MEMORANDUM OPINION

WILLIAM CONNELLY, Magistrate Judge

This Court has under advisement Defendant's Motion for Judgment of Acquittal and Defendant's Motion to Dismiss the Criminal Complaint. The Court permitted the parties to further brief the issues. The Government filed a "Memorandum of Law: `Public Roads'" and a "Memorandum of Law: `Conjunctive Pleading.'" Defendant filed a "Memorandum in Support of Motion for Judgment of Acquittal." The Complaint charges Defendant with driving a motor vehicle on a highway while his license was suspended and revoked in violation of 18 U.S.C. § 13, assimilating § 16-303 of the Maryland Transportation Article. For the reasons set forth below, Defendant's Motion for Judgment of Acquittal will be granted.

A. Facts

The facts are undisputed. On September 14, 2005, at about 7:05 a.m., Defendant drove a blue Chevrolet Cavalier onto the National Institutes of Health ("NIH") enclave in Bethesda, Maryland. After passing through a gate from Old Georgetown Road, Defendant arrived at a checkpoint on Center Drive. NIH security guard Keisha Griffin was manning the checkpoint. She requested Defendant's driver's license.

Defendant produced a Maryland identification card. Ms. Griffin looked at the Maryland identification card and showed it to Corporal Steve Cradlin, an NIH police officer. Corporal Cradlin approached Defendant in his car and asked Defendant about his driver's license. Upon further investigation Corporal Cradlin determined Defendant's license was revoked and suspended. Corporal Cradlin issued Defendant a citation for driving with a revoked license.

B. Trial

At the November 9, 2005 trial, Defendant waived his right to a jury trial and elected to be tried by a Magistrate Judge. The United States called two witnesses: Ms. Griffin and Corporal Cradlin. According to Ms. Griffin, anyone can enter NIH as long as the visitor presents identification, typically, a driver's license. Any driver who approaches the checkpoint must produce identification. In accordance with NIH security procedures, Ms. Griffin obtains the driver's license, asks the driver about the purpose of the visit, inputs information into a database and issues a pass to the driver. In response to a question, Ms. Griffin explained the purpose of checking visitors at the checkpoint is to ensure there are no weapons or explosives in the vehicle, to verify the visitor has identification, and to determine where the visitor is going. Ms. Griffin asserted that visitors cannot enter NIH without identification.

Corporal Cradlin testified that NIH is a federal medical research center with approximately 20,000 to 25,000 employees on the enclave. Up to 5,000 individuals visit the federal enclave daily. There are eight entry points onto NIH. Only two are open to the general public: one comes from Rockville Pike across from the Navy Medical Center and the other entry point from Old Georgetown Road.

Besides the hospital and research library, the enclave contains restaurants, a gift shop, convenience stores, and a credit union. There is also temporary and permanent housing on NIH.

On the morning of September 14, 2005, Corporal Cradlin was stationed at the commercial vehicle inspection station on Center Drive, off of Old Georgetown Road. There came a time when Corporal Cradlin was hailed by Ms. Griffin. Corporal Cradlin was approximately 20 feet from Ms. Griffin. She approached him and handed him Defendant's Maryland identification card. Thereafter, Corporal Cradlin approached Defendant and questioned him about his driver's license.

According to Corporal Cradlin, anyone with any bona fide business at NIH may enter the enclave. Examples of a bona fide business include visiting a patient, going to the credit union, going to the library to do research, or a vendor visiting a doctor to discuss products. Virtually anyone can enter the NIH enclave unless someone attempts to enter for the sole purpose of cutting through the enclave to drive from Old Georgetown Road to Rockville Pike. In response to a question, Corporal Cradlin acknowledged that the NIH enclave is restricted and not completely open.

The Government introduced a certified copy of Defendant's driving record from the Maryland Motor Vehicle Administration, admitted as Government Exhibit 1. This exhibit shows Defendant's license was revoked (August 26, 2005) and suspended when he drove onto the NIH enclave.

At the conclusion of the Government's case, Defendant moved for a judgment of acquittal. Citing United States v. Robson, 391 F. Supp. 2d 383 (D. Md. 2005), Defendant argued Robson is dispositive on the issue of whether the Government has proven all the elements of the offense. Specifically, Defendant contends the NIH enclave is neither a highway nor private property open to the public in general.

C. Assimilative Crimes Act

18 U.S.C. § 13 states in pertinent part:

Whoever within or upon any of the places . . . of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by an enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession or District in which such place 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.

With the Assimilative Crimes Act ("ACA"), Congress seeks to accomplish three goals: (1) to provide a gap-filling criminal code for federal enclaves, (2) to provide uniformity between the federal enclave and the State where the federal enclave is located, and (3) to ensure the residents within the federal enclave have the same protections as the residents of the State outside the federal enclave. United States v. Kenneth Smith, 965 F. Supp. 756, 758 (E.D. Va. 1997).

NIH is a federal enclave subject to the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 7. See 45 C.F.R. § 3.2(c)(2) (2005). The Regulations, codified in 45 C.F.R. Part 3, apply to all areas of the NIH enclave and to all persons on or in the enclave except where specifically excluded. Section 3.2(e) identifies federal criminal statutes in the United States Code that apply to federal enclaves. The listing is not all inclusive. Similarly, Section 3.2(f), identifying Maryland criminal statutes that apply to the NIH enclave, states:

The matters described in this paragraph are governed, in whole or in part, by the current version of the cited Maryland criminal statutory provisions, which are made Federal criminal offenses under the Assimilative Crimes Act ( 18 U.S.C. 13). This listing sets forth areas of conduct particularly relevant to the enclave and is provided solely for the information of the public. The list is not all-inclusive and omission of other Maryland criminal statutes does not mean that such other statutes are not assimilated as Federal offenses under the Act. Generally, other Maryland criminal statutes apply on the enclave, by force of the Act, unless superseded by Federal Law or a given provision of this part. In any given situation, the cited statutory provisions and any amendments in effect when the alleged offense occurred shall determine the specifics of the offense, applicability, and penalty.

45 C.F.R. § 3.2(f) (2005).

Section 3.2(f) lists nine Maryland criminal statutes. Section 16-303 of the Maryland Transportation Article is not specifically identified but nonetheless is assimilated as a federal offense under the ACA.

D. The Maryland Transportation Article

Section 16-303 of the Maryland Transportation Article states in pertinent part:

(c) Suspended licenses generally. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person's license or privilege to drive is suspended in this State.

(d) Revoked licenses. — A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person's license or privilege to drive is revoked in this State.

Defendant contends the roads at NIH are neither highways nor private property used by the public in general. This essential element to the assimilated crime is absent and thus Defendant must be acquitted of the charge. Contrarily, the Government argues the roads at NIH are public roads and constitute "highways" within the meaning of § 11-127 of the Maryland Transportation Article.

Under Maryland law a "highway" is defined as follows:

"Highway" means 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.

Md. Code Ann., Transp. § 11-127.

This Court cannot determine whether the roads on the NIH enclave would constitute "highways" under Maryland law from this definition. This Court thus turns to Maryland case law for guidance.

E. Maryland Case Law

On at least three occasions, the Court of Special Appeals has reversed an appellant's conviction under § 16-303 or its predecessor, Md. Ann. Code art. 66½, § 6-303, for driving while his license was suspended or revoked. Locklear v. State, 94 Md. App. 39, 614 A.2d 1338 (1992); Akins v. State, 35 Md. App. 155, 370 A.2d 111 (1977); Walmsley v. State, 35 Md. App. 148, 370 A.2d 107 (1977).

In Walmsley the appellant drove an automobile on a parking lot belonging to a tavern. When Walmsley was stopped by a police officer, Walmsley admitted not having a driver's license. Walmsley was charged and a jury subsequently convicted him of driving while his license was canceled, suspended, refused or revoked under § 6-303 of Article 66½.

In deciding whether Walmsley's conviction should be affirmed, the Court of Special Appeals applied the following test: "the right of the public to travel on the road, driveway, or parking lot, and not the actual exercise of that right." Walmsley, 35 Md. App. at 152, 370 A.2d at 109. The court found the public had no unfettered right to enter upon the tavern's parking lot, since the parking lot is maintained for the convenience of the tavern's patrons and is subject to almost limitless regulation by the owner. A private parking lot and driveway do not fall within the scope of "used by the public for purposes of vehicular traffic" under § 1-132 of Article 66½. Walmsley, 35 Md. App. at 154, 370 A.2d at 110. The court thus found that operating a motor vehicle on a private parking lot, road, or driveway while a license is suspended, revoked, canceled or refused is not proscribed under § 6-303 of Article 66½. Walmsley's conviction for this offense was reversed.

In Akins a police officer observed the appellant operating a motor vehicle in the parking lot and the exit lane of a privately owned shopping center. The police officer stopped the vehicle driven by the appellant. Upon further investigation the police officer determined the appellant's license to drive had been revoked. The appellant received a citation charging him with violating § 6-303 of Article 66½ which proscribes driving a motor vehicle on any highway when one's license to drive has been canceled, refused, suspended or revoked. A judge subsequently found the appellant guilty as charged. The sole question on appeal was "whether the evidence was sufficient to support the appellant's conviction for driving on a public highway at a time when his driving license was revoked." Akins, 35 Md. App. at 156, 370 A.2d at 111.

The Court of Special Appeals found the area (parking lot and exit lane) of the shopping center where the appellant operated the motor vehicle was not "used by the public for purposes of vehicular travel" within the meaning of § 1-132 of Article 66½. In other words, the appellant did not operate the motor vehicle on a highway. "[A] parking area and its roadways within a shopping center are considered to be private because the right to use them by the public is not a general right, but is limited to those persons who have implied permission to do business with the owner, and that the owner retains the right to exclude anyone at any time." Akins, 35 Md. App. at 157, 370 A.2d at 112. The court held that operating a motor vehicle on a shopping center's parking lot with a revoked, suspended, refused or canceled license is not a violation of § 6-303 of Article 66½. The judgment of conviction was reversed.

In the most recent Court of Special Appeals decision, a police officer determined that the appellant, Locklear, had driven a Dodge truck on dirt mounds on a portion of private property marked "No Trespassing." The police officer further determined the appellant's license to drive was recently suspended or revoked. At trial the appellant moved for judgment of acquittal. The motion was denied and the appellant was subsequently convicted of driving while his license was suspended or revoked.

The Court of Special Appeals found no evidence that the appellant drove anywhere other than on the dirt mounds on the private property marked "No Trespassing." Further there was no evidence presented that the dirt mounds qualified as private property "used by the public in general" per § 21-101.1 of the Maryland Transportation Article. The court reversed appellant's conviction for driving while his license was suspended or revoked. Locklear, 94 Md. at 46, 614 A.2d at 1341.

F. The Roads at NIH are not "Highways" under Maryland law

In determining whether the roads at NIH are "highways" under Maryland law, "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." Walmsley, 35 Md. App. at 152, 370 A.2d at 109 (emphasis added). The Government contends the roads at NIH are "highways." "Tens of thousands of people drive onto the facility every day. While they are subject to security checks, the security checks do not limit where people may go or whether they may enter the reservation in the first place." Gov't Mem. Law at 3.

Although Ms. Griffin testified that anyone can enter the NIH enclave so long as identification is produced, Corporal Cradlin added that a visitor must have a bona fide purpose. Corporal Cradlin testified that an individual cannot enter the NIH enclave solely for the purpose of cutting through to drive from Old Georgetown Road to Rockville Pike. A visitor must produce a driver's license and identify the purpose of his visit. Then a security guard, such as Ms. Griffin, inputs that information into a database and issues a visitor's pass. Also, although there are eight gates at NIH, the public may enter the enclave at two of those gates only. Based on the testimonies of Ms. Griffin and Corporal Cradlin, it is apparent that the public does not have a right to travel on the roads at NIH. Instead, NIH grants the public the privilege to travel on its roads provided the public has a bona fide purpose and complies with NIH's security procedures.

The public's privilege to travel the roads at NIH, instead of a right, is codified in the Code of Federal Regulations.

Admission to facilities or grounds.

The enclave is officially open to the public during normal working and visiting hours and for approved public events. The 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 living quarters and adjacent areas are not open to the public but are open at all times to occupants and their visitors and business invitees, unless otherwise closed by the Director.

Section 16-303 of the Maryland Transportation Article is assimilated as a federal offense under the ACA. This Court has not found any federal case law where a federal court, without considering Maryland case law, has construed or interpreted this statute. The Maryland courts have interpreted § 16-303 and have determined under what circumstances a conviction for violating this law cannot be sustained. Based on the Walmsley, Akins, and Locklear holdings, the testimonies of Ms. Griffin and Corporal Cradlin, as well as § 3.41 of the NIH Regulation, this Court hereby holds that the roads at the NIH enclave are not "highways" under Maryland law.

This holding is buttressed by prevailing Fourth Circuit law. In United States v. Smith, 395 F.3d 516 (4th Cir. 2005), the appellant drove onto an access road outside the main gate of the CIA headquarters in McLean, Virginia, approached a call box and reported that he was lost and needed assistance. There were signs posted along the roadway limiting access to CIA employees and those individuals with authorized business. The appellant was directed to pull to the Jersey barrier which was closer to the main gate. The appellant complied. CIA Security Protective Service Officers approached the car. The officers asked the appellant to produce identification. The appellant responded he did not have a driver's license and after further questioning admitted his license was suspended. The appellant was ultimately arrested because he failed a field sobriety test. The appellant was charged, among other things, with driving with a suspended license. He was convicted of this offense.

The Fourth Circuit found the CIA access road is not open to the public and thus not a highway under Virginia law based on a review of Virginia case and statutory law. "[T]he presence of signs barring unauthorized admittance is sufficient to establish that the access road is not `open to the use of the public for purposes of vehicular travel.'" Smith, 395 F.3d at 521 (quoting Va. Code § 46.2-100).

In a subsequent opinion arising from a charge of driving with a revoked license along a gravel road (Jericho Ditch Lane) in the Great Dismal Swamp National Wildlife Refuge, the Fourth Circuit again confronted the issue of whether a road on a federal enclave qualifies as a highway under Virginia law. Jericho Ditch Lane was completely and indefinitely closed due to damage from Hurricane Isabel. Signs were posted at the entrance to the Refuge prohibiting unauthorized entry. Citing Virginia case law, the Fourth Circuit applied the following: "the `true test' of whether a `way' is a highway is 'whether the way or place of whatever nature is open to the use of the public for purposes of vehicular travel.'" United States v. Adams, 426 F.3d 730, 732 (4th Cir. 2005) (citation omitted). The Fourth Circuit noted it is undisputed that Jericho Ditch Lane was completely closed to the public for an undetermined period of time the day the appellant was stopped. "The road, therefore, was not a highway under Virginia law." Id.

Both at the trial and in its memorandum, the Government cites a non-precedential, unpublished decision from the Third Circuit, United States v. White, No. 05-3326, 2005 WL 2404534 (3d Cir., Sept. 30, 2005) and a Ninth Circuit case, United States v. Kiliz, 694 F.2d 628 (9th Cir. 1982) to support its contention that the roads at NIH are "highways." The Government contends Smith is not controlling law because the critical factor in Smith was the presence of signs barring public entry to the CIA headquarters. "No similar testimony or evidence is before the court in this case." Gov't Mem. Law, at 5. The Government reads the holding of Smith too narrowly.

The NIH Director's authority to "close all or part of the enclave, or any building, in emergency situations and at other times the Director deems necessary[,]" 45 C.F.R. § 3.41, makes the roads on the NIH enclave "non-highways" based on the Walmsley, Akins and Locklear test under Maryland law which is assimilated and applied to this federal enclave through the ACA. See United States v. Spencer, 367 F. Supp. 2d 1017, 1022 (E.D. Va. 2005). This Court declines the Government's invitation to find Smith and Adams distinguishable and thus not mandatory authority.

G. No Proof that Roads at NIH are Private Property Used by the Public in General

Although the Government has not sustained its burden that the roads at NIH are "highways" under § 16-303 of the Maryland Transportation Article, the Government may have prevailed by demonstrating the roads at NIH are "any property specified in § 21-101.1" of the Maryland Transportation Article. Md. Code Ann., Transp. § 16-303(b), (c).

Section 21-101.1 states in pertinent part:

(b) Applicability to private property. — (1) A person may not drive a motor vehicle in violation of any provision of this title on any private property that is used by the public in general. . . .

(2) A person may not drive a motor vehicle in violation of any provision of this title on any property that is owned by or under the control of this State or any of its political subdivisions, county boards of education, or community colleges and that is open to vehicular traffic and used by the public in general.

(3) Any person who violates any provision of this subsection is in violation of the law to the same extent and is subject to the same penalty as if the motor vehicle were driven on a highway.

It is undisputed that the NIH enclave is federal property and thus is not owned or controlled by the State of Maryland, any of its political subdivisions, county boards of education, or community colleges. Section 21-101.1(b)(2) thus is not applicable to the facts in this case.

The Government's charge against the Defendant is viable only if the NIH enclave qualifies as "private property used by the public in general." The Government however has presented no evidence establishing that the NIH enclave meets this classification. See Locklear, 94 Md. App. at 46, 614 A.2d at 1341 (finding nothing in the stipulation of facts "to establish that the mounds upon which appellant had been driving were used by the public in general."). Accordingly, the Government has not met its burden under § 16-303 of the Maryland Transportation Article.

H. Fourth Circuit Decisions and the ACA

The Government argues, if this Court finds the roads at NIH are not "highways" under the assimilated Maryland law, the ACA would be rendered a nullity and federal enclaves will become zones of immunity from many state laws. This Court disagrees.

First, as Defendant notes,

Traffic offenses in Maryland are either statewide in coverage or are limited to highways or private property used by the public in general. Generally, the vehicle laws apply everywhere in the State except for Title 16 of the Transportation Article which relates to licensing and Title 13 which relates to registration of vehicles. Therefore a decision in Defendant's favor would only affect Title 13 and 16 charges. . . .

Mem. Supp. Mot. J Acquittal, at 4-5.

Defendant's assertion is supported by Locklear. The Court of Special Appeals reversed Locklear's conviction for driving while his license was revoked or suspended, but affirmed the conviction for driving while intoxicated. Locklear, 94 Md. App. at 46, 614 A.2d at 1341. The provisions of Subtitle 9, Reckless, Negligent or Impaired Driving; Fleeing or Eluding Police, of Title 21 "apply throughout this State, whether on or off a highway." Md. Code Ann., Transp. § 21-901. See Rettig v. State, 334 Md. 419, 639 A.2d 670 (1994) (upholding the petitioner's conviction for driving while intoxicated under § 21-902 even though the driving occurred on private property, specifically, the petitioner's own backyard).

Second, the Fourth Circuit has addressed the concern raised by the Government:

Our responsibility as a court and as a federal court . . . is limited to interpreting, to the best of our ability, the statute as it was enacted and as it has been construed by the courts of Virginia. If the need exists for changes in the reach or clarity of the statute, that need is properly addressed to the legislature of the Commonwealth.

I. Conclusion

For the above reasons, Defendant's Motion for Judgment of Acquittal is hereby GRANTED. It is unnecessary to address Defendant's Motion to Dismiss Criminal Complaint for duplicitous pleading.