wrongful behavior the district court here area to be and allowing the assimilation of the state crime of unlawful use of a weapon a crime that has virtually identical aliments to federal assault and that it punishes the inspection or threatened little of the conviction so yes your honor that reversal of the conviction and entry of an order of dismissal because i believe jeopardy has attached here and the government hasn't raised any other remedy this here i would certainly objects to the entry of a conviction for any other crime because that hasn't been raised and litigated in the district court and i have it would depend i think on the island on the elements of what crime we're supposedly being contemplated and so in this case the jury the grand jury indicted mr darrow only for unlawful use of a weapon there was no other charge that proceeded to trial and so i think you have a host that your honor as i am not sure if the court has further questions on the rocio issue but i do just want to point out a few things on that i don't want to spend my time i'm eiseley but the point that i wanted to make on there is the government i think is that is i'm bored is an agreement that with the idea that unlawful use of a weapon involves a sales of contacts that they understand that their crimes are really closely associated to the point that it's a lesser included offense to the point that state courts beam their convictions to merge but i also want to point out that the state assault is not the comparison that we're making for purposes of the is going to lesion the question isn't the state criminal law committee is commentary and indicated that it expressed we made that decision and said we want to make our state assault statute more narrow than federal assault and that's why we're including some assaultive conduct and other statutes like the  the other part of this analysis but i think is really significant from russia is the discussion of i wonder as the malaysian will effectively rewrite the federal study which maurice seem because i think what we had here was a situation where mr downs conduct could have been punished under a simple assault statue and it could potentially have been prosecuted under the more serious federal assault with a dangerous weapon and in fact about what mr doe was initially charged but by simulating the unlawful use of a weapons state crime what the court allowed the government to do was to bypass the mental state that would have been required for a conviction on that greater valen in their tenure as assault with a dangerous weapon so because they assimilated the state crime they were able to get a conviction on a ten year felony based on the infliction or threatened inflection of injury with a weapon without having to prove a specific mental state alum and th congress specifically chose so i think that there's not that is a isn't that just a way of saying that they are looking at a different crime a crime that by the states that the machine they didn't have to prove that inten and that was the gap in the assault statute that the state statute failed the government's assertion is that the gap is a weapons gap that a weapons control gap in our possession is there's no weapons control gap in the assault statute because a stall with a weapon is expressly chosen i think russia is the best place to address your honor's question and rochelle they made the same argument that because california solved had different elements from federal  all specifically that it punished assault when it was only likely to cause great bodily injury versus having the federal requirement that you must cause bodily injury those state had and the government could argue that the state crime addressed  simple assault we're adding astrogation a levels to the specific eight levels that congress chose so that's why everything the roser comparison is very apt here and that assimilating this crime by passed the penalty  because i could not figure out why the government created this problem for itself and why they didn't just charge your client a new one through t v and i gather what you're telling us is that if it was able to get a ten year study story max if it used that state crime but if it was only able to prove simple assault it would have what is it like a one year century much for that or a two year i believe it's one year it is so that i don't have you not in the government's head of course but is does that seem to explain why we even have this kind of strange legal to address back to the government is raising now on appeal a different factual argument and it's their perspective that says that there's no essential difference between using a weapon to threaten imminent serious physical injury versus using a weapon to to warn someone away i mean i respond on that i think that we want the court to focus on is that this is a classic issue that should have been decided by the jury and of course the government's entitle to its perspective as to whether they're the same drivers the government had two choices one charge in this three air assault or because it had to be in federal court because the victims were native american the murder statute and louis even says that's why perhaps we can incorporate child murder in the list but you might be able to incorporate child abuse and we do incorporate child abuse  the specific crime oregon has set up for this crime simply because they didn't here were native americans but ok so because they'll get you know just ask you the question i posed to your opponent so the reason why you did that is that you created this i guess the problem i have with your argument that is that congress has thought about this exact issue because we have the you know the separate crime for assault using a dangerous weapon and so it just seems to me that you know relevant since congress has occupied the field you now want to kind of state law into because it's not as if there's just there really is this gap where congress just didn't think that oh there might be this more serious kind of assault where somebody actually uses a dangerous weapon primers to think about them and it just had this extra mens rea element that you could meet here and so i guess i don't see how you're in a position to say you know we got to supplement this out of the federal scheme with the state law the fence that has a lower m my argument your honor is that when congress divides these salt with a deadly weapon they will focus on the physical attack the actual attack on the person the core of an assault of statute and what organise punishing and when the government's not to punish is not what we were what the heart of the comment here was attempting to personally assault the drivers of those b of our the passengers and driver of the vehicle the core behavior was threatened with a weapon and congress has been occupied that field so what do we do in unlawful use the weapon has it is core assault conduct there are other problems and that's i think when you look at the organ statute you can look at it and see that the core is the weapons and i think the issue is just because they might both punish this the question is whether the core behavior whether the core act is something that congress intended to occupy and fully and he didn't want the federal assault statute and i would say that this is more akin to the susa case where you have statutes that would cover breaking into that car but the specific burglary breaking and entering into the car was not covered by the trespass i did that by all the other statutes the government could have charged so in that case the government was able to assimilate the  is not nearly as comprehensive as other federal statutes so once we're there and we know that congress has not done the most comprehensive statute we'd love to see does this federal assault statute is it congress's intent to come to all types of  miss of what the state tells us and i think the answer there is no doubt and that's how we're able to look and then we take the turn and say well is there a state crime that better encompasses the behavior specifically the behavior of shooting they got twice on the freeway and their errors and there's no there's nothing that says to us that congress absolutely intended to say we will not punish any of those crimes just like congress and say we're never going to prosecute child abuse with the assault statute and that's how we start so that we have to take the st step i have not i agree with your honor you have to take that st step of looking at that federal statute and what lewis told us with respect to federal murder is that comprehensive statute that occupies the entire field  has decided to punish weapons offenses and congress has it made no indication it it depended intended to occupy the entire field of weapons offenses we get to assimilate the organ state  that's how we ended up where we are that's how we ended up in front of the jury on this issue wis that is certainly what the supreme court did i did not manage money a j i can say generally i've gotten older cases in other circuits where that's clearly the remedy you simply look to see what the corresponding federal law would be and you  the line of cases because even wages older case i don't now case there was a specific argument about the defense so there was no finding by the district court that the jury's verdict necessarily meant of  the decision they're necessarily meant guilty of the federal crime i think we have a very strong argument that we have to prove it at least a simple assault here but i think yes we are reversed we go back to the district court and we look back at that issue i  am not prepared to address it yet as it was something i finally figured out later in the lewis game so yes was there another question found that they did not match because the reckless endangerment requires a substantial risk of serious physical injury and the jury did not specifically have to find that to fight a lot of the use of the weapon i understand the argument with respect to bren duarte and certainly we all agree that the presence of a weapon increases the risk that's why it oregon decided to specifically punish clemens and then says however this is a specific match national men's and it didn't match and so this is why there's no warning he says except the same one where this is treated as lesser included offense when oregon law tells us that the lesser included offense is medicine and that's not what was asked for here but i also thing that when you get to the core of the facts here when the defendant it netted there was no way for the jury to acquit him when the jury found that that was a drag when they found out when he said the whole purpose of me doing it not once but twice was to intimidate that driver when they found that was a threat there was no way they could have put him on that point and guilty of the reckless endangerment because he admitted all the  and we can call it a morning we can call it a threat but the impact was clear i'm going to shoot this gun i want to go home and you don't let me i have this gun he doesn't have to say th organ supreme court has made that quite clear look you know the knife saying not a word is a lawful use of a weapon because it conveys an unspoken dread and that's what this defendant here did he sh who was that as a warning that that was a threat because the gun carries with it the threat the threat if you don't let me leave the threat and what happens to the passengers and the driver in that car if they don't do what the defendant  just more it was more out of curiosity because i was a little bit surprised that he ended up with probation he didn't judge i didn't look into a sentencing but why did the judge give him i think the judge on it i don't want to speak for one incident as opposed to we have you know we saw it as two separate shooting incidents i believe the judge found it more to be a continuous angry reaction to what it happened so i think that all factored into  legal he possessing a firearm so hopefully he will not be firing again when he gets angry because someone cuts him off and i think that is a critical factor to go into why they are charging decisions unless of course for the question as you noted it does go to the government's prosecutorial charging decisions and i think it also goes to their our theory about the lesser included offenses that the jury can only have out of the facts one way this case was initially probation and that was contrary to the government's request in term of imprisonment i don't recall the precise request of the government but my recollection is perhaps eighteen months was when they asked i can't speak for judge simon but from a defense perspective the sentence was appropriate given mr doe's lack of any criminal record the fact that he had been on pretrial supervision for quite some time at the time of trial with zero problems and the fact that he had already gone to anger management classes to address the circumstances that led to this but i think a critical factor was the extenuating circumstances based on the occupants of the ford having taken the aggressive action of throwing a bottle at mr doe's car in the dark on a two lane highway when both cars were going at a high speed and so although this case was framed as road rage it was a response to an aggravating and dangerous  precipitating factor that the occupants of the ford then proceeded to lie about to the federal government for the next sixteen months with that i want to address the estimated crimes act question of whether congress has chosen to occupy the field of threatening someone with a weapon and the government can claim claims there's a gap there but we know from the wow and that assault is not only about the physical conduct we know from the law and th congress made the choice in corporate all of common loss all of which is goes from the range out of an offense of physical contact contact with a battery through both the threats and inflicting injury distinction that we're talking about crimes like robbery where assault of conduct has the jest of trying to steal property that would not be as similar precluded by the federal assault statute because the just threatening with a weapon constitutes federal assault only when the time your penalty only when there is an intent to cause bodily harm they mean not choice after thinking about this precise issue and so we disagree with the government that there is any gap and federal law here without will ask the court to reverse and i agree with mr carter about their remedies should you sort it out and the district court thank you thank you both for the very helpful arguments also for the