US v. Spivey

• Decision Date: 20 December 1991
• Docket Number: Crim. No. 90-1735 ACK.
• Citation: 781 F. Supp. 676
• Parties: UNITED STATES of America, Plaintiff, v. Daniel SPIVEY, Jr., Defendant.
• Court: U.S. District Court — District of Hawaii

781 F. Supp. 676

UNITED STATES of America, Plaintiff, v. Daniel SPIVEY, Jr., Defendant.

Crim. No. 90-1735 ACK.

United States District Court, D. Hawaii.

December 20, 1991.

Daniel Bent, Phillip M. Payne, Jr., Sp. Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.

Deana Spencer, Federal Public Defenders Office, Honolulu, Hawaii, for defendant.

ORDER AFFIRMING MAGISTRATE'S ORDER DENYING DEFENDANT'S DEMAND FOR JURY TRIAL

KAY, Chief Judge.

I. INTRODUCTION

Defendant appeals the Magistrate's order denying defendant's demand for a jury trial. For the following reasons, the court affirms the Magistrate's order.

II. FACTS

Defendant was charged with driving under the influence and driving with an illegal blood alcohol level on a federal military reservation. He was charged under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13.

Defendant demanded a jury trial. The Magistrate denied the demand. Plaintiff appeals the Magistrate's decision.¹

III. DISCUSSION

A. STANDARD OF REVIEW

Under Local Rule 404-1, an appeal of a Magistrate's order dealing with a non-dispositive matter is reviewed under the "clearly erroneous or contrary to law" standard.

Both parties assert that this case presents a question of constitutional law, and therefore the standard of review is de novo. See defendant's opening brief, at 3 (citing 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)); U.S.'s responding brief, at 2 (same).

Since the issue presented is purely a question of law, the court finds there is little difference between reviewing the issue under either the "de novo" or "clearly erroneous or contrary to law" standards. The court is required to make a "de novo" examination of the law in order to determine whether the Magistrate was "clearly erroneous" or "contrary to law."

B. THE MERITS

The ACA provides that

whosoever within or upon any federally reserved land 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 ... 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.

. . . . .

For purposes of subsection (a) of this section, that which may or shall be imposed through judicial or administrative action under the law of a State ... for a conviction for operating a vehicle under the influence of a drug or alcohol, shall be considered to be punishment provided by law.

18 U.S.C. § 13(a), and (b).

The ACA ... subjects persons to federal prosecution in federal court for violations of criminal statutes of the state in which the federal lands are located. The ACA transforms a crime against the state into a crime against the federal government. citations Congress, in enacting the ACA, sought to accomplish three goals. First, the ACA establishes a gap-filling criminal code for federal enclaves. Second, the ACA provides for conformity in the laws governing a federal enclave and the state in which the enclave is located. Third, the ACA should give the people within the federal enclave as much protection as is afforded to those outside of the enclave. citations.

United States v. Kiliz, 694 F.2d 628, 629 (9th Cir.1982). The ACA "`incorporates into federal law only the criminal laws of the jurisdiction within which the enclave exists; it is, itself, a penal statute.'" U.S. v. Carlson, 900 F.2d 1346, 1347 (quoting United States v. Best, 573 F.2d 1095, 1098 (9th Cir.1978)) (emphasis in original).² Although "a state's penal laws should be uniformly applied to citizens on and off federal enclaves," United States v. Marcyes, 557 F.2d 1361, 1364-65 (9th Cir.1977), "the ACA incorporates state substantive criminal law as federal substantive law ... but does not generally adopt state procedures." United States v. Kearney, 750 F.2d 787, 789 (9th Cir.1984) (citation omitted); see also U.S. v. Wilmer, 799 F.2d 495, 500 (9th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987). Moreover, "federal courts are not required to follow provisions of state law which go beyond establishing the elements of an offense and the range of punishment." U.S. v. Roberts, 845 F.2d 226, 228 (9th Cir.), cert. denied, 488 U.S. 845, 109 S.Ct. 121, 102 L.Ed.2d 95 (1988) (citing United States v. Sain, 795 F.2d 888, 890 (10th Cir.1986)). "The ACA creates a federal offense; it refers to the state statutes for its definition and its penalty, but does not incorporate the whole criminal and constitutional law of the state." Smayda v. United States, 352 F.2d 251, 253 (9th Cir.1965), cert. denied, 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966). State court interpretations of the assimilated state law are "purely advisory" because "the assimilated state law, in effect, becomes a federal statute." Kiliz, 694 F.2d at 629. "Provisions of state law relating to the prosecution are assimilated only if they do not conflict with federal laws on the point." U.S. v. Garner, 874 F.2d 1510, 1512 (11th Cir.1989) (citing Sain, 795 F.2d at 890-91; United States v. Holley, 444 F.Supp. 1361, 1362 (D.Md.1977)).

Defendant was charged with two counts of violating the ACA. Count one was based on a violation of HRS 291-4(a)(1), operating a vehicle under the influence of intoxicating liquor. Count two was based on HRS 291-4(a)(2), operation of a vehicle with a blood alcohol level of .10 or more. This was defendant's first offense under this statute.

In State v. O'Brien, 68 Haw. 38, 704 P.2d 883 (1985), the Hawaii Supreme Court held that a person charged with violating § 291-4 is entitled to a jury trial. The Hawaii Supreme Court held that a violation of § 291-4 carried a maximum term of imprisonment of 6 months, and that the Hawaii legislature considered the statute to be a "constitutionally serious offense." 68 Haw. at 44 n. 5, 704 P.2d 883; id. at 43, 704 P.2d 883.³

Defendant claims that because the Hawaii courts consider a violation of § 291-4 a "serious" offense which entitles a defendant to a jury trial, defendant should be entitled to a jury trial in federal court under the ACA.

The above case law indicates that the ACA assimilates Hawaii law only to the extent of the elements of the offense and the range of punishment. Roberts, 845 F.2d at 228; Smayda, 352 F.2d at 253. Hawaii's law dealing with defendant's right to a jury trial is thus not "incorporated," Smayda, 352 F.2d at 253, and is "purely advisory." Kiliz, 694 F.2d at 629. The court is "not required to follow" Hawaii's "jury trial right" law when considering the ACA. Roberts, 845 F.2d at 228. Furthermore, if Hawaii's provision giving defendants a right to a jury trial "is in conflict with the federal rule that the right to a jury exists only for the trial of `serious' offenses, ... the provision must be disregarded." Garner, 874 F.2d at 1512.

The inquiry of whether a defendant is entitled to a jury trial in federal court under the ACA is determined by federal and not state law. U.S. v. Bencheck, 926 F.2d 1512, 1513 n. 6 (10th Cir.1991); Garner, 874 F.2d at 1512. Under federal law, there is no right to a jury trial when the charged crime is a "petty crime or offense." Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 1291, 103 L.Ed.2d 550 (1989); Sain, 795 F.2d at 891 (citing Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974)).

Under 18 U.S.C. § 19, a "petty offense" is described as

a Class B misdemeanor, a Class C misdemeanor, or an infraction, for which the maximum fine is no greater than the amount set forth for such an offense in section 3571(b)(6) or (7) in the case of an individual or section 3571(c)(6) or (7) in the case of an organization.

The maximum fine set forth for an individual in 18 U.S.C. § 3571(b)(6)-(7) is $5,000. The maximum imprisonment term for a Class B misdemeanor is six months, and for a Class C misdemeanor thirty days. 18 U.S.C. § 3559(a)(7)-(8). HRS § 291-4 has a maximum penalty of six months imprisonment and a maximum fine of $1,000.

Based on this, a violation of § 291-4 is a "petty offense" under federal law and thus bars defendant from trying his case to a jury. This is contrary to O'Brien where the Hawaii Supreme Court concluded that a jury trial was necessary. Therefore, Hawaii's law, as extrapolated in O'Brien, is not assimilated by the ACA because it conflicts with federal law. Bencheck, 926 F.2d at 1513 n. 6; Garner, 874 F.2d at 1512; Sain, 795 F.2d at 891; Cheyenne-Arapaho Tribes of Oklahoma v. State of Oklahoma, 618 F.2d 665, 668 (10th Cir.1980).

Moreover, any argument that the penalties over and above the maximum prison term and fine mandated by § 291-4 for a first time offender, (i.e., a fourteen-hour alcohol abuse program, a maximum 90 day suspension of driver's license, and up to 72 hours of community service work), boost a violation of § 291-4 out of the "petty" classification into a "serious" crime thus requiring a jury trial is meritless. See e.g., Blanton, 109 S.Ct. at 1291 (Court found DUI law very similar to Hawaii's a "petty" offense where maximum penalty included 6 months of imprisonment (or, alternatively, 48 hours of community service work while dressed in garb identifying the defendant as a DUI offender), a fine of up to $1,000, driver's license suspension up to 90 days, and attendance at an alcohol abuse program at defendant's expense); Garner, 874 F.2d at 1511 (court found similar DUI law "petty" where it contained imprisonment up to 6 months, fine up to $500, attendance at a substance abuse program at defendant's expense, up to one year probation (including 50 hours of community service as part of probation), and revocation of driver's license up to 1 year); compare United States v. Craner, 652 F.2d 23 (9th Cir.1981) (pre-Blanton, non-ACA prosecution for DUI; court held defendant...