FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-50175
v. D.C. No.
VICTOR ROCHA, also known as 5:05-cr-00069-
VAP-1
Mono, also known as Victor
Rosales, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
November 3, 2009—Pasadena, California
Filed March 18, 2010
Before: Thomas G. Nelson, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Bybee
4395
4398 UNITED STATES v. ROCHA
COUNSEL
Gene D. Vorobyov, Law Office of Gene Vorobyov, Califor-
nia, for the defendants-appellants.
UNITED STATES v. ROCHA 4399
Thomas P. O’Brien, United States Attorney, Sheri Pym,
Antoine F. Raphael (argued), Sean K. Lokey, Assistant
United States Attorneys, for the plaintiffs-appellees.
OPINION
BYBEE, Circuit Judge:
After participating in a brawl in a federal correctional facil-
ity 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 danger-
ous 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 iron-
ing 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
4400 UNITED STATES v. ROCHA
Fischer’s attack.1 A security videotape reveals that Fischer
was backing away from his attackers when Rocha came up
from behind him, reached down, grabbed the six-foot-seven,
three hundred pound Fischer by his feet, and pulled his feet
out from under him, causing Fischer’s body to slam down
onto the concrete floor. Rocha continued to fight with Fischer,
and other inmates continued kicking Fischer while he was on
the ground.
An unidentifiable group of inmates then tried, unsuccess-
fully, 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 govern-
ment also charged Rocha with assault with intent to commit
murder and assault with a dangerous weapon under the fed-
eral 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 sen-
tenced Rocha to an eighty-seven month term of imprison-
ment, finding that Rocha’s attack was unprovoked, brutal, and
gang related. Rocha timely appealed.
1
The parties stipulated at trial that Rocha was “acquainted and associ-
ated with” the inmates who beat and stabbed Fischer.
2
The only eyewitness to the fight, Office Walters, could not identify
which inmates were involved in the attempt to throw Fischer over the rail-
ing, and the video surveillance is too poor to shed light on the identity of
the perpetrators.
UNITED STATES v. ROCHA 4401
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,
392 F.3d 1050, 1052 (9th Cir. 2004).
[1] 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 “act or omission” in question is
3
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.”).
4402 UNITED STATES v. ROCHA
not made punishable by “any enactment of Congress.” 18
U.S.C. § 13(a); see Souza, 392 F.3d at 1052-53; United States
v. Waites, 198 F.3d 1123, 1127-28 (9th Cir. 2000). In Lewis
v. United States, 523 U.S. 155 (1998), the Supreme Court
addressed when the ACA makes state law applicable to fed-
eral enclaves. In Lewis, the defendant urged a literal reading
of the ACA, arguing that if any enactment by Congress pun-
ished the behavior at issue, the ACA could not assimilate the
state law. The government, on the other hand, argued that the
ACA could not assimilate the state law unless the federal and
state law criminalized precisely the same behavior. Id. at 159-
60, 162. Explaining that “[t]he ACA’s basic purpose is one of
borrowing state law to fill gaps in the federal criminal law
that applies on federal enclaves,” id. at 160, the Court
declined to adopt either of the parties’ competing interpreta-
tions. Instead, the Court established a two-part test for analyz-
ing whether the ACA properly assimilates a particular state
criminal law into federal law:
[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 (internal quotation marks, ellipses, and citations
omitted) (emphasis in original). The Court gave three exam-
ples of when a federal enactment precludes application of a
state law: if the state law “interfere[s]” with federal policy,
“effectively rewrite[s]” a definition that “Congress carefully
considered,” or if the federal statute reveals an intent to
occupy “so much of a field as would exclude use of the partic-
UNITED STATES v. ROCHA 4403
ular state statute at issue.” Id. We consider each part of the
test in turn.
A
[2] 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 pun-
ishable by an enactment of Congress, specifically by the fed-
eral 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 dan-
gerous 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, 481 F.3d
695, 697 (9th Cir. 2007) (internal quotation marks omitted).
[3] 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 under one or more of the provi-
sions of 18 U.S.C. § 113(a). Indeed, both parties agree that
Rocha’s conduct was punishable under the federal assault
statute, although they disagree over which sections cover his
acts: Rocha admits that his behavior could have been pun-
ished as assault by striking, beating, or wounding, or simple
assault, 18 U.S.C. § 113(a)(4), (5), and the government, in
4404 UNITED STATES v. ROCHA
fact, charged Rocha with assault with intent to commit murder
and assault with a dangerous weapon. See id. § 113(a)(1), (3).
[4] 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 gov-
ernment argues that California Penal Code § 245, which pun-
ishes 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 fed-
eral 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 fed-
eral 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, 422 F.2d 171 (9th Cir. 1970), when the defen-
dant was convicted of assault under California Penal Code
§ 245, assimilated into federal law by the ACA. We held that
because 18 U.S.C. § 113 and California Penal Code § 245
covered the same conduct, the California statute was not prop-
erly assimilated under the ACA. Id. at 173. Although our
decision in Hockenberry predated Lewis, and so we concluded
our inquiry when we determined that the federal assault stat-
ute punished the defendant’s conduct, Hockenberry is still rel-
evant to the first prong of the Lewis test. Because the federal
assault statute punished the defendant’s wrongful conduct, the
ACA did not properly assimilate California Penal Code § 245.
The fact that California law defines assault differently from
the federal assault statute is irrelevant. As in Hockenberry, we
have little difficulty concluding that Rocha’s conduct is
“made punishable by [an] enactment of Congress.” 18 U.S.C.
§ 13.
B
[5] Because we conclude that Rocha’s actions were pun-
ishable under the federal assault statute, we turn to the second
UNITED STATES v. ROCHA 4405
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 appli-
cation of a state law: (1) application of the state law “would
interfere with the achievement of a federal policy”; (2) appli-
cation of the state law “would effectively rewrite an offense
definition that Congress carefully considered”; or (3) the “fed-
eral statutes reveal an intent to occupy so much of a field as
would exclude use of the particular state statute at issue.”
Lewis, 523 U.S. at 164. The Court also noted that “it seems
fairly obvious that the Act will not apply where both state and
federal statutes seek to punish approximately the same wrong-
ful behavior—where, for example, differences among ele-
ments of the crimes . . . amount only to those of name,
definitional language, or punishment.” Id. at 165.
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 appli-
cation of California Penal Code § 245. Section 245 cannot be
assimilated under the ACA for three connected reasons. First,
the federal assault statute’s comprehensive definitions reveal
Congress’s intent to fully occupy the field of assault on a fed-
eral enclave. Second, both the California and federal assault
statutes punish approximately the same wrongful behavior,
counseling against application of the state statute through the
ACA. Third, applying California’s statute would effectively
rewrite the punishments Congress carefully considered for
assault on federal enclaves.
[6] 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:
4406 UNITED STATES v. ROCHA
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 impris-
onment 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
UNITED STATES v. ROCHA 4407
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, 523 U.S. at 164.
The federal assault statute is comprehensive in a way the
amalgam of federal theft statutes are not, as we explained in
Souza, 392 F.3d at 1050. In Souza, we upheld a conviction
under the ACA, finding that the federal national park regula-
tions did not evidence an intent to occupy the field of law
relating to burglary and breaking and entering of a vehicle
parked on federal national park land. Id. at 1054-55. After the
defendant forcefully entered and removed two duffle bags
from a vehicle parked in Hawaii Volcanoes National Park, he
was charged under the ACA, assimilating Hawaii Revised
Statute 708-836.5, which punished unauthorized entry into a
motor vehicle with the intent to commit a crime against a per-
son. Id. at 1052. We acknowledged several federal enactments
that could punish defendant’s conduct: 18 U.S.C. § 661, “a
general federal theft provision”; 36 C.F.R. § 2.30, another
general provision prohibiting “unlawful possession of the
property of another”; and 36 C.F.R. § 2.31, a provision pro-
hibiting trespassing, tampering, and vandalism. Id. at 1053. At
the second prong of the Lewis analysis, however, we deter-
mined that Congress did not intend these enactments to have
a preclusive effect “[b]ecause the federal enactments are gen-
eral in nature and do not address . . . specific conduct.” Id. at
1054. Despite the applicable federal enactments, we found
that there was a gap in federal law because no provision pun-
ished the unauthorized breaking, entering, and taking of prop-
erty from a motor vehicle. The state statute properly filled a
gap in federal law by punishing that specific behavior. See id.
at 1055.
4408 UNITED STATES v. ROCHA
[7] 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 specifi-
cally punished the act of breaking into a car and taking prop-
erty. 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 stat-
ute 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, 523 U.S.
at 165, which precludes application of the state statute. In
Waites, 198 F.3d at 1129, we reversed a conviction under the
ACA, finding that federal post office regulations punished the
same wrongful behavior as the state trespass statute and thus
indicated an intent by Congress to dominate the field of tres-
pass on post office property. The defendant in Waites was
convicted of trespass under the ACA, assimilating the Oregon
trespass statute, for sleeping in a post office. Id. at 1125. After
we found his conduct punishable by a federal enactment (the
defendant had received four separate citations pursuant to 39
C.F.R. § 232.1, “Conduct on Postal Property”) we considered
whether the post office regulations precluded application of
the Oregon trespass statute. Id. at 1125, 1128. We reasoned
that because the state law and federal regulation punished the
same behavior, remaining on the premises after being
instructed to leave, the federal regulations demonstrated “an
intent to punish the defendant’s conduct at the exclusion of
the state statute.” Id. at 1129.
[8] Even more clearly than in Waites, the California assault
statute and the federal assault statute punish the same wrong-
UNITED STATES v. ROCHA 4409
ful behavior—assault. California Penal Code § 245(a)(1) pun-
ishes “[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 bod-
ily 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 federal assault statute
to preclude application of state assault statutes on federal
enclaves.
Finally, California Penal Code § 245 cannot be properly
assimilated under the ACA because adopting California’s def-
inition of assault “would effectively rewrite an offense defini-
tion that Congress carefully considered.” Lewis, 523 U.S. at
164. In many situations, the federal statute punishes assault
more severely than the state statute. For example, both punish
assault with a weapon: California punishes assault with a
“deadly weapon” or “instrument” with a sentence of up to
four years, but the federal statute punishes assault with a
“dangerous weapon” with a sentence of up to ten years. Com-
pare CAL. PEN. CODE § 245 with 18 U.S.C. § 113(a)(3). Cali-
fornia’s statute does not consider intent, whereas the federal
statute punishes assault done with murderous intent for up to
twenty years and punishes assault done with felonious intent
for up to ten years. See id. § 113(a)(1), (2).
[9] 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 distinc-
tion. The federal statute distinguishes assault by whether an
actual serious injury occurred, whether a defendant had mur-
derous 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 fed-
4410 UNITED STATES v. ROCHA
eral definitional scheme, if the government cannot prove a
defendant had a murderous or felonious intent, that the defen-
dant 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 defen-
dant 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 stat-
ute and attempted to convict Rocha under the California stat-
ute, 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, 523 U.S.
at 165. Assimilating California Penal Code § 245, through the
ACA, “effectively rewrite[s]” Congress’s sentences and
authorizes a longer punishment for the “same wrongful
behavior.” Id. at 164-65.
[10] 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 fed-
eral enclaves.
III
We next consider whether there is sufficient evidence to
support Rocha’s conviction of assault with a dangerous
UNITED STATES v. ROCHA 4411
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 an element of
the offense and must be proved beyond a reasonable doubt.
United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994);
see also Medley v. Runnels, 506 F.3d 857, 866-67 (9th Cir.
2007) (en banc) (whether a flare gun fit within California’s
definition of a firearm was a question of fact for the jury
because determining that the defendant used a firearm was an
element of the offense).
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 con-
victing 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 convic-
tion. “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, 40
F.3d at 1057.
The hurdle to overturn a jury’s conviction based on a suffi-
ciency 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, 922 F.2d 549,
552 (9th Cir. 1991). That is, we must conclude that, viewing
the facts in the light most favorable to the government, “the
4412 UNITED STATES v. ROCHA
government’s proof was insufficient as a matter of law to con-
stitute a crime.” United States v. Moore, 84 F.3d 1567, 1568
(9th Cir. 1996). In this case, we are called on to decide
whether the evidence that Rocha assaulted Fischer with his
bare hands alone constitutes assault with a dangerous weapon.
This is a judgment as a matter of law. See Riggins, 40 F.3d
at 1055 (upholding conviction under the federal assault statute
where defendant used a belt and shoe as dangerous weapons
because “as a matter of law a shoe and belt can be dangerous
weapons, and . . . in this case the evidence was sufficient to
sustain the verdict . . .”); see also United States v. Tran, 568
F.3d 1156, 1168 (9th Cir. 2009) (reversing defendant’s con-
victions of conspiracy and possession with intent to distribute
because “[t]he evidence against [the defendant] was . . . insuf-
ficient as a matter of law to support his conviction[s]”);
United States v. Ali, 266 F.3d 1242, 1245 (9th Cir. 2001)
(reversing defendant’s convictions for bank-related offenses
under 18 U.S.C. §§ 1014 and 1344(1) because “the govern-
ment presented insufficient evidence as a matter of law for a
rational trier of fact to find [an] essential element beyond a
reasonable doubt”).
[11] Section 113(a)(3) punishes “[a]ssault with a danger-
ous 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, 481 F.3d at 697
(internal quotation marks omitted), and we interpreted “dan-
gerous weapon” to mean any object that is used in a way to
inflict great bodily harm, United States v. Smith, 561 F.3d
934, 939 (9th Cir. 2009) (en banc); Riggins, 40 F.3d at 1057.
As we explained in Riggins:
The determination whether an object constitutes a
“dangerous weapon” turns not on the object’s latent
UNITED STATES v. ROCHA 4413
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 weap-
ons” 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 danger-
ous weapons as guns, knives, and the like, but can
include virtually any object given appropriate cir-
cumstances.
Riggins, 40 F.3d at 1057 (quoting United States v. Guilbert,
692 F.2d 1340, 1342 (11th Cir. 1982) (citations omitted)).
[12] 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, 561 F.3d at 939. We explained,
“[a]n object is a dangerous weapon within the meaning of 18
U.S.C. § 113(a)(3) if it is either inherently dangerous or other-
wise used in a manner likely to endanger life or inflict great
bodily harm.” Id. at 939 (internal quotation marks omitted).
Our own cases, and those of our sister circuits, have
focused on the question of when objects that are not manufac-
tured 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 con-
cluded that “the belt and shoe were dangerous weapons in the
manner in which they were used.” Riggins, 40 F.3d at 1057.
A long line of cases confirm that objects that have perfectly
peaceful purposes may be turned into dangerous weapons and
that such use may be punished under the federal assault stat-
4414 UNITED STATES v. ROCHA
ute. See, e.g., United States v. LeCompte, 108 F.3d 948, 952
(8th Cir. 1997) (rock and phone); United States v. Gibson,
896 F.2d 206, 209 n.9 (6th Cir. 1990) (speeding car); United
States v. Hollow, 747 F.2d 481 (8th Cir. 1984) (pushing vic-
tim with both hands while holding a knife); United States v.
Wycoff, 545 F.2d 679 (9th Cir. 1976) (metal pipe or wooden
stick); United States v. Anderson, 425 F.2d 330 (7th Cir.
1970) (speeding car); Brundage v. United States, 365 F.2d
616 (10th Cir. 1966) (iron pipe); United States v. Johnson,
324 F.2d 264 (4th Cir. 1963) (metal and plastic chair); see
also Hickey v. United States, 168 F. 536 (9th Cir. 1909)
(revolver used as a club was a dangerous weapon before fed-
eral assault statute enacted). More recently, in United States
v. Steele, 550 F.3d 693, 699 (8th Cir. 2008), the Eighth Cir-
cuit held that there was sufficient evidence for the jury to
determine that the defendant’s tennis shoes were used as dan-
gerous weapons when the defendant repeatedly kicked a fed-
eral officer’s torso. See also United States v. Anchrum, 590
F.3d 795, 801 (9th Cir. 2009) (car, truck, automobile, or vehi-
cle can constitute a dangerous weapon under 18 U.S.C.
§ 111(b)).
We are faced with a more difficult question than whether
iron pipes, chairs, shoes, or belts may be converted into dan-
gerous 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 appeals, one from the Fourth Circuit and one from
the Eighth Circuit, that have considered the issue of whether
body parts can be considered dangerous weapons under the
federal assault statute. Both involved teeth.
In United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995), a
prisoner who was HIV positive bit a correctional officer at the
Lorton Reformatory and was convicted of assault with a dan-
gerous weapon. After noticing the various innocuous items
that courts had considered dangerous items, a majority of the
UNITED STATES v. ROCHA 4415
court rejected a “mechanical” test for whether any particular
object was used as a dangerous weapon:
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 meta-
physical reflection on its nature.
Id. at 788. The court concluded that “teeth may also be a dan-
gerous 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 defen-
dant was HIV positive and used his teeth, potentially, as a
means of transmitting the HIV virus. Id. Declining to estab-
lish a bright-line rule about body parts used as weapons under
the federal statute, the court decided to leave the determina-
tion 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., dissent-
ing).
The Eighth Circuit has also found that the mouth and teeth
could be dangerous weapons. United States v. Moore, 846
F.2d 1163 (8th Cir. 1988). In Moore, the defendant was a
prisoner who had bitten two correctional officers in multiple
places, threatening to kill the officers. Although Moore was
HIV positive, the court declined to rest its judgment on that
fact. It pointed to a doctor’s testimony that a human bite is
“potentially ‘more dangerous than a dog bite’ . . . and that it
can be ‘a very dangerous form of aggression.’ ” Id. at 1167.
It continued that “the evidence was sufficient to support the
4416 UNITED STATES v. ROCHA
finding that Moore’s mouth and teeth were a deadly and dan-
gerous weapon, regardless of the presence or absence of
AIDS.” Id. at 1168. See also United States v. Studnicka, 450
F. Supp. 2d 680 (E.D. Tex. 2006), appeal dismissed, 236 Fed.
App’x. 129 (5th Cir. 2007) (upholding a sentence increase for
a conviction of HIV-positive prisoner who bit correctional
officer).
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, 19 S.W.3d
195 (Tenn. 2000) (fists and feet); People v. Owusu, 712
N.E.2d 1228 (N.Y. 1999) (teeth); State v. Bachelor, 575
N.W.2d 625 (Neb. Ct. App. 1998) (teeth); Ex Parte Cobb, 703
So. 2d 871 (Ala. 1996) (fists or other body parts); People v.
Aguilar, 945 P.2d 1204 (Cal. 1997) (bare hands or feet); State
v. Townsend, 865 P.2d 972 (Idaho 1993) (hands); State v.
Frey, 505 N.W.2d 786 (Wis. Ct. App. 1993) (hands); Dixon
v. State, 603 So. 2d 570 (Fla. Dist. Ct. App. 1992) (bare
hands); State v. Gordon, 778 P.2d 1204 (Ariz. 1989) (fists);
Seiter v. State, 719 S.W.2d 141 (Mo. Ct. App. 1986) (hands);
People v. Bias, 475 N.E.2d 253 (Ill. App. Ct. 1985) (a sharp
fingernail); Roney v. Commonwealth, 695 S.W.2d 863 (Ky.
1985) (fists and body parts); Commonwealth v. Davis, 406
N.E.2d 417 (Mass. Ct. App. 1980) (fists and teeth); People v.
Van Diver, 263 N.W.2d 370 (Mich. Ct. App. 1977) (bare
hands); State v. Ireland, 447 P.2d 375 (Utah 1968) (hands);
State v. Calvin, 24 So. 2d 467 (La. 1945) (bare hands and
teeth); Bean v. State, 138 P.2d 563 (Okla. Crim. App. 1943)
(fists); Warren v. State, 114 S.W.705 (Ark. 1908) (fists). In
Owusu, for example, the New York Court of Appeals
addressed whether the defendant, who nearly severed the vic-
tim’s finger by biting it, had used a “dangerous instrument.”
The court observed that its “ ‘use-oriented approach’ has
always been directed at understanding if an instrument is (or
can be) ‘dangerous’; it has not been used as a guide to deter-
UNITED STATES v. ROCHA 4417
mine if the means by which the victim was injured was an
‘instrument.’ ” Owusu, 712 N.E.2d at 1231-32. The court read
the statute to “[i]ncrease[ ] criminal liability . . . because the
actor has upped the ante by employing a device to assist in the
criminal endeavor.” Id. at 1232. Here, “Mr. Owusu’s teeth
came with him,” and the court declined to find his teeth a dan-
gerous instrument. Id. The Tennessee Supreme Court in Flem-
ming reached a similar conclusion. Flemming had kicked the
victim and beat him with his fists before robbing him. He was
charged with “especially aggravated robbery” because he
used a deadly weapon (fists and feet) to commit the crime.
The Tennessee Supreme Court explained that if fists and feet
are deadly weapons, then there would be no distinction
between simple and aggravated offenses. Flemming, 19
S.W.3d at 197. The court pointed out that
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 inevi-
tably be displayed. Thus, the defendant becomes
both the perpetrator and the deadly weapon, the sim-
ple assault becomes aggravated assault, and the mis-
demeanor becomes a felony.
Id. at 198; see also Bachelor, 575 N.W.2d at 632 (“Declaring
body parts dangerous instruments makes the increased penalty
for using a dangerous instrument meaningless and creates
ambiguity, if not outright duplication, between second and
third degree assault under Nebraska law.”).
Other states, although a clear minority, have allowed body
parts to be considered dangerous or deadly weapons. State v.
Allen, 667 S.E.2d 295 (N.C. Ct. App. 2008) (hands); State v.
Bennett, 493 S.E.2d 845 (S.C. 1997) (hands and fists); People
v. Ross, 831 P.2d 1310 (Colo. 1992) (hands); State v. Grum-
bles, 411 S.E.2d 407 (N.C. Ct. App. 1991) (fists); Turner v.
4418 UNITED STATES v. ROCHA
State, 664 S.W.2d 86 (Tex. Crim. App. 1983) (hands and
feet); State v. Zangrilli, 440 A.2d 710 (R.I. 1982) (hands);
Ellis v. State, 224 S.E.2d 799 (Ga. Ct. App. 1976) (hands and
floor); Pulliam v. State, 298 So. 2d 711 (Miss. 1974) (fists
and teeth); State v. Born, 159 N.W.2d 283 (Minn. 1968) (fists
and body parts); State v. Heinz, 275 N.W. 10 (Iowa 1937)
(hands and fists). In one recent case, the North Carolina Court
of Appeals held that hands could be considered a deadly
weapon for purposes of the assault statute “depending upon
the manner in which they were used and the relative size and
condition of the parties.” Allen, 667 S.E.2d at 298. The court
thus pointed to the fact that the defendant was seven inches
taller and outweighed the victim by forty pounds as sufficient
evidence of use a deadly weapon. Id. at 301. But see Owusu,
712 N.E.2d at 1232 (rejecting a “sliding scale of criminal lia-
bility” based on “the size of the perpetrator, his weight,
strength, etc., as well as any infirmities or frailties of the vic-
tim”).
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 danger-
ous 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.
[13] 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
UNITED STATES v. ROCHA 4419
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) with-
out 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.
[14] 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 “dan-
gerous 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, 48
F.3d at 790-91 (Hall, J., dissenting). Hands used to pull on
ankles—as awful as it was in this situation—were not a “dan-
gerous weapon.”
4420 UNITED STATES v. ROCHA
IV
[15] We reverse Rocha’s conviction under the ACA
because the ACA improperly assimilated California Penal
Code § 245. We also reverse his conviction under 18 U.S.C.
§ 113(a)(3) because there was insufficient evidence as a mat-
ter of law that Rocha used a dangerous weapon.
REVERSED.