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United States v. Williams

United States District Court, E.D. Virginia, Richmond Division

September 18, 2017

UNITED STATES OF AMERICA
v.
TEVIN A. WILLIAMS, Defendant.

          MEMORANDUM OPINION

          Roderick C. Young, United States Magistrate Judge

         This matter is before the Court on the Motion to Dismiss the Driving under the Influence Charge ("Motion to Dismiss") (ECF No. 8) filed by Tevin A. Williams ("Defendant"). The United States has responded ("Response") (ECF No. 14), and the Defendant has replied ("Reply") (ECF No. 15). The Court heard oral argument on August 4, 2017. Accordingly, this matter is ripe. For the reasons set forth herein, the Court will deny the Motion to Dismiss.

         I. Background

         The Defendant, a member of the armed services, was charged on May 5, 2017 in a Criminal Information with Driving Under the Influence, in violation of 18 U.S.C. § 13, the Assimilative Crimes Act ("ACA"), assimilating Va. Code Ann. § 18.2-266. (ECF No. I.)[1] The Criminal Information alleges that on or about April 2, 2017, on Fort Lee, Virginia, property administered by the Department of Defense and within the special territorial jurisdiction of the United States, the Defendant was found operating a motor vehicle under the influence of alcohol, with a blood alcohol content of 0.23. (Id.) At his June 15, 2017 arraignment, the Defendant entered a plea of not guilty, and a jury trial was scheduled for August 7, 2017.[2] The Defendant filed the Motion to Dismiss on June 30, 2017. The Motion to Dismiss contends that, "[b]ecause the [Criminal I]nformation in this case alleges a violation of the Assimilated [sic] Crimes Act only, and references a state law that has not been assimilated, it fails to state an offense and should be dismissed. Fed. R. Crim. P. 7." (Mot. to Dismiss 6.)

         II. Applicable Legal Standards and Statutes

         Federal Rule of Criminal Procedure 12(b)(3)(B)(v) provides that "[t]he following defenses . . . must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits: . . . (B) a defect in the indictment or information, including: . . . (v) failure to state an offense." Federal Rule of Criminal Procedure 12(b)(2) provides that "[a] motion that the court lacks jurisdiction may be made at any time while the case is pending."[3]

         "The Assimilative Crimes Act provides that absent a governing federal statute, one who commits a state crime on a federal enclave 'shall be guilty of a like offense and subject to a like punishment.'" United States v. Thomas, 367 F.3d 194, 197 n.2 (4th Cir. 2004) (citing 18 U.S.C. § 13(a)). "Even though assimilated crimes are derived from state law, they become federal law under 18 U.S.C. § 13." United States v. Finley, 531 F.3d 288, 291 (4th Cir. 2008). The ACA "subjects persons on federal lands to federal prosecution in federal court for violations of criminal statutes of the state in which the federal lands are located. In so doing, the ACA establishes uniformity in a state's prohibitory laws where such conduct is not made penal by federal statutes." United States v. Dotson, 615 F.3d 1162, 1165 (9th Cir. 2010) (citations and internal quotation marks omitted). "The ACA's basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves." Lewis v. United States, 523 U.S. 155, 160 (1998) (citations omitted). The ACA provides in relevant part:

(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district 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(a). The ACA supports a "state's 'determination that [the conduct] is dangerous to the general welfare of its citizens, '" and establishes uniformity within a state. Dotson, 615 F.3d at 1166; see also United States v. Mariea, 795 F.2d 1094, 1099-1100 (1st Cir. 1986) (noting that the two aims of Congress in enacting the ACA were "to ensure that criminal offenses not be committed with impunity on federal enclaves simply by crossing jurisdictional lines" and "to punish most minor offenses committed on federal enclaves in conformity to local law, thus achieving statewide uniformity"); United States v. Clark, 195 F.3d 446, 449 (9th Cir. 1999); United States v. Reed, 734 F.3d 881, 885 (9th Cir. 2013).

         The Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. §§ 801 et seq., "pertain[s] only to members of the armed forces." Mariea, 795 F.2d at 1100. "The UCMJ provides four methods of disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art[icle] 15 [of the] UCMJ, 10 U.S.C. § 815." Middendorf v. Henry, 425 U.S. 25, 31 (1976) (quoted in Downey v. U.S. Dept. of the Army, 110 F.Supp.3d 676, 681 n.4 (E.D. Va. 2015)). The four methods "vary in both procedural protections afforded and in the seriousness of the possible punishments that may result." Downey, 110 F.Supp.3d at 681 n.4 (citing Middendorf). Disciplinary punishment under Article 15 is non-judicial, the least formal, and constitutes an "administrative method of dealing with the most minor offenses" Id. The First Circuit discussed the UCMJ in detail in the Mariea decision:

The articles of the UCMJ . . . pertain only to members of the armed forces. And they differ from civilian criminal statutes in a number of important respects. For one, the primary goal of the UCMJ, unlike that of state and federal criminal law, is instilling and maintaining discipline, on the notion that "a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns" are key to an effective fighting force. As a result, the UCMJ regulates military life far more comprehensively than a typical state criminal code regulates civilian life, with "strict discipline and regulation that would be unacceptable in a civilian setting." Another key difference is that minor offenses under the UCMJ are often enforced only by "forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction . . . ." Finally, military courts-martial and the civilian court system constitute totally separate systems of justice, with different procedures, protections and personnel. It is clear that for service personnel-especially those stationed in this country in times of peace-military justice was designed to supplement, not to displace, the civilian criminal justice system. Thus a provision of the UCMJ, enforceable only within the military establishment, cannot be construed to displace a civilian penal provision.

795 F.2d at 1100-01 (citations omitted). The particular federal statute at issue, which is Article 111 of the UCMJ (codified at 10 U.S.C. § 911), provides:

(a) Any person subject to this chapter who-
(1) operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (article 112a(b)), or
(2) operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial may direct.
(b) (1) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person's blood or breath is as follows:
(A) In the case of the operation or control of a vehicle, aircraft, or vessel in the United States, such limit is the lesser of-
(i) the blood alcohol content limit under the law of the State in which the conduct occurred, except as may be provided under paragraph (2) for conduct on a military installation that is in more than one State; or (ii) the blood alcohol content limit specified in paragraph (3).
(B) In the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is the blood alcohol content limit specified in paragraph (3) or such lower limit as the Secretary of Defense may by regulation prescribe.
(2) In the case of a military installation that is in more than one State, if those States have different blood alcohol content limits under their respective State laws, the Secretary may select one such blood alcohol content limit to apply uniformly on that installation.
(3) For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concentration in a person's blood is 0.10 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person's breath is 0.10 grams of alcohol per 210 liters of breath, as shown by chemical analysis.
(4) In this subsection:
(A) The term "blood alcohol content limit" means the amount of alcohol concentration in a person's blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited.
(B) The term "United States" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and the term "State" includes each of those jurisdictions.

10 U.S.C. §911.

         The Virginia criminal statute at issue is Va. Code Ann. § 18.2-266, which provides:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3, 4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

Va. Code Ann. §18.2-266.

         The concept of concurrent jurisdiction[4] is also relevant. The Fourth, First, and Ninth Circuits, as well as some district courts, note that it is well-established that federal district courts share concurrent jurisdiction with military courts over violations of the laws of the United States by military personnel whether on or off the military reservation. United States v. Walker, 552 F.2d 566, 567 (4th Cir.), cert, denied, 434 U.S. 848 (1977) (citing cases); Mariea, 795 F.2d at 1101 (citing 18 U.S.C. § 3231 and cases); United States v. Debevoise, 799 F.2d 1401, 1403 (9th Cir. 1986); see also United States v. Fulkerson, 631 F.Supp. 319, 321-24 (D. Haw. 1986). The district court in Fulkerson also noted that

the concept of concurrent jurisdiction is extremely relevant to determining the intended scope of the AC A. The fact that Congress has provided for substantial overlap in offenses defined both under the UCMJ and the general federal code is a strong indication that Congress did not intend to preempt assimilation of state law via the ACA by enactments contained in the UCMJ.

631 F.Supp. at 324; see also Mariea, 795 F.2d at 1101 ("This overlap in civilian and military jurisdiction makes it clear that Congress did not intend to preclude assimilation of state law under the ACA with ...


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