United States v. Holley
Decision Date | 20 December 1977 |
Docket Number | Crim. No. K-77-0376. |
Parties | UNITED STATES of America v. William E. HOLLEY. |
Court | U.S. District Court — District of Maryland |
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.
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 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):
Judge Peckham's reasoning is apposite and applicable herein.
Md.Ann.Code art. 27, § 641 reads as follows:
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:
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