ACCA on FACA

In the mid-1990s, two of the service appellate courts split over whether the Federal Assimilative Crimes Act (FACA) applied to non-criminal state laws, such as traffic offenses. The Navy-Marine Corps Court said yes; the Air Force Court said no. Compare United States v. White, 39 M.J. 796 (N.M.C.M.R. 1994), with United States v. Clinkenbeard, 44 M.J. 577 (A.F. Ct. Crim. App. 1996), petition denied, 46 M.J. 104 (C.A.A.F. 1996). In a new published opinion, the Army Court sides with the Air Force. United States v. Brooks, __ M.J. ___, No. ARMY 20030150 (A. Ct. Crim. App. Nov. 21, 2006).

The facts of Brooks read like a page out of the French Connection’s script: “When the MP tried to apprehend appellant, appellant fled the scene by speeding down Washington Boulevard, [Fort Eustis’s] main thoroughfare. The MP pursued appellant in his marked police car. After avoiding a police roadblock, driving the wrong way on Washington Boulevard, running several stop signs, jumping a curb and roadway median, crossing over railroad tracks, striking a MP vehicle, speeding through several parking lots, and almost striking several pedestrians, appellant was finally apprehended at gun-point when his car became stuck in a ditch.”

These acts became the basis for various convictions at Brooks’s court-martial for violating Article 134 by committing “various violations of Virginia law assimilated into federal law under the Assimilative Crimes Act, 18 U.S.C. § 12.” While conceding that “the ACA does not distinguish ‘between criminal and civil punishments,’” ACCA quoted the Seventh Circuit’s observation that “it is generally understood to assimilate only a state’s criminal laws.” Brooks, slip op. at 5 (quoting United States v. Devenport, 131 F.3d 604, 606 (7th Cir. 1997)).

With this phrase, ACCA blithely skipped over FACA’s plain wording and reached instead to precedent construing FACA and canons of statutory construction, such as resorting to a statute’s title to resolve any ambiguities in the statute. See id. at 5 n.2. But as the Navy-Marine Corps Court explained, “By its text, FACA assimilates ‘offenses,’ but makes no mention of ‘crimes.’” White, 39 M.J. at 805. In Clinkenbeard, the Air Force Court attempted to escape from this plain language by noting a 1988 amendment of FACA which supports an inference that Congress viewed non-criminal traffic offenses as outside FACA’s scope. 44 M.J. at 578. The Air Force Court also relied on that old standby, expressio unis est exclusio alterius and for good measure also threw in a DOD regulation that construed FACA as excluding non-criminal traffic offenses. Id. The Air Force Court also cited language from the Manual for Courts-Martial explaining that FACA “is an adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction . . . .” Id. at 579 (quoting Manual for Courts-Martial, United States, Pt. IV, para. 60c.(4)(c)(ii)).

The issue is undoubtedly a close call – and it calls to mind Professor Karl Llewellyn’s famous demonstration that for every canon of statutory construction, there is an equal and opposite canon. See generally Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950). But I think the Navy-Marine Corps Court provides the better analysis of FACA itself. The statute’s plain language is not limited to “criminal” state statutes, but rather applies to state statutes that establish an “offense” that is “subject to . . . punishment.” 18 U.S.C. 13(a). That seems an apt description of the Virginia traffic code, which provides that “[i]t shall be unlawful for any person to violate any of the provisions of this title,” and provides that “violations shall constitute traffic infractions punishable by a fine of not more than $200.” Because FACA’s meaning is plain, at least to me, there is no ambiguity justifying resort to the interpretive rules the Air Force Court applies in reaching its holding that ACCA follows in Brooks. As the Supreme Court has held, “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). FACA seems to pass these hurdles.

Even if resort to canons of interpretation were appropriate, the Air Force Court and Army Courts' analysis would remain problematic. Reliance on the 1988 amendment to FACA to interpret language codified in 1948 appears to be inconsistent with the Supreme Court’s dictate that “the view of a later Congress cannot control the interpretation of an earlier enacted statute.” O’Gilvie v. United States, 519 U.S. 79, 90 (1996). And if the text’s meaning is plain, then resort to the statute’s title was also erroneous: “The title of a statute . . . cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] sheds light on some ambiguous word or phrase.” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29 (1947)). Similarly, resort to an agency’s construction of a statute is appropriate only where the text is ambiguous. See Rust v. Sullivan, 500 U.S. 173, 187 (1991).

I nevertheless conclude that the Air Force and Army Courts reached the correct resolution. In United States v. Guess, CAAF held that the Manual for Courts-Martial’s recitation of elements for offenses is not binding on the courts. 48 M.J. 69, 71 (C.A.A.F. 1998). But "[w]here the President’s narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, ‘we will not disturb the President's narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.’” Id. (quoting United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998).” I would apply Guess to hold that the President has precluded prosecution of servicemembers for non-criminal assimilated offenses.

But regardless of the correct answer, it is obvious that this is a difficult and divisive issue. It is worthy of CAAF’s attention. The Judge Advocate General of the Army should certify Brooks.

--Dwight Sullivan