U.S. v. Mariea

• Citation: 795 F.2d 1094
• Decision Date: 27 June 1986
• Docket Number: 85-1946,Nos. 85-1770,s. 85-1770
• Parties: UNITED STATES of America, Appellant, v. James K. MARIEA and Jerry M. Smith, Defendants, Appellees. UNITED STATES of America, Appellee, v. James K. MARIEA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1094

795 F.2d 1094

UNITED STATES of America, Appellant, v. James K. MARIEA and Jerry M. Smith, Defendants, Appellees.

UNITED STATES of America, Appellee, v. James K. MARIEA, Defendant, Appellant.

Nos. 85-1770, 85-1946.

United States Court of Appeals, First Circuit.

Argued March 4, 1986.

Decided June 27, 1986.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom William H. Browder, Jr., Asst. U.S. Atty., Bangor, Me., and Richard S. Cohen, U.S. Atty., Portland, Me., were on brief, for U.S. of America.

Joseph H. Field, with whom Mary Lou Ciolfi and Loyd, Bumgardner, Field & Patterson, Brunswick, Me., were on brief, for James K. Mariea and Jerry M. Smith.

Before CAMPBELL, Chief Judge, COFFIN, Circuit Judge, and PETTINE, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

The Assimilative Crimes Act ("ACA" or the "Act"), 18 U.S.C. Sec. 13 (1982), supplements federal criminal law by providing that on federal reservations the relevant state criminal law is incorporated into federal law in respect to conduct "not made punishable by any enactment of Congress." ¹ Thus, if an individual violates Maine criminal law on a federal reservation in Maine, and his conduct is not made punishable by any enactment of Congress, the particular Maine penal provision which is violated becomes a part of federal law, and he may be prosecuted for the state law violation in the United States District Court for the District of Maine.

At issue in the present case is whether the fact that military personnel charged with drunken driving on a federal military installation can be prosecuted for that conduct in a court-martial under a provision of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. Secs. 801 et seq. (1982 & Supp. II 1984), bars assimilation into federal law of the Maine state law punishing drunken driving. Defendants argue, and the district court has ruled, that the ACA does not apply since the conduct is made punishable by an enactment of Congress namely, the UCMJ. This ruling, if sustained, leaves the federal district court without jurisdiction and requires that military defendants be prosecuted, if at all, by local military authorities. The United States has appealed from this ruling.

I.

Defendants James K. Mariea and Jerry M. Smith are both active-duty members of the armed forces stationed at the Naval Air Station at Brunswick, Maine. On January 17, 1985, Mariea was arrested after a hit-and-run accident on the military base, and subsequently charged in federal district court with violating Maine criminal statutes by driving while intoxicated, Me.Rev.Stat.Ann. tit. 29, Sec. 1312-B (Supp.1985), ² leaving the scene of an accident, Me.Rev.Stat.Ann. tit. 29, Sec. 894 (1978), ³ and eluding police, Me.Rev.Stat.Ann. tit. 29, Sec. 2501-A(3) (Supp.1985). ⁴ On February 11, 1985, Smith was apprehended on the Naval Air Station for driving under the influence, and a one-count information was subsequently filed, charging him with drunken driving in violation of Me.Rev.Stat.Ann. tit. 29, Sec. 1312-B. Since the state offenses took place on a federal enclave, the criminal information alleged that they were incorporated into federal law under the Assimilative Crimes Act.

The district court, on defendants' motion, dismissed the charge of driving under the influence as to both defendants, reasoning that a similar provision in the UCMJ precluded federal court jurisdiction under the Act. United States v. Smith, 614 F.Supp. 454 (D.Me.1985). Thus the entire information against Smith was dismissed. The court determined, however, that it had jurisdiction over the two additional charges against Mariea (for leaving the scene of an accident and eluding the police) because they were not specifically provided for under the UCMJ. Mariea subsequently entered a conditional guilty plea on those counts under Fed.R.Crim.P. 11(a), reserving his right to appeal from the court's pretrial ruling.

Because we hold that the Uniform Code of Military Justice is not an "enactment of Congress" within the meaning of the Assimilative Crimes Act, and thus that the Maine provision condemning driving under the influence is incorporated into federal law, we hold that the district court 1) erred in dismissing the drunken driving charges as to both defendants for lack of jurisdiction under the Act; but 2) correctly found that there was jurisdiction over the two additional counts against Mariea. Accordingly, we vacate and remand the cases on the drunken driving charges, and affirm Mariea's convictions on the charges of leaving the scene of an accident and eluding the police.

II.

Under the Assimilative Crimes Act, conduct punishable under state law is assimilated into federal law if it occurs on land reserved to the federal government, so long as the conduct is "not made punishable by any enactment of Congress." See note 1, supra. Thus if a provision of the Federal Criminal Code, 18 U.S.C. Secs. 1 et seq. (1982 & Supp. II 1984), makes punishable the same conduct punishable under state law, the ACA does not apply. See, e.g., Williams v. United States, 327 U.S. 711, 717, 66 S.Ct. 778, 781, 90 L.Ed. 962 (1946); United States v. Butler, 541 F.2d 730, 732, 734 (8th Cir.1976); United States v. Patmore, 475 F.2d 752, 753 (10th Cir.1973); Fields v. United States, 438 F.2d 205, 207 (2d Cir.), cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971); United States v. O'Byrne, 423 F.Supp. 588, 590 (E.D.Va.1973).

Defendants contend that the UCMJ is an enactment of Congress under the Act, ⁵ and that since a provision in the UCMJ punishes drunken driving by military personnel, 10 U.S.C. Sec. 911 (1982), ⁶ resort to state law through the ACA is impermissible. In contrast, the government urges us to construe the phrase "any enactment of Congress" to refer to criminal statutes of general applicability. Since the UCMJ is a specialized code that applies only to military personnel, the government contends that a UCMJ provision against drunken driving should not be viewed as an enactment of Congress as that term is used in the Act, and thus that state law properly applies to defendants.

The district court rejected the government's position because it found no reason to depart from what it saw as the plain language of the Act by restricting the scope of the phrase "any enactment of Congress." Rather it found that the purpose of the ACA is to fill gaps in the federal law "where no action of Congress has been taken to define the missing offenses." Williams, 327 U.S. at 719, 66 S.Ct. at 782. The district court concluded that since drunken driving by servicemen was already punishable by court-martial under the UCMJ, there was no "gap" in criminal law to be filled by state law. Prosecution under the Act, the court observed, would mean "duplicative punishments for the same conduct [when] committed by members of the armed forces." Indeed, "[n]o reason has been advanced, nor can one be found, why Congress would have intended that conduct by servicemen which it has specifically proscribed under the UCMJ should also be punishable under the general mandate of the ACA."

We, of course, agree that "a statute's plain language is the primary indicator of its meaning." Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 756 (1st Cir.1976), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). But we do not find the language in the phrase "made punishable by any enactment of Congress" to be "plain" as respects the precise question before us: whether the ACA refers only to penal laws of general application, or whether it was intended to include the UCMJ--a code not generally applicable to the citizenry, designed solely to regulate the military. We note that the "any enactment" phraseology was of recent invention, having been preceded by other language which was changed several times, all without apparent intent to alter the Act's basic meaning. Williams, 327 U.S. at 722-23, 66 S.Ct. at 783-84. Thus the question before us cannot be answered without examining the Act's design and historical purpose. See United States v. Fulkerson, 631 F.Supp. 319, 322 n. 5 (D.Hawaii 1986).

As reviewed in United States v. Sharpnack, 355 U.S. 286, 288-94, 78 S.Ct. 291, 293-96, 2 L.Ed.2d 282 (1958), ⁷ the history of the ACA strongly suggests that the present phrase "any enactment of Congress" means only those criminal laws of general applicability, and not a specialized, internal disciplinary code like the UCMJ which covers only military personnel. The only other circuit to face this issue has reached a similar conclusion, United States v. Walker, 552 F.2d 566 (4th Cir.), cert. denied, 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116 (1977), as have two district courts, Fulkerson, 631 F.Supp. 319; United States v. O'Byrne, 423 F.Supp. 588 (E.D.Va.1973); see also United States v. Best, 573 F.2d 1095, 1098 (9th Cir.1978) (citing Walker with approval); United States v. Holley, 444 F.Supp. 1361, 1367 (D.Md.1977) (same). We find the reasoning of these courts persuasive, particularly that of Judge King in Fulkerson, whose decision earlier this year followed the opinion below.

III.

The first Federal Crimes Act, enacted in 1790, ⁸ legislated a number of federal crimes applicable to federal enclaves, but it soon was apparent that a more comprehensive set of penal laws was needed to govern offenses committed on federal property. Sharpnack, 355 U.S. at 288-89, 78 S.Ct. at 293. Rejecting the option of enacting a separate criminal code for federal lands, Congress chose in 1825 to add a provision to the Federal Crimes Act, adopting as federal law the offenses made punishable by the laws of the state in which the enclaves were located, unless the offenses were "specially provided for by any law of the United States." ⁹ Id. at 289-90, 78 S.Ct. at 293-94. It appears obvious that the state offenses which were to apply in the federal enclaves were...