United States v. Fulkerson

• Decision Date: 24 March 1986
• Docket Number: Crim. No. 85-02046,85-01993 and 85-01984.
• Citation: 631 F. Supp. 319
• Parties: UNITED STATES of America, Plaintiff, v. Robert T. FULKERSON, Defendant. UNITED STATES of America, Plaintiff, v. Edgar A. DUTY, Defendant. UNITED STATES of America, Plaintiff, v. Steven R. TEAGLE, Defendant.
• Court: U.S. District Court — District of Hawaii

631 F. Supp. 319

UNITED STATES of America, Plaintiff, v. Robert T. FULKERSON, Defendant.

UNITED STATES of America, Plaintiff, v. Edgar A. DUTY, Defendant.

UNITED STATES of America, Plaintiff, v. Steven R. TEAGLE, Defendant.

Crim. Nos. 85-02046, 85-01993 and 85-01984.

United States District Court, D. Hawaii.

March 24, 1986.

Edwin S. Castle, Sp. Asst. U.S. Atty., Daniel A. Bent, Honolulu, Hawaii, for plaintiff.

Hayden Aluli, Asst. Federal Public Defender, Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for defendant.

ORDER AFFIRMING MAGISTRATE'S DECISION

SAMUEL P. KING, Senior District Judge.

Defendants are active-duty soldiers who were apprehended for driving under the influence of intoxicating liquor while on military installations in Hawaii. They have been charged under Hawaii Revised Statutes §§ 291-4(a)(1) and 291-4(a)(2), which make it unlawful to assume control of a vehicle while under the influence of alcohol or while having a blood-alcohol content, by weight, of more than 0.10 percent.

The issue on appeal is whether these crimes, as applied to active-duty soldiers, are made federal offenses by the Assimilative Crimes Act, 18 U.S.C. § 13. The magistrate determined that they are and therefore denied the defendants' motion to dismiss the charges. The court finds that the magistrate's determination was correct. Accordingly, the order appealed from is affirmed.

The Assimilative Crimes Act "ACA", 18 U.S.C. § 13, provides:

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.

(emphasis added).

In enacting the ACA, Congress intended "to apply the principle of conformity to state criminal laws in punishing most minor offenses committed within federal enclaves." United States v. Sharpnack, 355 U.S. 286, 291, 78 S.Ct. 291, 295, 2 L.Ed.2d 282 (1958). In short, the Act fills the gaps in the criminal law applicable to federal enclaves in instances where Congress has failed to pass specific criminal legislation. United States v. Best, 573 F.2d 1095, 1098 (9th Cir.1978); United States v. Marcyes, 557 F.2d 1361, 1364 (9th Cir.1977). The Act does not apply "where another federal statute makes criminal the same conduct condemned under state law." Best, supra, at 1098.

With respect to certain major offenses, Congress has seen fit to enact specific legislation for federal enclaves, thereby precluding the application of state criminal laws to offenses so defined. See, e.g., 18 U.S.C. § 1111 (murder); 18 U.S.C. § 2031 (rape); 18 U.S.C. § 2111 (robbery); see also Sharpnack, supra, 355 U.S. at 289 & n. 5, 78 S.Ct. at 293 & n. 5. The Federal Criminal Code does not, however, contain any specific prohibition against drunk driving on a federal enclave.

Nevertheless, as active-duty soldiers, defendants are subject to the Uniform Code of Military Justice "UCMJ", 10 U.S.C. § 801 et seq. Article 111, UCMJ, provides that "Any person subject to this chapter who operates any vehicle while drunk, or in a reckless or wanton manner, shall be punished as a court-martial may direct." 10 U.S.C. § 911. The specific issue on appeal then is whether Article 111, UCMJ, is an "enactment of Congress" within the meaning of 18 U.S.C. § 13. If it is, then Hawaii Revised Statutes §§ 291-4(a)(1) and 291-4(a)(2) cannot be applied to defendants pursuant to the ACA, and the charges must be dismissed.

Faced with this identical issue in 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), the Fourth Circuit Court of Appeals held that Article 111 of the UCMJ does not preclude application of state drunk driving laws to servicemen driving on federal enclaves. The court recognized that the ACA adopts state law only to the extent that no enactment of Congress proscribes the act or omission forbidden by state law. Nevertheless, the court found that Article 111 of the UCMJ is not an "enactment of Congress" within the meaning of the ACA.

The court reasoned that to hold otherwise would produce several anomalous results. First, such a construction would be inconsistent with prevailing doctrine that district courts have at least concurrent jurisdiction with military tribunals over offenses committed by servicemen.¹ Id. at 568 n. 3. Second, it would be contrary to the modern trend toward trying servicemen before district courts for offenses essentially civilian in nature.² Id. Finally, the court found that such a construction would subject civilians and servicemen to different laws and punishments for committing the same acts or omissions, "even though the actions of the latter may have no more relation to the military than those of the former." Id. Accordingly, the court construed the words "any enactment of Congress" to mean only those "enactments of general applicability." Id.

A district court within the Fourth Circuit previously had reached the same conclusion. In United States v. O'Byrne, 423 F.Supp. 588 (E.D.Va.1973), the court rejected the argument that Article 111 of the UCMJ precludes application of Virginia's drunk driving laws to a serviceman driving on a federal enclave. The court distinguished cases where state law had been improperly applied to alter or expand the definitions or burdens of penal statutes enacted by Congress and cognizable in the federal courts.³Id. at 590. The court noted that Congress had provided for no general prohibition against drunk driving on federal enclaves. "Were drunk driving on federal enclaves prohibited by the Federal Criminal Code and thereby punishable in the federal courts, "the court explained, then "the Assimilative Crimes Act would not apply." Id. at 591 (emphasis in original).

Recently, however, one court has rejected this interpretation of the words "any enactment of Congress" as found in the ACA. In United States v. Smith, 614 F.Supp. 454 (D.Me.1985), the court held that Article 111 of the UCMJ precludes application of Maine's drunk driving laws to members of the armed forces driving on federal enclaves. The court did not take issue with the assertion in Walker that district courts have concurrent jurisdiction with military tribunals over offenses committed by military persons. Nor did the court question that there might be a trend towards trying military personnel in district courts for offenses essentially civilian in nature. Instead, the court reasoned that there could be no jurisdiction in federal court, concurrent or otherwise, unless state drunk driving laws were made federal offenses via application of the ACA. Id. at 457.

The court was similarly unimpressed with the Walker court's concern for discrepancies that might arise in the treatment of civilians vis a vis military personnel. According to the court, disparate treatment between civilians and soldiers "is a manifest premise of the UCMJ." Id. Thus, unlike the court in Walker, the Smith court found no anomalies that would justify construing the language of the ACA to mean other than that suggested by its plain language.⁴

The Smith court's observations are true enough as a matter of logic, but its holding is intimately tied to its underlying assumptions as to Congress' purpose in enacting the ACA. Even the Smith court recognized that courts should not adhere to the plain language of a statute where to do so would produce unreasonable results at variance with the legislative policy.⁵Id. If the Smith court misconstrued the fundamental purpose behind the ACA, then the court's other observations are without significance to the immediate dispute.

The Smith court found that the purpose of the ACA is "to fill gaps" where Congress has taken no action to define the missing offenses. Id. at 458. In support of its conclusion, the court cited to Williams v. United States, 327 U.S. 711, 719, 66 S.Ct. 778, 782, 90 L.Ed. 962 (1946), and United States v. Marcyes, 557 F.2d 1361, 1364 (9th Cir.1977). Upon close reading, however, neither authority supports this precise conclusion. In Williams, the Supreme Court found that the purpose of the Act is "to use local statutes to fill in the gaps in the Federal Criminal Code...." 327 U.S. at 719, 66 S.Ct. at 782 (emphasis added). And in Marcyes, the court found the Act was designed "to fill in the gaps in the criminal law applicable to federal enclaves...." 557 F.2d at 1364 (emphasis added).

Perhaps immaterial at first glance, these subtle distinctions actually lay bare the disagreement between the courts in Walker and O'Byrne on the one hand, and Smith on the other. If, as the Smith court contends, the purpose of the ACA was "to fill gaps" â any gaps in federal penal law â then a literal reading of the statute best fulfills the legislative goal. On the other hand, if the ACA was designed to supplement the Federal Criminal Code â a code of general applicability â as it applies to federal enclaves, then the construction given the Act by the courts in O'Byrne and Walker is more consistent with congressional intent.⁶

Perhaps the most succinct statement as to Congress' purpose in enacting the ACA is found in United States v. Sharpnack, supra. There, the United States Supreme Court reviewed the legislative history of the Act and concluded: "The above series of substantial re-enactments demonstrates a consistent congressional purpose to apply the principle of conformity to state criminal laws in punishing most minor offenses committed within federal enclaves." Id., 355 U.S. at 291, 78 S.Ct. at 295.

This interpretation of the ACA was not without precedent. The Court previously had had...