Unpublished Disposition, 908 F.2d 978 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 978 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Jim R. PUTNAM, Defendant-Appellant.

No. 89-10400.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1990.* Decided July 24, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Putnam appeals his conviction for driving on a federal military installation with a suspended or revoked license, in violation of Haw.Rev.Stat. Sec. 286-132 (1985), and for speeding, in violation of Haw.Rev.Stat. Sec. 291C-102 (1985). These state violations are purportedly made federal pursuant to the Assimilative Crimes Act (ACA), 18 U.S.C. § 13 (1988). Putnam contends that federal courts do not have jurisdiction to adjudicate the speeding offense within federal enclaves in Hawaii. We agree and reverse his conviction for speeding. He also argues that the Hawaii statute under which his license was revoked, Haw.Rev.Stat. 287-20 (1985), is unconstitutional facially or as applied. We disagree and affirm his conviction for driving without a license.

JURISDICTION OVER THE SPEEDING VIOLATION

Our governing precedent is clear with respect to the speeding violation: the ACA "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); see also United States v. Snyder, 852 F.2d 471, 474 (9th Cir. 1988) (holding that California license suspension provision was not assimilated under the ACA because it was " 'regulatory and not punitive' ") (quoting Best, 573 F.2d at 1098). Moreover, we have recently held that "because under Hawaii law speeding violations do not constitute crimes, they may not be assimilated under the Act." United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). The magistrate thus lacked jurisdiction over the speeding violation.

DRIVING WITHOUT A LICENSE

No jurisdictional defect attaches to the conviction for driving without a license. The penalty for driving with a suspended or revoked license is a fine of "not less than $250 but not more than $1,000 or imprison [ment] not more than one year." Haw.Rev.Stat. Sec. 286-132 (1985). The relevant provision defining grades of offenses states that " [a]n offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime." Haw.Rev.Stat. Sec. 701-107(1) (Supp.1989). Thus, under Best, the magistrate had jurisdiction by virtue of the assimilation of this provision into the ACA. See 573 F.2d at 1098. Putnam urges us to reverse his conviction for driving without a license because that Hawaii provision is either unconstitutional on its face or as applied.

A. Facial Challenge to the Statute.

We first consider the facial challenge. Appellant contends that the statute is unconstitutional on its face because it fails to provide notice and hearing prior to or after suspension of a driver's license. The only authority cited by Putnam, Bell v. Burson, 402 U.S. 535 (1971), found unconstitutional a Georgia statute that did not provide a fault determination prior to suspending the license of a driver who was involved in an accident and who did not post security for the amount of damages claimed by the aggrieved party. Id. at 542. The Court distinguished the facts of Bell from those present in this case: "If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment." Id. at 539. We read Haw.Rev.Stat. Sec. 287-20 to comport with this dictum.

Moreover, we note that Haw.Rev.Stat. Sec. 287-20 is not invoked until after conviction of an offense for which a hearing is available.1  This statute thus provides the penalty for the underlying offense for which the driver was first prosecuted.2  For these reasons, we cannot agree with Putnam that the Hawaii statute is facially invalid under the Fourteenth Amendment.

B. Challenge to the Statute "As Applied" and the Mens Rea Requirement.

The gravamen of his "as applied" claim is that the government failed to prove that he received notice of the revocation or suspension of his license. This claim is without merit. Notice was received. He uses the claim of no actual notice to support his allegation that the government failed to produce sufficient evidence to prove mens rea. We shall deal with both issues under one heading.

1. The Receipt of Notice.

Putnam's only argument to deny actual notice is a purportedly ambiguous reference in Exhibit Two, which was a record of his driving submitted to the court under subpoena for this case. He argues that this exhibit suggests that the Division of Motor Vehicles did not send out the order requiring proof of financial responsibility. In that exhibit, the licensing administrator stated: "The Defendant was in violation of Section 287-44(d) on the offense date of 12-14-87. Written notification was not issued to the Defendant and he has not complied with Financial Responsibility and the attached Order." Record Excerpts, at 37. Appellant interprets the second sentence to mean that the administrator admits that the Division of Motor Vehicles and Licensing never mailed out the order requiring him to show proof of financial responsibility (Exhibit Three). Yet the remainder of the sentence, noting Putnam's noncompliance with the "attached Order," calls appellant's interpretation into question and suggests that he did receive notice.

The district court believed so. It interpreted the statement to mean that "Putnam did not receive notice at the time his license was suspended; [Exhibit Two] does not state that he failed to receive notice of such suspension at any other time." Record Excerpts, at 72. Because the order notified the recipient of the penalty of suspension if he does not offer the requisite proof of financial responsibility within thirty days, a separate notice of suspension sent out on the actual date the suspension goes into effect is unnecessary.

Having thus determined that Exhibit Two does not negate the import of Exhibit Three, we must now determine whether the magistrate and district court correctly found that the DMV mailed a copy of this latter exhibit to Putnam. We conclude that they did. At trial, the magistrate employed a presumption that the Division of Motor Vehicles had issued the order requiring proof of financial responsibility. This presumption was appropriate given that the order was an official record customarily mailed in the ordinary course of the DMV's business. See Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.), cert. denied, 464 U.S. 818 (1983) (noting that " [p]lacing letters in the mail may be proved by circumstantial evidence, including customary mailing practices used in the sender's business"); see also Meckel v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir. 1985) (holding that "the presence of such proof [of regular mailing procedures] establishes prima facie evidence of the mailing and creates a rebuttable presumption as to receipt").

Putnam does not contest that the order was mailed to him, nor does he expressly deny having received it. His sole argument is that the government has failed to prove that he received it. Such letters are presumed to be received. Id.; Wells Fargo Business Credit, 695 F.2d at 944. We thus conclude that Putnam received notice of the order to file proof of financial responsibility.3 

2. The Mens Rea Requirement.

Putnam's receipt of notice satisfies the applicable mens rea requirement. The mens rea required of Haw.Rev.Stat. Sec. 286-132 is intent, knowledge, or recklessness. See Haw.Rev.Stat. Sec. 702-204 (1985) (default provision that statute without explicit mens rea requirement shall require intent, knowledge, or recklessness). Mens rea can be proved by showing that the defendant had actual or constructive notice of the violation. Actual notice has been proved. Exhibit Three of the government's evidence was an order requiring Putnam to come forward within thirty days and show proof of financial responsibility. This form, which invokes Haw.Rev.Stat. 287-20 explicitly, states that failure to comply within thirty days would result in automatic suspension of his license.

It follows that such notice adequately establishes a mens rea of at least recklessness on Putnam's part. See State v. Lesher, 66 Haw. 534, 537, 669 P.2d 146, 148 (1983) (holding that person who operated vehicle without ascertaining whether there was a valid no-fault insurance card in the vehicle was reckless). We thus reject Putnam's arguments that Haw.Rev.Stat. 287-20 is unconstitutional as applied to him and that the government failed to produce sufficient evidence of mens rea.

AFFIRMED IN PART, REVERSED IN PART.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

We thus do not find persuasive appellant's claim that the statute accords him no process--pre- or post-termination--at all

 2

In Dixon v. Love, the Court cited approvingly a number of cases decided after Bell v. Burson that "sustained suspension or revocation of driving privileges, without prior hearing, where earlier convictions were on the record." 431 U.S. 105, 114 n. 11 (1977)

 3

In light of this finding, we need not consider whether he also received constructive notice of the financial responsibility requirement by virtue of his appearance at court on the driving without proof of no-fault insurance charge