On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Criminal No. 91-00249).
Before: Sloviter, Chief Judge, Stapleton and Lay,*fn* Circuit Judges
Harry Lynn Hall appeals his conviction for driving under the influence of alcohol at the Gettysburg National Military Park in violation of the Pennsylvania Vehicles Code, 75 Pa. Cons. Stat. Ann. § 3731 (Supp. 1992), through application of the Assimilative Crimes Act, 18 U.S.C. § 13 (1988) (ACA). Our review of the underlying legal issue is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1981).
Facts and Procedural History
Hall was found guilty following a jury trial. Before sentence was imposed, he filed a motion for arrest of judgment pursuant to Fed. R. Crim. P. 34, arguing that the indictment failed to charge an offense and the court was without jurisdiction. Hall claimed that driving while intoxicated on lands under the jurisdiction of the National Park Service was already prohibited by a federal regulation, 36 C.F.R. § 4.23, and thus the ACA could not apply.
The district court rejected Hall's characterization of the issue as one going to jurisdiction, and rephrased it as whether Hall's conviction must be vacated because he was improperly charged under the ACA rather than the applicable federal regulation. The court concluded that Hall had waived any objections to the charge or the indictment by failing to raise them in a pretrial motion as required by Fed. R. Crim. P. 12(b). The district court denied the Rule 34 motion and imposed a sentence of 45 days imprisonment and a $300 fine.
Because the case was resolved on the procedural issue, the district court did not reach the merits of Hall's Rule 34 motion. Nonetheless, the court indicated that in its view the federal regulation in question was not an "enactment of Congress" and thus would not in any event have precluded the application of the Pennsylvania state statute through the ACA.
We cannot resolve this appeal on the Rule 12(b)(2) ground deemed determinative by the district court. The Rule 34 motion for arrest of judgment was based on the assertion, inter alia, that the indictment did not charge an offense under the ACA. Inasmuch as Fed. R. Crim. P. 12(b)(2) expressly excludes such an objection from those that must be made prior to trial, the district court erred in failing to reach the merits of the Rule 34 motion. See Finn v. United States, 256 F.2d 304, 306 (4th Cir. 1958) (Rule 34 motion based on similar objection is proper vehicle to attack failure of indictment to charge offense even where objection not raised before trial). We turn therefore to the merits.
Under the ACA, if conduct prohibited by state law occurs on federal land, the state criminal law is assimilated into federal law so long as that conduct is not already made punishable by any "enactment of Congress." 18 U.S.C. § 13(a). In other words, the ACA fills gaps in the law applicable to federal enclaves, ensures uniformity between criminal prohibitions applicable within the federal enclave and within the surrounding state, and provides residents of federal enclaves with the same protection as those outside its boundaries. See United States v. Sharpnack, 355 U.S. 286, 2 L. Ed. 2d 282, 78 S. Ct. 291 (1958); United States v. Kiliz, 694 F.2d 628, 629 (9th Cir. 1982). It follows that if the conduct is already prohibited by federal law, a prosecution for a state law violation through application of the ACA is inappropriate. See Williams v. United States, 327 U.S. 711, 717, 90 L. Ed. 962, 66 S. Ct. 778 (1946); United States v. Patmore, 475 F.2d 752, 753 (10th Cir. 1973); see also United States v. Altman, 3-4 (May 2, 1991) (9th Cir. 1991) (California statute can be applied through ACA because it proscribes drunk driving which injures ...