U.S. v. GOLDEN 825 F.Supp. 667 (1993)
UNITED STATES of
America, Plaintiff, v. John GOLDEN, Esquire, pro se, Defendant.
United States
District Court, D. New Jersey.
June 29, 1993.
Attorney(s) appearing for
the Case
Michael Chertoff,
U.S. Atty. by E. Bradford Bales, Captain, U.S. Army Sp. Asst. U.S. Atty., Fort
Monmouth, NJ, for plaintiff.
John A. Golden, pro
se.
CLARKSON S. FISHER,
Senior District Judge.
This case involves
a motor vehicle speeding violation on a United States military base, where the
government attempts to charge defendant, John Golden, pursuant to the
Assimilative Crimes Act, 18 U.S.C. § 13 (1988), and N.J.S.A. § 39:4-98 (1990).
For the following reasons defendant's motion to dismiss is granted.
I
On October 13,
1992, defendant, John Golden, was operating his motor vehicle in a southerly
direction on Pearl Harbor Road, Fort Monmouth, New Jersey. After passing a
marked military police car, defendant was stopped for driving at an excessive
rate of speed.
Pursuant to 28
U.S.C. §§ 636(c)(1)-(2) (Supp.1992), defendant refused the jurisdiction of a
United States magistrate judge. From this refusal, the instant matter came
before this court.
At trial the
government put forward the following, inter alia: (1) that defendant was
operating his motor vehicle at a speed of 38 m.p.h. in a 25 m.p.h. speed zone;
(2) that this court has jurisdiction over the instant matter, as the alleged
violation occurred on a United States military base under the exclusive jurisdiction
of the federal courts; and (3) that this court additionally has jurisdiction
pursuant to the Assimilative Crimes Act, 18 U.S.C. § 13 (1988), which
incorporates a state's criminal code on federal enclaves.
Defendant,
appearing pro se, contends that the area in which he was stopped had
inconsistent speed limit markings. Defendant also made a post-trial motion to
dismiss the government's information for lack of subject matter jurisdiction.
The court's analysis will address only defendant's motion to dismiss.
II
The Assimilative
Crimes Act ("the Act") is generally used to charge defendants when
criminal acts are committed on federal territories and there is no existing
federal criminal law. It provides, in pertinent part:
(a) Whoever within
or upon any [federal enclave], 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 ... in which [the
federal enclave] 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.
United States v. Carlson, 900
F.2d 1346, 1347 (9th Cir.1990) (citing 18 U.S.C. § 13 (1988)).
The Act, at first
glance, would make all New Jersey state laws applicable to the Fort Monmouth
site. However, it has been interpreted to incorporate only a state's criminal
legislation. Id.; United States v. Best, 573
F.2d 1095 (9th Cir.1978); United States v. Rowe, 599
F.2d 1319 (4th Cir.1979).
III
In United States v.
Carlson, the defendant was stopped at a military installation in Hawaii for
operating his motor vehicle at 36 m.p.h. in a 25 m.p.h. zone. 900 F.2d at 1347.
The defendant was charged with speeding pursuant to Haw.Rev.Stat. § 291C-102
and 291C-161 (1988). Id. Jurisdiction was
[825 F.Supp. 669]
based in the federal courts pursuant to
the Act, 18 U.S.C. § 13 (1988). Id.
A magistrate judge
ordered the defendant to pay an $11.00 fine after a bench trial. Id. The
defendant then filed a motion for reconsideration based on lack of
jurisdiction, which was rejected. Id.
The decision of the
magistrate was affirmed by a district court in a published opinion and order.
United States v. Carlson, 714 F.Supp. 428 (D.Haw.1989). The court held
that Hawaii's speeding law was criminal in nature and, therefore, jurisdiction
in a federal court was proper pursuant to the Assimilative Crimes Act. Id. at
437.
The Ninth Circuit
Court of Appeals reversed the defendant's conviction on the jurisdictional
question. The appeals court held that, under Hawaii law, speeding was a
"violation" and that "violations" under Hawaii's penal code
did not constitute crimes. The court concluded, therefore, that the federal
court lacked jurisdiction to hear the case under the Assimilative Crimes Act.
Carlson, 900 F.2d at 1349.
In United States v.
Best, the defendant was convicted of driving a vehicle on McClellan Air Force
Base (a federal enclave in California) while under the influence of alcohol, in
violation of California Vehicle Code § 23102(a) (current version at § 23152).
Jurisdiction was based in the federal courts pursuant to the Assimilative
Crimes Act, 18 U.S.C. § 13 (1988). Best, 573 F.2d at 1097.
A magistrate judge
sentenced Best to serve ten days in jail, levied a $350.00 fine, and ordered a
suspension of defendant's driver's license for six months. Id. Best moved to
correct the sentence pursuant to Rule 35 of the Federal Rules of Criminal
Procedure, on the ground that the magistrate lacked the power to suspend his
driver's license. Id. The motion was denied, and that denial was affirmed by a
district court. United States v. Best, 434
F.Supp. 1153 (E.D.Cal.1977).
The Ninth Circuit
Court of Appeals reversed the suspension of Best's driver's license. Best, 573
F.2d at 1103. The court held that the Assimilative Crimes Act incorporates only
the criminal laws of the jurisdiction in which the enclave sits. Id. at 1100.
The Court also noted that an order of suspension is not penal in nature, but
rather, is a regulatory measure. Id. Indeed,
The suspension of
or revocation of a license is not penal; its purpose is to make the streets and
highways safe by protecting the public from incompetence, lack of care, and willful
disregard of the rights of others by drivers.
Id. (quoting Beamon v. Department of
Motor Vehicles, 180 Cal.App.2d 200, 4
Cal.Rptr. 396, 403 (1960)).
In United States v.
Rowe, the defendant appealed his conviction for driving under the influence of
alcohol and refusing to take a breathalyzer test, in violation of Va.Code Ann.
§§ 18.2-266 and 18.2-268 (current version at § 2-268.2). 599 F.2d at 1320. Both
offenses occurred at the Norfolk Naval Station (a federal enclave in Virginia).
Id. The Fourth Circuit reversed the conviction of the breathalyzer charge,
holding that the refusal to submit to a blood test "is administrative and
civil, not criminal, in nature." Id. Accordingly, this offense could not
be prosecuted under the Assimilative Crimes Act. Id.
IV
Defendant Golden
argues that the New Jersey courts have clearly and unambiguously decided that
motor vehicle violations such as speeding are not criminal offenses. Defendant
urges, therefore, according to the Carlson, Best and Rowe decisions, that the
information charging him with a state civil offense, based in the federal
courts pursuant to the Assimilative Crimes Act, must be dismissed.
Defendant cites
State v. Hammond, 118 N.J. 306, 571
A.2d 942 (1990), to support his contention that motor vehicle
violations are not criminal offenses under New Jersey law. In Hammond, the New
Jersey Supreme Court denied a defendant the use of an involuntary intoxication
defense to a charge of drunk driving. The Court reasoned that, since motor
vehicle offenses did not constitute crimes, the use of a criminal defense was
impermissible. Id. at 318, 571 A.2d 942. See State v. Walten, 241 N.J.Super. 529, 575
A.2d 529 (App.Div.1990) (court held that motor
[825 F.Supp. 670]
vehicle charges are quasi-criminal in
nature, and are not "offenses" under the code of criminal justice);
see also State v. Newman, 223 N.J.Super. 284, 538
A.2d 820 (App.Div. 1988).
V
The government
makes various arguments in opposition to defendant's motion to dismiss. First,
the government avers that defendant's motion should be denied because the
sentencing provision of N.J.S.A. § 39:498 provides for a possible term of
imprisonment of fifteen days, and such should therefore be read as a criminal
prohibitory law, rather than a civil regulatory law. In support of its
argument, the government cites United States v. Manning, 700
F.Supp. 1001 (W.D.Wis.1988).
The defendant in
Manning was charged under Wis.Stat. § 346.63(1)(a) and the Assimilative Crimes
Act, for operating a motor vehicle on a military reservation while intoxicated.
Id. The Wisconsin court allowed the charge of drunk driving to be assimilated
under the Act, even though the sentencing provision imposed only civil
penalties for a first offense. Id. The court reasoned that even though there
was no term of imprisonment for first-time offenders, the Wisconsin statute
served a criminal prohibitory purpose, and as such could be assimilated under
the Act. Id.
Secondly, the
government avers that Carlson is distinguishable from this case, on the basis
that the state laws in question do not carry similar sentencing schemes. The
court in Carlson noted that under Hawaii law, speeding constituted a
"violation", which does not carry with it a potential prison
sentence. 900 F.2d at 1347. Conversely, the defendant at present, under New
Jersey law, faces a potential fifteen-day prison term. Therefore, the
government reasons, the difference in the sentencing schemes between the two
state statutes distinguishes Carlson.
Thirdly, the
government asks this court, in the alternative, for permission to amend its
information. In particular it requests permission to replace the current charge
against the defendant of a violation of the Assimilative Crimes Act, 18 U.S.C.
§ 13 (1988), with a violation of 32 C.F.R. § 634.25(f) (1991). This federal
regulation confers jurisdiction on federal courts for all traffic law
violations which are not considered criminal offenses under a state's laws.
VI
In response to the
government's first argument, the court in Manning faced quite a different
situation from the case at bar. In Manning, dismissal of the complaint against
the defendant would have effectively eliminated prosecution of first-time drunk
driving offenses on federal enclaves in Wisconsin. Indeed the court notes this
reasoning as a key rationale behind its holding. 700 F.Supp. at 1004. However,
in light of the revisions in the Code of Federal Regulations, this court is not
presented with a similar situation. Indeed, the Code expressly provides for
prosecution of motor vehicle violations in states where such offenses cannot be
prosecuted under the Act. 32 C.F.R. § 634.25(f) (1991). Therefore, future
violators of motor vehicle offenses could simply be charged pursuant to section
634.25(f), rather than the Act.
In response to the
government's second argument, i.e. that Carlson should be distinguished, this
court finds that such decision should be given substantial weight. The Carlson
court, although finding that pursuant to Hawaii law "violations" do
not carry with them potential prison sentences, held that motor vehicle
offenses in Hawaii do not constitute crimes, and as such could not be
incorporated under the Act. 900 F.2d at 1347.
Similarly, New Jersey
courts have clearly and unambiguously held that motor vehicle offenses do not
constitute crimes. Indeed, "crimes," as defined by New Jersey State
Criminal Code, are those offenses for which a sentence of imprisonment in
excess of six months is authorized. N.J.S.A. § 2C:1-4(a). Therefore, the charge
against the defendant could not constitute a crime as defined by New Jersey's
own criminal code, irrespective of the potential fifteen-day prison sentence
for speeding. As such, the use of the Assimilative
[825 F.Supp. 671]
Crimes Act to obtain federal court
jurisdiction is improper.
Finally, in
response to the government's request to amend the information against the
defendant, that request is denied. Generally, leave to amend pleadings should
be freely given when justice so requires. Fed.R.Civ.P. 15(a). However, leave to
amend may be denied where, inter alia, there is undue delay or undue prejudice
to the opposing party. Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Heyl and
Patterson Int'l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663
F.2d 419, 425 (3rd Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct.
1714, 72 L.Ed.2d 136 (1982); Harrison Beverage Co. v. Dribeck Importers, Inc.,
133 F.R.D. 463, 468 (D.N.J.1990).
In the case at bar,
the court finds that the government's request to amend the information after
defendant's trial has taken place is unduly late and would unduly prejudice
defendant. Therefore the government's request to amend the information is
denied.
VII
In conclusion, the
Court holds that in the case at bar, the Assimilative Crimes Act, 18 U.S.C. §
13 (1988), incorporates only the New Jersey state criminal code into the
jurisdiction of this court. As such, defendant's motion to dismiss is granted.
An order accompanies this opinion. No costs.
ORDER
THIS MATTER having
come before the court on post-trial motion by defendant, John Golden, to
dismiss the information herein; and the court having considered the written
submissions and oral argument of counsel, and for good cause shown,
IT IS on this 29th
day of June, 1993,
ORDERED that defendant's motion be and hereby is granted, and the
information herein is dismissed with prejudice.
