U.S. v. Smith

• Decision Date: 18 April 1997
• Docket Number: Criminal Action No. 96-593-M.
• Citation: 965 F.Supp. 756
• Parties: UNITED STATES of America, v. Kenneth SMITH, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

965 F.Supp. 756

UNITED STATES of America, v. Kenneth SMITH, Defendant.

Criminal Action No. 96-593-M.

United States District Court, E.D. Virginia, Alexandria Division.

April 18, 1997.

David Anthony Oblon, Albo & Oblon LLP, Springfield, VA, for Kenneth J. Smith.

Kenneth J. Smith, Woodbridge, VA, pro se.

Ernest Harper, U.S. Attorney's Office, Alexandria, VA, for U.S.

MEMORANDUM OPINION AND ORDER

PORETZ, United States Magistrate Judge.

On June 28, 1996 at approximately 9:50 p.m., military police officer Christopher Drumheller was on duty as a sentry at Gate 1 of Marine Corps Base Quantico, within the special maritime and territorial jurisdiction of the United States in the Eastern District of Virginia. At this time, Defendant Kenneth Smith drove his burgundy 1977 van up to Gate 1, and Officer Drumheller recognized that a Department of Defense decal was not displayed on Defendant's motor vehicle. In making contact with Defendant, Officer Drumheller detected a strong smell of alcoholic beverage emitting from Defendant's breath and person, and Defendant was asked to perform a series of pre-exit and field sobriety tests. After performing these tests unsatisfactorily, Defendant was arrested for a violation of assimilated state offense Va. Code § 18.2-266(i), transported to the Provost Marshal's Office, and administered a breathalyzer test which resulted in a reading of .18% blood alcohol content ("BAC").

Defendant was subsequently charged by Criminal Information with the following four counts: Count I, violation of assimilated state offense Va.Code § 18.2-266(i), alleging that the Defendant operated a motor vehicle while having a BAC of .08 or more; Count II, violation of assimilated state offense Va.Code § 18.2-266(ii), alleging that the Defendant operated a motor vehicle while under the influence of alcohol; Count III, violation of assimilated state offense Va. Code § 46.2-852, alleging that the Defendant operated a motor vehicle in a manner so as to endanger the life, limb or property of any person; and Count IV, violation of assimilated state offense Va.Code § 46.2-300, alleging that the Defendant operated a motor vehicle without a valid driver's license. At trial on February 3, 1997, Defendant was convicted on Counts I, II, and IV. Pursuant to F.R.Crim.P. 33, Defendant orally moved for a new trial on February 7, 1997, and Defendant filed a written motion for a new trial on February 10, 1997.

With this motion, Defendant challenges either the conviction under Count I, violation of assimilated Va.Code § 18.2-266(i), or the conviction under Count II, violation of assimilated Va.Code § 18.2-266(ii). Defendant contends that under the Assimilative Crimes Act ("ACA") this Court was bound by Virginia substantive criminal caselaw holding that Va.Code § 18.2-266 defines a single offense and that a defendant should only receive one conviction, rather than two, for a violation of this offense. Accordingly, Defendant asks that either the conviction for Count I or the conviction for Count II be vacated and that the corresponding Count be dismissed. The Government responds that Defendant's conviction under Va.Code § 18.2-266(i) and his conviction under Va.Code § 18.2-266(ii) were lawful, because under the ACA substantive Virginia caselaw is merely advisory and not binding on this federal court. This Court now considers whether it is bound by state substantive criminal caselaw when applying the ACA or whether such caselaw is merely advisory.

I. Under the ACA, there shall be complete current conformity with the criminal laws of the respective states in which the enclaves are situated.

The ACA, 18 U.S.C. § 13, provides that "Whoever within or upon any of the places now existing ... as [federal property] is guilty of any act or omission which ... would be punishable if committed or omitted within the jurisdiction of the State ... 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." In other words, under the ACA "acts or omissions not prohibited by federal law are instead controlled by the surrounding state's law." United States v. Eure, 952 F.2d 397 (4th Cir.1991).

With the ACA, Congress sought to accomplish three goals. First, the ACA was intended to provide a gap-filling criminal code for federal enclaves. Second, the ACA was intended to provide for conformity in the laws governing a federal enclave and the state in which an enclave is located. Third, the ACA was intended to give the people within a federal enclave as much protection as is afforded to those outside of the enclave. See United States v. Minger, 976 F.2d 185, 187 (4th Cir.1992); see also United States v. Sharpnack, 355 U.S. 286, 292, 78 S.Ct. 291, 295, 2 L.Ed.2d 282 (1958) (the ACA "demonstrates a consistent congressional purpose to apply the principle of conformity to state criminal laws in punishing most minor offenses committed within federal enclaves").

With regard to the second of these goals, this Circuit and the U.S. Supreme Court have explained that "there shall be complete current conformity with the criminal laws of the respective states in which the enclaves are situated." United States v. Price, 812 F.2d 174, 175 (4th Cir.1987) (quoting United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295, 2 L.Ed.2d 282 (1958)). Similarly, this Circuit and the U.S. Supreme Court have recognized that:

Although a violation of the assimilated law is a crime against the United States, the violation is only punishable "in the way and to the extent that it would have been punishable if the territory embraced by the federal reservation remained subject to the jurisdiction of the State."

United States v. Minger, 976 F.2d at 187 (quoting United States v. Press Publishing Company, 219 U.S. 1, 10, 31 S.Ct. 212, 214, 55 L.Ed. 65 (1911)). Certainly, under the ACA if state substantive criminal caselaw is binding and not just advisory, this better promotes "complete current conformity with the criminal laws of the respective states in which the enclaves are situated" and a defendant in federal court is more likely to be punished "in the way and to the extent" as he would be in the surrounding state's courts.

II. The Fourth Circuit has consistently explained that the "ACA assimilates the entire substantive law of the state."

Although the ACA does not require federal courts to adopt state procedures, state rules of evidence, or state law which conflicts with federal policy, see United States v. Kelly, 989 F.2d 162, 163 (4th Cir. 1993), this Circuit has frequently emphasized that "the ACA assimilates the entire substantive law of the state, including laws relating to the definition and scope of an offense and laws governing the manner in which an offense is to be punished." United States v. Card, 924 F.2d 1053 (4th Cir.1991) (unpublished); see also United States v. King, 824 F.2d 313, 315 (4th Cir.1987). Likewise, this Circuit has held that, because "the [ACA] was designed to assimilate the entire state [substantive] criminal law into any appropriate federal enclave, the ACA does not contemplate selective incorporation" of this law. United States v. Robinson, 495 F.2d 30, 33 (4th Cir.1974); see also United States v. Kendrick, 636 F.Supp. 189, 191 (E.D.N.C.1986) ("the [ACA] does not contemplate selective assimilation or incorporation of state criminal law"). By definition, Virginia's entire substantive criminal law necessarily includes decisions of the Virginia Court of Appeals and Virginia Supreme Court that interpret the elements of Virginia criminal statutes. See Black's Law Dictionary, West Publishing (6th ed.1990) ("word `law' generally contemplates both statutory and case law"). Because the Fourth Circuit has explained that a federal court assimilates a state's entire substantive criminal law under the ACA, it follows that a federal court is bound by state substantive criminal caselaw for the very reason that this caselaw is part of the body of law that is being so assimilated.

III. When applying the ACA, the Fourth Circuit and its federal district courts have indicated that they were bound by state substantive criminal caselaw.

In United States v. Kelly, 989 F.2d 162, 163 (4th Cir.1993), the Fourth Circuit addressed the appellant's conviction for the assimilated Maryland offense of common-law attempted theft. In determining the elements of this Maryland common-law offense, this Circuit impliedly assimilated Maryland substantive criminal caselaw. Id. Thus, this Circuit explained:

In Maryland, an attempt to commit a crime is a common law misdemeanor. Cox v. State, 311 Md. 326, 534 A.2d 1333 (1988). Maryland "has adopted the common law concept that the crime of attempt consists of intent to commit a particular offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation." Id.

In assimilating this law, the Fourth Circuit did not distinguish between assimilation of substantive criminal statutes versus substantive criminal caselaw.

In United States v. Rowe, 599 F.2d 1319 (4th Cir.1979), the appellant asserted that his refusal to take a breathalyzer could not be prosecuted under the ACA because under Virginia caselaw it was a civil, and not a criminal, offense. In response, this Circuit emphasized that it was bound by the Virginia Supreme Court's interpretation of the refusal statute, explaining:

The Assimilative Crimes Act by its own terms incorporates into federal law only the criminal law of the jurisdiction within which the federal enclave exists. The Supreme Court of Virginia has held that a proceeding under Virginia Code § 18.2-268 to suspend a driver's license because of his refusal to submit to a blood test is administrative and civil, not criminal, in nature. Deaner v. Commonwealth, 210 Va. 285, 287-93, 170 S.E.2d 199 (1969). We, of course, must accept this authoritative interpretation of...