U.S. v. Guardia, CR 96-0244 BB.
| Decision Date | 25 June 1998 |
| Docket Number | No. CR 96-0244 BB.,CR 96-0244 BB. |
| Parties | UNITED STATES of America, Plaintiff, v. David GUARDIA, M.D., Defendant. |
| Court | U.S. District Court — District of New Mexico |
Tara Neda, Assistant U.S. Attorney, Albuquerque, NM, for Plaintiff.
Charles Daniels, Nancy Hollander, Albuquerque, NM, for Defendant.
THIS MATTER comes before the Court on Defendant's Renewed Motion to Dismiss Assimilative Crime Act Counts (Based on Newly Decided Authority) (Doc. 136), filed March 19, 1998. Having reviewed the submissions of the parties and the relevant law, the Court finds that Defendant's motion should be GRANTED in part and DENIED in part.
Defendant David Guardia, M.D. is charged with sexual assaults allegedly occurring during gynecological examinations. In a renewed motion based on new authority, Defendant seeks dismissal of Counts II, III, V, and VI of the indictment, arguing that the crimes alleged in these counts are improperly charged under the Assimilative Crimes Act. Defendant's July 2, 1996 Motion to Dismiss Counts II and V, on the same basis, was denied by this Court on August 30, 1996. Counts II and V charge criminal sexual penetration, while Counts III and VI charge battery, all in violation of New Mexico state law, under the Assimilative Crimes Act.
The Assimilative Crimes Act permits prosecution in federal court of conduct occurring on federal land which would be punishable if committed within the jurisdiction of the state in which the federal land is located, but only if the conduct is "not made punishable by any enactment of Congress." 18 U.S.C. § 13; United States v. Adams, 140 F.3d 895 (10th Cir.1998). Defendant's renewed motion to dismiss the counts relying on state law is based on a recent Supreme Court decision, Lewis v. United States, ___ U.S. ___, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998), which, Defendant argues, expressly disapproves of Tenth Circuit precedent and redefines the point at which a "gap" exists in federal law for state law to fill.
Based on Lewis, the Court has reconsidered Defendant's original motion and now holds that the state criminal sexual penetration charges should be dismissed, as they are "directed at roughly the same sort of conduct" (Lewis at 1139) as the federal statutes under which Defendant has also been charged. However, the state battery statute is sufficiently different from the federal "assault" statute that a gap does exist with respect to those charges, and they will be assimilated.
In determining whether to assimilate a state criminal statute in a particular case, the court must first examine whether the defendant's act is "made punishable by any enactment of Congress." If so, the court must next determine whether "applicable federal law indicate[s] an intent to punish conduct such as the defendant's to the exclusion of the particular state statute at issue" Lewis at 1143. With regard to the charge of criminal sexual penetration in this case, the answer to both of these questions is yes.
Defendant has been charged with violation of both federal and state criminal statutes dealing with sexual penetration. The federal statute, 18 U.S.C. § 2242(2)(A), makes it a crime to "knowingly ... engag[e] in a sexual act with another person if that person is ... incapable of appraising the nature of the conduct." The term "sexual act" is defined as:
the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
18 U.S.C. § 2246(2)(C).
The New Mexico statute under which Defendant was also charged defines criminal sexual penetration in the third degree as "the unlawful and intentional ... causing of penetration, to any extent and with any object, of the genital or anal openings of another ... through the use of force or coercion." N.M.S.A.1978 § 30-9-11(A), (E) (1997 Cum. Supp.). Section 30-9-11(B) also provides that criminal sexual penetration "does not include medically indicated procedures."
Although in United States v. Johnson, 967 F.2d 1431, 1436 (10th Cir.1992), the Tenth Circuit held that the appropriate inquiry in determining whether a state criminal enactment should be assimilated is "whether the federal statute covers the precise acts" addressed in the state statute, this holding was specifically abrogated in Lewis (at 1140-41):
some lower courts have said that the words `any enactment' refer only to federal enactments that make criminal the same `precise acts' as those made criminal by the relevant state law [citing Johnson]... But this interpretation of federal `enactments' is too narrow.
The correct test, said the Lewis court (at 1142), is whether both state and federal statutes "seek to punish approximately the same wrongful behavior." If so, the court must go on to ask whether the federal enactment was intended by Congress to occupy the field to the exclusion of state law. If Congress did so intend, then state law cannot be assimilated, and counts of the indictment based on state statutes must be dismissed.
The Government offers two bases for its argument that the state and federal statutes dealing with criminal sexual penetration cover different ground. First, the Government argues that the New Mexico statute expressly provides an element not contained in the federal statute, that is, that the sexual contact did not involve a "medically indicated procedure," whereas the federal statute contains no such express condition. This does not create a gap in federal law. As Defendant correctly points out, the requirement of "no medically indicated procedure" is clearly implied in the federal statute whether or not it is explicitly spelled out. Otherwise, every gynecologist would violate the statute every time they conducted a legitimate medical examination.
Secondly, the Government argues, the federal statutes require the specific intent of sexual gratification or victim humiliation, whereas the state statute is merely a general intent crime. However, it is the doctor's intent in touching the patient which turns a legitimate gynecological examination into a criminal sexual assault. Thus, whenever a physician is accused of sexual assault in the course of a medical examination, the requirement of an intent to gratify sexual desire or otherwise intrude on the victim's bodily integrity must necessarily be included in the definition of criminal sexual penetration in the state statute. In addition, the New Mexico sexual assault statute requires as "an essential element of the offense" that the penetration or contact be unlawful, that is, "done with the intent to arouse or gratify sexual desire, or to intrude upon the bodily integrity of the victim." State v. Osborne, 111 N.M. 654, 808 P.2d 624, 627 (1991); see also, UJI Criminal 14-132 (Vol. 36, No. 52, SBB 10 (December 25, 1997)); UJI Criminal 14-984. The "unlawfulness" element provides a parallel to the federal statute's specific intent, and it is clear that the two statutes "seek to punish approximately the same wrongful behavior."
The final Lewis requirement has also been met, in that it is apparent that Congress intended the federal statutes on criminal sexual penetration to cover the field as an integrated whole to the exclusion of state law, leaving no gap for the New Mexico statute...
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United States v. Rutherford
...... 744-45 (9th Cir. 2021) (Bennett, J., dissenting); United. States v. Guardia, 10 F.Supp.2d 1237, 1238-40 (D.N.M. 1998). In other words, the ACA “does not adopt state. ......