United States of America, Appellant, v. James K. Mariea and Jerry M. Smith, Defendants, Appellees.united States of America, Appellee, v. James K. Mariea, Defendant, Appellant, 795 F.2d 1094 (1st Cir. 1986)

The Assimilative Crimes Act ("ACA" or the "Act"), 18 U.S.C. § 13 (1982), supplements federal criminal law by providing that on federal reservations the relevant state criminal law is incorporated into federal law in respect to conduct "not made punishable by any enactment of Congress."¹  Thus, if an individual violates Maine criminal law on a federal reservation in Maine, and his conduct is not made punishable by any enactment of Congress, the particular Maine penal provision which is violated becomes a part of federal law, and he may be prosecuted for the state law violation in the United States District Court for the District of Maine.

At issue in the present case is whether the fact that military personnel charged with drunken driving on a federal military installation can be prosecuted for that conduct in a court-martial under a provision of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. §§ 801 et seq. (1982 & Supp. II 1984), bars assimilation into federal law of the Maine state law punishing drunken driving. Defendants argue, and the district court has ruled, that the ACA does not apply since the conduct is made punishable by an enactment of Congress, namely, the UCMJ. This ruling, if sustained, leaves the federal district court without jurisdiction and requires that military defendants be prosecuted, if at all, by local military authorities. The United States has appealed from this ruling.

Defendants James K. Mariea and Jerry M. Smith are both active-duty members of the armed forces stationed at the Naval Air Station at Brunswick, Maine. On January 17, 1985, Mariea was arrested after a hit-and-run accident on the military base, and subsequently charged in federal district court with violating Maine criminal statutes by driving while intoxicated, Me.Rev.Stat.Ann. tit. 29, Sec. 1312-B (Supp.1985),²  leaving the scene of an accident, Me.Rev.Stat.Ann. tit. 29, Sec. 894 (1978),³  and eluding police, Me.Rev.Stat.Ann. tit. 29, Sec. 2501-A(3) (Supp.1985).⁴  On February 11, 1985, Smith was apprehended on the Naval Air Station for driving under the influence, and a one-count information was subsequently filed, charging him with drunken driving in violation of Me.Rev.Stat.Ann. tit. 29, Sec. 1312-B. Since the state offenses took place on a federal enclave, the criminal information alleged that they were incorporated into federal law under the Assimilative Crimes Act.

The district court, on defendants' motion, dismissed the charge of driving under the influence as to both defendants, reasoning that a similar provision in the UCMJ precluded federal court jurisdiction under the Act. United States v. Smith, 614 F. Supp. 454 (D. Me. 1985). Thus the entire information against Smith was dismissed. The court determined, however, that it had jurisdiction over the two additional charges against Mariea (for leaving the scene of an accident and eluding the police) because they were not specifically provided for under the UCMJ. Mariea subsequently entered a conditional guilty plea on those counts under Fed. R. Crim. P. 11(a), reserving his right to appeal from the court's pretrial ruling.

Because we hold that the Uniform Code of Military Justice is not an "enactment of Congress" within the meaning of the Assimilative Crimes Act, and thus that the Maine provision condemning driving under the influence is incorporated into federal law, we hold that the district court 1) erred in dismissing the drunken driving charges as to both defendants for lack of jurisdiction under the Act; but 2) correctly found that there was jurisdiction over the two additional counts against Mariea. Accordingly, we vacate and remand the cases on the drunken driving charges, and affirm Mariea's convictions on the charges of leaving the scene of an accident and eluding the police.

Under the Assimilative Crimes Act, conduct punishable under state law is assimilated into federal law if it occurs on land reserved to the federal government, so long as the conduct is "not made punishable by any enactment of Congress." See note 1, supra. Thus if a provision of the Federal Criminal Code, 18 U.S.C. §§ 1 et seq. (1982 & Supp. II 1984), makes punishable the same conduct punishable under state law, the ACA does not apply. See, e.g., Williams v. United States, 327 U.S. 711, 717, 66 S. Ct. 778, 781, 90 L. Ed. 962 (1946); United States v. Butler, 541 F.2d 730, 732, 734 (8th Cir. 1976); United States v. Patmore, 475 F.2d 752, 753 (10th Cir. 1973); Fields v. United States, 438 F.2d 205, 207 (2d Cir.), cert. denied, 403 U.S. 907, 91 S. Ct. 2214, 29 L. Ed. 2d 684 (1971); United States v. O'Byrne, 423 F. Supp. 588, 590 (E.D. Va. 1973).

Defendants contend that the UCMJ is an enactment of Congress under the Act,⁵  and that since a provision in the UCMJ punishes drunken driving by military personnel, 10 U.S.C. § 911 (1982),⁶  resort to state law through the ACA is impermissible. In contrast, the government urges us to construe the phrase "any enactment of Congress" to refer to criminal statutes of general applicability. Since the UCMJ is a specialized code that applies only to military personnel, the government contends that a UCMJ provision against drunken driving should not be viewed as an enactment of Congress as that term is used in the Act, and thus that state law properly applies to defendants.

The district court rejected the government's position because it found no reason to depart from what it saw as the plain language of the Act by restricting the scope of the phrase "any enactment of Congress." Rather it found that the purpose of the ACA is to fill gaps in the federal law "where no action of Congress has been taken to define the missing offenses." Williams, 327 U.S. at 719, 66 S. Ct. at 782. The district court concluded that since drunken driving by servicemen was already punishable by court-martial under the UCMJ, there was no "gap" in criminal law to be filled by state law. Prosecution under the Act, the court observed, would mean "duplicative punishments for the same conduct [when] committed by members of the armed forces." Indeed, "[n]o reason has been advanced, nor can one be found, why Congress would have intended that conduct by servicemen which it has specifically proscribed under the UCMJ should also be punishable under the general mandate of the ACA."

We, of course, agree that "a statute's plain language is the primary indicator of its meaning." Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 756 (1st Cir. 1976), cert. denied, 431 U.S. 904, 97 S. Ct. 1696, 52 L. Ed. 2d 388 (1977). But we do not find the language in the phrase "made punishable by any enactment of Congress" to be "plain" as respects the precise question before us: whether the ACA refers only to penal laws of general application, or whether it was intended to include the UCMJ--a code not generally applicable to the citizenry, designed solely to regulate the military. We note that the "any enactment" phraseology was of recent invention, having been preceded by other language which was changed several times, all without apparent intent to alter the Act's basic meaning. Williams, 327 U.S. at 722-23, 66 S. Ct. at 783-84. Thus the question before us cannot be answered without examining the Act's design and historical purpose. See United States v. Fulkerson, 631 F. Supp. 319, 322 n. 5 (D.Hawaii 1986).

As reviewed in United States v. Sharpnack, 355 U.S. 286, 288-94, 78 S. Ct. 291, 293-96, 2 L. Ed. 2d 282 (1958),⁷  the history of the ACA strongly suggests that the present phrase "any enactment of Congress" means only those criminal laws of general applicability, and not a specialized, internal disciplinary code like the UCMJ which covers only military personnel. The only other circuit to face this issue has reached a similar conclusion, United States v. Walker, 552 F.2d 566 (4th Cir.), cert. denied, 434 U.S. 848, 98 S. Ct. 157, 54 L. Ed. 2d 116 (1977), as have two district courts, Fulkerson, 631 F. Supp. 319; United States v. O'Byrne, 423 F. Supp. 588 (E.D. Va. 1973); see also United States v. Best, 573 F.2d 1095, 1098 (9th Cir. 1978) (citing Walker with approval); United States v. Holley, 444 F. Supp. 1361, 1367 (D. Md. 1977) (same). We find the reasoning of these courts persuasive, particularly that of Judge King in Fulkerson, whose decision earlier this year followed the opinion below.

The first Federal Crimes Act, enacted in 1790,⁸  legislated a number of federal crimes applicable to federal enclaves, but it soon was apparent that a more comprehensive set of penal laws was needed to govern offenses committed on federal property. Sharpnack, 355 U.S. at 288-89, 78 S. Ct. at 293. Rejecting the option of enacting a separate criminal code for federal lands, Congress chose in 1825 to add a provision to the Federal Crimes Act, adopting as federal law the offenses made punishable by the laws of the state in which the enclaves were located, unless the offenses were "specially provided for by any law of the United States."⁹  Id. at 289-90, 78 S. Ct. at 293-94. It appears obvious that the state offenses which were to apply in the federal enclaves were generally applicable state crimes, and the federal offenses which might prevent operation of the state laws were, likewise, generally applicable federal crimes. There was never any suggestion that the Articles of War and similar articles for the Navy (precursors to the UCMJ) which were in existence in 1825 and thereafter would toll the operation of the ACA.

While the language of the Act now reads "any enactment of Congress,"¹⁰  this change cannot be construed as transforming clear congressional intent to supplement generally applicable federal criminal laws (primarily, the Federal Criminal Act, later codified as the Federal Criminal Code) to include statutes of restricted applicability.¹¹  1] Many courts, including the Supreme Court, that have examined the scope and purposes of the ACA have acknowledged that the Act refers to the Federal Criminal Code, or to generally applicable federal criminal laws.¹²  Here, while Congress itself penalized an increasing number of major offenses when committed on federal enclaves,¹³  it has not dealt with drunken driving in the Federal Criminal Code or in any other generally applicable criminal statute. It follows that assimilation of the state offense is appropriate.

To construe the ACA as disallowing assimilation in this case would do violence to two major aims of Congress in enacting it. One was to ensure that criminal offenses not be committed with impunity on federal enclaves simply by crossing jurisdictional lines.¹⁴  See United States v. Press Publishing Co., 219 U.S. 1, 12, 31 S. Ct. 212, 215, 55 L. Ed. 65 (1911). Another was to punish most minor offenses committed on federal enclaves in conformity to local law, thus achieving statewide uniformity, James Stewart & Co. v. Sadrakula, 309 U.S. 94, 101, 60 S. Ct. 431, 434, 84 L. Ed. 596 (1940), and deferring to the authority of the states over land within their borders.¹⁵  Defendants, under the interpretation they urge, "could not be prosecuted in federal court for the identical offense on the roads in the federal enclave as [they] had only moments before perpetrated on the state roads." United States v. Kiliz, 694 F.2d 628, 632 (9th Cir. 1982). While defendants could be court-martialed under the UCMJ, the option of prosecution by military authorities under the UCMJ provision is not an adequate substitute for prosecution by civilian authorities under a civilian criminal statute. See pages 1100-1101, infra. Moreover, since civilians charged with committing the same offense on a federal enclave would be subject to state law under the ACA, civilian offenders would face different, and possibly harsher, laws and punishments than would members of the military, who would be exempt from state laws that would otherwise apply to every other person in the state.¹⁶ 

Unlike the district court, we see little reason to tolerate "[d]isparate treatment of civilians and soldiers" in this case. To be sure, courts have "long recognized that the military is, by necessity, a specialized society separate from civilian society," with "laws and traditions of its own...." Parker v. Levy, 417 U.S. 733, 743, 94 S. Ct. 2547, 2555-56, 41 L. Ed. 2d 439 (1973). But this has never been deemed to mean wholesale exemption from the penal laws that govern the rest of society,¹⁷  and we do not think Congress meant to create such an exception under the Act. It is one thing not to apply state criminal law when Congress has legislated its own general criminal law for the same conduct, but quite another to exempt stateside military personnel from accountability under any and all general criminal law when an offense occurs on federal land, leaving them subject only to such discipline as their commanders choose to impose.

It stands to reason that the federal laws Congress had in mind as barring assimilation of state laws were federal laws of a character similar to the state laws they preempted--i.e., criminal laws of general application. The articles of the UCMJ, however, pertain only to members of the armed forces. And they differ from civilian criminal statutes in a number of important respects. Parker, 417 U.S. at 743-52, 94 S. Ct. at 2555-60. 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. Chappell v. Wallace, 462 U.S. 296, 300, 103 S. Ct. 2362, 2366, 76 L. Ed. 2d 586 (1983); see also United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 22, 76 S. Ct. 1, 8, 100 L. Ed. 8 (1955). As a result, the UCMJ regulates military life far more comprehensively than a typical state criminal code regulates civilian life,¹⁸  Parker, 417 U.S. at 750-51, 94 S. Ct. at 2559, with "strict discipline and regulation that would be unacceptable in a civilian setting," Chappell, 462 U.S. at 300, 103 S. Ct. at 2365. 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...."¹⁹  Parker, 417 U.S. at 750, 94 S. Ct. at 2559.

Finally, military courts-martial and the civilian court system constitute totally separate systems of justice, with different procedures, protections and personnel. See O'Callahan v. Parker, 395 U.S. 258, 262-66, 89 S. Ct. 1683, 1685-87, 23 L. Ed. 2d 291 (1969); Toth, 350 U.S. at 15-19, 76 S. Ct. at 4-6. 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.

We do not share the district court's concern that finding jurisdiction under the ACA would render court-martial jurisdiction meaningless. Concurrent jurisdiction is a well-established doctrine. Under 18 U.S.C. § 3231 (1982), federal district courts share concurrent jurisdiction with military courts over "all offenses against the laws of the United States"²⁰  committed by military personnel. See Gosa v. Mayden, 413 U.S. 665, 673, 93 S. Ct. 2926, 2932-33, 37 L. Ed. 2d 873 (1973); Grafton v. United States, 206 U.S. 333, 348, 27 S. Ct. 749, 752, 51 L. Ed. 1084 (1907); Walker, 552 F.2d at 567, 568 n. 5. Many offenses under the UCMJ are also punishable under the Federal Criminal Code.²¹  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 provisions in the UCMJ. See Fulkerson, 631 F. Supp. at 324. Concurrent jurisdiction simply gives the applicable authorities a choice of where to prosecute, an election generally resolved by considerations of comity. See Ponzi v. Fessenden, 258 U.S. 254, 259, 42 S. Ct. 309, 310, 66 L. Ed. 607 (1922). Military authorities can move swiftly to invoke court-martial jurisdiction where issues of military discipline are paramount. It can be anticipated that the United States Attorney, in determining whether to bring charges in federal court or to leave matters to a military court, will take into account proper interests of the military as well as other considerations.

Finally, it must be borne in mind that drunken driving is not an offense peculiar to military society, as disobeying an order by a superior or leaving an assigned post may be. See Toth v. Quarles, 350 U.S. at 18, 76 S. Ct. at 5-6. While drunken driving belongs appropriately in the UCMJ for situations where there is no adequate civilian enforcement mechanism (such as abroad or in a war theatre), or where military discipline is strongly implicated (such as where the driver is on duty), it is also an offense which may often be better left to civilian authorities even when occurring on a military base. The laws governing the safety of state roads (which will often interconnect with those in a federal installation) are precisely the kind of laws that a state has a strong interest in seeing enforced uniformly as to all persons, on or off a military base.

We conclude, in keeping with the views of the Fourth Circuit and other district courts, as well as those of the United States, that "any enactment of Congress" in the ACA refers to penal enactments of general applicability, not to the UCMJ. In view of our conclusion, we need not specifically address the question of whether the district court properly found that there were no UCMJ provisions making punishable the two additional charges against Mariea--eluding the police and leaving the scene of an accident--upon which he was convicted. Even assuming that the UCMJ contains sufficiently similar offenses, Maine state law as to those offenses would still be assimilated into federal law since the UCMJ is not an enactment of Congress under the Act that could preclude federal jurisdiction. We are not aware of, and the parties have not argued, that there is any other federal statute specifically providing for either offense.

Accordingly, we hold that the district court had jurisdiction to hear the two additional charges against Mariea, and his conviction is affirmed. The dismissal of the drunken driving counts as to both defendants is vacated, and the cases are remanded to the district court for trial or any other proceedings consistent herewith.²² 

In No. 85-1770, the judgment of the district court is vacated and remanded; in No. 85-1946, the judgment of the district court is affirmed.