United States v. Smith, Criminal No. 85-00019 P

• Decision Date: 30 July 1985
• Docket Number: Criminal No. 85-00019 P,85-00020 P.
• Parties: UNITED STATES of America v. Jerry SMITH. UNITED STATES of America v. James K. MARIEA.
• Court: U.S. District Court — District of Maine

614 F. Supp. 454

UNITED STATES of America v. Jerry SMITH.

UNITED STATES of America v. James K. MARIEA.

Criminal Nos. 85-00019 P, 85-00020 P.

United States District Court, D. Maine.

July 30, 1985.

William H. Browder, Jr., Asst. U.S. Atty., Portland, Me., for U.S.

Joseph Field, Brunswick, Me., for both Mariea and Smith.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

Defendant James Mariea, a member of the armed forces stationed at the United States Naval Air Station in Brunswick, Maine, is charged with three offenses, defined under the law of the State of Maine, alleged to have been committed within the federal enclave of the United States Naval Air Station. These charges are: (1) operating a motor vehicle under the influence of intoxicating liquor, under 29 M.R.S.A. § 1312-B; (2) eluding police, under 29 M.R. S.A. § 2501-A(3); and (3) leaving the scene of an accident, under 29 M.R.S.A. § 894. The charges are brought against him in the United States District Court on the Government's theory that the state criminal statutes are made applicable to him under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13. The Defendant demanded a jury trial and subsequently filed, on April 22, 1985, a motion to dismiss the pending charges against him.

Defendant Jerry Smith, a member of the armed forces stationed at the United States Naval Air Station in Brunswick, Maine, is charged with operating a motor vehicle under the influence of intoxicating liquor under 29 M.R.S.A. § 1312-B pursuant to the ACA. Like Defendant Mariea, Defendant Smith demanded a jury trial and subsequently filed a Motion to Dismiss the charge.

Because the preliminary issues raised in the two Motions to Dismiss are identical, the Court has, without objection, consolidated the cases for hearing and decision on the motion.

Defendants raise three grounds for dismissal. Two of those grounds have no merit.¹ Their third argument merits closer analysis. They argue that the charges brought against them are punishable under the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801, et seq., and that the provisions of the UCMJ are "enactments of Congress" within the meaning of the ACA which preclude assimilation of state statutes punishing conduct punishable under the UCMJ.

The issue is simple: whether the federal Assimilative Crimes Act assimilates state statutes punishing conduct which is also punishable under the Uniform Code of Military Justice. 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.

18 U.S.C. § 13. Thus, the crimes charged here are punishable under state law, made federal law by the ACA, unless they are made punishable "by any enactment of Congress."

The Uniform Code of Military Justice is an enactment of Congress. See 10 U.S.C. § 801, et seq. The Court of Appeals for the Fourth Circuit has held, however, that it is not an "enactment of Congress" within the meaning of the Assimilative Crimes Act. United States v. Walker, 552 F.2d 566 (4th Cir.1977). In Walker, the defendant was a member of the armed forces who was convicted of drunk driving within a military reservation in Virginia. His conviction was based on a Virginia state law, applied pursuant to 18 U.S.C. § 13, supra, and took place in the United States District Court. The defendant argued that he could not be charged under the state law because drunken driving was punishable under Article 111 of the Uniform Code of Military Justice, 10 U.S.C. § 911, a congressional enactment.

The Fourth Circuit, in a footnote, rejected the defendant's argument for three reasons. 552 F.2d at 568, n. 3. The Court stated that the defendant's construction of the ACA would produce a result inconsistent, first, with "well-established doctrine ... that district courts have at least concurrent jurisdiction with military courts over offenses committed by military personnel," and, second, "with the modern trend toward trying military personnel before district courts where the offense is essentially civilian in nature." Id. Third, the Court stated that the defendant's construction of the ACA would mean that civilians and military personnel would receive disparate treatment for precisely the same conduct on a military reservation. Because the Court did not "believe that Congress intended ... these anomalies," the Court construed "any enactment of Congress" as used in 18 U.S.C. § 13 to mean only enactments "of general applicability." Since the UCMJ normally applies only to military personnel, it is not an enactment of general applicability.

The Government urges this Court to adopt the construction of 18 U.S.C. § 13 set forth in Walker. The Fourth Circuit's decision does not bind this Court, and the Defendants argue that the Walker court's briefly-stated rationale is incorrect and should be rejected. The Court is persuaded that a more thorough exploration of the meaning of the Assimilative Crimes Act is justified.

The starting point for statutory interpretation is the language of the statute itself. See Ciampi v. Secretary of Health and Human Services, Inc., 687 F.2d 518, 524 (1st Cir.1982); Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754 (1st Cir.1976). If the language is plain, courts should enforce it according to its terms, unless adherence to the language would lead to an absurd result or one at variance with the policy of the statute. Massachusetts Financial Services, 545 F.2d at 756. The First Circuit explained:

A basic principle which must guide our approach to the instant case is that a statute's plain language is the primary indicator of its meaning:

It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. Caminetti v. United States, 242 U.S. 470, 485 37 S.Ct. 192, 194, 61 L.Ed. 442 ... (1917).

Of course, deference to the plain meaning rule should not be unthinking or blind. We would go beyond the plain meaning of statutory language when adherence to it would produce an absurd result or "an unreasonable one `plainly at variance with the policy of the legislation as a whole.'"

Id. (citations omitted). It is undisputed that the Uniform Code of Military Justice is an enactment of Congress, within the plain meaning of the phrase. Thus, it appears that the UCMJ is included within the plain language which excepts conduct punishable by "any enactment of Congress" from the operation of the federal Assimilative Crimes Act.

The Fourth Circuit in Walker found reason to narrow the reach of the plain language, "any enactment of Congress," to Congressional enactments "of general applicability." This Court is not persuaded by Walker that there exist "anomalies" that justify departure from the plain language of this Act, particularly in light of the clear purpose of the Act. The Court will address the anomalies listed by the Fourth Circuit in Walker.

Contrary to the Walker court's assertion, a broader construction of the phrase, "any enactment of Congress," is not inconsistent with the doctrine that, under 18 U.S.C. § 3231, district courts have concurrent jurisdiction with military courts over offenses committed by military personnel. Section 3231 of Title 18 simply provides that district courts have original jurisdiction "of all offenses against the laws of the United States." The jurisdictional question is whether there has been an offense against the "laws of the United States" within the meaning of 18 U.S.C. § 3231. The question in this case — whether a particular state law is assimilated by the Assimilative Crimes Act — is entirely distinct, and its resolution is not logically dependent upon the issue of concurrent jurisdiction.

The Fourth Circuit in Walker also notes "the modern trend toward trying military personnel before district courts where the offense involved is essentially civilian in nature." 556 F.2d at 568, n. 3. Again, the question here is whether there is an offense charged under the Assimilative Crimes Act. Assuming that there is a policy favoring trial of military personnel in civil courts, such trial can only be of offenses cognizable in a federal court. The Maine OUI statute is only cognizable as defining a federal criminal offense for purposes of prosecution in a federal court if the offense defined by the state law is assimilated by the Assimilative Crimes Act. The policy alluded to in Walker cannot afford the grounds for transmutation of a state offense into a federal offense; that can only be done by application of the language and purpose of the Assimilative Crimes Act.

Finally, the Court in Walker was concerned that civilians on military reservations would be subject to a different law than military personnel for precisely the same conduct. This would be true in any instance in which the UCMJ happens to overlap the criminal law in the state where a military reservation is located. Disparate treatment of civilians and soldiers is a manifest premise of the UCMJ; its existence and its content demonstrate a congressional purpose to give particularized treatment to military personnel for certain conduct identified by Congress. Disparate treatment may result any time a person in the military is charged under the UCMJ for conduct also punishable under state law. In essence,...