federal assault statutes did not cover the same mode of liability as the California offense and therefore left a gap the ACA could fill.
- The Ninth Circuit reversed the conviction for assault with a dangerous weapon under 18 U.S.C. § 113(a)(3).
- The court held the evidence was legally insufficient to establish use of a “dangerous weapon” where Rocha used only his hands and the victim struck the floor.
- The § 113(a)(3) count was vacated.

## Legal Principles

- The Assimilated Crimes Act, 18 U.S.C. § 13, incorporates state criminal law for conduct in federal enclaves when the conduct is not already punishable under federal law in a way that makes the state provision unnecessary.
- In deciding whether assimilation is barred, courts compare the federal offense(s) and the proposed assimilated state offense to determine whether federal law covers the same wrongful conduct and theory of liability.
- A state assault statute defined by “force likely to produce great bodily injury” may be assimilated even when Congress has enacted federal assault crimes, if federal law does not address that distinct set of elements.
- For 18 U.S.C. § 113(a)(3), a “dangerous weapon” generally requires an object external to the body used in a manner capable of causing serious bodily harm.
- Bare hands, and a stationary environmental surface such as a floor, do not qualify as a “dangerous weapon” under § 113(a)(3) on these facts.

## Conclusion

The Ninth Circuit allowed federal prosecution of a serious, non-weapon assault in a federal prison through ACA assimilation of California’s great-bodily-injury assault statute, but limited § 113(a)(3) to assaults involving an external dangerous object and reversed the weapon-based conviction where the defendant used only his hands and the victim fell onto a concrete floor.


United States v. Rocha, 598 F.3d 1144 (9th Cir. 2010)