US v. Manning, 88-M-51.

• Decision Date: 09 December 1988
• Docket Number: No. 88-M-51.,88-M-51.
• Citation: 700 F. Supp. 1001
• Parties: UNITED STATES of America, Plaintiff, v. Michelle MANNING, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

700 F. Supp. 1001

UNITED STATES of America, Plaintiff, v. Michelle MANNING, Defendant.

No. 88-M-51.

United States District Court, W.D. Wisconsin.

December 9, 1988.

Mark Cameli, Madison, Wis., for plaintiff.

Steven Streck, Axley Brynelson, Madison, Wis., for defendant.

OPINION AND ORDER

CRABB, Chief Judge.

Defendant is charged under Wis.Stat. § 346.63(1)(a) and the Assimilative Crimes Act, 18 U.S.C. § 13 with operating a motor vehicle on the Fort McCoy military reservation while intoxicated. Defendant moved to dismiss the citation on the ground that the government cannot prosecute a first offense violation of Wis.Stat. § 346.63(1)(a) under the Assimilative Crimes Act because the Act incorporates only state crimes and a first offense violation of § 346.63(1)(a) is not a crime under Wisconsin law. The magistrate agreed and dismissed the citation on September 15, 1988. The government appealed and moved to stay the magistrate's order of dismissal. I granted the government's motion to stay on September 26, 1988, and now consider the government's appeal.

Because I find that Wis.Stat. § 346.63(1)(a) is a prohibitory law whose nature is not altered by Wis.Stat. § 346.65(2) which imposes a civil forfeiture for first offenses and a fine and imprisonment for subsequent offenses, and because I find that the assimilation of both first and subsequent violations of Wis.Stat. § 346.63(1)(a) promotes the state's policy of prohibiting drunk driving and the federal purposes of conforming with state law penalizing minor offenses, United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295-96, 2 L.Ed.2d 282 (1958), and of according as much protection to people within a federal enclave as in the surrounding state, I reach a conclusion different from the magistrate's. I conclude that the offense with which defendant is charged is assimilated by the Assimilative Crimes Act and may be prosecuted in this court¹ Accordingly, I will reverse the magistrate's order of dismissal.

The parties do not dispute that this is defendant's first offense and that a first offense violation of Wis.Stat. § 346.63(1)(a) is not a crime under Wisconsin law. Whether such a first offense violation is incorporated by the Assimilative Crimes Act is disputed, and is a question of law to be reviewed de novo on appeal. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Opinion

Defendant is charged with violating Wis. Stat. § 346.63(1)(a), which prohibits driving or operating a motor vehicle while intoxicated. The penalties for such a violation are set forth in two other statutory sections. Wis.Stat. § 346.65(2) provides for a forfeiture of between $150 and $300 for a first offense, and for fines and imprisonment for subsequent offenses. Wis.Stat. § 343.30(1q)(b) provides for the suspension or revocation of the offender's license as well.

The Assimilative Crimes Act, 18 U.S.C. § 13, provides that

Whoever within or upon federal property is guilty of any act of omission which, although not made punishable by any enactment of Congress, 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.

The statute assimilates state criminal laws and provides for federal prosecution of violations on federal property of state criminal statutes. United States v. Press Publishing Company, 219 U.S. 1, 8, 31 S.Ct. 212, 213, 55 L.Ed. 65 (1911); United States v. Chaussee, 536 F.2d 637, 643 (7th Cir.1976); United States v. DeWater, 846 F.2d 528, 530 (9th Cir.1988); United States v. Davis, 845 F.2d 94, 96 (5th Cir.1988); United States v. King, 824 F.2d 313, 315 (4th Cir. 1987); United States v. Sain, 795 F.2d 888, 890 (10th Cir.1986). It has been described as "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).

It is undisputed that the first violation of Wis.Stat. § 346.63(1)(a) is a civil and not a criminal offense because of the civil forfeiture imposed as a penalty under Wis.Stat. § 346.65(2)(a). See Wis.Stat. § 939.12; Schindler v. Clerk of Circuit Court, 715 F.2d 341, 342 (7th Cir.1983); United States v. Keys, 392 F.Supp. 79, 80-81 (W.D.Wis. 1975); State of Wisconsin v. McAllister, 107 Wis.2d 532, 536-38, 319 N.W.2d 865 (1982); State of Wisconsin v. Novak, 107 Wis.2d 31, 35, 318 N.W.2d 364 (1982); State of Wisconsin v. Banks, 105 Wis.2d 32, 44, 313 N.W.2d 67 (1981); County of Racine v. Smith, 122 Wis.2d 431, 435, 362 N.W.2d 439 (Ct.App.1984).

In Keys, 392 F.Supp. 79, another judge of this court held that the Assimilative Crimes Act did not provide a jurisdictional basis for prosecuting a person for a first offense of operating a motor vehicle under the influence. He based his holding on the facts that the Assimilative Crimes Act is located in Title 18; Title 18 is entitled "Crimes and Criminal Offenses"; the first section of the title classified offenses into two categories only: felonies or misdemeanors, including petty offenses; and Wis.Stat. § 346.65(2)(a) provides explicitly that a first offense violation of Wis.Stat. § 346.63(1)(a) is not a crime. In other words, the court concluded that because 18 U.S.C. § 1 classified offenses only as felonies and misdemeanors, the Assimilative Crimes Act did not incorporate civil violations. 392 F.Supp. at 80-81.

The government notes correctly that the classification provision on which Judge Doyle relied in Keys was repealed effective November 1, 1987, thus undercutting the holding in Keys However, it does not follow, as the government contends, that enactment of a new classification provision, 18 U.S.C. § 3559, makes the Assimilative Crimes Act applicable to civil violations.

18 U.S.C. § 3559 classifies and grades offenses according to the penalty imposed. It is part of a scheme created to enact sentencing reform for all federal crimes, and is to be applied to all federal offenses committed after November 1, 1987. United States v. Ortega Lopez, 684 F.Supp. 1506, 1509 (C.D.Cal.1988). It has nothing to do with either 18 U.S.C. § 1 or the Assimilative Crimes Act. See 1984 U.S. Code Cong. and Admin.News 3182, 3269-3270.

In any event, I consider the presence or absence of a classification of offenses irrelevant. Although the Assimilative Crimes Act refers to "like offenses," it incorporates "any act or omission." See United States v. Peterson, 550 F.2d 379, 383 (7th Cir.1977) ("offense" was replaced with "any act or omission" in 1909). The critical inquiry is not what is labelled as an offense but what act or omission is proscribed. Peterson, 550 F.2d at 383 (unlicensed practice of law held punishable by federal not state law even though there is no specific federal penal offense concerning unlicensed practice of law, because such acts or omissions are indirectly controlled by federal law). The substantive offense is defined by the conduct proscribed. See State of Wisconsin v. McAllister, 107 Wis.2d at 536-38, 319 N.W.2d 865 (prior conviction essential element for purpose of punishment, not essential element of substantive offense).

In the instant case one statute defines the proscribed act or substantive offense, and another statute defines the penalty. McAllister, 107 Wis.2d at 536-38, 319 N.W.2d 865; Banks, 105 Wis.2d at 42, 313 N.W.2d 67 (citing 69 Op.Att.Gen. 48, at 49-51). The penalty provision differs from the usual repeater statute in that it mandates criminal proceedings and penalties on subsequent violations of the same drunk driving statute within any five-year period, rather than increasing penalties where the offender has had prior convictions for the same or other crimes. Banks, 105 Wis.2d at 37 n. 1, 313 N.W.2d 67. The legislature's purpose in passing this variation of a repeater statute was to address the problem of drunk driving without stigmatizing the first offense with criminal sanctions. Schindler, 715 F.2d at 345-47. However, as in the case of more common repeater statutes, there is no question that the legislature intended to prohibit the conduct proscribed by the substantive offense provision, drunk driving.

Thus, even though the penalty provision imposes a civil penalty for the first offense violation of the substantive drunk driving provision, the two provisions together operate more like the criminal prohibitory laws at which the Assimilative Crimes Act is directed than like the civil regulatory laws such as those concerning hunting. Oneida Tribe of Indians of Wisconsin v. State of Wisconsin, 518 F.Supp. 712, 718-19 (W.D. Wis.1981); United States v. Marcyes, 557 F.2d 1361, 1364 (9th Cir.1977) (Assimilative Act establishes uniformity in state's prohibitory laws (emphasis added)).

The graduated penalty structure mandated in Wisconsin's repeater provision does not change the nature of the offense or prohibited conduct but goes only to the question of punishment for the offense. McAllister, 107 Wis.2d at 536-538, 319 N.W.2d 865. Yet, it is the punishment that determines whether the conduct is a crime, and if only the part of the penalty provision that imposes criminal punishment is assimilated by the Assimilative Crimes Act, then the prohibited conduct may be prosecuted in federal court only for those drunk drivers who have at least once before been found guilty of violating the substantive provision outside of the federal enclave. Such a result contravenes the statutory scheme that is directed at all drunk drivers by prohibiting the conduct proscribed by Wis.Stat. § 346.63(1)(a), drunk driving.²

Assimilating first offense violations of Wisconsin's drunk driving statute would further not only the state's anti-drunk driving policies, but also the federal government's...