U.S. v. Sain

• Decision Date: 24 June 1986
• Docket Number: 85-2490,Nos. 85-2489,s. 85-2489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold W. SAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 888

795 F.2d 888

UNITED STATES of America, Plaintiff-Appellee, v. Harold W. SAIN, Defendant-Appellant.

Nos. 85-2489, 85-2490.

United States Court of Appeals, Tenth Circuit.

June 24, 1986.

Steven M. Angel of Hughes & Nelson, Oklahoma City, Okl., for defendant-appellant.

Robert E. Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on brief), Oklahoma City, Okl., for plaintiff-appellee.

Before BARRETT, McKAY and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

After a bench trial, defendant Harold Sain was convicted under the Assimilative Crimes Act, 18 U.S.C. Sec. 13, of driving while impaired in violation of Okla.Stat. tit. 47, Sec. 761 (1981), and of transporting a nonintoxicating beverage in an opened container in violation of Okla.Stat. tit. 21, Sec. 1220 (1981), 618 F.Supp. 270. He appealed, contending that reversal of his convictions is required because the government failed to prove essential elements of each of the offenses. In addition, he argues that if his conviction for driving while impaired is not reversed, the case should be remanded for a jury trial, because his right to a trial by jury was erroneously denied by the district court. We conclude that there is no right under the Assimilative Crimes Act to a jury trial for the charge of driving while impaired, a petty offense under federal law, and that the government's evidence was sufficient to prove all elements of the offense. We therefore affirm defendant's conviction for driving while impaired. Because we conclude the government failed to prove all elements of the offense of transporting a nonintoxicating beverage in an opened container, we reverse defendant's conviction on that charge.

The case arose out of the events of the night of March 28, 1985, when the defendant and a friend, Captain Randy Irwin, returned to Tinker Air Force Base, Oklahoma, from the Skytrain Night Club. Captain Irwin testified that during the evening he and defendant consumed one beer each before leaving the base for the night club, one beer each in defendant's car while parked outside the club before they entered the club, and two or three beers each while at the club. Upon reaching the gate to Tinker Air Force Base, defendant's car was stopped for an identification check. After detecting the odor of beer, observing two open bottles labeled "Miller High Life" containing a yellow liquid in the console between the driver's and passenger's seats, and observing that defendant experienced difficulty in producing his identification and in exiting his vehicle, Airman Noel Ward conducted field sobriety tests. Ward and his supervisor, Sergeant Randall Menning, who observed the field tests, determined defendant was impaired and should not be driving. Defendant was then taken to the Del City police department where a breathalyzer test was performed. The test indicated that defendant's blood alcohol was between 0.07% and 0.08%.

I.

Defendant contends the district court improperly denied him a jury trial for the charge of driving while impaired. Under Okla.Stat. tit. 47, Sec. 761 (1981), conviction of a first offense of driving while impaired carries a fine of not less than $100 nor more than $300. Article 2, Sec. 19, of the Oklahoma constitution provides a right to jury trial in all criminal cases unless the offense carries a fine of less than $100. Defendant argues that the scope of the Assimilative Crimes Act includes the entire criminal law of the surrounding jurisdiction, including the right to a jury trial. Because he would have been entitled to a jury trial in the courts of Oklahoma on the charge of driving while impaired, he contends that it was error to deny his request for jury trial.

The district court determined the Assimilative Crimes Act adopts state law to define the elements of the offense and to establish the appropriate range of punishment, but that no further adherence to state law was required. After noting the penalty for driving while impaired as prescribed by Okla.Stat. tit. 47, Sec. 761 (1981), comes within the definition of a petty offense under federal law, 18 U.S.C. Sec. 1(3), the district court concluded there was no right to jury trial for that offense.

The precise question whether the Assimilative Crimes Act adopts state law with respect to the right to jury trial is one of first impression. After consideration of the scope of the Act as defined by the federal courts, we conclude the district court correctly determined that adherence to state law regarding the right to jury trial is not required.

The purpose of the Assimilative Crimes Act is to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction. United States v. Dunn, 545 F.2d 1281, 1282 (10th Cir.1976). The Act fills in gaps in federal criminal law by providing a set of criminal laws for federal enclaves. United States v. Mayberry, 774 F.2d 1018, 1020 (10th Cir.1985), quoting United States v. Prejean, 494 F.2d 495, 496 (5th Cir.1974). The reason for adopting local laws is not that Congress passed on their merits after examining each individually, but that as a practical matter, Congress had to proceed on a wholesale basis to establish criminal laws for federal enclaves. United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295, 2 L.Ed.2d 282 (1958).

We have held that federal courts are not required to follow specific provisions of state law which go beyond establishing the elements of an offense and the range of punishment. United States v Pinto, 755 F.2d 150, 154 (10th Cir.1985) (federal court not required to follow state law prescribing parole terms when sentencing a defendant convicted under the Assimilative Crimes Act). Furthermore, state law which is inconsistent with federal policies expressed in federal statutes is not assimilated by the Act. Cheyenne-Arapaho Tribes of Oklahoma v. State of Oklahoma, 618 F.2d 665, 668 (10th Cir.1980).

A federal statute, 18 U.S.C. Sec. 1(3), defines a petty offense as "[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both." The Supreme Court has held that there is no right to a trial by jury under the Constitution for petty offenses. Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974); District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 661, 81 L.Ed. 843 (1937). The Oklahoma provision affording jury trials for the petty offense of driving while impaired conflicts with federal statutory and case law. Therefore, we hold that the Assimilative Crimes Act does not adopt Oklahoma law with respect to the right to trial by jury.

II.

Defendant contends the district court erred in denying his motion for a directed verdict on the charge of driving while impaired in violation of Okla.Stat. tit. 47, Sec. 761 (1981). He argues the government failed to prove that his ability to drive was actually impaired as required by Okla.Stat. tit. 47, Sec. 756(b) (1984 Supp.) ¹ . None of the government's witnesses observed the defendant operating the car and, therefore, could not testify that his driving was actually impaired.

The district court correctly concluded that Sec. 756(b) does not require direct observation by the arresting officer or other eyewitness that the defendant's driving was actually impaired. ² The statute merely requires some evidence, in addition to a blood alcohol content in the applicable range, that the defendant operated a motor vehicle while his physical or mental abilities were affected by alcohol to...