Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Eugene Anthony Altman appeals his conviction under Ca.Veh.Code Sec. 23153(a) pursuant to the Assimilative Crimes Act ("ACA"), 18 U.S.C. § 13(a). Appellant argues that federal law 36 C.F.R. Sec. 4.23 proscribes the same general conduct--here driving while under the influence of alcohol--as the state statute for which he was convicted, and therefore the California statute was improperly assimilated under the ACA by the district court. However, appellant's conduct was not merely "drunk driving," but "drunk driving which resulted in injury," conduct not proscribed by the federal statute. Therefore, we affirm.

We are called upon to interpret the application of the ACA to appellant's operation of a motor vehicle while under the influence of alcohol, resulting in injury to three people other than appellant. In United States v. Kiliz, 694 F.2d 628 (9th Cir. 1982), this court described the purpose of the ACA as threefold:

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 an enclave is located. Third, the ACA should give the people within a federal enclave as much protection as is afforded to those outside of the enclave.

Id. at 629 (citation omitted).

The Supreme Court, in Williams v. United States, 327 U.S. 711 (1946), held that the ACA did not make an Arizona "statutory rape" law applicable to the defendant's conduct because:

(1) the precise acts upon which the conviction depends have been made penal by the laws of Congress defining adultery and (2) the offense known to Arizona as that of "statutory rape" has been defined and prohibited by the Federal Criminal Code, and is not to be redefined and enlarged by application to it of the Assimilative Crimes Act.

Id. at 717 (footnotes omitted). And this court, in United States v. Kaufman, 862 F.2d 236 (9th Cir. 1989) (per curiam), stated, "A state criminal statute is not assimilated [ ] when the precise conduct it prohibits is made penal by federal law--there is then no gap in federal law for the state statute to fill." Id. at 237.

Appellant argues that the Eighth Circuit's interpretation of Williams in United States v. Butler, 541 F.2d 730 (8th Cir. 1976), supports his claim. Yet, as the Fifth Circuit noted in United States v. Brown, 608 F.2d 551 (5th Cir. 1979), "In Williams and Butler, state and federal laws proscribed the same offenses which were defined differently in state and federal statutes. Those decisions do not affect the rule permitting prosecution under the ACA only for state crimes which are not made penal by any law of Congress." Id. at 554 (citing Williams) .

In the instant action federal law 36 C.F.R. Sec. 4.23 proscribes driving while under the influence of alcohol. However, Ca.Veh.Code Sec. 23153(a), addressing the all-too-common results of such driving, proscribes driving while under the influence of alcohol which results in injury. The federal regulation does not address the generic conduct, or the precise act, of drunk driving which results in injury. "Congress has neither proscribed the specific acts committed by these defendants nor the generic conduct in which they engaged in such a way as to indicate an intent to ' [cover] the field with uniform federal legislation....' " United States v. Smith, 574 F.2d 988, 990 (9th Cir.) (quoting Williams, 327 U.S. at 724), cert. denied sub nom. Williams v. United States, 439 U.S. 852, and cert. denied sub nom. Komok v. United States, 439 U.S. 852 (1978).

Accordingly, we AFFIRM the district court's use of the ACA in incorporating Ca.Veh.Code Sec. 23153(a).