U.S. v. Eades

• Decision Date: 04 February 1980
• Docket Number: 79-5027,Nos. 78-5216,s. 78-5216
• Citation: 615 F.2d 617
• Parties: UNITED STATES of America, Appellee, v. John Herbert EADES, Appellant. UNITED STATES of America, Appellee, v. Larry F. WILSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 617

615 F.2d 617

UNITED STATES of America, Appellee, v. John Herbert EADES, Appellant.

UNITED STATES of America, Appellee, v. Larry F. WILSON, Appellant.

Nos. 78-5216, 79-5027.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 5, 1979.

Decided Feb. 4, 1980.

Peter D. Ward, Asst. Federal Public Defender, Baltimore, Md. (Charles G. Bernstein, Federal Public Defender, Baltimore, Md., Susan Preston, Third Year Law Student, on brief), for appellants.

Richard D. Bennett, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., and Lynne A. Battaglia, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and PERRY, ^* District Judge.

WINTER, Circuit Judge:

These consolidated appeals present the question of whether, under the Assimilative Crimes Act, one may be charged and convicted of a third degree sexual offense in violation of Art. 27, § 464B(a)(1)(iii) Ann.Code of Md. (1976 Repl. Vol. and 1978 Cum.Supp.) which occurred on a federal reservation, when Congress has enacted 18 U.S.C. § 113 making simple assault and more aggravated forms of assault federal offenses. We hold that Congress has preempted the Maryland statute and that one may not be charged and convicted of the Maryland crime perpetrated on a federal reservation in that state.

This question is the sole one in the appeal in No. 79-5027, but the appeal in No. 78-5216 raises questions of alleged misjoinder of other crimes and alleged abuse of discretion on the part of the district court in declining to sever certain joined counts. We see no merit in these several contentions. Thus, we reverse both convictions under Maryland law but otherwise affirm.

I. No. 78-5216

John Herbert Eades was charged in a 9-count indictment with a variety of offenses arising out of the following three major incidents which occurred at the United States Naval Academy, a federal reservation at Annapolis, Maryland:

On January 28, 1978, a female officer who was a member of the faculty, returned to the ladies locker room at McDonough Hall after having been swimming in the pool located in that building. She was standing in the shower room, wrapped in a towel, when she noticed a man, later identified as Eades, looking at her through a window in the shower room. Eades entered the room, approached her and backed her into a shower stall. He started to kiss her neck and forced her down on a ledge in the stall. While she sought to defend herself and to keep the towel wrapped around her, he placed his arm around her and started to move his hand down her side and leg. He succeeded in touching her left buttock through the towel and ran his hand down to her knee. When Eades started to place his hand under the towel, she screamed, and Eades fled.

On January 30, 1978, Eades was apprehended in another locker room on the Academy grounds cutting the locks off lockers.

On February 4, 1978, a female cadet who was to be a member of the next entering class was in the ladies locker room at McDonough Hall. She was standing in front of her locker changing from her sweatshirt and bathing suit into her blouse. While only partially clothed, she noticed Eades standing but two feet from her. When she screamed, he grabbed her, threw her to the floor and banged her head on the floor. He continued to bang her head as she continued to scream, then he pulled down her lower undergarment and rubbed her genital area with both hands. Eventually, Eades abruptly left. ¹

Counts 1-4 of the indictment involved the incident on January 28, 1978, counts 5-8 concerned the second locker room assault on February 4, and count 9 referred to January 30. Eades was indicted for assault with intent to commit rape in violation of 18 U.S.C. § 113(a) (count 1), a third degree sexual offense in violation of Maryland law with respect to the first victim (count 2), simple assault of his first victim in violation of 18 U.S.C. § 113(e) (count 3), entry upon the Naval Academy for the purpose of committing assault with intent to rape, to engage in unlawful sexual conduct, and to commit assault with respect to his first victim in violation of 18 U.S.C. § 1382 (count 4), assault with intent to rape in violation of 18 U.S.C. § 113(a) with respect to his second victim (count 5), a third degree sexual offense in violation of Maryland law with respect to his second victim (count 6), assault by striking of his second victim in violation of § 113(d) (count 7), entry upon the Naval Academy for the purpose of committing a crime against his second victim in violation of 18 U.S.C. § 1382 (count 8), and entry upon the Naval Academy for the purpose of committing theft in violation of 18 U.S.C. § 1382 (count 9).

At trial, the jury acquitted Eades of the charges contained in counts 1 and 5 (assault with intent to rape) and counts 4 and 8 (unlawful entry for the purpose of committing sex crimes). He was convicted, however, on counts 2 and 6, charging the Maryland third degree sex offense with respect to both victims, counts 3 and 7, charging simple assault, and assault by striking, respectively, and count 9, entry upon the Academy grounds for the purpose of theft.

Prior to trial, Eades had unsuccessfully moved to sever various counts on the grounds of misjoinder and discretionary severance. He also sought to dismiss counts 2 and 6 on the grounds of improper use of the Assimilative Crimes Act, 18 U.S.C. § 13. The district court held this motion sub curia until after the jury's verdicts, but denied it in a published opinion, United States v. Eades, 455 F.Supp. 436 (D.Md.1978).

No. 79-5027

Larry F. Wilson was charged with six offenses arising from his actions when he persuaded a young woman who was standing on the street in the District of Columbia at night awaiting a taxicab to accept his offer to drive her home in his car. After the young woman entered the car, he drove not to her home but to the Suitland Parkway, which is constructed on land acquired for the use of the United States and under its jurisdiction. While still driving the car, Wilson put his hand down his companion's skirt touching her sexual organs and said that he was going to have intercourse with her. Eventually the young woman was successful in grabbing the steering wheel and steering the car off of the road to the side where it became mired. While Wilson was seeking to extricate the car, the young woman jumped from it and was rescued by a United States Park Policeman.

Although Wilson was charged, inter alia, with kidnapping and several sexual offenses, he was convicted only of assault with intent to commit rape in violation of 18 U.S.C. § 113(a) and a third degree sexual offense in violation of Maryland law. A mistrial was declared with respect to the other charges.

In this appeal, Wilson raises no question about the correctness of his conviction under federal law of assault with intent to rape. Nor does he question that the evidence was legally sufficient to support his conviction of the Maryland third degree sexual offense if that charge were proper. But Wilson does contend that he was improperly charged and convicted of the Maryland crime because application of the state law to federal reservations in Maryland through the Assimilative Crimes Act has been preempted by the federal law on assault. Wilson unsuccessfully sought dismissal of the count of the indictment charging this crime prior to trial, but the district judge, relying upon United States v. Eades, supra, denied his motion to dismiss.

II.

The Assimilative Crimes Act, 18 U.S.C. § 13, makes punishable the doing of acts or the omission to do acts on federal reservations which, "although not made punishable by an enactment of Congress, would be punishable if committed or omitted" within the jurisdiction of the state in which the reservation is situated. Upon conviction of a violation of such an assimilated state law, the offender shall be subject to the punishment prescribed by the state.

The Maryland statute under which both defendants were convicted proscribes as a "third degree sexual offense" sexual contact by one against the will and without the consent of another where the accused threatens or places the victim in fear of, inter alia, death, serious physical injury or kidnapping. ² Art. 27, § 461, Ann.Code of Md. (1976 Repl. Vol. and 1978 Cum.Supp.) defines "sexual contact" to include the intentional touching of the anal or genital area for the purposes of sexual arousal or gratification.

The common question that these appeals present is whether the Assimilative Crimes Act makes the Maryland statute applicable to a federal reservation in Maryland when Congress has enacted 18 U.S.C. § 113, a comprehensive statute with respect to assaults. ³ Stated otherwise, the question is has there been a failure by Congress, notwithstanding the enactment of § 113, to make punishable the acts constituting the commission of a Maryland third degree sexual offense the necessary premise for making § 464B(a)(1)(iii) applicable to a federal reservation in Maryland under the Assimilative Crimes Act.

In denying Eades' pretrial motion to dismiss the counts of the indictment grounded on the Maryland statute as made applicable by the Assimilative Crimes Act, the district court confined its consideration to the question of whether the enactment of federal § 113(a) (assault with intent to rape) constituted congressional occupation of the subject matter so as to render § 464B(a)(1) (iii) inapplicable under the terms of the Assimilative Crimes Act. The district court ruled that it did not on the theory that only a conviction under § 113(a) required proof of an intent to rape; a conviction under § 464B(a)(1)(iii) could be had even where the accused had no intent to rape if it were shown that there was a touching of the anal or genital area without the consent of the victim accompanied by a threat or fear of serious physical injury. The ruling of ...