[00:00:04] Speaker 03:
The next case this morning is United States versus Shell, 23-5086.

[00:00:12] Speaker 03:
Whenever counsel for repellent is ready, make your appearance and proceed, please.

[00:00:34] Speaker 00:
Thank you, Your Honor.

[00:00:40] Speaker 00:
Good morning.

[00:00:40] Speaker 00:
May it please the court?

[00:00:41] Speaker 00:
My name is Nicole Herron, appearing on behalf of the appellant, Mr. Schell.

[00:00:46] Speaker 00:
The Assimilative Crimes Act applies only if the act or omission in question is not made punishable by any enactment of Congress.

[00:00:55] Speaker 00:
The Lewis Court gave us the test to use in determining whether assimilation under the Assimilative Crimes Act is appropriate.

[00:01:03] Speaker 00:
Everybody agrees that the first part of the test is not met because Mr. Schell's conduct was made punishable by one or more of the federal assault provisions.

[00:01:14] Speaker 00:
Accordingly, we turn to the second step of the test and ask whether federal assault statutes that apply to Mr. Schell's conduct preclude application of Oklahoma's child abuse statute.

[00:01:26] Speaker 00:
The answer to that question must also be yes.

[00:01:30] Speaker 00:
Congress has enacted a whole set of laws punishing assault of conducts.

[00:01:35] Speaker 00:
In addition, just three years ago, this court held in Harris that federal law occupies the field of assault of conducts.

[00:01:45] Speaker 00:
Applying the right legal rule announced in Lewis is mechanical and simple.

[00:01:49] Speaker 00:
The government's proposed approach rejects application of the Lewis test and rejects what Harris said about Congress's intent for assault of conducts.

[00:02:02] Speaker 00:
This approach threatens to fill non-existent gaps and violates the spirit of the Assignment of Crimes Act.

[00:02:14] Speaker 00:
The label of child abuse in this case is not what the court should consider.

[00:02:20] Speaker 00:
That violates the Lewis test because it's not looking at conduct, it's looking at the state statute.

[00:02:26] Speaker 00:
And I think that's a major difference in the party's approach is the government wants to start with the statute whenever the correct starting point is the offense, the conduct.

[00:02:40] Speaker 00:
And in this case, it's clear by the indictment that Mr. Schell was charged with engaging in assault of conduct with his hands.

[00:02:54] Speaker 00:
We're not asking, just to be clear, we're not asking this court to find that the assault statutes occupy the field of the entire Oklahoma child abuse statutes, because they don't.

[00:03:06] Speaker 00:
But in this case, it's clear that the assault statutes cover the entirety of the allegations charged by the government against Mr. Schell.

[00:03:18] Speaker 03:
Let me be clear on that.

[00:03:19] Speaker 03:
I did not read the case law.

[00:03:22] Speaker 03:
as focusing exclusively on the conduct of the defendant.

[00:03:27] Speaker 03:
What they were looking at is whether these two, I mean, if you look at, I think Williams would be an example.

[00:03:32] Speaker 03:
If you look at the analysis focused on what the statute covered, and in fact, the case, the Coq Duc Doe case, which is not from our circuit, but I think it's from the Ninth Circuit,

[00:03:44] Speaker 03:
look specifically at what the statute covered.

[00:03:47] Speaker 03:
Now, it's a little different than one would do a categorical approach and matching elements and all that, because we are focused on what is being the prescribed conduct, generally.

[00:03:57] Speaker 03:
But it's not a factual, what did he do in this case situation?

[00:04:01] Speaker 03:
And if that is your position as to what the law is, what's your best case for that?

[00:04:06] Speaker 03:
Because that was not my reading of the authorities, that it mattered what the statute said.

[00:04:11] Speaker 00:
What matters is the defendant's conduct, and that is made clear in Lewis, and again, in Harris.

[00:04:18] Speaker 03:
And it's also in the language of- Well, give me the page of Lewis that you're talking about, because I read Lewis, and I read Harris, and I don't see that.

[00:04:26] Speaker 00:
OK.

[00:04:30] Speaker 00:
So Lewis says, the primary question is one of legislative intent.

[00:04:34] Speaker 00:
Does applicable federal law indicate an intent to punish conduct such as the defendant's to the exclusion

[00:04:41] Speaker 00:
particular state statute at issue.

[00:04:43] Speaker 03:
And the legislative intent is expressed how?

[00:04:47] Speaker 03:
In the terms of the statute.

[00:04:49] Speaker 03:
That's how intent by legislatures is expressed.

[00:04:53] Speaker 00:
Yes, I agree.

[00:04:55] Speaker 00:
And the intent is to occupy the entire field of the assault statutes, the federal assault statutes.

[00:05:02] Speaker 00:
And that is in Harris, when they say, quote, the detailed and comprehensive nature of the federal assault statute also suggests Congress intended to occupy so much of a field as would exclude use of the particular state statute at issue.

[00:05:19] Speaker 03:
The wide spectrum of the state statute.

[00:05:23] Speaker 03:
That's my point.

[00:05:24] Speaker 03:
We're focusing on statutes.

[00:05:26] Speaker 03:
We're not focusing on conduct.

[00:05:28] Speaker 03:
We're focusing on what the statute, what conduct is prescribed, outlawed by the statute.

[00:05:35] Speaker 03:
So we are looking at the statute, are we not?

[00:05:37] Speaker 00:
Yes, we're looking at the conduct in the statutes.

[00:05:41] Speaker 00:
So in this particular case, we would be looking at the assault statutes to determine whether they occupy all of the conduct charged

[00:05:50] Speaker 00:
in the particular case.

[00:05:52] Speaker 03:
And does it matter here whether Oklahoma's statute is divisible or not?

[00:05:58] Speaker 00:
So it doesn't matter.

[00:06:01] Speaker 03:
Why doesn't it matter?

[00:06:02] Speaker 03:
In Kwak Dock Doe, the court had a footnote in which it talked about the fact that the statute was, in fact, divisible, and that the portion in question was the portion by which it measured whether the federal statute and state statute outlawed the same thing.

[00:06:18] Speaker 03:
So why doesn't that matter here?

[00:06:20] Speaker 00:
Yes, I apologize.

[00:06:23] Speaker 00:
This statute, it does matter.

[00:06:26] Speaker 00:
In this particular case, it especially matters because the child abuse statute covers conduct that can be child neglect.

[00:06:37] Speaker 03:
And I think if I went back and looked at your brief, I would not find the word divisible in it.

[00:06:41] Speaker 03:
You made no argument about divisibility, nor did your opposing counsel.

[00:06:46] Speaker 03:
So if it matters so much, why didn't you argue about it?

[00:06:49] Speaker 00:
Well, I think that whenever the court is talking about divisibility, I am taking it to mean that the child abuse statute can be

[00:07:03] Speaker 00:
separated just because it's labeled child abuse doesn't mean that the entire child abuse statute is something that the court should consider whenever you're looking at the conduct.

[00:07:14] Speaker 00:
That's more of an elements-based approach.

[00:07:15] Speaker 03:
And why should it not do that?

[00:07:17] Speaker 03:
As I pointed out, at least in the Ninth Circuit precedent, they did exactly that.

[00:07:21] Speaker 03:
They noted that a portion of the statute, the visible statute, was at play there.

[00:07:26] Speaker 03:
And here, Oklahoma has both an action of

[00:07:31] Speaker 03:
of omission and action of commission.

[00:07:34] Speaker 03:
And as you note in your reply brief, interestingly, that if they had charged him with an act on page 10, if they had charged him with an act of omission related to failure to protect, that this would be a whole different ballgame.

[00:07:49] Speaker 03:
Well, if they're both in the same statute, and we have no reason to think Oklahoma made that statute divisible, and you haven't made any argument to that effect, then why is it in effect that what

[00:08:01] Speaker 03:
why don't we view the statute as a whole, not just the conduct and the indictment, but the statute as a whole?

[00:08:07] Speaker 00:
I think that there's a couple answers to that question.

[00:08:09] Speaker 00:
One is by looking at the case law by Lewis and Harris and the language in the ACA that says that you look at conduct, that's where you begin.

[00:08:18] Speaker 00:
You begin with the charging conduct.

[00:08:20] Speaker 00:
So it doesn't make sense that we would look at the state statute and decide that it should be assimilated based on

[00:08:31] Speaker 00:
the elements of that statute and what they charge for practical reasons even.

[00:08:36] Speaker 00:
In Oklahoma's child abuse statute, it covers things like how Mr. Schell was charged.

[00:08:44] Speaker 00:
That's basically just an assault under the federal assault statutes.

[00:08:49] Speaker 00:
It would mean that the government, it would lead to

[00:08:54] Speaker 00:
ridiculous results where the government could say, okay, Oklahoma's child abuse statute can be assimilated here whenever, say, a 17-year-old gets punched in the face by a stranger.

[00:09:06] Speaker 00:
And I don't think that that's what Congress intends.

[00:09:11] Speaker 03:
Well, Williams talked about, looked at both statutes.

[00:09:16] Speaker 03:
And it looked at what the statutes prescribed.

[00:09:19] Speaker 03:
It went so far as to look at what the age difference was on the statutes that were prescribed.

[00:09:24] Speaker 03:
So it can't be all about conduct.

[00:09:26] Speaker 03:
It's got to be about what the statutes say.

[00:09:28] Speaker 03:
And my point is that Oklahoma's statute, in fact, includes both acts of commission and acts of omission.

[00:09:35] Speaker 03:
And the fact that he is only charged with the act of commission related to torturing the child doesn't mean that's what the statute's scope is.

[00:09:42] Speaker 03:
And so I'm trying to get a sense of how we should evaluate

[00:09:46] Speaker 03:
and undertake this analysis when in fact, yes, and I'm trying to pull up the Assemblative Crimes Act statute now, but if the language speaks in terms of what the offense is punished, what offense, what conduct is punished, well, conduct is punished by a statute, right?

[00:10:06] Speaker 00:
Yes, but yes, you're right, it does.

[00:10:08] Speaker 00:
But we start with the conduct.

[00:10:09] Speaker 00:
We don't start with the statute.

[00:10:11] Speaker 03:
OK, and you're telling me the best case that you have for that is Harris and Lewis, because I don't see that in Harris and Lewis.

[00:10:20] Speaker 00:
Yes, and the language of the ACA.

[00:10:26] Speaker 00:
OK.

[00:10:26] Speaker 00:
And Harris, in particular, actually talked about assaults.

[00:10:31] Speaker 00:
and determines that Congress clearly and precisely explicated the range of conduct that qualifies as an assault within areas of jurisdiction.

[00:10:43] Speaker 00:
And that is exactly what we have here.

[00:10:44] Speaker 00:
And if the court doesn't have any other questions right now, I'd like to reserve the remainder of my time.

[00:10:54] Speaker 03:
Yes.

[00:10:58] Speaker 00:
Thank you.

[00:11:08] Speaker 02:
May I please the court, Elliot Anderson for the United States?

[00:11:12] Speaker 02:
The primary question under Lewis is congressional intent.

[00:11:15] Speaker 02:
Did Congress intend to define and punish an offense so thoroughly as to displace any state law covering that same subject?

[00:11:23] Speaker 02:
Here the answer is no.

[00:11:25] Speaker 02:
Congress did not occupy the field of child abuse with subsection A7 of the federal assault statute.

[00:11:31] Speaker 02:
To go back to the most recent line of questioning, whether the statute is divisible or not, or how much of the statute we're looking at, we have to ask the question, did Congress occupy the field?

[00:11:40] Speaker 02:
Which means we have to define the field.

[00:11:42] Speaker 03:
We just heard her say, opposing counsel, she's not arguing that Congress occupied the field.

[00:11:47] Speaker 03:
So I'm asking you, is the statute divisible?

[00:11:50] Speaker 03:
You didn't argue about it in your brief.

[00:11:51] Speaker 03:
And is it a relevant inquiry?

[00:11:54] Speaker 02:
It is a relevant inquiry, Your Honor.

[00:11:56] Speaker 02:
This part of the statute is assimilated either way.

[00:11:59] Speaker 02:
If the field is child abuse, then Congress has not occupied that field.

[00:12:04] Speaker 02:
I believe the appellant here is arguing that we've got a subfield here of assault and child abuse.

[00:12:09] Speaker 02:
Even if that's the field, Congress has not fully occupied it.

[00:12:12] Speaker 02:
We have two small provisions here.

[00:12:14] Speaker 02:
We have misdemeanor child abuse.

[00:12:16] Speaker 02:
and felony child abuse resulting in substantial bodily injury.

[00:12:19] Speaker 03:
I think defendant is arguing that we're talking about a subset of assault of child abuse.

[00:12:24] Speaker 03:
And I just want to be clear before we move on.

[00:12:27] Speaker 03:
You didn't argue anything about the visibility in your brief.

[00:12:30] Speaker 03:
I think if I did a word search, that word would not appear.

[00:12:33] Speaker 03:
And so I'm asking you, the position you're taking apparently is that you're playing on their field, which is to say that what we're talking about here is assault of child abuse, and you're saying even

[00:12:45] Speaker 03:
Oklahoma's version of assault of child abuse should be assimilated.

[00:12:49] Speaker 03:
Is that your position?

[00:12:50] Speaker 02:
That is my fallback position.

[00:12:51] Speaker 02:
It's not my primary position, Your Honor.

[00:12:53] Speaker 03:
OK, what's your primary position?

[00:12:54] Speaker 02:
The Supreme Court noted in Lewis when it was discussing Brown that that decision turned in part on the fact that child abuse is fundamentally different in kind than simple federal assault.

[00:13:06] Speaker 02:
And again, the primary inquiry in Lewis, the court says it twice.

[00:13:08] Speaker 02:
It uses the word, we say it again.

[00:13:10] Speaker 02:
Did Congress intend to legislate on this?

[00:13:14] Speaker 02:
We have here a premium example of congressional intent when they amended the Major Crimes Act in 2006.

[00:13:21] Speaker 02:
At that point in time, the federal assault statute already had subsection A7.

[00:13:28] Speaker 02:
felony assault against a minor resulting in substantial bodily injury.

[00:13:31] Speaker 02:
All the moving parts in the assault statute that we have today were present in 2006.

[00:13:35] Speaker 02:
Congress looked at it and said, we are not covering enough here.

[00:13:38] Speaker 02:
We've got a couple of semi-colons on the assault statute.

[00:13:41] Speaker 02:
We are not regulating child abuse.

[00:13:44] Speaker 02:
Is Congress intending to do that?

[00:13:45] Speaker 02:
Congress resoundingly said no.

[00:13:47] Speaker 02:
We will open the door

[00:13:50] Speaker 02:
state law.

[00:13:51] Speaker 02:
So Congress does not occupy the field.

[00:13:53] Speaker 02:
It views child abuse as different.

[00:13:54] Speaker 02:
And it says, we're not in the business of regulating that.

[00:13:57] Speaker 02:
It holds the door.

[00:13:58] Speaker 02:
Assimilation is appropriate here.

[00:14:00] Speaker 02:
I'd like to go back to the Lewis test, because I feel like appellant is stalling out on the first prong of the inquiry.

[00:14:06] Speaker 02:
The first prong looks at conduct.

[00:14:08] Speaker 02:
That's relatively easy to resolve here.

[00:14:10] Speaker 02:
Did what Mr. Schell admitted to constitute an assault?

[00:14:14] Speaker 02:
Yes, it did.

[00:14:15] Speaker 02:
That part of the test is the very shortest part of the Lewis opinion.

[00:14:18] Speaker 02:
It's equivalent to twisting a stem off an apple.

[00:14:21] Speaker 02:
We still have the whole fruit to get into, the congressional intent part.

[00:14:24] Speaker 02:
That's what the Supreme Court said is there's no automatic answer.

[00:14:28] Speaker 02:
There's no touchstone.

[00:14:29] Speaker 02:
We have to look at, did Congress intend to legislate and exclude state law?

[00:14:35] Speaker 02:
Or is this court set in Harris to punish and preclude application of state law?

[00:14:40] Speaker 02:
Lewis expressly contemplates that you will have instances where conduct overlaps and could be charged under state or federal law.

[00:14:49] Speaker 02:
This is exactly that kind of case.

[00:14:50] Speaker 02:
What Mr. Schell did could have been charged under state or federal law.

[00:14:55] Speaker 02:
It was unmistakably child abuse.

[00:14:57] Speaker 03:
If it could have been charged under federal or state law, it is either Lewis or Harris that says that

[00:15:07] Speaker 03:
the sort of threshold examination is this federal law target the same thing as state law.

[00:15:14] Speaker 03:
And if the answer to that is yes, then you have a hard time explaining why the federal prosecutor should be able to pick and choose and assimilate state law.

[00:15:25] Speaker 03:
And I believe it was Lewis, but it may have been one of the other cases.

[00:15:28] Speaker 03:
And if that's so, if you're acknowledging then that's right, how do you win?

[00:15:34] Speaker 02:
If we can't look at statutes or offenses by their natural categorizations and their ordinary groupings, then we're stuck with problem one of the Lewis test.

[00:15:43] Speaker 02:
If we can't look at the child abuse statute as something that every jurisdiction in the United States regulates as a whole and say, this is the field, did Congress occupy it, then we stop after Lewis step one.

[00:15:54] Speaker 02:
And the Supreme Court said that is not a reasonable interpretation of the statute.

[00:15:58] Speaker 03:
If Congress decided how it wanted to handle assaults of minors,

[00:16:03] Speaker 03:
And then you charge the defendant under Oklahoma's child abuse statute with an assault of a minor.

[00:16:10] Speaker 03:
then it is not clear to me at all why Congress has not already spoken to how it wants to treat that.

[00:16:17] Speaker 03:
And specifically in answering that question, I want you to deal with the analysis in Williams, which talks about the fact that there was sexual assault that was prosecuted by the state and prosecuted by the feds.

[00:16:31] Speaker 03:
And the feds had a different age category than the state, as I think they do here.

[00:16:36] Speaker 03:
And what William said is, Congress has spoken in how it wants to do this.

[00:16:42] Speaker 03:
And therefore, we don't care that the state would have a different age category.

[00:16:47] Speaker 03:
Congress has said, if it's this kind of assault, this is how we want to handle it.

[00:16:53] Speaker 03:
And so that's it.

[00:16:54] Speaker 03:
Why is that not the case here?

[00:16:57] Speaker 02:
In two parts, Your Honor, if I may.

[00:16:58] Speaker 02:
First, Congress has not

[00:17:00] Speaker 02:
conclusively legislated assault on minors.

[00:17:02] Speaker 02:
Congress has touched on two corners of that blanket.

[00:17:05] Speaker 02:
But there are gaps.

[00:17:06] Speaker 02:
That is why Congress amended the Major Crimes Act, because they recognized, even under the federal assault statute, there is assault on minors that's not being covered.

[00:17:14] Speaker 03:
There's a gap in Lewis, too.

[00:17:16] Speaker 03:
The subject matter is what I'm talking about.

[00:17:19] Speaker 03:
It seems to me what I take from Williams is that what we're talking about is the subject matter.

[00:17:27] Speaker 03:
Here's the field of assault on minors.

[00:17:30] Speaker 03:
this is how we want to prosecute it, how we want to outlaw it.

[00:17:35] Speaker 03:
And then the state comes along and says, oh, well, you know, I'm going to change the age category on that.

[00:17:40] Speaker 03:
And I'm going to include another wrinkle here on how I want to do assault on minors.

[00:17:44] Speaker 03:
And the feds say, well, OK, that's fine.

[00:17:47] Speaker 03:
You do that.

[00:17:48] Speaker 03:
But that doesn't mean we're going to bring it into federal court because Congress has told us how we want to handle that problem.

[00:17:56] Speaker 03:
And so I want you to speak to, if you don't have it, okay, we'll move on.

[00:18:00] Speaker 03:
But Luke Williams specifically deals with the situation of two assaults.

[00:18:05] Speaker 03:
State has it, Feds have it.

[00:18:07] Speaker 03:
State has a different age category as the state does here.

[00:18:10] Speaker 03:
And when the argument was made by the state in that case, well look, there's a gap.

[00:18:16] Speaker 03:
You know, what we're trying to do can't be prosecuted in federal court.

[00:18:21] Speaker 03:
Well, the Supreme Court said, no, that's not how you should look at that.

[00:18:26] Speaker 03:
It's not a gap.

[00:18:27] Speaker 03:
It's a choice.

[00:18:29] Speaker 03:
It's a choice that Congress has made on how it wants to deal with this problem.

[00:18:34] Speaker 03:
And if you try to do something else,

[00:18:37] Speaker 03:
You're rewriting what Congress said, and that's part of, of course, the Lewis test, what Congress said it wanted to do with this problem.

[00:18:46] Speaker 02:
In Williams, Your Honor, the two offenses, the two statutes, were in direct conflict.

[00:18:50] Speaker 02:
The only difference between the two of them, the only substantive difference, was the age limit, and you could not enforce the state statute.

[00:18:56] Speaker 02:
without rewriting or doing violence to the federal statute.

[00:18:59] Speaker 02:
There was a one-to-one correlation.

[00:19:01] Speaker 02:
That, to me, is similar to Harris, where the state charge was aggravated assault, felonious pointing of a firearm.

[00:19:07] Speaker 02:
That is always going to be an assault.

[00:19:09] Speaker 02:
And the court in Harris said, when we're comparing assault to assault, Congress has covered that.

[00:19:14] Speaker 02:
We've got eight varieties of assault.

[00:19:15] Speaker 02:
We have intent running from no intent up to intent to kill.

[00:19:19] Speaker 02:
We have punishments running from a fine of 20 years

[00:19:21] Speaker 02:
Congress has thoroughly covered assault when it comes to assault.

[00:19:25] Speaker 02:
The same thing in Lewis.

[00:19:27] Speaker 02:
The court said, Congress has thoroughly covered murder.

[00:19:29] Speaker 02:
We're comparing murder to murder.

[00:19:31] Speaker 02:
The state is trying to impinge on a field that Congress has completely occupied.

[00:19:36] Speaker 02:
Here, if there was a felony assault on a child that did not cause substantial bodily injury, there is no federal law on that.

[00:19:42] Speaker 02:
Congress has spoken in a couple of corners to assault on a child.

[00:19:47] Speaker 02:
But it has not done what this court found in Harris and what the Supreme Court found in Lewis and gone down the list and defined every possible variation of assault on a child and set forth the penalties and the requirements for that.

[00:19:59] Speaker 03:
Isn't there a separate category in Lewis that speaks to the question of occupying the field?

[00:20:05] Speaker 02:
There are three tests in Lewis, Your Honor.

[00:20:06] Speaker 02:
That is one of them.

[00:20:07] Speaker 03:
OK.

[00:20:07] Speaker 03:
Well, what you just described of going down comprehensively

[00:20:12] Speaker 03:
defining a certain area and mapping it, which, mind you, opposing counsel has just said that they're not claiming that this field has been occupied.

[00:20:20] Speaker 03:
So we're arguing past where the action is because they're not claiming that is what this is about.

[00:20:27] Speaker 03:
So the fact that they have comprehensively covered assault doesn't tell us anything because there are other Lewis tests.

[00:20:34] Speaker 03:
And the other Lewis tests go to essentially whether this is something that Congress has spoken to wanting to cover.

[00:20:40] Speaker 03:
And you know, they didn't want to occupy the field, but they've spoken that this is being something they want to cover.

[00:20:46] Speaker 03:
Tell me why, if in this situation where Congress has said, this is what assault on a minor looks like, not using words, child abuse,

[00:20:57] Speaker 03:
But when somebody in Oklahoma starts beating up a kid, why that would not be what Congress anticipated?

[00:21:07] Speaker 02:
Because with respect, Your Honor, what Congress said is this is what assault on a child sometimes looks like.

[00:21:12] Speaker 02:
And sometimes we will write a law for that.

[00:21:14] Speaker 02:
And other times we won't.

[00:21:15] Speaker 02:
So of the three tests in Lewis, is the state law contrary to federal policy?

[00:21:19] Speaker 02:
No one has argued that.

[00:21:21] Speaker 02:
Has Congress occupied the field of child abuse?

[00:21:24] Speaker 02:
They're not arguing that.

[00:21:26] Speaker 02:
enforcement of the Oklahoma statute rewrite a federal provision?

[00:21:30] Speaker 02:
The answer here is no.

[00:21:32] Speaker 02:
And the Lewis Court recognized when it specifically cited the pre-Lewis decisions from the Fifth Circuit and Brown and Fessler holding that child abuse is different in kind from simple federal assault and assimilating those statutes, the Supreme Court said, we're not going to disturb that because, and they cited two reasons.

[00:21:49] Speaker 02:
One, in the context of child abuse, the federal assault statutes are not as comprehensive as the homicide statutes, and two,

[00:21:56] Speaker 02:
The relevant connections between the statutes are more attenuated.

[00:21:59] Speaker 02:
They're not as direct as they are when we're looking at assault or assault or homicide or homicide.

[00:22:05] Speaker 02:
The Roca case started the Ninth Circuit.

[00:22:06] Speaker 02:
That was a simple assault.

[00:22:07] Speaker 02:
That was a prison fight.

[00:22:08] Speaker 02:
There were no children involved.

[00:22:09] Speaker 02:
There were no children in here.

[00:22:11] Speaker 03:
But the version of child abuse in the state, as is the case in Oklahoma, is prosecuted both by acts of omission and acts of commission.

[00:22:22] Speaker 03:
And what you have charged is a violent action directed at a child.

[00:22:26] Speaker 03:
So that's what we're talking about.

[00:22:29] Speaker 03:
Both of you have made that the universe that we're fighting in.

[00:22:32] Speaker 03:
And if that's the universe we're fighting in, why isn't it a rewriting of what the feds have said we want to do as it relates to violent assaults on a child to bring in Oklahoma's version of that?

[00:22:47] Speaker 02:
If we stop there, Your Honor, we would be stopping after the first step in Lewis.

[00:22:51] Speaker 02:
State law punishes its conduct.

[00:22:52] Speaker 02:
Federal law punishes its conduct.

[00:22:54] Speaker 02:
Are we done?

[00:22:55] Speaker 02:
No.

[00:22:55] Speaker 02:
Because we will nonetheless assimilate if Congress hasn't expressed an intent to displace the state law.

[00:23:02] Speaker 02:
And that's Lewis quoting the Fitzpatrick holding.

[00:23:04] Speaker 02:
But again, congressional intent.

[00:23:06] Speaker 02:
And Congress in 2006

[00:23:08] Speaker 02:
And again, in 2013, when it amended the Major Crimes Act, in 2013, it collapsed most of the definitions of assault down into simple felony assault.

[00:23:16] Speaker 02:
Then it listed felony assault on a person under the age of 16, and then it retained felony child abuse.

[00:23:24] Speaker 02:
But Congress, we rarely have this clear an expression of congressional intent, but has Congress

[00:23:31] Speaker 02:
taken up a position or insisted that state law not rewrite its work on child abuse?

[00:23:36] Speaker 03:
Quite the contrary.

[00:23:46] Speaker 03:
then why should it have to do any more than allow that to speak for the fact that Fed shouldn't be altering that policy choice by bringing in state law?

[00:23:54] Speaker 03:
And I think part of what at least some of this case law talks about the notion that we want to be clear that what this assimilative crimes act was not intended to do was to create a broader menu for the prosecutor to decide, pick and choose what they want to choose.

[00:24:09] Speaker 03:
In other words, I can do a Fed crime, I can do a state crime, and I'll do the state crime.

[00:24:13] Speaker 03:
That's not what this is about.

[00:24:15] Speaker 03:
It's supposed to be allowing for gaps that are real.

[00:24:20] Speaker 02:
Your Honor, the possibility of prosecutorial discretion between state and federal charges is a necessary outcome of the Lewis opinion.

[00:24:26] Speaker 02:
If it weren't, there would be no second part of the test.

[00:24:28] Speaker 03:
Oh, so you're saying that if the feds prosecuted exactly the same thing the states do, that you can make the choice as to whether you want to prosecute them with a state offense and a federal offense, is that what you're telling me?

[00:24:38] Speaker 02:
If we're assimilating state law and none of the three tests in Lewis are met, then yes, there will be overlap.

[00:24:43] Speaker 03:
Oh, then give me the case that says that, because I've not read a single case that tells me that.

[00:24:48] Speaker 02:
Lewis says that.

[00:24:49] Speaker 02:
Lewis says we have a defendant who could be charged under state and federal law.

[00:24:52] Speaker 02:
Is there still a choice to be made?

[00:24:54] Speaker 02:
Sometimes there is.

[00:24:55] Speaker 02:
If Congress has not done enough to express that

[00:24:58] Speaker 02:
they've taken a position intended to displace the existing state law.

[00:25:02] Speaker 02:
And with respect, Your Honor, the hasty amendment to the Federal Assault Statute at A7, adding an elevated penalty for someone who assaults a victim under 16, that is not taking up a position that cannot coexist with state law.

[00:25:19] Speaker 01:
If there are no further questions, I'll conclude.

[00:25:21] Speaker 01:
Thank you.

[00:25:21] Speaker 01:
Oh, there is.

[00:25:22] Speaker 01:
I've been listening quietly to all of this,

[00:25:26] Speaker 01:
in taking out the statutes and putting them side by side and trying to unravel on the basis of whether or not you have the choice of charging under the Assimilated Crimes Act.

[00:25:40] Speaker 01:
And I've listened to the arguments here and I'm still a little bit confused.

[00:25:43] Speaker 01:
So what your response to me and the question

[00:25:47] Speaker 01:
that I've written out for myself to help me understand, I hope, how we go about resolving this matter.

[00:25:54] Speaker 01:
Here's my question to you.

[00:25:55] Speaker 01:
I've written it out specifically.

[00:25:58] Speaker 01:
Your briefing emphasizes that the Oklahoma child abuse statute does not cover, quote, approximately the same conduct as the federal assault statute because it covers acts of omission.

[00:26:15] Speaker 01:
but defendant is not charged with an actable mission and federal assault statutes such as 18 USC 113A7, for example, cover this exact conduct.

[00:26:31] Speaker 01:
Why does that not defeat a simulation under the plain language of the Assimilated Crimes Act?

[00:26:39] Speaker 02:
Your Honor, my time has expired.

[00:26:40] Speaker 02:
May I respond?

[00:26:40] Speaker 01:
I don't care what your time is.

[00:26:42] Speaker 01:
I agree.

[00:26:43] Speaker 01:
I want an answer to that question.

[00:26:45] Speaker 02:
I need it.

[00:26:46] Speaker 02:
Lewis says not to stop there.

[00:26:49] Speaker 02:
Lewis has expressedly not to do that.

[00:26:51] Speaker 02:
If you've got a defendant who could be charged at a prosecutor's discretion under state law or federal law, that does not end the inquiry.

[00:26:58] Speaker 02:
We will still assimilate.

[00:27:00] Speaker 02:
State law will still be available unless the state law is contrary to a federal policy, unless Congress has occupied the field, or unless

[00:27:09] Speaker 02:
imposing that state law is going to rewrite a carefully crafted term the Congress imposed.

[00:27:14] Speaker 01:
I see the problem because you and I are reading it different.

[00:27:18] Speaker 01:
We're coming to the same question and the conclusion is different.

[00:27:23] Speaker 01:
So go ahead and finish your answer for me.

[00:27:28] Speaker 02:
Your Honor, Lewis understands and accepts that there will be overlap.

[00:27:32] Speaker 02:
But overlap doesn't equal occupation.

[00:27:34] Speaker 02:
And sometimes federal law and state law will result in a Venn diagram where a person could be charged under either.

[00:27:41] Speaker 02:
And Lewis says, stop.

[00:27:43] Speaker 02:
Still assimilate unless Congress has somehow displaced the state law.

[00:27:46] Speaker 02:
That's what's missing here.

[00:27:47] Speaker 02:
Congress has been entirely hands off on state child abuse law.

[00:27:51] Speaker 02:
They don't want to meddle with it.

[00:27:52] Speaker 01:
They haven't been hands off on what an assault is.

[00:27:55] Speaker 01:
And here the facts are very clear.

[00:27:58] Speaker 01:
The shake and bake and throwing the baby.

[00:28:00] Speaker 01:
I mean, how much more assault can you get?

[00:28:02] Speaker 02:
It could be.

[00:28:03] Speaker 02:
But even that, Your Honor, does not cover all forms of assault of child abuse.

[00:28:06] Speaker 02:
Congress has not even tried to occupy that tiny subset of the field.

[00:28:13] Speaker 03:
Thank you.

[00:28:14] Speaker 03:
Cases submitted.

[00:28:15] Speaker 03:
No, not cases submitted.

[00:28:16] Speaker 03:
You have some time.

[00:28:17] Speaker 03:
I apologize.

[00:28:18] Speaker 01:
And counsel, it's complicated for me, anyway.

[00:28:22] Speaker 01:
And I want to get to the right answer.

[00:28:24] Speaker 01:
So thank you.

[00:28:28] Speaker 00:
Thank you.

[00:28:29] Speaker 00:
I just have a few things I want to rebut.

[00:28:31] Speaker 00:
First, I want to be clear that we are arguing that the federal assault statute occupies the field of assault of conduct, not child abuse, but assault of conduct.

[00:29:01] Speaker 00:
The second thing is the government's response to the question about Fessler and Brown in the Lewis case was incorrect.

[00:29:20] Speaker 00:
Lewis did not say that they said they were not going to disturb Fessler and Brown.

[00:29:25] Speaker 00:
They didn't say that they agreed with those decisions.

[00:29:29] Speaker 00:
They just said that they weren't going to address it.

[00:29:31] Speaker 00:
Obviously, Fessler and Brown, they were Fifth Circuit cases, and they were decided prior to Lewis and prior to the Lewis test that the court considered in Lewis.

[00:29:42] Speaker 00:
So they weren't going to speak to it because it wasn't relevant at that time.

[00:29:47] Speaker 00:
And it makes sense that they want to speak to it, because if it's a conduct-based test, then they would have to go back and look at the conduct in those cases.

[00:29:55] Speaker 00:
There was no reason for them to do that.

[00:30:00] Speaker 00:
The last thing is the government, Lewis does not allow the government to just choose a statute because it likes one statute better than the other.

[00:30:09] Speaker 00:
That's not the Lewis test.

[00:30:12] Speaker 03:
And what's your case law that says that that's not what the Lewis test is?

[00:30:17] Speaker 00:
I think that that's addressed in Harris.

[00:30:26] Speaker 00:
You can't just pick and choose because you prefer a certain statute based on punishment, based on whether it's easier to charge.

[00:30:38] Speaker 00:
You look at the conducts at issue, not at the elements.

[00:30:45] Speaker 00:
This isn't like a charge under the Major Crimes Act.

[00:30:48] Speaker 00:
This is the General Crimes Act and it assimilates differently.

[00:30:54] Speaker 00:
If the court has no other questions, I'm ready to submit.

[00:30:58] Speaker 03:
No other questions.

[00:31:00] Speaker 00:
Thank you.

[00:31:02] Speaker 03:
Case is submitted.

[00:31:02] Speaker 03:
Thank you, counsel.

[00:31:04] Speaker 03:
As indicated, we will take now a brief 10-minute break and we will