Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM

Jansen appeals from his conviction for a vehicular speeding offense on a federal military installation in violation of Haw.Rev.Stat. Sec. 291C-102 (1988), a state violation purportedly made federal pursuant to the Assimilative Crimes Act (Act), 18 U.S.C. § 13. He contends that federal courts do not have jurisdiction under the Act to adjudicate speeding offenses that occur within federal enclaves in Hawaii. We agree and reverse.

We need not engage in any extensive analysis to reach our holding. The facts of this case are almost identical to the facts in our recent decision in United States v. Carlson, No. 89-10226, slip op. 3375 (9th Cir. Apr. 3, 1990) (Carlson). The only difference between the two cases is that Carlson was fined $11.00 for his speeding violation while Jansen was fined $21.00. Thus, what we said in Carlson is equally true here. Our governing precedent is clear: the Act "incorporates into federal law only the criminal laws of the jurisdiction within which the enclave exists." United States v. Best, 573 F.2d 1095, 1098 (9th Cir. 1978) (Best) (emphasis in original). Since the violation of Hawaii's speeding statute, Haw.Rev.Stat. Sec. 291C-102 (1988), is plainly not a criminal offense, Carlson, slip op. at 3379, we may not assimilate that law under the Act. Best, 573 F.2d at 1098. Therefore, we conclude that the magistrate lacked jurisdiction under the Act. Carlson, slip op. at 3382.

Moreover, as was the case in Carlson, because the government did not raise in the trial court the issue of whether Jansen could be prosecuted under 32 C.F.R. Sec. 634.4(c) (4) (1989), the applicability of that regulation is not properly before us. Carlson, slip op. at 3382-83.

REVERSED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.