U.S. v. Devenport, 97-1292

• Decision Date: 30 October 1997
• Docket Number: No. 97-1292,97-1292
• Citation: 131 F.3d 604
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bradley J. DEVENPORT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 604

131 F.3d 604

UNITED STATES of America, Plaintiff-Appellee, v. Bradley J. DEVENPORT, Defendant-Appellant.

No. 97-1292.

United States Court of Appeals Seventh Circuit.

Argued Sept. 4, 1997.

Decided Oct. 30, 1997.

Peggy A. Lautenschlager, Larry Wsalek (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Ralph A. Kalal (argued), Kalal & Associates, Madison, WI, for Defendant-Appellant.

Before CUDAHY, FLAUM, and DIANE P. WOOD, Circuit Judges.

FLAUM, Circuit Judge.

In this appeal, we decide whether the Federal Assimilative Crimes Act, 18 U.S.C. § 13, assimilates a Wisconsin statute that imposes civil penalties for first offense drunk driving. We hold that it does not and therefore reverse and remand this matter with instructions to vacate the judgment below and dismiss for lack of subject-matter jurisdiction.

I. Background

Bradley Devenport was arrested by military police for drunk driving while he was passing through Fort McCoy, a military base in the Western District of Wisconsin. After Devenport failed to pass several field sobriety tests, the arresting officer brought him to the Provost Marshal Office and administered a breathalyzer test. The test showed Devenport to have a breath-alcohol level in excess of the statutory limit. Devenport was ultimately charged with violating two Wisconsin statutes: § 346.63(1)(a), which prohibits operation of a motor vehicle while under the influence of an intoxicant, ¹ and § 346.63(1)(b), which prohibits operation of a motor vehicle by a person with a prohibited alcohol concentration.

Because the offenses occurred on a stretch of highway lying within a federal military base, federal authorities prosecuted Devenport in federal court pursuant to the Assimilative Crimes Act, which incorporates state criminal laws in federal enclaves. Devenport filed a number of pretrial motions, including a motion to dismiss for lack of subject-matter jurisdiction. According to Devenport, the district court lacked jurisdiction over his case because he was charged only with a civil offense, not a criminal offense, under Wisconsin law. The magistrate judge denied this motion, and Devenport ultimately entered a conditional plea of guilty, pursuant to Fed.R.Crim.P. 11(a)(2) and 58(a)(2), to the charge of violating Wisconsin Statute § 346.63(1)(b). The district court affirmed. Because Devenport's appeal raises only questions of law, we review the conclusions of the district court de novo. Zeigler Coal Co. v. Kelley, 112 F.3d 839, 842 (7th Cir.1997).

II. Assimilation of Civil Offenses under the Assimilative Crimes Act

The Assimilative Crimes Act incorporates a state's criminal laws and provides for their enforcement on federal enclaves. The Act provides:

Whoever within or upon any [federal enclave], 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 ... 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.

18 U.S.C. § 13(a). Although the Act on its face makes no distinction between criminal and civil punishments, it is generally understood to assimilate only a state's criminal laws. The roots of this understanding lie in the Supreme Court's decision in United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958), in which the Court reviewed the history and purposes of the various Assimilative Crimes Acts leading up to the modern version of the statute adopted in 1948. These early Acts "made applicable to [federal] enclaves the criminal laws in force in the respective States" and demonstrated "a consistent congressional purpose to apply the principle of conformity to state criminal laws in punishing most minor offenses committed within federal enclaves." Id. at 291, 78 S.Ct. at 295.

The modern version of the Act, like its predecessors, continues to provide that "within each federal enclave, to the extent that offenses are not preempted by congressional enactments, there shall be complete current conformity with the criminal laws of the respective States in which the enclaves are situated." Id. at 293, 78 S.Ct. at 295. The courts of appeals, including this court, have discussed the Assimilative Crimes Act in similar terms. See United States v. Chaussee, 536 F.2d 637, 643-44 (7th Cir.1976) ("[T]he purpose of the Assimilative Crimes Act ... is to supplement the Criminal Code of the United States by adopting state criminal statutes relating to acts or omissions committed within areas over which the federal government has exclusive jurisdiction ....") (quoting United States v. Patmore, 475 F.2d 752, 753 (10th Cir.1973)); see also United States v. Sain, 795 F.2d 888, 890 (10th Cir.1986) ("The Act fills in gaps in federal criminal law by providing a set of criminal laws for federal enclaves."); United States v. Brown, 608 F.2d 551, 553 (5th Cir.1979) ("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.") (citations and internal quotation omitted).

The vast majority of prosecutions brought under the Assimilative Crimes Act have involved underlying state offenses that are clearly criminal in nature. The courts are divided on the question of whether state civil offenses may be assimilated under the Assimilative Crimes Act. Compare United States v. Carlson, 900 F.2d 1346, 1347 (9th Cir.1990) (Hawaii's speeding law is civil and cannot be assimilated); and United States v. Rowe, 599 F.2d 1319, 1320 (4th Cir.1979) (per curiam) (Virginia's state law provision allowing license suspension for refusal to take breathalyzer test is civil and cannot be assimilated); and United States v. Golden, 825 F.Supp. 667 (D.N.J.1993) (New Jersey's speeding law is civil and cannot be assimilated), with United States v. Manning, 700 F.Supp. 1001 (W.D.Wis.1988) (assimilating Wisconsin's drunk driving statute even though it provides only for civil penalties); and United States v. White, 39 M.J. 796, 804-05 (C.M.R.1994) (rejecting Carlson and assimilating Hawaii's open alcohol container law).

In Carlson, the Ninth Circuit considered whether Hawaii's speeding law could be assimilated under the Assimilative Crimes Act. The court first determined that "Hawaii has clearly decided that a speeding violation does not constitute a criminal offense." Carlson, 900 F.2d at 1347-48. Since the court believed that only state criminal offenses may be assimilated, Hawaii's characterization of the speeding offense as civil ended the inquiry. The assimilation inquiry is "rooted in an analysis of state law," and the court recognized that "our analysis of [the assimilation] question can lead to a different answer under a different state law." Id. at 1348. Similarly, the Fourth Circuit in Rowe refused to assimilate the Virginia state law provision at issue because "[t]he Supreme Court of Virginia has held that a proceeding under [the Virginia statute] is administrative and civil, not criminal, in nature." Rowe, 599 F.2d at 1320. The court held that "[w]e, of course, must accept this authoritative interpretation of Virginia law." Id.

III. Assimilation of Wisconsin Statute § 346.63(1)(b)

In this appeal, the government urges us to reject the approach adopted in Carlson and Rowe that offenses defined as civil under state law may not be assimilated by the Assimilative Crimes Act. We decline to accept this invitation.

Devenport's violation of Wisconsin Statute § 346.63(1)(b) was a civil violation, not a criminal violation. The Wisconsin legislature defines a "crime" as "conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by forfeiture is not a crime." Wis. Stat. § 939.12. Devenport's offense was a civil violation under the terms of this definition. First, Devenport could not have been sentenced to imprisonment; imprisonment becomes a sentencing option only upon the second violation of the Wisconsin drunk driving statute. Wis. Stat. § 346.65(2)(b). Second, the statute specifies that the monetary penalty imposed on first offenders like Devenport is a forfeiture, not a fine. First offenders "shall forfeit not less than $150 or more than $300", Wis. Stat. § 346.65(2)(a), whereas repeat offenders "shall be fined not less than $300 nor more than $1,000 ... ", Wis. Stat. § 346.65(2)(b) (emphasis added). Because the penalty for a first offense is only a civil forfeiture, and there is no possibility of imprisonment, Devenport's offense is not a crime under Wisconsin law. See State v. McAllister, 107 Wis.2d 532, 319 N.W.2d 865, 868 (1982) (acknowledging that previous convictions under § 346.63(1) may be civil or criminal); State v. Peterson, 104 Wis.2d 616, 312 N.W.2d 784, 786 (1981) ("[T]he legislature intended that violations of state traffic laws involving forfeitures be treated as civil offenses ...."); see also Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984) ("The State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible.").

The government acknowledges that Wisconsin classifies Devenport's offense as a civil violation. The government argues that, even though Wisconsin defines Devenport's offense as civil, the offense may nevertheless be assimilated under the Assimilative Crimes Act because it is part of Wisconsin's uniform policy of prohibiting drunk driving.

The government distinguishes this case from Carlson, arguing that the speeding law in that case was only a regulatory statute whereas the Wisconsin drunk driving statute is prohibitory. Even though the punishment for the first violation of Wisconsin...