U.S. v. Brown

• Citation: 608 F.2d 551,57 A.L.R. Fed. 950
• Decision Date: 17 December 1979
• Docket Number: No. 79-5241,79-5241
• Parties: , 5 Fed. R. Evid. Serv. 312 UNITED STATES of America, Plaintiff-Appellee, v. Gennie Lynn BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 551

608 F.2d 551

57 A.L.R.Fed. 950, 5 Fed. R. Evid. Serv. 312

UNITED STATES of America, Plaintiff-Appellee, v. Gennie Lynn BROWN, Defendant-Appellant.

No. 79-5241.

United States Court of Appeals,

Fifth Circuit.

Dec. 17, 1979.

Gene Douglass (court-appointed), Wichita Falls, Tex., for defendant-appellant.

Shirley Baccus-Lobel, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, GEE and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge.

This appeal raises the question whether the Assimilative Crimes Act, 18 U.S.C. section 13, ¹ has properly been used as the prosecutorial vehicle on the facts in this case. We hold that the Act has been properly used, but reverse the conviction on other grounds.

Gennie Lynn Brown, appellant, resided at Sheppard Air Force Base, Texas, with her husband and four children two hers and two her husband's from previous marriages. On November 16, 1978, she carried her husband's two-year-old son, Bryan, to her neighbor's home. The child was bruised on the forehead and unconscious. Mrs. Brown told the neighbor that while she was dressing Bryan, he fell and hit his head on the corner of a chalkboard. Because Bryan was breathing irregularly, the neighbor called an ambulance and began mouth-to-mouth resuscitation. Bryan was carried to the base hospital where he was examined by the base pediatrician, Dr. Ortaliz. Bryan was then rushed to the county hospital where emergency surgery was performed which saved his life. The surgery disclosed a subdural hematoma covering the left side of his brain. The surgeon testified that in his opinion the injury was probably caused by a blunt, flat instrument. After being shown the chalkboard, he stated that it was improbable that the injury was caused by striking a corner of the board. Dr. Ortaliz testified that in his opinion the appellant's explanation was inconsistent with the massive bleeding.

The indictment charged that within the territorial jurisdiction of the United States, appellant knowingly and intentionally engaged in conduct causing serious bodily injury to Bryan Jay Brown, a child of two years, in violation of section 22.04 of the Texas Penal Code and the Assimilative Crimes Act, 18 U.S.C. section 13. ² Appellant was acquitted of intentional conduct, but convicted of the lesser offense of having recklessly or with criminal negligence engaged in conduct causing serious bodily injury to the child.

Two main issues are raised. First, since conduct made punishable by the Texas statute (injury to child) may also be punishable under 18 U.S.C. section 113 (federal assault statute), ³ did the trial court have jurisdiction under the Assimilative Crimes Act? Second, whether evidence of recent injuries and hospitalizations prior to November 16, 1979, was erroneously admitted.

I

The purpose of the Assimilative Crimes Act (ACA) is to provide a set of criminal laws for federal enclaves by the use of the penal law of the local state "to fill the gaps in federal criminal law." United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974); United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958). Prosecution under the ACA is not for enforcement of state law but for enforcement of federal law assimilating a state statute. Acunia v. United States, 404 F.2d 140 (9th Cir. 1968). The government can resort to state law for prosecution only if no act of Congress directly makes a defendant's conduct punishable. United States v. Big Crow, 523 F.2d 955 (8th Cir. 1975).

Relying on Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946), and on United States v. Butler, 541 F.2d 730 (8th Cir. 1976), the appellant argues that prosecution under the state child abuse statute must be barred because the conduct charged is punishable under the federal criminal assault provisions of 18 U.S.C. section 113. Neither Williams nor Butler, however, support the appellant's contention. Both cases deal with government attempts to enlarge the scope of a congressionally defined penal offense by the application of a "conflicting state definition" under the ACA.

In Williams, the defendant was convicted of statutory rape under state law pursuant to the ACA. While federal law required proof of forceful intercourse with a victim under 16 years of age, the state statute proscribed intercourse with any victim under 18 years of age, regardless of consent. Because the victim was between 16 and 18 years of age, Williams could be convicted under state law, but not under the federal statute. His conviction under the state statute was set aside by the Supreme Court as an improper use of the ACA to expand the congressional definition of a penal offense.

The defendant in Butler successfully overturned his state law conviction under the same reasoning applied in Williams. Although both state and federal law proscribed the possession of a firearm by a felon, only the federal statute required proof of interstate travel. Lacking that proof, the government rested its prosecution on the violation of state law pursuant to the ACA. Relying on Williams, the circuit court overturned Butler's conviction.

In Williams and Butler, state and federal laws proscribed the same offenses which were defined differently in state and federal statutes. Those decisions do not affect the rule permitting prosecution under the ACA only for state crimes which are not made penal by any law of Congress. See, Williams v. United States, 327 U.S. at 717, 66 S.Ct. 778. This has been held 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. Williams v. United States; United States v. Big Crow, 523 F.2d 955 (8th Cir. 1975); United States v. Patmore, 475 F.2d 752 (10th Cir. 1973).

Although the acts with which the defendant was charged could be punishable under the federal assault statute, the "precise act" of injury to a child is not proscribed by federal law. See, Fields v. United States, 438 F.2d 205 (2d Cir. 1971). In Fields, the defendant was convicted of malicious shooting under state law pursuant to the ACA. The court rejected Fields's argument that the federal assault statute barred any prosecution of him under the state statute.

The applicable state and federal statutes in this case are quite different. The federal statute proscribed assaults. The Ohio law prohibits batteries. Moreover, the state statute deals with a very specific class of batteries those involving shootings, cuttings or stabbings. The Ohio statute fits the facts of this case more precisely and it was not improper for the government to proceed under it.

Fields v. United States, at 208.

Mrs. Brown, like the defendant in Fields, has been prosecuted under a state statute designed to punish specific conduct of a different character than that proscribed in the federal assault statute. We hold that the government properly proceeded under the state child abuse statute as made applicable by the ACA.

II

Appellant further challenges the admission of testimony showing injuries and hospitalizations prior to November 16, 1978. Over defense objections, the government introduced evidence that on November 2, 1978, Bryan was brought to the base hospital suffering from severe multiple bruises about his face and body. The treating physician, a family services representative, and the base child advocacy officer, all testified to his condition at that time. Photographs taken at the time were shown to the jury.

The appellant contends that testimony of prior injuries is extrinsic evidence not admissible under any of the exceptions recognized in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978). We ...