U.S. v. Slatkin, 94-1432R.
| Decision Date | 30 May 1995 |
| Docket Number | No. 94-1432R.,94-1432R. |
| Parties | UNITED STATES of America v. Michael B. SLATKIN. |
| Court | U.S. District Court — District of Maryland |
The above named defendant is charged in a case pending before the undersigned United States Magistrate Judge at Aberdeen Proving Ground, Maryland, with a violation of the Assimilative Crimes Act (ACA), 18 U.S.C. Section 13, adopting MD.Code Ann., Art. 27 Section 36B (transporting a handgun). Under Maryland law, the offense is a misdemeanor for which a term of imprisonment of not more than three years may be imposed upon conviction as well as a fine not to exceed twenty-five hundred dollars ($2,500.00) or both fine and imprisonment. Due to the possible maximum term of imprisonment, the Court questioned whether the charge was one which could be tried before a United States Magistrate Judge upon consent of the defendant. The Court requested counsel for the parties to submit a legal memorandum on this issue.
Both sides have taken the position in their memorandum that the Court has jurisdiction in light of United States v. Kelly, 989 F.2d 162 (4th Cir.1993), cert. denied, 510 U.S. 854, 114 S.Ct. 158, 126 L.Ed.2d 119 (1993). It is also the contention of the parties, that the Court may hear the case as a misdemeanor but may not impose a term of imprisonment upon conviction in excess of one year in accordance with the Kelly decision. On the other hand, the Government represents that it could be argued that the instant case may be distinguishable from Kelly because of the three year penalty provision; whereas, the maximum term of imprisonment for the offense assimilated in Kelly was limited to not more than eighteen months. The Government represents that although the argument may be reasonable, it does not appear to be supported by the law, and a reading of Kelly indicates that such a distinction does not appear to be contemplated.
For the reasons set forth below, this Court is satisfied that Kelly is distinguishable based upon the three year term of imprisonment that is authorized by the assimilated State statute in light of congressional policy in the enactment of the Assimilative Crimes Act and the fact that in some circumstances a two year State misdemeanor is not granted felony status under federal law while such status is given to State misdemeanors that provide for imprisonment in excess of two years.
18 U.S.C. Section 13 in pertinent part provides:
(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, 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, Territory, Possession, or District 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.
It is generally understood that "like punishment" requires a federal court to impose a sentence within any minimum or maximum term of imprisonment established by State law. See, United States v. Harris, 27 F.3d 111 (4th Cir.1994); United States v. Price, 812 F.2d 174 (4th Cir.1987); United States v. Young, 916 F.2d 147 (4th Cir.1990); United States v. Pinto, 755 F.2d 150 (10th Cir.1985); United States v. Garcia, 893 F.2d 250 (10th Cir.1989), cert. denied, 494 U.S. 1070, 110 S.Ct. 1792, 108 L.Ed.2d 793 (1990); United States v. Leake, 908 F.2d 550 (9th Cir.1990). However, the phrase "like punishment" does not encompass every incident of a state's sentencing policy, and federal courts consistently decline to assimilate provisions of State law through the ACA if the State law provision would conflict with federal policy. United States v. Harris, supra. United States v. Kelly, supra. The areas which have been found to conflict with federal policy so as not to warrant assimilation have, for the most part, involved matters pertaining to parole, probation, good time credits and special assessments. See, United States v. Harris, supra; United States v. Davis, 845 F.2d 94 (5th Cir.1988); United States v. Pinto, supra; United States v. Vaughan, 682 F.2d 290 (2d Cir.1982), cert. denied, 459 U.S. 946, 103 S.Ct. 261, 74 L.Ed.2d 203; United States v. Smith, 574 F.2d 988 (9th Cir.1978), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156; United States v. Duncan, 724 F.Supp. 286 (D.Del.1989).
The undersigned is not aware of any case other than Kelly and United States v. Kendrick, 636 F.Supp. 189 (E.D.N.C.1986), upon which Kelly primarily relied, for the proposition that the maximum term of State imprisonment is not assimilated because of the federal policy limiting misdemeanors to terms of imprisonment of one year or less. See, 18 U.S.C. Sections 3559 and 3581. In addition, the Kelly Court relied upon the federal policy limiting the jurisdiction of United States Magistrate Judges to decide misdemeanor offenses which, under federal policy, are offenses for which a term of imprisonment in excess of one year is not authorized. See, 18 U.S.C. Section 3401(a) and 28 U.S.C. Section 636(a).
In Kendrick, a motion was filed with the District Court for reassignment of the case to a United States Magistrate. Under North Carolina law any offense for which a term of imprisonment of two years or less could be imposed was considered a misdemeanor. It was contended that as the defendant was charged with a two year misdemeanor under the ACA, the case was one which could not be tried before a United States Magistrate. The Court concluded, that because of the federal policy defining felony and misdemeanor offenses, if the Court assimilated the two year maximum penalty, the State misdemeanor would be converted to a federal felony. The Court believed that this was inappropriate since converting the offense to a felony would also result, in the event of a conviction, in the defendant's loss of various civil rights; such as, the right to vote, hold public office, purchase firearms, and sit on a jury. Accordingly, the Court held that in order for the assimilated offense to remain a misdemeanor, the maximum term of imprisonment which could be imposed upon conviction would be limited to one year whether the case was decided by a United States Magistrate or a United States District Judge. In limiting the maximum term of imprisonment to one year the case fell within the jurisdiction of the United States Magistrate, and the defendant's motion to reassign the case to a United States Magistrate was granted.
In Kelly, the defendant consented to a trial before a United States Magistrate Judge reserving the right to challenge the jurisdiction of the Magistrate Judge to try the case. It was contended that the assimilated offense could not be tried before the Magistrate Judge because the State offense provided for a possible term of imprisonment of not more than eighteen months. In assuming jurisdiction, however, the Magistrate Judge agreed that upon conviction any term of imprisonment would not exceed one year. Furthermore, the defense contended that in order to proceed with the prosecution, it was necessary for the Grand Jury to return an indictment because the State penalty provision exceeded one year.
As related above, the Court in Kelly relied primarily on the rationale of Kendrick as it related to the federal policy defining misdemeanor and felony offenses and the limited trial jurisdiction of United States Magistrate Judges to offenses defined as misdemeanors or infractions. See, 18 U.S.C. Sections 3401(a), 3559, 3581; 28 U.S.C. Section 636(a). The Court did not discuss the loss of civil rights if the offense were considered a federal felony nor did the Court indicate that the maximum term of imprisonment of eighteen months provided by State law would not be assimilated if the case were tried by a United States District Judge. The Court was not called upon to limit the authority of a District Judge as was done by the Court in Kendrick.
In arriving at its decision in Kelly, the Court stated:
... As Judge Depree concluded in Kendrick, it simply makes good sense to permit the kind of case presently before us in this appeal to be tried by a Magistrate Judge. That can be accomplished, as in Kendrick and in this case, by limiting the maximum sentence which the Magistrate Judge can impose in accord with 18 U.S.C. Sections 3401 and 1. In United States v. Robinson, supra, 495 F.2d at 33—a case which seemingly also involved a challenge concerning a magistrate's jurisdiction—our opinion referred only to the ACA's non-selective application. In Robinson, we did not reach or mention the federal policy exception or seemingly have before us the type of federal policy contention stated by the government in this appeal. That policy contention relates to the need to promote the efficiency of our federal criminal process by permitting offenses of the type herein involved to be tried by a Magistrate Judge and by not requiring all such offenses to be tried before a federal District Judge. The need in that regard underlies the Congressional determination to confer certain jurisdiction upon Magistrate Judges and speaks for itself. Accordingly, we hold that the trial of this criminal action was within the jurisdiction of the United States Magistrate Judge and that the United States was not required to proceed against Kelly by means of an indictment.
What the Court in Kendrick and Kelly seemingly ignored was the overriding federal policy that sentence be imposed within the minimum and maximum terms permitted by State law. The term of imprisonment is usually considered the most powerful indicator of the seriousness of an offense. In the context of determining a defendant's right to a jury trial the Supreme Court stated:
In recent years, however, we have sought more "objective indications of the seriousness with which...
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