Opinion
Case No.: 23-cr-1077-RBM
2023-11-06
UNITED STATES of America, Plaintiff, v. Rene FERNANDEZ, Jr., Defendant.
U.S. Attorney CR, Amanda Griffith, Assistant United States Attorneys, U.S. Attorney's Office, Criminal Division, San Diego, CA, Amy B. Wang, Assistant United States Attorney, DOJ-USAO, San Diego, CA, for Plaintiff. Leila W. Morgan, Richard Deke Falls, Jessica Agatstein, Public Defenders, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
U.S. Attorney CR, Amanda Griffith, Assistant United States Attorneys, U.S. Attorney's Office, Criminal Division, San Diego, CA, Amy B. Wang, Assistant United States Attorney, DOJ-USAO, San Diego, CA, for Plaintiff. Leila W. Morgan, Richard Deke Falls, Jessica Agatstein, Public Defenders, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
ORDER:
(1) DENYING MOTION TO DISMISS INDICTMENT UNDER DOUBLE JEOPARDY CLAUSE AND COLLATERAL ESTOPPEL
(2) GRANTING MOTION TO DISMISS COUNT 1 OF INDICTMENT
RUTH BERMUDEZ MONTENEGRO, UNITED STATES DISTRICT JUDGE.
Defendant has filed two motions: (1) a Motion to Dismiss State Law Child Assault Homicide Count, Count 1 of the Indictment, for Failure to State an Offense Under the Assimilative Crimes Act ("ACA"), 18 U.S.C. §§ 7, 13 ("Motion") (Doc. 14); and (2) Motion to Dismiss the Indictment Under the Double Jeopardy Clause and Collateral Estoppel (Doc. 15). The Government has filed oppositions to each. (Docs. 16, 17.) Defendant has filed a joint reply in support of both motions. (Doc. 18.) The Court held a hearing on September 1, 2023 on both motions, and the parties were permitted to file supplemental briefing to address questions raised during the hearing regarding the Motion to Dismiss Count 1. (Doc. 19.) The supplemental briefs were filed on September 15, 2023. (Docs. 21-22.)
Having considered the parties' initial briefing, argument of counsel at the hearing, and supplemental briefing, the Court DENIES the Motion to Dismiss under the Double Jeopardy Clause and Collateral Estoppel and GRANTS the Motion to Dismiss Count 1.
I. BACKGROUND
A. MV-1
The Court briefly summarizes the allegations from the parties' briefing. The Court primarily cites the Government's summary and notes that Defendant addresses these allegations for purposes of the Motion to Dismiss Count 1 without agreeing that these facts are true for purposes of a trial. (Doc. 14 at 4 n.1.)
Defendant, a Corporal in the Marines, and his spouse, N. Fernandez were living on base at Camp Pendleton when MV-1, their first-born child, was born. (Doc. 16 at 3.) After MV-1's birth on May 4, 2021, MV-1 spent the first two days in the Neonatal Intensive Care Unit and then was released home with his parents. (Id.)
The Court cites the CM/ECF electronic pagination unless otherwise noted.
MV-1 had four episodes between May 6, 2021 and June 21, 2021 when he "went limp" or "fainted" prior to his death on June 24, 2021. (Id. at 3-7.) The first episode occurred sometime in the first two weeks MV-1 was home and was while in the care of Defendant. (Id. at 3.) MV-1 "went limp" for approximately 15-30 minutes. (Id.) In an attempt to revive him, Defendant removed his clothing, placed water on his head and face and used a suction device to try and remove mucus from his throat. (Id.) Defendant did not tell his spouse about this first episode until the second episode occurred on May 31, 2021. (Id. at 3-4.)
The second episode occurred at some point during the day on May 31, 2021 when N. Fernandez was not home, and it was similar to the first in that MV-1 went "faint" for about 15-30 minutes. (Id.) Defendant took MV-1 into the shower and again put water on his head which prompted him to react. (Id. a 4.) MV-1 was making a wheezing sound in the shower. (Id.) Defendant contacted N. Fernandez to tell
her about this episode. (Id.) He also told her about the prior episode to which she expressed shock because she was not aware of the prior episode. (Id.) After this second episode, Defendant sent N. Fernandez a video of MV-1 awake and moving as if he was running. (Id.) However, later that night, N. Fernandez noticed MV-1 was cold and that he had a low temperature. (Id.) After contacting a pediatrician hotline and being advised to take him to the emergency room, Defendant and N. Fernandez took MV-1 to Rady Children's Hospital. (Id.) MV-1 was initially only admitted overnight for observation. (Id.) However, as the hospital was preparing to discharge him the following day, Defendant and N. Fernandez observed MV-1 having a seizure and reported it to doctors. (Doc. 14 at 4.) During MV-1's time in the hospital, Defendant and N. Fernandez observed MV-1 suffer multiple seizures. (Doc. 16 at 4.) MV-1 ultimately stayed in the hospital an additional five days, was diagnosed with epilepsy, and given seizure medication. (Id.) MV-1 was discharged on June 5, 2021. (Id.)
The third episode happened while MV-1 was in N. Fernandez's care. (Id.) The baby was crying, and she was trying to feed him, but he "went limp." (Id. at 4-5.) Following this incident, she and Defendant swaddled him and put him back to sleep. (Id. at 5.)
The fourth episode occurred on June 21, 2021. Because N. Fernandez was not feeling well, Defendant was caring for MV-1 in the living room while N. Fernandez slept in an adjacent room. (Id.) MV-1 began crying but would not accept a pacifier. (Id.) He continued crying while Defendant warmed a bottle and then "went limp" and his breathing sounded like wet wheezing. (Id.) Defendant took the baby into the shower as he had previously, but MV-1 did not react this time. (Id.) Defendant rubbed his back, but he remained limp and did not react. (Id.) Defendant woke N. Fernandez, and she called 911 while Defendant administered CPR. (Id.) MV-1 was taken initially to Naval Hospital Camp Pendleton for stabilizing care and then he was transported to Naval Medical Center San Diego. (Id.)
Physicians found MV-1's symptoms, extensive retinal hemorrhages, bilateral subdural hemorrhages, and cerebral edema were consistent with abusive head trauma. (Id.) MV-1 was admitted to the Pediatric Intensive Care Unit and placed on life support. (Id.) MV-1 was declared brain dead the following day, and he was taken off life support on June 24, 2021. (Id.; Doc. 14 at 5.)
A Medical Examiner ruled MV-1's death a homicide as a result of blunt force trauma. (Doc. 16 at 6.) Based on consultation with the Medical Examiner and child abuse pediatricians, investigating agents learned that multiple brain bleeds in the absence of external injuries were consistent with abusive head trauma; specifically, "the repeated acceleration and deceleration" of MV-1's head caused his brain to repeatedly hit the inside of his skull. (Id.) Additionally, the Government asserts MV-1's "medical records revealed no medical reason, history, or alternative explanation to explain his brain injuries and untimely death." (Id.)
Defendant was charged on May 18, 2022, with federal assault resulting in serious bodily injury on a federal enclave under 18 U.S.C. § 113(a)(6). (Doc. 1 in Case No. 3:22-cr-01344-RBM-1.) On June 1, 2023, a grand jury returned a two-count indictment against Defendant. (Doc. 1.) Defendant is still charged with federal assault under § 113(a)(6)—assault resulting in serious bodily injury—in Count 2. This Count alleges that from on or about May 4, 2021 through June 24, 2021, Defendant "assaulted MV-1, which resulted in serious bodily
injury to MV-1." (Id.) The indictment adds a charge for violation of California Penal Code § 273ab under the ACA as Count 1. (Id.) As to this new count, the indictment alleges that "[f]rom on or about May 4, 2021, through on or about June 24, 2021" Defendant "having care and custody of a child, MV-1, who was under eight years of age, assaulted MV-1 by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in MV-1's death." (Id.)
B. Military Separation Proceedings
In June and July 2022, Defendant's commanding officer notified him that he was being processed for separation from the Marines. (Doc. 15-1.) A May 23, 2023 "Notification of Separation Proceedings (Board Case)" identifies violations of four articles of the Uniform Code of Military Justice ("UCMJ") as a basis for separation: (1) Article 119 (Involuntary Manslaughter under the age of 16); (2) Article 128 (Aggravated Assault); (3) Article 90 (Willfully Disobeying Superior Commissioned Officer); and (4) Article 134 (Extramarital Sexual Conduct). (Doc. 15-2 at 2.) The first two violations listed are based on the allegation Defendant engaged in a pattern of child abuse and caused the death of MV-1. (Id.) These violations reference Defendant's criminal prosecution in this case for that conduct. (Id.) The third is based on the allegation Defendant violated an order from his commanding officer that he have no contact with N. Fernandez. (Id.) The fourth is based on the allegation Defendant engaged in extramarital contact while married. (Id.) The Notice explains that Defendant may receive an "Other Than Honorable" discharge, and that this discharge may preclude Defendant's eligibility for benefits from the Department of Veterans Affairs and may adversely affect future civilian employment. (Id.)
A Marine Corp. Administrative Discharge Board ("Board") convened on June 28, 2023. (Doc. 15-3.) The Board received evidence over the course of one day, including MV-1's medical records, the medical examiner's report, reports from independent doctors, and testimony from a Naval Criminal Investigative Services supervisor and other Marines. (Doc. 15 at 4.) The "Administrative Discharge Board Report" found on the same day, by a majority vote of the three-member Board, that only the Article 134 violation had been proved by a preponderance of the evidence. (Doc. 15-3 at 2-4.) The Report recommended Defendant be retained in the Marine Corps. (Id. at 3.)
II. DISCUSSION
A. Motion to Dismiss Indictment Under Double Jeopardy Clause and Collateral Estoppel
Defendant argues the indictment in this case must be dismissed under the double jeopardy clause and related principles governing collateral estoppel because the Board found Defendant did not commit involuntary manslaughter or aggravated assault under the UCMJ. (Doc. 15 at 4-5.) More specifically, Defendant asserts that (1) this Board proceeding covered the same conduct as the charges in this case, and (2) the consequences of an other-than-honorable discharge would have been punitive. (Doc. 15 at 1, 6-10.) In addition to other arguments, the Government argues the Board proceeding was to determine Defendant's fitness to continue serving in the Marines, essentially a performance review
As explained below, the Court need not reach the Government's additional arguments as to Double Jeopardy.
for misconduct, and that he faced only employment sanctions that do not implicate Double Jeopardy protections. (Doc. 17 at 9-10.) As to collateral estoppel, the Government argues the assault charges were not litigated and determined for purposes of collateral estoppel because the issues, including conduct irrelevant to the issues in this case, are not sufficiently similar and the record did not reflect the assault issue was actually litigated to a final judgment. (Doc. 17 at 17-18.)
The Court finds that because the Marine Corp. was acting as an employer imposing only employment sanctions, Double Jeopardy does not apply, and collateral estoppel does not preclude this prosecution because the charges in this criminal case were not litigated to a final judgment in the Board proceeding.
1. Double Jeopardy
Double Jeopardy analysis does not apply "[w]hen an entity of the federal government acts as an employer [because] that government entity 'is not the federal sovereign vindicating the criminal law of the United States.'" United States v. Camacho, 413 F.3d 985, 988 (9th Cir. 2005) (quoting United States v. Heffner, 85 F.3d 435, 439 (9th Cir. 1996)). When the sanctions at issue are comparable to those a private employer could have imposed, the "subsequent criminal prosecution does not trigger the Double Jeopardy Clause." Id. at 988-89.
One of the cases relied on by the Ninth Circuit in Camacho involved an Army soldier that received a variety of sanctions for driving while intoxicated, including a reduction in rank and a bar from re-enlistment. Id. at 989 (Discussing United States v. McAllister, 119 F.3d 198, 199 (2d Cir. 1997)). The Second Circuit in McAllister found that "where the government, acting as employer of members of the armed forces, disciplines a member by using measures that are available to private employers, and are not uniquely within the government's power to punish for criminal wrongdoing, such discipline ordinarily will not constitute 'punishment' within the Double Jeopardy Clause." Id. (quoting McAllister, 119 F.3d at 200-01). He was then criminally prosecuted for the offense. Id. The Ninth Circuit also explained in Camacho that barring prosecutions based on government employer sanctions could preclude government employers from terminating an employee out of fear criminal prosecution will be jeopardized. Id. at 990. This could also give government employees a right against prosecution that would not exist for private employees. Id.
Defendant argues the potential sanctions he faced if he received an other-than-honorable discharge were more than just the loss of his employment because the Marines provided his housing, and he would also lose a variety of military benefits. (Doc. 15 at 9; Doc. 18 at 8.) However, these sanctions are not "the functional equivalent of criminal punishment." Camacho, 413 F.3d at 989 n.9 ("Only when disciplinary sanctions imposed by the government acting in its role as sovereign are the functional equivalent of criminal punishment is the double jeopardy bar implicated."). Defendant certainly had more benefits to lose from termination of his military service due to the existence of extensive military benefits. However, these are still employment-related benefits. The loss of employment-related benefits does not become a criminal punishment simply because there are more benefits to lose as a military service member.
The United States was acting in its capacity as an employer and the potential sanctions were comparable to those a private employer could impose. Thus, Double Jeopardy does not apply. The Court need not proceed further because the sanctions
at issue here are not susceptible to Double Jeopardy analysis. When, as here, the United States maintains it role as an employer imposing employment sanctions and does "not rely on [its] sovereign power [it] is ... outside the scope of double jeopardy concerns." Id. at 991.
Courts "need not apply the traditional two-part test the Supreme Court outlined in Hudson" when "the United States did not invoke its sovereign power ... [and] [t]he employment sanctions at issue ... are categorically not susceptible to double jeopardy analysis." Camacho, 413 F.3d at 991 (citing Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)).
2. Collateral Estoppel
Defendant argues collateral estoppel preclude this case because the issues raised in this case were actually litigated and determined before the Board. (Doc. 15 at 10-12.) Defendant asserts that the Board concluded that only the extramarital affair, not involuntary manslaughter or aggravated assault of MV-1, was proved by a preponderance of the evidence. (Id.) The Government counters that the assault charges raised in this case were not litigated and adjudicated for collateral estoppel purposes. (Doc. 17 at 18.) The Government explains that this informal administrative proceeding addressing Defendant's possible discharge included irrelevant misconduct (affair and disobeying an officer) and included only minimal testimony even though complex records were provided for the Board. (Id.)
"Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." United States v. Romeo, 114 F.3d 141, 143 (9th Cir. 1997). The Ninth Circuit "employ[s] a three-step approach to make the collateral estoppel determination: (1) [a]n identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case." Id.
Even if the Court assumes the issues before the Board were sufficiently similar and material in both actions, collateral estoppel does not preclude this prosecution. The acts charged in this case, the assault of MV-1, were not "litigated" to a "final judgment" before the Board. The three-member Board convened for a single-day and heard minimal testimony, primarily from an agent that presented information to the Board. While the Board members may have had access to voluminous records, this was nothing like a trial to reach a final judgment as to whether Defendant assaulted MV-1. Defendant criticizes the Government for arguing collateral estoppel cannot apply because the proceeding was not judicial, but it is not the label that matters. Rather, the brevity of this Board proceeding and its purpose—to assess whether Defendant would lose his job not just because of the alleged assault, but because of disobeying a superior and an extramarital affair—indicate the assault alleged in this criminal case was not litigated and necessarily decided to a valid and final judgment on that issue. Defendant's prosecution in this case is not precluded by collateral estoppel.
For the reasons set forth above and stated on the record at the September 1, 2023 hearing, Defendant's Motion to Dismiss the Indictment Under the Double
Jeopardy Clause and Collateral Estoppel is DENIED.
B. Motion to Dismiss Count 1
The Government has charged Defendant in Count 1 with violation of California Penal Code § 273ab for acts occurring on a federal enclave based on the ACA. "The ACA applies state law to a defendant's acts or omissions that are 'not made punishable by any enactment of Congress.'" Lewis v. United States, 523 U.S. 155, 160, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998) (quoting 18 U.S.C. § 13(a)). "Its 'basic purpose' is ... 'one of borrowing state law to fill gaps in the federal criminal law that applies to federal enclaves.'" United States v. Dat Quoc Do, 994 F.3d 1096, 1098 (9th Cir. 2021). Defendant moves to dismiss the § 273ab Count arguing it cannot be assimilated under the ACA.
The ACA provides that:
(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district 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, Territory, Possession, or District 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)
1. Statutes
a) California Penal Code § 273ab(a)
California Penal Code § 273ab(a) provides that:
(a) Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life.
The indictment does not specifically identify subsection (a), however, the parties' briefing focuses on the "resulting in the child's death" element and the minimum 25-year sentence that are only included in subsection (a).
The "care or custody" requirement means only "a willingness to assume duties correspondent to the role of a caregiver." People v. Cochran, 62 Cal. App. 4th 826, 832, 73 Cal.Rptr.2d 257 (1998). "Great bodily injury means significant or substantial bodily injury or damage; it does not mean trivial or insignificant injury or moderate harm." Id. at 833, 73 Cal.Rptr.2d 257.
Section 273ab(a) is a general intent assault statute. People v. Wyatt, 48 Cal. 4th 776, 780, 108 Cal.Rptr.3d 259, 229 P.3d 156 (2010) ("Although the defendant must engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict particular harm."). The intent required is "an intentional act and actual knowledge of those facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from the act." Id. at 786, 108 Cal.Rptr.3d 259, 229 P.3d 156. If a defendant "acts with awareness of facts that would lead a reasonable person to realize great bodily injury would directly, naturally, and probably result from his act" he may be guilty even if the defendant was not "subjectively aware that his act is capable of causing great bodily injury." Id. at 781, 108 Cal.Rptr.3d 259, 229 P.3d 156 ("This means the requisite mens rea may be found even when the defendant honestly
believes his act is not likely to result in such injury."). However, "[h]e may not be convicted based on facts he did not know but should have known." Id.
Despite punishing an assault that results in death, it is not a murder statute because it does not require malice aforethought and has been called a "homicide statute" and a "child abuse homicide" statute. People v. Albritton, 67 Cal. App. 4th 647, 655-56, 79 Cal.Rptr.2d 169 (1998) ("[T]he Preller court would have been more accurate if it had designated section 273ab as a 'homicide statute,' which carried the same punishment as first-degree murder.") (discussing People v. Preller, 54 Cal. App. 4th 93, 98, 62 Cal.Rptr.2d 507 (1997)); Wyatt, 48 Cal. 4th at 780, 108 Cal.Rptr.3d 259, 229 P.3d 156 ("Section 273ab defines the offense of child abuse homicide.").
The Preller court categorized § 273ab(a) as "a murder statute." Preller, 54 Cal. App. 4th at 98, 62 Cal.Rptr.2d 507 ("The remainder of the statute shows it was the Legislature's intent to make it a murder statute, not simply an assault statute.").
Section 273ab(a) imposes a minimum 25-year sentence and up to a life sentence. The United States Sentencing Guidelines apply to state offenses assimilated under the ACA. United States v. Reyes, 48 F.3d 435, 437 (9th Cir. 1995) (citing 18 U.S.C. § 3551). "If no guideline has been promulgated for a specific offense, the court must apply the most analogous offense guideline pursuant to § 2X5.1 of the Guidelines," and "[i]f an analogous guideline cannot be found, 18 U.S.C. § 3553(b) controls and the court shall impose an 'appropriate sentence.'" Id. However, when an assimilated state statute "fixes the length of a prison term," that sentence "control[s] the sentence imposed by federal courts under the Assimilative Crimes Act." United States v. Smith, 574 F.2d 988, 992 (9th Cir. 1978). The 25-year minimum sentence would apply in this case if Defendant were convicted of § 273ab(a).
Although the Court need not address the issue because the Court is granting the motion to dismiss § 273ab(a) Count, the Court is not persuaded that the most analogous sentencing guideline would be § 2A1.1, applicable to murders.
b) Assimilative Crimes Act
As the Supreme Court explained in Lewis, "when the ACA began its life, federal statutory law punished only a few crimes committed on federal enclaves, such as murder and manslaughter." 523 U.S. at 160, 118 S.Ct. 1135. The ACA was intended to supplement these minimal federal criminal offenses with state crimes when "federal statutes did not provide for the 'punishment' of an 'offence.'" Id. at 161, 118 S.Ct. 1135; see also United States v. Sharpnack, 355 U.S. 286, 289, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958) (Describing Congress' adoption "for otherwise undefined offenses the policy of general conformity to local law."). However, given "the dramatic increase in federal criminal law," reliance on the ACA to assimilate a state offense is regularly questioned. United States v. Rocha, 598 F.3d 1144, 1147-48 (9th Cir. 2010) ("Due to the dramatic increase in federal criminal law, 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 not made punishable by 'any enactment of Congress.'") (quoting 18 U.S.C. § 13(a)) (citing United States v. Souza, 392 F.3d 1050, 1052-53 (9th Cir. 2004) and United States v. Waites, 198 F.3d 1123, 1127-28 (9th Cir. 2000)).
The Supreme Court explained in Lewis that a literal and broad reading of the language of the ACA would preclude application
of a state statute if "any federal statute, however broad and clearly aimed at a different kind of harm, were to cover the defendant's act." Lewis, 523 U.S. at 161, 118 S.Ct. 1135. The court rejected such a literal interpretation. Id. The court also rejected an interpretation that would define "any enactment" as referring "only to federal enactments that make criminal the same 'precise acts' as those made criminal by the relevant state law." Id. at 162, 118 S.Ct. 1135. This approach "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." Id. at 162-63, 118 S.Ct. 1135. The court found "this interpretation of federal 'enactments' too narrow." Id. at 163, 118 S.Ct. 1135. Instead of adopting either of these interpretations, the court "established a two-part test for analyzing whether the ACA properly assimilates a particular state criminal law into federal law." Rocha, 598 F.3d at 1148.
2. Lewis Two-Part Test
a) Part One
"[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.'" Lewis, 523 U.S. at 164, 118 S.Ct. 1135 (quoting § 13(a)). If the answer is no, "that will normally end the matter" because "[t]he ACA presumably would assimilate the statute." Id. At this first step of the analysis, the focus is on Defendant's alleged acts or omissions rather than the statute the Government attempts to assimilate. See United States v. Reed, 734 F.3d 881, 887 n.2 (9th Cir. 2013) ("[T]he elements of the subject laws are largely irrelevant at Lewis' first prong" because Lewis "clearly directs that the focus be on the 'defendant's acts or omissions.'") (quoting Lewis, 523 U.S. at 168, 118 S.Ct. 1135).
The Government does not explain precisely how and when Defendant allegedly assaulted MV-1. (See supra I.A.) However, the Government alleges MV-1 suffered multiple brain bleeds in the absence of external injuries consistent with abusive head trauma from "the repeated acceleration and deceleration" of MV-1's head. (Doc. 16 at 5-6.) From these allegations and the allegation that MV-1's injuries are not otherwise explained by his medical records, the Court can deduce the Government is alleging that at some point Defendant assaulted MV-1 by causing his head to repeatedly accelerate and decelerate with enough force to cause his brain to repeatedly hit the inside of his skull and this caused multiple brain bleeds and ultimately his death.
There is no dispute that the federal assault statute punishes Defendant's alleged conduct. He is charged with a violation of 18 U.S.C. § 113(a)(6), assault resulting in serious bodily injury, in Count 2. Defendant argues there are four other sections of § 113(a) that might also cover the alleged conduct in addition to potentially implicating 18 U.S.C. § 1111 (murder) and 18 U.S.C. § 1112 (manslaughter). (Doc. 14 at 7-10 (citing § 113(a)(2) (assault with intent to commit a felony), § 113(a)(4) (assault by striking, beating, or wounding), § 113(a)(5) (simple assault), and § 113(a)(7) (assault resulting in substantial bodily injury)); Doc. 18 at 3.) In addressing the first part of the Lewis test, the Government agrees that the conduct alleged is punishable by § 113(a)(6), charged in Count 2, but disputes that other federal statutes punish the conduct alleged. As to murder, the Government states that "§ 1111(a) (felony murder perpetrated with child abuse or as part of a pattern or practice of assault or torture against a
child) ... can arguably be applied to punish Defendant's conduct in this case." (Doc. 16 at 9-12.) However, the Government explains that the pattern or practice of assault required for felony murder child abuse under § 1111(a) as defined in § 1111(c)(4), only conceivably conforms to the facts of this case, requires at least two occasions of assault, and does not directly address Defendant's conduct in this case. (Id. at 10.) The Government also argues the involuntary manslaughter statute does not punish Defendant's alleged conduct. (Id. at 11.)
The Court does not have to determine if "every conceivable charge against defendant is covered." Rocha, 598 F.3d at 1149. "Under the first prong of the Lewis test, [courts] 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." Id. The Court is not inclined to address every single federal statute raised by Defendant, particularly each potentially applicable formulation of the federal assault statute. However, the Court finds, at a minimum, that in addition to § 113(a)(6), charged in Count 2, federal involuntary manslaughter (§ 1112) also punishes the conduct alleged.
In Rocha, the Ninth Circuit found the first part of the Lewis test met when the parties agreed the federal assault statute applied, but disagreed about which sections, and the Government had, as the Government has here, charged the defendant with one section of the federal assault statute. Id.; see also Souza, 392 F.3d at 1053-54 (Moving to the second part of the Lewis test after finding a defendant's behavior could be punished by several federal provisions).
As to involuntary manslaughter, the Government argues "the theory of assault in this case disqualifies involuntary manslaughter from being charged" because involuntary manslaughter requires "actual knowledge or reasonable foreseeability of the risk of death." (Doc. 16 at 11) (citing United States v. Keith, 605 F.2d 462, 463 (9th Cir. 1979)) and Ninth Cir. Model Crim. Jury Inst. No. 16.4 (involuntary manslaughter). Yet the Government fails to explain how the alleged conduct meets the similar mental state requirement for § 273ab(a), but not for involuntary manslaughter. The Court recognizes that § 273ab(a) only requires a defendant "acts with awareness of facts that would lead a reasonable person to realize great bodily injury would directly, naturally, and probably result from his act." Wyatt, 48 Cal. 4th at 781, 108 Cal.Rptr.3d 259, 229 P.3d 156 (emphasis added). And for involuntary manslaughter a defendant must know of circumstances that would reasonably cause the defendant to foresee that such an act might be a threat to the lives of others. Ninth Cir. Crim. Jury Inst. No. 16.4. However, in looking at the conduct alleged here, this would mean a reasonable person would realize the repeated acceleration and deceleration of MV-1's head would result in great bodily injury, but would not foresee that it might be a threat to MV-1's life. It is unclear to the Court how the Government can state definitively and without further explanation regarding the mental state that involuntary manslaughter does not punish the conduct alleged.
The Court finds the conduct alleged is punished by federal enactments, including at least § 113(a)(6) and possibly involuntary manslaughter (§ 1112). See Do, 994 F.3d at 1100 (Moving from first step to second on finding the defendant's conduct "is undoubtedly punishable as a simple assault ... and may also be punishable as assault with a dangerous weapon") (emphasis added). Accordingly, the answer to the first question in Lewis is yes and the
Court must proceed to the second part of the Lewis test.
b) Part-Two
When "the answer to the first question is 'yes,' ... a 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." Rocha, 598 F.3d at 1148 (quoting Lewis, 523 U.S. at 164, 118 S.Ct. 1135); see also United States v. Reza-Ramos, 816 F.3d 1110, 1126 (9th Cir. 2016) ("If a federal law does punish the defendant's act, the court must proceed to the second question and determine Congress' intent, i.e., 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?") (quotation marks and citations omitted). "[T]here are no 'automatic general answers' to this second question." Do, 994 F. 3d at 1099; see also Lewis, 523 U.S. at 165, 118 S.Ct. 1135 ("There are too many different state and federal criminal laws, applicable in too many different kinds of circumstances bearing too many different relations to other laws, to common-law tradition, and to each other, for a touchstone to provide an automatic general answer."). Despite the lack of an automatic answer, Lewis provides significant guidance on when assimilation is permitted.
The court gives "three examples of when a federal enactment precludes application of a state law: [1] if the state law 'interferes with federal policy,' [2] 'effectively rewrites' a definition that 'Congress carefully considered,' or [3] if the federal statute reveals an intent to occupy 'so much of a field as would exclude use of the particular state statute at issue.'" Rocha, 598 F.3d at 1148 (quoting Lewis, 523 U.S. at 164, 118 S.Ct. 1135); see also Waites, 198 F.3d at 1129.
Additionally, the court explains that "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." Lewis, 523 U.S. at 165, 118 S.Ct. 1135. "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." Id.
Defendant argues § 273ab(a) cannot be assimilated and this count must be dismissed because: (1) the federal statutes comprehensively occupy the fields of assault and homicide (murder and manslaughter) with no gaps for state law to fill; (2) applying § 273ab(a) would rewrite federal assault and homicide offense definitions Congress has carefully considered; and (3) the federal enclave homicide and assault statutes punish approximately the same conduct as § 273ab(a). (Doc. 14 at 3-4, 7-18; Doc. 18 at 3-6.) The Government
Defendant specifically argues United States v. Lewis and United States v. Reza-Ramos alone preclude assimilation of § 273ab(a). (Doc. 14 at 10-12.) The Court addresses these cases and their holdings in analyzing Defendant's other arguments. (See infra II. B.2.b)(1).)
In moving to dismiss Count 1, Defendant does not argue the first Lewis example—interference with a federal policy—applies. Rather, Defendant only relies on careful policy judgments in arguing the assimilation of § 273ab(a) would rewrite the federal homicide and assault statutes. (Doc. 14 at 16-18.) Accordingly, the Court only addresses potential interference with federal policy in the context of the second Lewis example, "effectively rewriting an offense definition Congress carefully considered." Rocha, 598 F.3d at 1149.
asserts this unique state statute that specifically protects younger children from an assault that results in death is not covered by the federal statutes and fills a gap between federal first-degree murder and federal assault. (Doc. 16 at 8-20.)
The Court notes that in determining whether the federal statutes preclude assimilation, the Court has considered the federal homicide statutes (murder and manslaughter), and federal assault. As discussed above, § 273ab(a) is an assault statute, but it requires a death result from the assault. In this respect, the federal assault statute must be considered because § 273ab(a) punishes assault. However, because the conduct must result in death, it also implicates the federal statutes that comprehensively cover all unlawful killings —§ 1111 ("unlawful killing of a human being with malice aforethought") and § 1112 ("unlawful killing of a human being without malice"). Additionally, because the Government argues there is a gap to be filled between federal assault and first-degree murder, the full federal framework from federal assault to first-degree murder must be considered to assess whether there is a gap for § 273ab(a) to fill.
(1) Comprehensiveness of Federal Statutes and No Gap to Fill
Defendant argues the federal murder (§ 1111), manslaughter (§ 1112), and assault (§ 113) statutes comprehensively occupy the fields of homicide and assault leaving no gap for state law to fill. (Doc. 14 at 14-16.) The Government argues § 273ab(a) is a general intent assault statute that punishes a specific and different conduct that is "overlooked by a gap between § 113(a)(6) and § 1111(a)." (Doc. 16 at 9, 17-19.)
When "federal statutes reveal an intent to occupy so much of a field as would exclude use of the particular state statute at issue" assimilation of the state statute is not permitted. Lewis, 523 U.S. at 164, 118 S.Ct. 1135 (citing Williams v. United States, 327 U.S. 711, 724, 66 S.Ct. 778, 90 L.Ed. 962 (1946)). "[I]ncreas[ing] its list of specific prohibitions of related offenses, ... enlarg[ing] the areas within which those prohibitions are applicable," and "cover[ing] the field with uniform federal legislation" all reflect intent to occupy the field. Williams, 327 U.S. at 724, 66 S.Ct. 778.
The Court agrees with the numerous courts that have found the federal murder, manslaughter, and assault statutes are comprehensive. Lewis, 523 U.S. at 169, 118 S.Ct. 1135 (Finding § 1111 provides "complete coverage ... over all types of federal enclave murder.") (emphasis added); Do, 994 F.3d at 1101 ("As we concluded in United States v. Rocha , the federal assault statute's comprehensive definitions reveal Congress' intent to fully occupy the field of assault on a federal enclave.") (citation omitted); see also United States v. Christie, 717 F.3d 1156, 1177-78 (10th Cir. 2013) (Briscoe, C.J. concurring) ("The involuntary manslaughter charge picks up where the murder charges leave off and should be considered as part of Congress's effort to cover, as a whole, the killing of another person.") (quotations omitted). The Court first addresses the federal statutes' comprehensiveness under Lewis and then considers whether there is any gap for § 273ab(a) to fill.
(a) Comprehensiveness of Federal Assault Statute
The Court first considers whether the federal assault statute reveals an intent to occupy so much of the field of assault as would exclude use of § 273ab(a).
The Ninth Circuit has found "the federal assault statute's comprehensive definitions reveal Congress' intent to fully occupy the
field of assault on a federal enclave." Rocha, 598 F.3d at 1150; Do, 994 F.3d at 1101. Its most recent decision explained "[t]his conclusion is of even more force here, as the federal assault statute in effect when [Do] was charged ... is even more comprehensive than the earlier version at issue in Rocha." Do, 994 F.3d at 1101 (Noting the forms of assault criminalized increased from seven to eight). While these cases were considering assimilation of different state statutes, this repeated finding by the Ninth Circuit suggests that the comprehensiveness of the federal assault statute precludes assimilation of state laws in this area of federal law.
On the Court's own review, the federal assault statute reveals an intent to occupy so much of the assault field as to preclude any gap for § 273ab(a). The federal assault statute criminalizes eight different forms of assault (§ 113(a)(1)-(8)) with punishments ranging from a fine or six months (simple assault) up to twenty years (assault with intent to commit murder) (§ 113(a)(1), (5)). See Lewis, 523 U.S. at 169, 118 S.Ct. 1135 (Relying on breadth of available sentences in rejecting assimilation). It also covers different levels of injury, including substantial bodily injury and serious bodily injury. § 113(a)(6) (serious), (7) (substantial), (b)(1) (defining substantial bodily injury), (b)(2) (defining serious bodily injury). The federal assault statute covers specific ways of committing assault, including with a dangerous weapon (§ 113(a)(3)) and by strangling, suffocating, or attempting to strangle or suffocate" (§ 113(a)(8)), with strangling and suffocating specifically defined (§ 113(b)(4)-(5)). See Lewis, 523 U.S. at 169, 118 S.Ct. 1135 (Relying on "detailed manner" in which the statute is drafted to reject assimilation). Significantly here, the federal assault statute also accounts for assaults on a child in two of the eight formulations, although a different age than in § 273ab(a). See § 113(a)(5) (Increased sentence if victim of simple assault is "an individual who has not attained the age of 16 years"), § 113(a)(7) (same for assault resulting in substantial bodily injury). Additionally, although it does not specifically account for a caretaker role as in § 273ab(a), it does account for some relationships between the perpetrator and the victim. § 113(a)(7)-(8) (Imposing a higher sentence if the victim is "a spouse or intimate partner [or] a dating partner."). The detailed nature of the statute and amendment of it to add a new formulation, reflect "considered legislative judgment." Lewis, 523 U.S. at 169, 118 S.Ct. 1135 (discussing modifications to first-degree murder list in rejecting assimilation); see also Do, 994 F.3d at 1101 (Contrasting earlier version with seven formulations of assault with prior version with seven formulations).
(b) Comprehensiveness of Federal Homicide Statutes
The federal murder and manslaughter statutes reveal an intent to occupy the field of federal homicide. The comprehensiveness of the federal murder statute was detailed in Lewis and the statute has only become more comprehensive since then, particularly as noted below, in addressing child abuse. Additionally, application of Lewis' reasoning to the federal manslaughter statute indicates that it also is comprehensive. Collectively, they demonstrate intent to occupy the field of federal homicide.
In Lewis, the court explained that "Congress intended [§ 1111] to cover a particular field—namely, 'unlawful killing of a human being with malice aforethought—as an integrated whole.'" Lewis, 523 U.S. at 169, 118 S.Ct. 1135 (emphasis added). In Reza-Ramos, the Ninth Circuit reiterated that "Lewis, has already ruled that in enacting § 1111, Congress intended to preclude
application of state statutes, and to provide complete coverage 'over all types of federal enclave murder.'" 816 F.3d at 1126-27 (quoting Lewis, 523 U.S. at 169, 118 S.Ct. 1135). Additionally, § 1111 has been amended since Lewis to add explicit and detailed protections for children that reflect considered judgment. Lewis, 523 U.S. at 169-70, 118 S.Ct. 1135 (finding Congress' subtractions of certain circumstances and addition of others reflect "considered legislative judgment.").
The Court agrees that the issue in Reza-Ramos —"use of state law to define one of the terms in the federal murder statute"—is distinguishable from the issue here. 816 F.3d at 1127. However, the Court is not inclined to ignore the Ninth Circuit's summary of Lewis' holding or its conclusion after applying Lewis that "Congress did not intend to allow Arizona criminal law to fill a 'gap' in § 1111." Id.
Section 1111 defines murder as "the unlawful killing of a human being with malice aforethought." As explained in Lewis, the statute then separates murder into first and second-degree murder. 523 U.S. at 169, 118 S.Ct. 1135. First-degree murder is defined as:
"The mens reas of 'malice aforethought covers four different kinds of mental states: (1) intent to kill; (2) intent to do serious bodily injury; (3) depraved heart (i.e. reckless indifference); and (4) intent to commit a felony.'" United States v. Begay, 33 F.4th 1081, 1091 (9th Cir. 2022) (quoting Pineda-Doval, 614 F.3d 1019, 1038 (9th Cir. 2010)).
Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed.
§ 1111(a) (emphasis added). "Any other murder is murder in the second degree." Id.
The federal murder statute has already been found sufficiently comprehensive to preclude assimilation of a state murder statute, and the current version is even more comprehensive, particularly as to children and child abuse.
The manslaughter statute is similarly comprehensive, particularly when considered as part of the homicide field. This conclusion is not explicitly dictated by Lewis' holding, as Defendant argues, because Lewis only addressed the federal murder statute and assimilation of a state murder statute. However, Lewis' analysis of § 1111 makes clear that § 1112 is also sufficiently comprehensive to reveal an intent to occupy the remainder of federal homicides.
Section 1112 covers both voluntary and involuntary manslaughter. It provides:
(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.
Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
(b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;
Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.
Lewis found it important that the federal murder statute demonstrated the intent to cover all unlawful killings with malice aforethought as an integrated whole. See 523 U.S. at 169, 118 S.Ct. 1135. Similarly here, § 1112 broadly covers all "unlawful killing[s] of a human being without malice." § 1112(a). Together they cover all unlawful killings, with and without malice. As explained in a concurrence in United States v. Christie ,
[T]he nature of the federal murder laws shows that Congress intended its first-and-second degree murder statute to cover the unlawful killing of a human being with malice aforethought. We should extend that reasoning to cover involuntary manslaughter, as well. The involuntary manslaughter charge picks up where the murder charges leave off and should be considered as part of Congress's effort to cover, as a whole, the killing of another person.
717 F.3d at 1177-78 (emphasis added).
Additionally, § 1112 shares some characteristics with § 1111 that Lewis found significant in concluding § 1111 provided complete coverage and precluded assimilation. Section 1112 covers all variants of manslaughter. See Lewis, 523 U.S. at 169, 118 S.Ct. 1135 ("It covers all variants of murder.") It similarly divides manslaughter into two parts, voluntary and involuntary, but collectively covers all manslaughter. Id. (Noting § 1111 "divides murderous behavior into two parts: a specifically defined list of first-degree murders and all other murders, which it labels as second degree."). Neither voluntary nor involuntary manslaughter is as detailed as the federal first-degree murder statute, but they each distinctly cover particular types of manslaughter. Additionally, while the range of sentences for manslaughter (from any term up to 15 years) is not as broad as murder, when considered within the federal framework, its breadth supports the comprehensiveness of the statute. See Lewis, 523 U.S. at 169, 118 S.Ct. 1135 ("The complete coverage of the federal statute over all types of federal enclave murder is reinforced by the extreme breadth of the possible sentences, ranging all the way from any term of years to death.").
Based on Lewis' holding as to federal murder and applying that reasoning to the federal assault and manslaughter statutes, the Court finds the comprehensive and detailed federal assault and homicide statutes demonstrate an intent to occupy fields of federal assault and homicide. Waites, 198 F.3d at 1129 ("Where Congress has 'covered the field with uniform legislation,' assimilation is improper.") (quoting Lewis, 523 U.S. at 164-65, 118 S.Ct. 1135).
The Court next considers whether these comprehensive statutes leave any gap for § 273ab(a) to fill or if assimilation of § 273ab(a) would rewrite these comprehensive federal statutes.
(2) Gap Filling
The Court does not separately address whether assimilation of § 273ab(a) should also be precluded because it would rewrite the federal statutes. However, in addressing whether there is a gap for § 273ab(a) to fill, the Court briefly addresses ways in which assimilation of § 273ab(a) would effectively rewrite the federal statutes.
"[O]rdinarily, 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 amounts to different ways of committing the same basic crime."
Lewis, 523 U.S. at 165, 118 S.Ct. 1135. As detailed above, the federal murder and manslaughter statutes certainly fit this description as to unlawful killings and assault. The Government argues there is a gap for § 273ab(a) to fill between federal assault and first-degree murder because § 273ab(a) uniquely protects particularly young children from assault by a caretaker that results in death. (Doc. 16 at 17-19.) The Court recognizes § 273ab(a) is a unique statute, however, there is no gap for it to fill in these comprehensive and detailed federal statutes.
(a) Homicide and Assault are Covered Offenses
Lewis relied on the federal murder statute's presence among crimes generally covered by federal law as opposed to the "other offenses" or residue offenses the ACA was intended to target in rejecting assimilation of a state murder statute. Id. at 170-71, 118 S.Ct. 1135. Lewis explained it this way as to murder:
Congress when writing and amending the ACA has referred to the conduct at issue here—murder—as an example of a crime covered by, not as an example of a gap in, federal law. See H.R. Rep. No. 1584, 76th Cong., 3d Sess., 1 (1940) ("Certain of the major crimes ... such... as murder" are "expressly defined" by Congress; assimilation of state law is proper as to "other offenses"); 1 Cong. Deb. 338 (1825) (Daniel Webster explaining original assimilation provision as a way to cover "the residue" of crimes not "provide[d] for" by Congress; at the time federal law contained a federal enclave murder provision, see 1 Stat. 113); see also United States v. Sharpnack, 355 U.S. at 289, and n. 5, 78 S.Ct. 291 ... (citing 18 U.S.C. § 1111 for proposition that Congress has increasingly "enact[ed] for the enclaves specific criminal statutes" and "to that extent, [has] excluded the state laws from that field"). 523 U.S. at 170-71, 118 S.Ct. 1135 (emphasis added).
Along with murder, manslaughter and assault have also long been in the list of crimes federal law covers. See Sharpnack, 355 U.S. at 289 n. 5, 78 S.Ct. 291 (identifying assault, § 113, and manslaughter, § 1112, along with murder, § 1111, as "specific criminal statutes which have defined those crimes and, to that extent, have excluded the state laws from that field.") (emphasis added); see also Williams, 327 U.S. at 723 n.26, 66 S.Ct. 778 (contrasting "grave offenses, such as murder, manslaughter, ... [and] assault" that "are expressly defined in the [Federal] Criminal Code" with "other crimes" where Congress has not legislated but provided generally for state law to apply) (emphasis added); Lewis, 523 U.S. at 160, 118 S.Ct. 1135 ("[W]hen the ACA began its life, federal statutory law punished only a few crimes committed on federal enclaves, such as murder and manslaughter.") (emphasis added). Given the purpose of the ACA is to fill gaps where Congress has not legislated with state law, it follows that a gap is less likely to exist where federal criminal law has long covered an offense.
The absence of any cases assimilating any state statutes within the federal homicide or assault statutes since Lewis, suggests these continue to be areas covered by comprehensive federal criminal laws without gaps for state statutes like § 273ab(a). Section 273ab(a) has never been assimilated nor does it appear from the parties' briefing and supplemental briefing that any similar state law has ever been assimilated. This is of consequence because in Lewis, the court recognized the lack of "a single reported case in which a federal court used the ACA to assimilate a state murder law to fill a supposed 'gap' in
the federal murder statute." Lewis, 523 U.S. at 171, 118 S.Ct. 1135. This reasoning prompted the Court to ask the Government at the hearing on this Motion if § 273ab(a) or any similar state statute had ever been assimilated by a federal court. Only a forty-year-old pre-Lewis Fifth Circuit decision, not discussed in the initial briefing, was identified—United States v. Brown, 608 F.2d 551 (5th Cir. 1979). Both parties addressed Brown in supplemental briefing. (Docs. 21-22.)
The court found this "not surprising" given the court's discussion up to that point, including the detailed manner in which the federal murder statute was drafted, murder having been listed as an example of a federal statute expressly defined by Congress when amending the ACA, and that assimilating the state statute would subject those living on federal enclaves to two sets of criminal laws. See Lewis, 523 U.S. at 171, 118 S.Ct. 1135.
The Court does not find Brown persuasive here for numerous reasons. First, Brown predates Lewis and appears to be applying a "precise acts" test the Lewis court rejected (see II.B.1.b). Brown, 608 F.2d at 554. Second, the federal assault and homicide statutes have become more comprehensive over time, even since Lewis, making a decision based on the statutes in place in at that time less persuasive. Additionally, Brown assimilated a state child injury statute. There is some similarity between the statute in Brown and § 273ab(a) in that they both seek to protect children specifically. However, the statute in Brown did not implicate the federal homicide statutes because it concerned only injury to a child rather than conduct resulting in death.
As explained above, Lewis rejected the Government's proposed test that would permit assimilation "so long as that state law defines a crime in terms of at least one element that does not appear in the relevant federal enactments." 523 U.S. at 162-63, 118 S.Ct. 1135. Brown itself explains the rule it was applying "to mean that the government may not proceed under state law when the 'precise act' prohibited by the state statute is defined and prohibited by a federal statute." Brown, 608 F.2d at 554. The concurrence in Lewis also recognizes Brown's application of this test. 523 U.S. at 174, 118 S.Ct. 1135 ("Many lower courts have analyzed situations like these under what they call a 'precise acts' test ... which in practice is no test at all but an appeal to vague policy intuitions.") (citing Brown, 608 F.2d 551 and United States v. Kaufman, 862 F.2d 236 (9th Cir. 1988)).
As discussed further below, Lewis cited Brown in declining to create a "child-related gap" in the federal murder statute without approving of its rationale. 523 U.S. at 170-71, 118 S.Ct. 1135.
The only recent case cited by the parties that attempted to assimilate a state statute into the federal homicide statutes, United States v. Torres, applied Lewis and dismissed a count charging a defendant with second degree felony murder by reference to New Mexico's abuse of a child statute. No. 1:19-cr-3333-WJ, 655 F.Supp.3d 1115, 1121-24 (Feb. 13, 2023). That case is more similar to Lewis than this case because the charge the government attempted to assimilate was a murder charge, rather than a child homicide statute like § 273ab(a). See id. 655 F.Supp.3d at 1119-20 (explaining that Lewis concluded the federal murder statute provided complete coverage over all federal enclave murder with no state law gap to fill and this was "the exact question raised in the case at bar."). However, it is instructive in reiterating that there is still no gap to fill in the federal murder statute and precluding a "state-law analogue of [the] same crime." Id. 655 F.Supp.3d at 1123.
Regardless of the applicability of Torres, the Court is left with no case finding a gap for § 273ab(a) or any similar state statute
to fill within these three detailed and comprehensive federal statutes that have long covered federal criminal law in these areas. This certainly weighs against finding a gap for § 273ab(a) to fill.
(b) Different Requirements of § 273ab(a) Do Not Create a Gap in the Federal Statutes
The Government asserts the federal assault statute is not adequate to address a wrongful death, and neither the federal assault nor federal felony murder statutes protect children of a younger age who are particularly vulnerable as § 273ab(a) does. (Doc. 16 at 17 (citing Wyatt, 48 Cal. 4th at 780, 108 Cal.Rptr.3d 259, 229 P.3d 156 and Albritton, 67 Cal. App. 4th at 660, 79 Cal. Rptr.2d 169)). However, as detailed above, the federal assault, manslaughter, and murder statutes are comprehensive and detailed, and they account for the elements the Government argues make § 273ab(a) distinct.
The Court recognizes that § 273ab(a) is a unique statute. As discussed above, it targets a younger age group than the federal statutes and specifically targets a defendant that is in a caretaker role for an assault. See § 273ab(a). It also carries a significantly higher sentence—25-year minimum up to life—than any of the federal formulations of assault and every homicide provision except first-degree murder. Id. It is additionally unique in that it is an assault statute that punishes conduct resulting in death. Id. However, even when a state statute "focuses upon a narrower (and different) range of conduct," assimilation is not permitted if the federal statutes provide complete coverage for the wrongful behavior. Lewis, 523 U.S. at 169, 118 S.Ct. 1135. As discussed above, the federal statutes comprehensively cover federal assault and federal homicide. Similar to § 273ab(a), they also address the age of the victim, child abuse, a caretaker role, and relationships between the victim and perpetrator. This demonstrates assimilation of § 273ab(a) would not be filling a gap but rewriting the federal statutes to conform to § 273ab(a)'s definitions of children and child abuse. Because the federal statutes so comprehensively cover the fields of homicide and assault, assimilating § 273ab(a)'s unique requirements would be more comparable to rewriting the federal statutes to conform to § 273ab(a) than filling a gap in federal criminal assault and homicide law.
Looking first at assault, the federal assault statute is meticulous, detailing eight different formulations of assault. It imposes greater punishment for certain assaults against children, accounts for some relationships between the defendant and victim for specific types of assault, and it imposes a wide range of penalties depending on the seriousness of the assault. Assimilating § 273ab(a) would essentially modify the federal assault statute's definition of a child, modify the types of relationships that warrant greater protection for the victim, and impose a minimum mandatory sentence when the federal assault statute has no minimum sentences. This would constitute rewriting careful drafted provisions rather than filling a gap in them.
The Court recognizes the greatest distinction between § 273ab(a) and the federal assault statute is that it addresses conduct resulting in death and the federal assault statute does not. However, this difference also does not create a gap in the federal assault statute. Rather, it means the Court must also consider the federal statutes that punish conduct resulting in death. To only consider § 273ab(a) relative to the federal assault statute would "elevate form over substance in a way Lewis cautions against." Do, 994 F.3d at 1101 (considering whether there was a gap in the federal
assault statute even though the state statute was not labeled an assault statute).
As explained above, the federal murder and manslaughter statutes together comprehensively cover all unlawful killings with the federal murder statutes covering unlawful killings with malice aforethought and federal manslaughter covering all unlawful killings of a human being without malice. The federal murder statute also explicitly considers child abuse, the age of the victim, and a caretaker role in defining children and child abuse. § 1111(a), (c)(2)-(4). Rather than filling a gap in these comprehensive statutes, assimilating § 273ab(a) would essentially impose the state statute's definitions for conduct resulting in a child's death where the federal statutes have provided their own definitions. It simply defines these elements differently than § 273ab(a).
The Government relies on Souza, but it is distinguishable. Souza found a gap for a state motor vehicle burglary statute but relied on the general nature of the federal enactments to reach that conclusion. Souza, 392 F.3d at 1054. In Souza, the court found the federal enactments addressing theft, trespassing, tampering, and vandalism, did "not cover the unique combination of breaking, entering, and taking something from a vehicle." Souza, 392 F.3d at 1054. The court also relied on burglary being a distinct offense that was not addressed by the federal statutes' "general prohibitions." Id. Here, as detailed above, the federal statutes are not general and distinctly target child abuse and assaults against children. They simply do not define the crimes in precisely the same way as § 273ab(a). Although the federal statutes provide these protections differently than § 273ab(a), they are provided in a uniform and comprehensive way that leaves no room for § 273ab(a) to fill a gap. Where Congress has 'covered the field with uniform legislation,' assimilation is improper." Waites, 198 F.3d at 1129 (quoting Lewis, 523 U.S. at 164-65, 118 S.Ct. 1135).
(c) Child-Related Gap
The Government's argument for a gap here is similar to the attempt to create a child-related gap in Lewis, 523 U.S. at 170-172, 118 S.Ct. 1135. The argument differs from the issue in Lewis by focusing on particularly young children as opposed to children in general. However, the Government is ultimately attempting to create a child protection or child abuse gap in the federal statutory framework based on § 273ab(a)'s unique effort to protect particularly young children with its lower age requirement for the victim and its requirement that the perpetrator be in a caretaker role. (Doc. 16 at 17-19.) As in Lewis, the state statute is narrower than the federal statutes in protecting a younger age group and different from the federal assault statute in targeting a defendant in a caretaker role for the child victim.
However, even when "the state statute focuses on a narrower and different range of conduct" than the federal statute, "the complete coverage of the federal statute" may preclude assimilation of the state statute. Reza-Ramos, 816 F.3d at 1126 (quoting Lewis, 523 U.S. at 168-69, 118 S.Ct. 1135). This was the case in Lewis. There the Government argued a state first-degree murder statute and the federal murder statute covered different forms of behavior with the state statute more narrowly focused on protection of children. Lewis, 523 U.S. at 169, 118 S.Ct. 1135. The court agreed but went on to find the statute could not be assimilated because of the comprehensiveness of the federal murder statute. Id. at 169-72, 118 S.Ct. 1135.
While Lewis side-stepped whether a state child abuse statute, as opposed to a state child abuse murder statute, could be
assimilated, the court's rational for rejecting a child-related gap in the federal murder statute applies here. Lewis, 523 U.S. at 171-72, 118 S.Ct. 1135. In rejecting the Government's argument that Congress left a gap in federal law for child abuse to be filled by a state murder statute, Lewis explained that Congress has focused on child protection in numerous federal statutes. See id. at 171, 118 S.Ct. 1135 ("The fact that Congress, when writing various criminal statutes, has focused directly upon 'child protection' weakens the force of the Government's argument that there is a gap to fill with a state child protection law). The court goes on to cite five federal statutes that account for protection of children. See Lewis, 523 U.S. at 171-72, 118 S.Ct. 1135.
The court declined to express "any view on the merits of lower court cases that have assimilated state child abuse statutes despite the presence of a federal assault statute" and noted the version of the federal assault statute at that time was not as comprehensive as the federal murder statutes. Id. at 171, 118 S.Ct. 1135 (citing Brown, 608 F.2d at 553-54 and United States v. Fesler, 781 F.2d 384, 390-91 (5th Cir. 1986)). As discussed above, the current federal assault statute has been found sufficiently comprehensive to demonstrate an intent to occupy the field of federal assault. Do, 994 F.3d at 1101; Rocha, 598 F.3d at 1150.
Looking at the federal assault, manslaughter, and murder statutes as a whole, they protect children. Additionally, even if the Court were to pull out federal manslaughter to the exclusion of federal murder and federal assault because it does not explicitly define children or child abuse, Lewis' rationale still indicates there is no gap for § 273ab(a). As in Lewis, the Court would be relying on child protection in other federal statutes to reject a child-related gap for state law to fill in the federal manslaughter statute. Lewis, 523 U.S. at 171, 118 S.Ct. 1135. In Lewis, none of the citations to federal child protection statutes were to the murder statute at issue in the case because it did not explicitly address children and child abuse at the time. Id. at 171, 118 S.Ct. 1135. Lewis found there was not a child-related gap for state law to fill based on the protection of children in other federal statutes. And here, the child protections surround federal manslaughter in the federal murder and assault statutes.
As to federal murder and assault, Lewis' rationale for not assimilating a state child protection statute is even stronger because these federal statutes, that § 273ab(a) would be filling a gap in, already explicitly protect children. As discussed above, the federal assault statute specifically addresses children and protection of children, and child abuse has been specifically targeted in the federal murder statute. § 1111(a), (c)(2)-(4). As it did in Lewis, these statutes indicate there is not a special gap for state child protection statutes in federal law because the federal homicide and assault statutes protect children, even if not precisely how § 273ab(a) does. As discussed above, the federal homicide statutes account for child abuse, children, and a caretaker role within § 1111(a) (Defining child and child abuse), and the federal assault statute also accounts for the age of the victim in punishing assaults on children more harshly for certain formulations. § 113(a)(5), (7) (Imposing greater punishment for assaults on children under sixteen).
Thus, the Court find there is no gap for § 273ab(a) to fill within the comprehensive and detailed federal assault and homicide statutes.
III. CONCLUSION
Defendant's Motion to Dismiss Count One is GRANTED. Defendant's Motion to
Dismiss the Indictment Under the Double Jeopardy Clause and Collateral Estoppel is DENIED.
IT IS SO ORDERED.