574 F.2d 988 (9th Cir. 1978), 76-3349, United States v. Smith

Docket Nº:76-3349 to 76-3351.
Citation:574 F.2d 988
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alfred SMITH, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Irvin WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph KOMOK, Defendant-Appellant.
Case Date:February 16, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 988

574 F.2d 988 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Alfred SMITH, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Irvin WILLIAMS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Joseph KOMOK, Defendant-Appellant.

Nos. 76-3349 to 76-3351.

United States Court of Appeals, Ninth Circuit

February 16, 1978

Rehearing and Rehearing En Banc Denied May 12, 1978.

Page 989

Keith L. Kessler (argued), William J. Bender (argued), Seattle, Wash., Denton P. Andrews (argued), Gig Harbor, Wash., for defendants-appellants.

John Obenour, Asst. U.S. Atty. (argued), Tacoma, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before KILKENNY, SNEED and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

Appellants, three male inmates of the federal penitentiary at McNeil Island in Washington, committed forcible acts of sodomy upon another male prisoner. They were convicted under the Assimilative Crimes Act, 18 U.S.C. § 13, by application of a Washington statute, Wash.Rev.Code Ann. § 9.79.170 (1977), 1 which defines the offense of rape to include such acts. Id. § 9.79.140. 2 Appellants Williams and Smith were convicted of three counts under the statute and appellant Komok was convicted of one count. Appellants Williams and Smith were also convicted of assault with intent to commit a felony under 18 U.S.C. § 113.

Appellants contend that Congress did not intend to permit reference to state law for punishment of the sexual conduct in question, and that in any event to do so discriminates against them by reason of their sex in violation of the equal protection clause. It is further contended that, assuming the Assimilative Crimes Act does incorporate the Washington statute, the minimum prison

Page 990

term provisions of the Washington statute are not applicable to sentencing for the federal offense. We affirm the convictions but rule that the state sentencing provision which requires a minimum period of confinement was not binding on the district court judge. We therefore remand the case to the district court for resentencing.

Appellants argue that the Washington state statute may not be incorporated under the Assimilative Crimes Act since to do so would be to redefine and enlarge the definition of rape set forth by Congress in 18 U.S.C. § 2031. They cite Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946), wherein the Court held the Assimilative Crimes Act did not incorporate an Arizona statute prohibiting sexual intercourse with a girl under the age of eighteen years. The Court based its decision on a recognition that Congress had already covered the specific act committed by the defendant in a statute punishing adultery and had also legislated to proscribe the generic act of having carnal knowledge by a statutory rape section fixing the age of consent at sixteen years.

The federal statutory scheme with respect to the conduct punished in this case differs from the relevant scheme in Williams. Section 2031 of title 18 3 has been interpreted to punish rape as defined at common law, that is, carnal knowledge of a female by force or threat of force. Henry v. United States, 432 F.2d 114, 119 (9th Cir. 1970), modified, 434 F.2d 1283, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); see United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976); Oliver v. United States, 230 F. 971 (9th Cir.), cert. denied, 241 U.S. 670, 36 S.Ct. 721, 60 L.Ed. 1230 (1916). Hence Congress has neither proscribed the specific acts committed by these defendants nor the generic conduct in which they engaged in such a way as to indicate an intent to "(cover) the field with uniform federal legislation . . . ." Williams, 327 U.S. at 724, 66 S.Ct. at 785. There is no federal statute punishing the specific acts perpetrated by a homosexual rapist. See Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966).

In arguing that Congress did act with reference to the type of conduct in question here when it passed the statute proscribing rape, appellants rely upon the policy reflected by the Washington statute, which defines rape of a female and the act of sodomy as one and the same offense. Quite apart from the observation that congressional intent in passing the Assimilative Crimes Act in 1948 cannot be established persuasively by reference to a Washington statute enacted in 1975, the act of rape is not, for federal purposes, generically the same as the acts of sodomy committed here. The Washington statute reflects an approach to the delicate problem of defining sexual offenses which is an exception among the states, not the rule. The Model Penal Code and almost all state criminal codes classify sodomy as a crime distinct from common law rape. Model Penal Code §§ 213.1, 213.2 (1962); id. § 207.5, Comment at 279 (Tent.Draft...

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