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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

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


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
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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