United States of America v. Jeffery Lee Harris

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PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 20-8032
JEFFERY LEE HARRIS,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 1:19-CR-00200-ABJ-1)
Andrew Parnes, Law Office of Andrew Parnes, Ketchum, Idaho, for Appellant.
Thomas Szott, Assistant United States Attorney (Mark A. Klassen, United States
Attorney, with him on the brief) Office of the United States Attorney for the
District of Wyoming, Cheyenne, Wyoming, for Appellee.
Before TYMKOVICH, Chief Judge, KELLY, and McHUGH, Circuit Judges.
TYMKOVICH, Chief Judge.
The states comprising the Tenth Circuit are home to thirteen of the sixty-
three national parks in the United States. In addition to their extraordinary
natural beauty, national parks present a recurring legal issue: because national
FILED
United States Court of Appeals
Tenth Circuit
August 24, 2021
Christopher M. Wolpert
Clerk of Court
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parks are located in states, but have the status of federal enclaves—areas in which
the federal government is the sole sovereign—which laws may be applied to
individuals there? Federal law allows some state crimes to be imported into
federal enclaves in certain circumstances. That is the issue here.
During a heated argument at a campsite in Yellowstone National Park,
Jeffery Lee Harris pointed a gun at another camper. Rather than charge
Mr. Harris under the federal assault statute, the federal prosecutor applied the
Assimilative Crimes Act (ACA), 18 U.S.C. § 13, to charge Mr. Harris with a
Wyoming statute that prohibits “threaten[ing] to use a drawn deadly weapon on
another unless reasonably necessary [for defense.]” Wyo. Stat. Ann. § 6-2-502.
Mr. Harris was convicted at trial. On appeal, he contends that the federal assault
statute precludes assimilation of the Wyoming state assault statute in this case.
Determining whether the federal assault statute precludes conviction on the
Wyoming state assault statute requires us to apply the analysis set forth in Lewis
v. United States, 523 U.S. 155, 164 (1998), an issue of first impression in the
Tenth Circuit. That case requires the use of federal law when a federal provision
punishes a defendant’s conduct and that provision precludes application of a
similar state law. We agree with Mr. Harris that the Wyoming statute should not
have been assimilated and accordingly reverse and remand.
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I. Background
A. Factual Background
Jeffery Lee Harris was vacationing in Yellowstone National Park, where he
stayed at the Pebble Creek Campground. Another group, comprised of three
campers, occupied a nearby campsite. The campers had spoken with Mr. Harris
earlier in the day and—finding Mr. Harris pleasant and interesting—invited him
to their campsite that evening.
But when Mr. Harris visited their campsite that evening, the visit went
badly. After an innocuous start, the conversation soon turned geopolitical.
Mr. Harris began talking about his view of the role of the United States in the
world. One of the campers, Peter Janke, was insulted by Mr. Harris’s opinions
and found them anti-American. The discussion became heated.
Mr. Janke stood up first, and then Mr. Harris stood up and pushed him.
Another camper tried to deescalate the situation, and one moved between the two
men. Mr. Harris pulled a handgun from his hip, pointed it at Mr. Janke, and
threatened to kill him. Mr. Janke immediately turned and moved away while the
other campers tried to convince Mr. Harris to calm down and leave. Mr. Harris
was told to put his “toy” away, and Mr. Harris said the gun was not a toy and
reiterated that he would kill Mr. Janke. Nevertheless, Mr. Harris lowered the gun
and left the campsite. After Mr. Janke went to report the incident, Mr. Harris
returned and told one of the campers that he did not want a confrontation and
apologized. Mr. Harris returned to his campsite, where he was later arrested.
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B. Procedural Background
A grand jury charged Mr. Harris with threatening to use a drawn deadly
weapon on another, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii), assimilated
through the ACA, 18 U.S.C. §§ 7(3) and 13. Mr. Harris filed a motion to dismiss,
contending that the grand jury improperly assimilated the Wyoming offense. The
district court denied the motion, finding that “the state and federal statutes do not
seek to punish the same wrongful behavior” and that “Wyoming’s provision acts
as the gap filler between [18 U.S.C. §] 113(A)(3) and [18 U.S.C. §] 113(A)(5).”
Aplt. App. 35–36.
The case proceeded to trial. Although Mr. Harris claimed that he had acted
in self-defense, he was convicted by the jury. Mr. Harris was sentenced to two
years of supervised probation, with various conditions. He timely appealed,
arguing that application of the Wyoming statute (Wyo. Stat. Ann. § 6-2-
502(a)(iii)) was precluded by the federal assault statute (18 U.S.C. § 113).
II. Analysis
We agree with Mr. Harris that the federal assault statute precludes
assimilation of the Wyoming state statute through the ACA. We first examine the
history of the ACA and then the Supreme Court’s discussion of its modern
application in Lewis v. United States, 523 U.S. at 158. We then apply the Lewis
analysis to the state and federal statutes at issue here, concluding that the
Wyoming aggravated assault provision, Wyo. Stat. Ann. § 6-2-502(a)(iii), should
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not have been assimilated through the ACA. Instead, Mr. Harris should have
been charged under the federal assault statute, 18 U.S.C. § 113.
A. The Assimilative Crimes Act
Before the 1820s, the fledgling United States government had a problem.
Federal enclaves—or the areas where states have ceded jurisdiction over land
within their borders to Congress, such as military bases, federal facilities, and
national parks and forests, see Allison v. Boeing Laser Tech. Servs., 689 F.3d
1234, 1235 (10th Cir. 2012)—were “pretty literally lawless.” United States v.
Christie, 717 F.3d 1156, 1170 (10th Cir. 2013). Because federal criminal laws
were few (“different days than our own,” noted then-Judge Gorsuch in Christie,
id.), most crimes that occurred on federal enclaves were not punishable by the
areas’ sole sovereign. See id., 717 F.3d at 1170.
To solve this problem, Congress passed the Assimilative Crimes Act in
1825. The ACA provides:
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, . . . shall be
guilty of a like offense and subject to like punishment.
18 U.S.C. § 13. The ACA “assimilates into federal law, and thereby makes
applicable on federal enclaves . . . , certain criminal laws of the State in which
the enclave is located.” Lewis, 523 U.S. at 158. Put simply, the ACA “borrow[s]
from preexisting state law” to provide more comprehensive criminal laws in
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federal enclaves. Christie, 717 F.3d at 1170; see also United States v. Jones, 921
F.3d 932, 935 (10th Cir. 2019) (“Thus, the ACA performs a gap-filling function
by ‘borrowing state law’ to bolster the ‘federal criminal law that applies on
federal enclaves,’ and that function has been described as the ACA’s ‘basic
purpose.’” (quoting Lewis, 523 U.S. at 160)).
But determining when the ACA applies is a more complicated question
now than it was in the 1820s. Initially conceived as a gap-filling measure, the
ACA now has fewer gaps to fill than it did then—in short, because so many more
federal criminal laws exist today. And often, federal criminal law and state law
overlap. By its own terms, the “ACA applies only if the ‘act or omission’ in
question is not made punishable by ‘any enactment of Congress.’” United States
v. Rocha, 598 F.3d 1144, 1147–48 (9th Cir. 2010) (quoting 18 U.S.C. § 13)
(emphasis in original). In other words, the ACA “does not adopt state law ‘where
there is no gap to fill.’” Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct.
1881, 1891 (2019) (quoting Lewis, 523 U.S. at 163) (discussing OCSLA as an
analog of the ACA).
The Supreme Court has thus outlined a two-step inquiry for courts to
utilize in determining when the ACA makes state law applicable to federal
enclaves. The court must first ask: “Is the defendant’s ‘act or omission . . . made
punishable by any enactment of Congress[?]’” Lewis, 523 U.S. at 164 (quoting
the ACA) (emphasis in original). If not, then the state statute may be assimilated.
But if the answer is “yes,” the court must ask
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whether the federal statutes that apply to the “act or
omission” preclude application of the state law in
question, say, because its application would interfere
with the achievement of a federal policy, because the
state law would effectively rewrite an offense definition
that Congress carefully considered, or because federal
statutes reveal an intent to occupy so much of a field as
would exclude use of the particular state statute at issue.
Id. at 164. If any of these situations apply, then the state statute should not be
assimilated, and the charge should be brought under the federal statute. See 8A
Fed. Proc., L. Ed. § 22:24, Effect of overlap or conflict between federal and state
law; see also Christie, 717 F.3d at 1170–71 (“If, for example, it’s clear that a
federal statute applies to the defendant’s conduct and that the assimilation of a
state law applying to that same conduct would ‘interfere with the achievement of
a federal policy’ or ‘effectively rewrite an offense definition that Congress
carefully considered,’ or enter a field Congress has expressed an ‘intent to
occupy,’ then the need for dismissing an assimilated crime may be evident even
before trial.” (citations omitted)).
The Court went on to note that the variety and number of state and federal
laws preclude an “automatic general answer” to the second question. Lewis, 523
U.S. at 164. Nevertheless, “it seems fairly obvious that the Act will not apply
where both state and federal statutes seek to punish approximately the same
wrongful behavior—where, for example, differences among elements of the
crimes reflect jurisdictional[] or other technical[] considerations, or where
differences amount only to those of name, definitional language, or punishment.”
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Id. at 165. Nor may assimilation “rewrite distinctions among the forms of
criminal behavior that Congress intended to create.” Id. So there is “no gap for
the Act to fill where a set of federal enactments taken together make criminal a
single form of wrongful behavior while distinguishing (say, in terms of
seriousness) among what amount to different ways of committing the same basic
crime.” Id.
But at the same time, “a substantial difference in the kind of wrongful
behavior covered (on the one hand by the state statute, on the other, by federal
enactments) will ordinarily indicate a gap for a state statute to fill—unless
Congress, through the comprehensiveness of its regulation, or through language
revealing a conflicting policy, indicates to the contrary in a particular case.” Id.
at 165–66 (citations omitted) (emphasis supplied). At the end of the day, the
Court stated, the “primary question (we repeat) is one of legislative intent: Does
applicable federal law indicate an intent to punish conduct such as the
defendant’s to the exclusion of the particular state statute at issue?” Id. at 166.
In reaching this conclusion, the Court rejected approaches on both ends of
the spectrum. The literal interpretation of the ACA’s “any enactment”
language—which would greatly decrease the amount of state law assimilated—
was too broad. Id. at 161–62. And the interpretation that the ACA “would
assimilate a state law so long as that state law defines a crime [with] one element
that does not appear in the relevant federal statute” was too narrow. Id. at 162–
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63. The two-step test was a Goldilocks solution, landing somewhere in the
middle.
B. The ACA and Wyoming’s Aggravated Assault Statute
Whether a state law crime was properly assimilated under the ACA is a
question of law we review de novo. Christie, 717 F.3d at 1176 (Briscoe, C.J.,
concurring); see also United States v. Chapman, 839 F.3d 1232, 1241 (10th Cir.
2016).
Although we have discussed the sentencing implications of assimilation of
state laws, see, e.g., Christie, 717 F.3d at 1171, Jones, 921 F.3d at 935,
Chapman, 839 F.3d at 1241, and United States v. Wood, 386 F.3d 961 (10th Cir.
2004), we have yet to apply Lewis’s two-step inquiry. In doing so here, we
conclude that the ACA does not permit the assimilation of the Wyoming
aggravated assault provision under which Mr. Harris was charged.
Mr. Harris was charged with violating Wyo. Stat. Ann. § 6-2-502(a)(iii),
but he argued in his motion to dismiss that he should have been charged with a
provision of the federal assault statute, 18 U.S.C. § 113.
The federal assault statute, entitled “Assaults within maritime and
territorial jurisdiction,” provides in part that
(a) Whoever, within the special maritime and territorial
jurisdiction of the United States, is guilty of an
assault shall be punished as follows:
[. . .]
(3) Assault with a dangerous weapon, with intent to
do bodily harm, by a fine under this title or
imprisonment for not more than ten years, or both.
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[. . .]
(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.
18 U.S.C. § 113. Assault under subsection (3) is a felony, but conviction under
subsection (5) of the federal assault statute would result in a misdemeanor.
In turn, the Wyoming aggravated assault statute provides, as relevant here,
that
(a) A person is guilty of aggravated assault and battery
if he engages in any of the following:
[. . .]
(iii) Threatens to use a drawn deadly weapon on
another unless reasonably necessary in defense of his
person, property or abode or to prevent serious
bodily injury to another[.]
Wyo. Stat. Ann. § 6-2-502(a)(iii). A conviction under this provision is a felony.
We first turn to Lewis’s initial inquiry: “Is the defendant’s act or omission
made punishable by any enactment of Congress?” Lewis, 523 U.S. at 164
(cleaned up; emphasis in original). The government concedes—and we agree, of
course—that the answer to this question is “yes.” Mr. Harris’s actions at the
campsite that night could be punishable under § 113(a)(5) as simple assault.1
Adopting common-law principles, the Tenth Circuit has defined simple assault as
either “an attempted battery” or “placing another in reasonable apprehension of a
1 We make no determination as to whether Mr. Harris could have been charged
under a different provision within § 113, such as assault with a deadly weapon.
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battery.” United States v. Gauvin, 173 F.3d 798, 802 (10th Cir. 1999) (quoting
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 16.3).
Pointing a gun at Mr. Janke and threatening to kill him clearly placed Mr. Janke
in reasonable apprehension of a battery.
We then turn to the second question: whether the federal assault statute (18
U.S.C. § 113) precludes application of the Wyoming assault statute (Wyo. Stat.
Ann. § 6-2-502). The layering of multifarious state and federal laws on federal
enclaves, as well as the range of circumstances in which they apply, prevent “an
automatic general answer to this second question.” Lewis, 523 U.S. at 165.
Consequently, Lewis’s second step is designed to be a fairly broad inquiry,
represented by a non-exhaustive list of circumstances in which a federal statute
would preclude application of a state law. See id. at 164. In any event, we need
not look further than the second and third scenarios given by the Supreme Court:
when a “state law would effectively rewrite an offense definition that Congress
carefully considered,” or when “federal statutes reveal an intent to occupy so
much of a field as would exclude use of the particular state statute at issue.” Id.
We conclude that assimilating the Wyoming statute in this case would
“effectively rewrite an offense definition that Congress carefully considered.”
Lewis, 523 U.S. at 165. The full federal assault statute lays out eight different
assaultive acts, each with a corresponding punishment—from assault with intent
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to commit murder to simple assault. See 18 U.S.C. § 113.2 It then provides
specific definitions of terms used in the statute, including terms such as
2 The complete text of § 113 reads:
(a) 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 or a
violation of section 2241 or 2242, by a fine under
this title, imprisonment for not more than 20
years, or both.
(2) Assault with intent to commit any felony, except
murder or a violation of section 2241 or 2242, 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, 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 1 year, 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 a
spouse or intimate partner, a dating partner, or an
individual who has not attained the age of 16
years, by a fine under this title or imprisonment
for not more than 5 years, or both.
(8) Assault of a spouse, intimate partner, or dating
partner by strangling, suffocating, or attempting
to strangle or suffocate, by a fine under this title,
imprisonment for not more than 10 years, or both.
(b) Definitions.--In this section--
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“substantial bodily injury” and “serious bodily injury.” Id. Congress clearly and
precisely explicated the range of conduct that qualifies as assault within areas of
federal jurisdiction. It is true that Mr. Harris’s conduct is more easily mapped
onto the Wyoming statute here. But that is not the test. See Lewis, 523 U.S. at
169 (declining to find state statute assimilable even when the state statute was
“focuse[d] upon a narrower (and different) range of conduct”). Assimilating the
more specific Wyoming law to punish the same conduct covered by § 113 would
(1) the term “substantial bodily injury” means bodily
injury which involves--
(A) a temporary but substantial disfigurement; or
(B) a temporary but substantial loss or impairment
of the function of any bodily member, organ,
or mental faculty;
(2) the term “serious bodily injury” has the meaning
given that term in section 1365 of this title;
(3) the terms “dating partner” and “spouse or
intimate partner” have the meanings given those
terms in section 2266;
(4) the term “strangling” means intentionally,
knowingly, or recklessly impeding the normal
breathing or circulation of the blood of a person
by applying pressure to the throat or neck,
regardless of whether that conduct results in any
visible injury or whether there is any intent to kill
or protractedly injure the victim; and
(5) the term “suffocating” means intentionally,
knowingly, or recklessly impeding the normal
breathing of a person by covering the mouth of
the person, the nose of the person, or both,
regardless of whether that conduct results in any
visible injury or whether there is any intent to kill
or protractedly injure the victim.
18 U.S.C. § 113.
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substantially disrupt Congress’s careful assault definitions. The text and
structure of § 113 “indicate an intent to punish conduct such as [Mr. Harris’s] to
the exclusion of the particular state statute at issue.” Id. at 166.
The detailed and comprehensive nature of the federal assault statute also
suggests Congress “inten[ded] to occupy so much of a field as would exclude use
of the particular state statute at issue.” Id. at 164; see also id. at 169 (pointing to
the “detailed manner in which the federal . . . statute is drafted” to conclude the
state statute is not assimilable). The wide spectrum of assaultive conduct
prohibited by § 113 evinces a “considered legislative judgment” to punish a
variety of behavior in federal jurisdictions. Id. at 169. And the broad range of
punishments in § 113—from mere fines to twenty years’ imprisonment—gives
“complete coverage” that should not be undermined by the assimilation of the
Wyoming statute. Id. at 169; see also id. (concluding that the “extreme breadth
of the possible sentences” reinforced the conclusion that there was “no gap for
the [state’s] statute to fill”).
The ACA is only meant to fill gaps in state law, not to provide an
additional criminal legal scheme on every federal enclave. The Wyoming assault
statute and the federal assault statute “seek to punish approximately the same
wrongful behavior.” Id. at 165. The federal statute punishes Mr. Harris’s
wrongful behavior at the campsite, just as the Wyoming statute does. The
differences between the federal and the Wyoming provisions “amount only to
those of name, definitional language, or punishment.” Id. Had Mr. Harris been
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in Wyoming outside of Yellowstone National Park, a state prosecutor could have
successfully brought charges under Wyo. Stat. Ann. § 6-2-502. But he was not.
Mr. Harris was on federal territory, and the federal assault statute thoroughly
covers his conduct. Consequently, he should have been charged with violation of
the federal assault statute.3
The government makes two arguments that merit discussion. First, it
contends, the two provisions’ difference in scienter requirement dictates that the
Wyoming statute can be assimilated. Conviction under the Wyoming provision
requires general intent. See Streitmatter v. State, 981 P.2d 921, 927 (Wyo. 1999)
(“The crime of aggravated assault [under Wyo. Stat. Ann. § 6-2-502(a)(iii)] is a
general intent crime, and its commission requires only that intent which the jury
may infer from the commission of the proscribed act.”). The federal simple
assault provision—§ 113 (a)(5)—has no intent requirement. Subsection (a)(3) in
that same statute, which prohibits assault with a dangerous weapon, requires
specific intent.
3 We are not the only circuit to reach this conclusion. In United States v. Dat
Quoc Do, prosecutors assimilated Oregon’s unlawful use of a weapon statute,
which prohibits “[a]ttempt[ing] to use unlawfully against another . . . any
dangerous or deadly weapon,” Or. Rev. Stat. § 166.220(1)(a), against a defendant
who had drawn and fired a gun into the sky. United States v. Dat Quoc Do, 994
F.3d 1096, 1098–99 (9th Cir. 2021). On step two of the Lewis analysis, the Ninth
Circuit concluded that the Oregon statute should not have been assimilated
because (1) the federal assault statute (§ 113) and Oregon’s statute seek to punish
the same wrongful behavior, (2) § 113 occupies the field of assault to the
exclusion of Oregon’s statute, and (3) assimilating the Oregon statute would
rewrite § 113’s definitions. Id. at 1100; accord Rocha, 598 F.3d at 1149–50
(concluding § 113 precluded assimilation of a California state assault law).
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But this argument is unpersuasive. For one, the range of scienter
requirements in the federal statute—from no intent to specific intent—
demonstrates that Congress intended this statute to occupy the field of assault
with all associated states of mind. And for another, “there will be no gap for the
Act to fill where a set of federal enactments taken together make criminal a single
form of wrongful behavior while distinguishing (say, in terms of seriousness)
among what amount to different ways of committing the same basic crime.”
Lewis, 523 U.S. at 165. The federal assault statute does exactly this: set out the
different methods and states of mind for committing the same basic crime of
assault. That the elements—here, the mens rea requirement—of the Wyoming
statute and the federal assault statute do not precisely align is inconsequential.
Lewis explicitly rejected this approach to assimilation. See id. at 162–63
(rejecting the approach that “the ACA would assimilate a state law so long as that
state law defines a crime in terms of at least one element that does not appear in
the relevant federal enactment”).
Second, the government argues that because the Wyoming provision is a
felony and the federal simple assault provision is a misdemeanor, there is a gap
allowing for assimilation of the Wyoming statute. That argument fails because
Lewis instructs us not to assimilate a state law merely because there is a
difference in punishment. See id. at 165 (approvingly citing a case where a
“misdemeanor/felony difference did not justify assimilation”). In Lewis, the state
law at issue—and the one which had been assimilated against the defendant—
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punished first-degree murder, while the federal statute was for second-degree
murder. See id. at 169. Nevertheless, the Court found that such a difference did
not require assimilation because “other features of the federal statute
convince[d]” the Court that Congress had intended to preclude application of the
state law. Id. We are similarly convinced that § 113 was intended to preclude
application of the Wyoming state law here.
Finally, we note that to allow assimilation here “threatens not only to fill
nonexistent gaps, but also to rewrite each federal enclave-related criminal law in
50 different ways, depending upon special, perhaps idiosyncratic, drafting
circumstances in the different States.” Id. at 163. It is not so much the breadth
of this power but its uneven nature that Lewis was designed to resolve. Such an
interpretation would leave visitors—like Mr. Harris—and “residents of federal
enclaves randomly subject to three sets of criminal laws (special federal
territorial criminal law, general federal criminal law, and state criminal law)
where their state counterparts would be subject only to the latter two types.” Id.
The ACA was designed to solve a lawlessness problem, not create legal
hodgepodge from which prosecutors could pick and choose.
A federal statute prohibits the behavior Mr. Harris exhibited at the
campsite that evening, and he should have been charged accordingly.
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III. Conclusion
We conclude that the ACA does not permit assimilation of the Wyoming
assault provision at issue here. For the foregoing reasons, we REVERSE the
district court and REMAND for proceedings consistent with this opinion.
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