United States v. Holley

• Court: U.S. District Court — District of Maryland
• Writing for the Court: Md.Ann.Code art. 27, § 641 reads as follows
• Citation: United States v. Holley, 444 F.Supp. 1361 (D. Md. 1977)
• Decision Date: 20 December 1977
• Docket Number: Crim. No. K-77-0376.
• Parties: UNITED STATES of America v. William E. HOLLEY.

444 F. Supp. 1361

UNITED STATES of America v. William E. HOLLEY.

Crim. No. K-77-0376.

United States District Court, D. Maryland.

December 20, 1977.

Jervis S. Finney, U. S. Atty., Gale E. Rasin, Asst. U. S. Atty., Baltimore, Md., for Government.

Salvatore E. Anello, III, Arnold R. Silbiger, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

Defendant has been found guilty beyond a reasonable doubt, after a non-jury trial in this Court, of the offense of driving while his ability to do so had been impaired by his consumption of alcohol. The Court has ordered a pre-sentence report pursuant to Fed.R.Crim.P. 32(c). Presented to the Court in this case is the issue of whether this Court has the discretionary authority to stay the entering of judgment and to place the defendant on probation pursuant to 18 U.S.C. § 13 and Md.Ann.Code art. 27, § 641.

18 U.S.C. § 13, generally known as the Assimilative Crimes Act, 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.

That statute "is a shorthand method of providing a set of criminal laws on federal reservations by using local law to fill the gaps in federal criminal law." United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974). State law so adopted or assimilated "becomes, in effect, federal law." United States v. Warne, 190 F.Supp. 645, 658 (N.D. Cal.1960), aff'd in part, vacated in part on other grounds sub nom. Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963), cert. denied 372 U.S. 907, 83 S.Ct. 716, 9 L.Ed.2d 716 (1963). However, as the Court also noted in Warne (at 658-59):

The Assimilative Crimes Act does not operate to adopt any State penal statutes which are in conflict with federal policy, as expressed by acts of Congress or by valid administrative regulations having the force of law. Air Terminal Services Inc. v. Rentzel, D.C.E.D.Va.1949, 81 F.Supp. 611; Nash v. Air Terminal Services Inc., D.C.E.D.Va.1949, 85 F.Supp. 545; Johnson v. Yellow Cab Co. 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1944).

If, therefore, we are correct in our ruling that the California milk act is in conflict with federal procurement regulations and policy within the meaning of the Public Utilities case, the penal provisions of the act were not assimilated into the installations here involved.

The Assimilative Crimes Act does not contemplate selective assimilation or incorporation of state criminal law. Rather, subject to the above-mentioned exception with relation to conflicts with federal policy, that statute mandates the assimilation of the entire state criminal law, relating to both offenses and punishments. Thus, in United States v. Robinson, 495 F.2d 30, 33 (4th Cir. 1974), Judge Field wrote:

While the Administrator of the Federal Aviation Administration properly referred to the D.C.Code as his authority to promulgate all of the regulations in Part 159, we are at a loss to understand his purported use of the Assimilative Crimes Act of 1948 in Section 159.71. Whether he intended to incorporate the pertinent Virginia criminal statutes by the general references in the regulation or was attempting some form of "selective assimilation" under 18 U.S.C. § 13 is not at all clear. In any event, we find this novel and hybrid use of the Assimilative Act utterly improper. That Act was designed to assimilate the entire state criminal law into any appropriate federal enclave and does not contemplate selective incorporation. It operates ex proprio vigore and requires no authority such as Title 7, Section 1302 of the D.C.Code, for its implementation. By its terms, a person whose conduct constitutes a crime under the state law "shall be guilty of a like offense and subject to a like punishment." (Emphasis added). Since the federal statute embraces both the offense and the punishment prescribed by state law the Administrator's attempt to selectively incorporate the state offenses under the Assimilative Act while substituting the regulatory penalties of Section 159.191 for those prescribed by the state legislation was without warrant. citations omitted

Accordingly, under the Assimilative Crimes Act, the entire Maryland criminal law becomes federal criminal law for purposes of establishing offenses and punishments relating to acts committed within Fort Meade. Therefore, if Maryland's Probation Prior To Judgment statute sets forth a "punishment" as that word is used in 18 U.S.C. § 13 and if that Maryland statute (section 641) does not conflict with any federal policy, this Court is authorized to apply probation without judgment in this case following the determination of guilt which it has already reached and stated.

In United States v. Easley, 387 F.Supp. 143 (N.D.Cal.1974), a defendant asked the district court "to modify his sentence by declaring the offense i. e., second degree burglary under a combination of 18 U.S.C. § 13 and a section of the California Penal Code, of which he was convicted to be a misdemeanor." Id. at 143. Judge Peckham wrote (at 143-44):

Under this statute Warner would be eligible to have his offense declared to be a misdemeanor, had he committed his crime within the jurisdiction of the California state courts. The question raised by defendant's motion is whether a federal court has similar authority to make this declaration.

The Assimilative Crimes Act provides that a defendant who commits an act on a federal reservation which is illegal under the laws of the state in which the enclave is located "shall be guilty of a like offense and subject to a like punishment" under the federal law. In applying this statute, the Court of Appeals for the Seventh Circuit has held that "the Act itself provides for assimilation of both offense and punishment." United States v. Sosseur, 181 F.2d 873, 876 (7th Cir. 1950). The Supreme Court has noted that the statute reflects the tendency toward a uniformity between the federal enclave and surrounding state territory. See James Stewart & Co. v. Sadrakula, 309 U.S. 94, 101, 60 S.Ct. 431, 84 L.Ed. 596 (1940).

If the punishment for Warner's offense is to be the same under federal law as it would have been under state law, this court must possess the authority granted California state courts by Cal.Penal Code § 17 to declare it to be a misdemeanor. This court holds therefore that the Assimilative Crimes Act incorporates the relevant provisions of Cal.Penal Code § 17.

Judge Peckham's reasoning is apposite and applicable herein.

Md.Ann.Code art. 27, § 641 reads as follows:

(a) Probation after plea or finding of guilt; power of court to provide terms and conditions. — Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate. The terms and conditions may include ordering the person to make restitution, but before the court orders restitution the person is entitled to notice and a hearing to determine the amount of restitution, what payment will be required, and how payment will be made. The terms and conditions also may include, any type of rehabilitation program or clinic, including but not limited to the driving while intoxicated school, or similar program, or the parks program or voluntary hospital program.

(b) Violation of probation. — Upon violation of a term or condition of probation, the court may enter judgment and proceed with disposition of the person as if the person had not been placed on probation.

(c) Fulfillment of terms of probation. — Upon fulfillment of the terms and conditions of probation, the court shall discharge the person from probation. The discharge is final disposition of the matter. Discharge of a person under this section shall be without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime.

In the course of considering the question of whether the suspension of sentence and placing of the defendant on probation was final and appealable, Mr. Justice Black, writing for a unanimous Court, in Korematsu v. United States, 319 U.S. 432, 434-36, 63 S.Ct. 1124, 1125, 87 L.Ed. 1497 (1943), observed:

It has often been said that there can be no "final judgment" in a criminal case prior to actual sentence, Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702, 705; Hill v. United States, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283, 1286, and this proposition was restated in Berman v. United States, 302 U.S. 211, 212,3 58 S.Ct. 164-166, 82 L.Ed. 204, 205.

3 "Final judgment in a criminal case means sentence. The sentence is the judgment."

In applying this general principle to a situation like that of the instant case, the Second and Fourth Circuit Courts of Appeals have concluded that they lacked jurisdiction to hear an appeal from an order placing a defendant on probation without first imposing sentence. United States v. Lecato, 29 F.2d 694, 695; Birnbaum v. United States, 107 F.2d 885, 126 A.L.R. 1207. The Fifth Circuit appears to take the opposite view. Nix v. United States, 131 F.2d 857.

The "sentence is judgment" phrase has been used by this Court in

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