Summary
In Collins, the defendant was acquitted of driving while suspended at the National Naval Medical Center ("NNMC") in Bethesda.
Summary of this case from U.S. v. LewisOpinion
Case No. 05-1387M.
January 31, 2006
MEMORANDUM OPINION AND ORDER OF COURT
I. Procedural History
On December 13, 2004, Defendant was charged with operating a motor vehicle while his license to drive was suspended in violation of MD. CODE ANN., TRANSP. II § 16-303(c) as assimilated by 18 U.S.C. § 13 and driving a motor vehicle with an expired license in violation of MD. CODE ANN., TRANSP. II § 16-115(f) as assimilated by 18 U.S.C. § 13. The alleged violations occurred at the National Naval Medical Center (the "NNMC") in Bethesda, Maryland, a federal enclave within the special maritime and territorial jurisdiction of the United States. An initial appearance was held on April 27, 2005. Thereafter, an elections hearing was held on July 27, 2005 at which time Defendant elected a jury trial before a United States District Judge. On September 15, 2005, Defendant withdrew his election and consented to trial before a magistrate judge. Trial was held on December 14, 2005 at which time NNMC security guard Delonda Medley, DOD Police Officer Miles Jones and DOD Police Corporal Dennis Harter testified on behalf of the Government. At the conclusion of the Government's case, Defendant moved for Judgment of Acquittal ("Motion"). The Court took the Motion under advisement and set a briefing schedule. On December 19, 2005, the Government filed a Memorandum of Law to which the Defendant responded on January 12, 2006. The Government filed its rebuttal memorandum on January 13, 2006. The Court has considered the testimony at trial, the memoranda and the arguments of counsel. For the reasons set forth below, the Court grants Defendant's Motion.
II. Facts
The following facts are undisputed. The NNMC consists of a large tract of land which contains approximately 60 buildings. Among the buildings are a hospital, a medical school, a retail store (the Navy Exchange), a fast food establishment, residences for military personnel, a hotel for official visitors, a gas station, and a bowling alley. There are also recreational and picnic areas located on the grounds. The grounds are secured by fencing running around the perimeter. Access to the grounds is limited to five gated entrances, manned by security personnel authorized to use force and deadly force, if necessary, to secure the facility. Three of the entrances provide access from Jones Bridge Road and the other two provide access from Wisconsin Avenue, both public roads which run adjacent to the NNMC. In order to be granted access to the grounds, by vehicle or on foot, a person must display to the security personnel a valid government identification or accompany someone with a valid government identification. Also, persons not in possession of a valid government identification, but having prior permission to enter the grounds, will be granted access after showing identification. Finally, persons whose names are recorded on an access list maintained by the security personnel will be granted access after showing identification. Typically, persons whose names are on the access list are extended family members of personnel who live or work on the grounds, or visitors of patients at the hospital. Persons seeking access, but not falling into one of the above categories, will not be granted access and will be turned away. Vehicle operators are not allowed to travel over the grounds as a shortcut to avoid traffic. In sum, access is not granted to the public in general.
III. Summary of Government's Argument
The Government contends that the roads at the NNMC are "highways." Section 16-303(c) prohibits any person from driving "on any highway or any property specified in § 21-101.1 . . . while the person's license . . . is suspended." Section 16-115(f) prohibits an individual from driving a motor vehicle "on any highway in this state" if his license has expired. The Government asserts that the roads at the NNMC constitute "highways" within the meaning of MD. CODE ANN., TRANSP. II § 11-127, and therefore, Defendant may be prosecuted for violations of § 16-303(c) and § 16-115(f). That section provides that a highway is
MD. CODE ANN., TRANSP. II § 21.101.1 refers to "any private property that is used by the public in general," as well as property under the control of the State, a political subdivision, a county board of education, or a community college that is open to vehicular traffic and used by the public in general. It is undisputed that the NNMC is a federal enclave; and therefore, not under control of the state of Maryland, a political subdivision, a county board of education, or a community college. Moreover, the Government has not asserted, and there is no evidence before the Court that the NNMC constitutes "private property that is used by the public in general." See Locklear v. State, 94 Md. App. 39, 46, 614 A.2d 1338, 1341 (1992).
The Government incorrectly asserts that Defendant was charged with MD. CODE ANN., TRANSP. II § 16-101(a). As stated above, the Complaint charges him with MD. CODE ANN., TRANSP. II § 16-115(f).
the entire width between the boundary lines of any way or thoroughfare of which any part is used by the public for vehicular travel, whether or not the way or thoroughfare has been dedicated to the public and accepted by any proper authority.
In support of its argument that the roads at the NNMC constitute "highways" under § 11-127, the Government points to the evidence indicating that many people enter the NNMC facility every day, that individuals work there, reside there and visit people there. The Government argues that the NNMC possesses many of the characteristics of a medium sized city, with roads, buildings, houses and public services.
The Government also argues that this Court should look to federal law in interpreting what constitutes a highway and that holding that the roads at the NNMC are not public would violate the intent of the Assimilative Crimes Act ("ACA") and would effectively create a separate set of laws within and outside the facility.
IV. Summary of Defendant's Argument
Defendant asserts that the roads at the NNMC are not "public roads" and that it is proper for this Court to look to state law in determining the issue of what constitutes a "highway." Accordingly, he points to Maryland caselaw (as well as Fourth Circuit cases interpreting state caselaw) which he asserts support his position that the roads at the NNMC do not constitute "highways" within the meaning of MD. CODE ANN., TRANSP. II § 11-127. See Locklear v. State, 94 Md. App. 39, 614 A.2d 107 (1992), Walmsley v. State, 35 Md.App. 148, 370 A.2d 107 (1977); Atkins v. State, 35 Md.App. 155, 370 A.2d 110 (1977).
V. Analysis
Just recently, this Court has confronted the issue of whether the roads at certain federal enclaves are "public roads" and constitute "highways." In United States v. Robson, 391 F. Supp.2d 383 (D. Md. 2005), the defendant was charged with transporting a loaded handgun in violation of MD. CODE ANN. CRIM. LAW § 4-203(1)(ii) which makes it unlawful to "wear, carry or knowingly transport a handgun . . . in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State." The violation occurred on an access road leading into Andrews Air Force Base ("AAFB"), a federal enclave to which the ACA applies. The Robson Court began its analysis by recognizing the three purposes of the ACA: (1) the ACA establishes a gap-filling criminal code for federal enclaves; (2) the ACA provides conformity in the laws governing a federal enclave and the state in which an enclave is located; and (3) the ACA should give the people within a federal enclave as much protection as is afforded outside the enclave. Robson, 391 F. Supp.2d. at 386-87 ( citing United States v. Kenneth Smith, 965 F. Supp. 756, 758 (E.D. Va. 1997). Relying upon Maryland caselaw, the Court held that "[t]he degree of control the private owner exercises over the property is determinative of whether the property is `used by the public'". Robson, 391 F. Supp.2d. at 389. The Court further held that in order to be considered "used by the public", open access to all members of the public is necessary. Id. Applying this test to the facts present at AAFB, the Court reasoned that the AAFB access road was not a "highway" for purposes of the handgun statute because "the owner can exercise plenary control over the property to exclude the general public and only those with express or implied permission can freely enter the property." Id. Specifically, the Court noted that the Base Commander of AAFB retained the power to bar the public from coming onto the AAFB at any time. Id. The facts relevant in Robson also demonstrated that (1) all gates leading to the military base have signs limiting access to employees and those with authorized business; (2) civilians are only permitted access if they possess military identification or other credentials; (3) unauthorized civilians or those without military identification must be escorted during their time on the base; and (4) unauthorized vehicles are permitted to turn around and may not enter the access road. Id. at 386.
In United States v. Patrick, No. 05-3950, 2006 WL 83505 (D. Md. Jan. 12, 2006), the defendant was charged with driving a motor vehicle on a highway with a suspended license — one of the two statutes with which Defendant here is charged. The alleged offense took place at the National Institutes of Health ("NIH"), a federal enclave. Again, the Court looked to Maryland caselaw and found that "the test to be applied is the right of the public to travel on the road, driveway or parking lot, and not the actual exercise of that right." Patrick, 2006 WL 83505 at *5 ( citing Walmsley, 35 Md. App. at 152, 370 A.2d at 109). Among the factors supporting the Court's finding that the roads at the NIH enclave do not constitute "highways" under Maryland law were: (1) that the public cannot "cut through the enclave solely for the purpose of getting from a road that borders the enclave on one side to another; (2) that a visitor must produce a valid driver's license and identify the purpose of the visit; (3) that visitors are issued visitor's passes; and (4) that the public may enter the enclave only at two of its eight gates. In sum, the Court found that the public does not have a right to travel on the roads at NIH. Rather,"NIH grants the public the privilege to travel on its roads provided the public has a bona fide purpose and complied with NIH security procedures." Patrick, 2006 WL 83505 at *5. Accordingly, the Court found that the roads at the NIH enclave are not "highways" under Maryland law.
The Court also based its holding on 45 C.F.R. § 3.41 (2005) which codifies the public's privilege of entering the NIH enclave. That section provides, in relevant part, that "[t]he enclave is closed to the public at all other times, and the Director may also officially close all or part of the enclave, or any building, in emergency situations and at other times the Director deems necessary to ensure the orderly conduct of Government business. When all or part of the enclave is closed to the public, admission is restricted to employees and other authorized persons who may be required to display Government credentials or other identification when requested by a police officer and may be required to sign a register."
The Government urges this Court to look to federal law, not state law, in interpreting what constitutes a highway. Accordingly, it directs the Court's attention to an unpublished Third Circuit decision, United States v. White, No. 05-3326, 145 F.App'x. 786 (3d Cir. Sep. 30, 2005) and a Ninth Circuit decision, United States v. Kiliz, 694 F.2d 628 (9th Cir. 1982). There, the courts found that when looking at assimilated state crimes, they were not bound by state court interpretations of those state laws. Rather, the courts held that they were free to "interpret the extrapolated state statute as if it were interpreting any federal statute . . ." Kiliz, 694 F.2d at 629; see White 145 F.App'x. at 789 ("State court interpretations of the assimilated statute are not binding on this Court, but are rather merely persuasive authority.").
Upon closer examination, the Court finds that the Government effectively invites this Court to assimilate the Maryland statutes, but not the state court interpretations regarding those statutes. This is not permitted under Fourth Circuit precedent. The ACA provides that "in the absence of a governing federal statute, a person who commits a state crime on a federal enclave `shall be guilty of a like offense and subject to a like punishment.'" United States v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996) ( quoting 18 U.S.C. § 13(a) (1994)); see United States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994)). It is well established in the Fourth Circuit that the ACA incorporates the entire substantive criminal law of the state, including laws relating to the definition and scope of an offense and laws governing the manner in which an offense is to be punished. See United States v. Price, 812 F.2d 174, 175 (4th Cir. 1987); United States v. King, 824 F.2d 313, 315 (4th Cir. 1987); United States v. Card, No. 90-5351, 924 F.2d 1053 (4th Cir. Jan. 31, 1991) (unpublished). In United States v. Smith, 965 F. Supp. 756, 758 (E.D. Va. 1997), after conducting a thorough review of the law of the Fourth Circuit, the court held that "because the Fourth Circuit has explained that a federal court assimilates a state's entire substantive criminal law under the ACA, it follows that a federal court is bound by state substantive criminal caselaw for the very reason that this caselaw is part of the body of law that is being so assimilated." See also United States v. Robinson, 495 F.2d 20, 33 (4th Cir. 1974) ("[The ACA] does not contemplate selective incorporation."); United States v. Kendrick, 636 F. Supp. 189, 191 (E.D.N.C. 1986); United States v. Holley, 444 F. Supp. 1361, 1362 (D. Md. 1977). The Court therefore rejects the Government's arguments and declines to follow the law in the Third and Ninth Circuits as this simply is not the law of the Fourth Circuit by which this Court is bound. The Court must assimilate the Maryland statutes and the Maryland state court interpretations of those statutes.
Federal courts have consistently declined to assimilate provisions of state law through the ACA if the state law provision would conflict with federal policy. See United States v. Kelly, 989 F.2d 162, 164 (4th Cir. 1993). The areas which have been found to conflict with federal policy so as not to warrant assimilation have, for the most part, involved matters pertaining to parole, probation, good time credits and special assessments. See e.g. Pierce, 75 F.3d at 176 , Harris, 27 F.3d at 115 ; United United States v. Duncan, 724 F. Supp. 286, 287-88 (D. Del. 1989); see also King v. Gemini Food Services, Inc., 438 F. Supp. 964, 966 (E.D. Va. 1976) (Virginia law governing relations in the workplace that conflicted with federal labor policy), aff'd, 562 F.2d 297 (4th Cir. 1977) (per curiam) (adopting district court's reasoning), cert. denied sub. nom. King v. Public Service Employees Local Union 572, 434 U.S. 1065 (1978); Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996) (declining to assimilate state law where it would violate the Supremacy Clause by constituting a direct and intrusive regulation by the Federal Government's operation of its property at Yosemite National Park). There is no federal statute governing the offenses charged here, and the Court finds that assimilation will not present any conflict with federal policy. See Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 389 (1944) (questioning whether the state statutes to be assimilated "conflict with federal policies as expressed by Acts of Congress other than the assimilative crimes statute . . .").
The Court finds that the tests articulated in Robson and Patrick to be sound and based upon proper interpretations of relevant Maryland caselaw. Applying those tests, the Court holds that the evidence regarding the propriety of access at the NNMC leads to the inescapable conclusion that its roads, like NIH and AAFB, are not highways under Maryland law. There are five entrances providing access to the NNMC: three on Jones Bridge Road and two on Wisconsin Avenue. On the day of the incident, only one of the Wisconsin Avenue gates was open and all access was controlled by the main gate at that location. The entire NNMC facility is surrounded by a fence. It is undisputed that all visitors must show appropriate identification to enter the facility and have a valid purpose to enter the facility or, at a minimum, accompany someone with appropriate identification or valid purpose. In other words, all individuals must have either an appropriate government identification, permission or an escort with appropriate identification in order to enter the enclave. The security guards that are stationed at the gates have the authority to prohibit access to individuals (even those traveling on foot) not authorized to enter the facility. They are further permitted to use force (even deadly force) if deemed necessary to secure the NNMC. The facts, while not identical, are certainly strikingly similar to those discussed in detail above pertaining to both NIH and AAFB. Accord United States v. Smith, 395 F.3d 516, 520-21 (4th Cir. 2005) (noting that signs barring entry indicative that roads were not open to the public); United States v. Adams, 426 F.3d 730, 732 (4th Cir. 2005) (signs prohibiting "unauthorized entry" indicative that road was not a "highway").
The Court notes that in Smith and Adams, the Fourth Circuit, in construing the meaning of the term "highway" for offenses occurring on federal enclaves looked to state caselaw. However, in both of those cases, a federal regulation specifically provided that state law governed traffic safety and permissible use of and operation of vehicles at those facilities. See Adams, 426 F.2d at 731 n. 1 ( citing 50 C.F.R. § 27.31a providing ["u]nless specifically covered by the general and special regulations set forth in this chapter, the laws and regulations of the State within whose exterior boundaries a national wildlife refuge or portion thereof is located shall govern traffic and the operation and use of vehicles."); Smith, 395 F.3d at 520 ( citing 32 C.F.R. § 1903.3 providing "[u]nless specifically addressed by the regulations in this part, traffic safety and the permissible use and operation of vehicles within [the Central Intelligence] Agency installation are governed by State law."). It is irrelevant for purposes here, however, that the courts in those cases were not guided to state law through the ACA but rather by a particular federal statute because the analyses contained therein are directly on point to the facts at issue here.
Finally, the Court is mindful that the holding it reaches today leads to the seemingly illogical result that a defendant cannot be prosecuted in federal court for perpetrating an offense on federal property that he had moments earlier on state roads for which he could be prosecuted in state court. In Adams, the Fourth Circuit also recognized that result from the application of the Virginia statute in question. The Fourth Circuit concluded, however, that its responsibility as a federal court, was limited to interpreting the statute as construed by the Courts of Virginia and if the need exists for a change in the reach or clarity of the statute, that need is properly addressed to the legislature. Adams, 426 F.3d at 733.
While the holding in this case is obviously limited to the two statutes at issue, the Court notes that what can arguably be regarded as "more serious" driving offense apply with equal for force within the NNMC facility as they do outside of the facility. See e.g. MD. CODE ANN., TRANSP. II § 21-901.1 (reckless and negligent driving); § 21-902 (driving while intoxicated or under the influence of alcohol). See MD. CODE ANN., TRANSP. II § 21-901 ("The provisions of [Subtitle 9 of Title 21] apply throughout the State, whether on or off a highway.").
Accordingly, it is this 31st day of January, 2006, hereby ORDERED that Defendant's Motion for Judgment of Acquittal is GRANTED.