573 F.2d 1095 (9th Cir. 1978), 77-2836, United States v. Best

Docket Nº:77-2836.
Citation:573 F.2d 1095
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Walter T. BEST, Defendant-Appellant.
Case Date:March 31, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1095

573 F.2d 1095 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Walter T. BEST, Defendant-Appellant.

No. 77-2836.

United States Court of Appeals, Ninth Circuit

March 31, 1978

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Robert M. Holley, Sacramento, Cal., for defendant-appellant.

Harry Hull, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Eastern District of California.

Before ELY, WRIGHT and CHOY, Circuit Judges.

CHOY, Circuit Judge:

While this appeal arises from a simple conviction for drunk driving, it raises important issues involving the interpretation of the Assimilative Crimes Act, the formulation of federal common law, and the limits upon federal authority over the states imposed by the Constitution.

Appellant Best pleaded guilty to driving a vehicle on McClellan Air Force Base (a federal enclave in the State of California) while under the influence of alcohol, in violation of California Vehicle Code § 23102(a), a statute incorporated into federal law by 18 U.S.C. § 13, the Assimilative Crimes Act. The United States Magistrate for the Eastern District of California sentenced Best to serve ten days in jail and to pay a fine of $350 pursuant to Cal.Veh.Code § 23102(c). 1 The magistrate further ordered that appellant's driver's license be suspended for six months pursuant to Cal.Veh.Code § 13201.5(a). 2 Best moved to correct the sentence under Fed.R.Crim.P. 35 on the ground that the magistrate lacked the power to suspend his driver's license. The motion was denied, and the district court affirmed that denial. We reverse and remand. 3

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Appellant does not dispute the sentence of ten days or the fine. However, he contends that the portions of the California Vehicle Code providing for suspension of driver's licenses are not incorporated into federal law by virtue of the Assimilative Crimes Act, and that the suspension of his California driver's license by a federal magistrate is an impermissible interference with that state's regulation of its highways.

Assimilative Crimes Act

The Assimilative Crimes Act, 18 U.S.C. § 13, states:

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title (defining the special maritime and territorial jurisdiction of the United States), 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.

The purpose of this statute, the history of which dates to 1825, 4 is to conform the criminal law of federal enclaves to that of local law except in cases of specific federal crimes. United States v. Sharpnack, 355 U.S. 286, 289-95, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958); Acunia v. United States, 404 F.2d 140, 142 (9th Cir. 1968). It has been described as "a shorthand method of providing a set of criminal laws on federal reservations by using local law to fill the gaps in federal criminal law," United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974), and does not apply where another federal statute makes criminal the same conduct condemned under state law. 5 The Act is appropriately applied here, since there is no express enactment of Congress providing punishment for drunk driving. See United States v. Walker, 552 F.2d 566, 568 (4th Cir. 1977).

However, the Act by its own terms incorporates into federal law only the criminal laws of the jurisdiction within which the enclave exists; it is, itself, a penal statute. See United States v. Sharpnack, supra, 355 U.S. at 291-93, 78 S.Ct. 291. Thus, in the instant case only those California statutes making drunk driving a criminal offense and authorizing punishment therefor are assimilated into federal law under the Act.

Appellant contends that the provisions of the California Vehicle Code providing for suspension of driver's licenses are regulatory and not punitive. He would, for purposes of determining whether the statutes in question are within the scope of the Act, rely on state definitions of "punishment." California's interpretation of those of its criminal statutes incorporated into federal law is of course binding under the Act. But California's definition of "punishment" cannot govern if it conflicts with the scope of that term as used in the federal statute. What meaning Congress intended is a federal question which we must determine. See Johnson v. Yellow Cab Co., 321 U.S. 383, 391, 64 S.Ct. 622, 88 L.Ed. 814 (1944); Puerto Rico v. Shell Co., 302 U.S. 253, 265-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937); see also Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 208, 66 S.Ct. 992, 90 L.Ed. 1172 (1946).

In United States v. Sharpnack, supra, the Supreme Court analyzed the history of the Assimilative Crimes Act beginning with the Act of 1825, sponsored by Daniel Webster in the House of Representatives, in which the Congress expressly adopted the fundamental policy of "conformity to local law." The Court concluded that the succeeding series of reenactments culminating in the present

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statute "demonstrates a consistent congressional purpose to apply the principle of conformity to state criminal laws . . . ." 355 U.S. at 290-91, 78 S.Ct. at 295. The rationale for this policy was articulated in the earlier case of United States v. Press Publishing Co.:

It is certain . . . that as to such offenses the state law, when they are by that law defined and punished, is adopted and made applicable. . . . When these results of the statute are borne in mind, it becomes manifest that Congress, in adopting it, sedulously considered the twofold character of our constitutional government, and had in view the enlightened purpose, so far as the punishment of crime was concerned, to interfere as little as might be with the authority of the states on that subject . . . .

219 U.S. 1, 9, 31 S.Ct. 212, 214, 55 L.Ed. 65 (1911) (emphasis supplied). Pursuant to this rationale, we recently determined that particular state laws were prohibitory rather than regulatory against the backdrop of the Act's policy that a state's penal laws will be uniformly applied to citizens on and off federal enclaves. United States v. Marcyes, 557 F.2d 1361, 1364-65 (9th Cir. 1977).

We think the congressional purpose can best be achieved by application of state interpretations of what constitutes "punishment," since this accomplishes the Act's objective of providing a criminal law for federal enclaves while at the same time effectuating the policy of conformity to local law. 6

California Law

The California scheme for suspending the driver's licenses of those who are convicted of drunk driving is dichotomous: authority to suspend is vested both in the courts and in the Department of Motor Vehicles (DMV) under certain circumstances. Thus, pursuant to Cal.Veh.Code § 13352, the DMV is required to suspend the license of one who is convicted for the second time of drunk driving whether or not the court orders suspension. While no California authority appears with respect to court-ordered suspensions, it is well established that such departmental suspensions are regulatory and not penal. See, e. g., Beamon v. Department of Motor Vehicles, 180 Cal.App.2d 200, 209-10, 4 Cal.Rptr. 396, 403 (1960).

Until recently, the dichotomy between court-ordered and departmental suspensions was more clear. When Beamon was written, for example, California gave the DMV and the courts concurrent authority to suspend driver's licenses after the first conviction for drunk driving, so that where a court chose not to suspend the convict's license, the DMV could still do so in its discretion even in the face of the court's recommendation of no suspension. See former Cal.Veh.Code §§ 13352, 13354; Hough v. McCarthy, 54 Cal.2d 273, 281-82, 5 Cal.Rptr. 668, 673-74, 353 P.2d 276, 280 (1960). However, this clear definition no longer exists with respect to first convictions for drunk driving.

Cal.Veh.Code § 13201.5, enacted in 1975, provides that the court may suspend a driver's license upon a first conviction, while § 13352(a), enacted in 1972, requires the DMV to suspend a driver's license upon a first conviction except "where the court does not order the department to suspend." 7 Moreover, the DMV's discretionary suspension authority, which formerly included first convictions for drunk driving, see Hough v. McCarthy, supra, no longer extends to this ground. See Cal.Veh.Code §§ 13361, 16430; see also Cal.Veh.Code §§ 13359, 12805-09, 13800. Finally, Veh.Code § 13210, enacted in 1971, makes it mandatory for the court to order the department to suspend upon a first conviction "unless the person shows good cause why such order should not be made."

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Thus, suspension upon a first conviction for drunk driving pursuant to Cal.Veh.Code § 13201.5 is not susceptible to classification as strictly court-ordered or strictly departmental. Rather, it is a hybrid procedure wherein the court effectively orders the DMV to suspend. 8 The California cases dealing with departmental suspension are therefore not precisely apposite. The rationale of those cases, however, is sufficiently articulated so that we may conclude that under the existing statutory scheme, suspension upon a first conviction of drunk driving does not constitute "punishment" under California law.

In Beamon v. Department of Motor Vehicles, supra, 180 Cal.App.2d 200, 210, 4 Cal.Rptr. 396, 403 (1960), the California Court of Appeal upheld the grant of suspension authority to the DMV against a challenge that it comprised an unconstitutional delegation of judicial and legislative power,...

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