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13 Fed. Sent'g Rep. 90 (2000-2001)
The Unique Challenges of Federal Enclave Jurisdiction

handle is hein.journals/fedsen13 and id is 92 raw text is: The Unique Challenges of Federal Enclave Jurisdiction BETH FARBER & SUSAN BAUER Assistant Federal Public Defenders, District of Maryland Federal enclave jurisdiction applies to many different types of federal installations ranging from federal road- ways, federal parks, and agency property to military bases. In a state like Maryland, for example, one finds federal highways, federal research installations, like the National Institutes of Health, and numerous military bases. The key to legal practice at federal facilities is to determine at the outset (i) whether the federal govern- ment has jurisdiction and whether it is exclusive or concurrent with the state, and (2) which set of laws will apply to offenses committed on these properties: the United States Code, the Code of Federal Regulations (CFR) or state law. I. Federal Jurisdiction The definition of territories over which federal jurisdic- tion lies can be found in i8 U.S.C. S 7 which provides a detailed description of the subjects of the special maritime and territorial jurisdiction of the United States. This section provides for jurisdiction over not only land territories but also aircraft, ships, and even rocks and deposits of guano over which the United States may have a claim. All crimes committed within the special maritime and territorial jurisdiction of the United States are subject to the U.S. Code. Title i8 U.S.C. S I3, known as the Assimilative Crimes Act (ACA), provides that if any person commits an offense within the territorial and maritime jurisdiction of the United States which although not made punish- able by any 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. In other words, if conduct occurs on federal property which has been criminalized by state law, but is not addressed by any federal statute or regulation, then state law applies. The ACA does not incorporate state procedural or evidentiary law.' In some instances, substantive state law is assimilated, but federal penalty law applies.' For example, the CFR covering prosecutions on federal parklands has its own assimilative provisions directing that substantive state law apply in defining criminal offenses but that one uniform federal penalty apply to the offenses.' In the case of state misdemeanors, assim- ilated pursuant to the ACA, in which the state penalty exceeds the one-year limit of a magistrate judge's jurisdiction, the case may proceed in federal court as a misdemeanor as long as the maximum punishment does not exceed twelve months.4 FEDERAL SENTENCING REPORTER - VOL. 13, NO. 2 • SEPTEMBER/OCTOBER 2000 These kind of provisions can create unusual disparities for identical offenses committed on state versus federal property within that state. For example, a defen- dant charged with drunk driving in Maryland under Maryland state law faces a maximum penalty of one year incarceration., The same offense committed within the state of Maryland but on the Baltimore-Washington Parkway, which is under the jurisdiction of the Depart- ment of the Interior, carries a maximum penalty of six months under the regulations governing parklands cited above. Drunk driving on a military base in Maryland has a one year maximum because the military has not promulgated its own regulations for traffic offenses and so the one year state law maximum applies although the crime was committed on a federal enclave. On occasion, the federal and state government may have concurrent jurisdiction, in which case either sovereign can prosecute. In areas where the federal and state government have adjacent jurisdiction over property, for example, where state and federal parklands are contiguous, it is important to determine whether the federal government which has charged an offense actually has jurisdiction over the particular piece of land. This may involve checking the land records to see if the state has ceded ownership to the federal government. II. The Relevance of the Applicable Law When criminal conduct occurs on a federal enclave, whether the offense is a felony or misdemeanor, the first question is whether a U.S. Code section covers the offense. In the case of felony offenses, usually a U.S. Code section applies to the conduct. However, most federal criminal prosecutions for offenses committed on federal enclaves involve misdemeanors; and the U.S. Code covers only very few misdemeanors. Some of the more common misdemeanors covered by federal law are: 18 U.S.C. S 113 (assault), i8 U.S.C. S 641 & 66i (theft), and 21 U.S.C. S 844 (simple possession of controlled substances). If there is no U.S. Code provision for a felony, the law of the state in which the offense occurred will apply pursuant to the ACA. The issue of which law applies becomes more complicated, however, when the crime committed is a misdemeanor not covered by the U.S.Code. When a petty offense or misdemeanor is committed, one must first determine which federal agency has jurisdiction over the property where the crime was committed because that will determine which statute or regulation will cover the conduct. For

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