October 02, 2013 – State v. Donald Herrera, No. 31,477, Consolidated with State v. Billy Baca, No. 31,479

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: October 2, 2013
NO. 31,477
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
DONALD HERRERA,
Defendant-Appellee,
Consolidated with NO. 31,479
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
BILLY BACA,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline D. Flores, District Judge

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellant
Bennett J. Bauer, Acting Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellees

OPINION
WECHSLER, Judge.
{1} 	In this consolidated appeal, the State challenges the dismissal of two
indictments for fraud. The indictments allege that Defendants Donald Herrera and
Billy Baca fraudulently obtained funds from the United States Department of Veterans
Affairs (the VA) in violation of NMSA 1978, Section 30-16-6 (2006). Defendants
filed identical dismissal motions, arguing that the district court lacked jurisdiction on
the basis of federal preemption, and, following a consolidated hearing on those
motions, the district court dismissed both indictments. We hold that the Veterans’
Benefits Act neither preempts the State’s prosecution nor creates an unavoidable
conflict with state law. Accordingly, we reverse and remand for further proceedings.
BACKGROUND
{2} 	Defendants were each indicted for one count of fraud, statutorily defined as “the
intentional misappropriation or taking of anything of value that belongs to another by
means of fraudulent conduct, practices[,] or representations.” Section 30-16-6(A).
The 	misappropriated 	property 	contemplated 	in 	both 	indictments 	consists 	of
reimbursements for travel to and from medical appointments, which expenses may be
reimbursed by the VA pursuant to 38 U.S.C. § 111 (2006). 	Defendant Herrera is
alleged to have fraudulently obtained travel reimbursements from the VA in an

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amount exceeding $20,000, a second degree felony. See § 30-16-6(F). In a separate
case, Defendant Baca is alleged to have fraudulently obtained similar reimbursements
in an amount between $2,500 and $20,000, a third degree felony. See § 30-16-6(E).
{3} 	Defendants’ motions to dismiss asserted that the State is without jurisdiction
to prosecute these cases because Congress has chosen to “occupy the field” by
enacting the Veterans’ Benefits Act (the Act), Title 38 of the United States Code (Pub.
L. No. 85-857, 72 Stat. 1105). Defendants also asserted that their prosecutions are
preempted because, under the facts of this case, New Mexico’s fraud statute is in
conflict with a provision of the Act that prescribes a punishment for fraud committed
against the VA.
{4} 	The district court held a consolidated hearing on the motions. At the hearing,
Defendants presented evidence consisting of photographs of the VA facilities in
Albuquerque, New Mexico, where Defendants are alleged to have obtained the travel
reimbursements. Those photographs tended to support Defendants’ assertion that the
VA hospital is owned by the federal government, and several photographs also
depicted signs on the VA grounds announcing that possession of firearms at the
facility was prohibited by federal law and that traffic violators would be issued federal
citations.

3
{5} 	At the conclusion of the hearing, the district court stated that subject matter
jurisdiction was lacking “because the [VA is] so completely and thoroughly regulated
by the [f]ederal [g]overnment[.]” 	It subsequently entered orders dismissing both
cases. Pursuant to NMSA 1978, Section 39-3-3 (1972), the State appeals both orders
of dismissal, and this Court consolidated the appeals.
PREEMPTION
{6} 	Federal preemption results from “the basic structure of our federal system, in
which [the s]tates and the [federal g]overnment are separate political communities.”
United States v. Wheeler, 435 U.S. 313, 320 (1978), superseded by statute on other
grounds as stated in United States v. Lara, 541 U.S. 193 (2004); see Montoya v.
Mentor Corp., 1996-NMCA-067, ¶ 6, 122 N.M. 2, 919 P.2d 410. Pursuant to that
dual system of governance, “the [s]tates possess sovereignty concurrent with that of
the [f]ederal [g]overnment, subject only to limitations imposed by the Supremacy
Clause.” Tafflin v. Levitt, 493 U.S. 455, 458 (1990). The Supremacy Clause of the
United States Constitution gives Congress authority to preempt state law by declaring
that “the [l]aws of the United States . . . shall be the supreme [l]aw of the
[l]and . . . any [t]hing in the Constitution or [l]aws of any [s]tate to the [c]ontrary
notwithstanding.” U.S. Const. art. VI, cl. 2; Montoya, 1996-NMCA-067, ¶ 6.

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{7} 	Because the question of whether state law has been preempted by federal
legislation depends upon whether Congress intended such a result, “[t]he purpose of
Congress is the ultimate touchstone.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
208 (1985) (internal quotation marks and citation omitted). 	In discerning that
purpose, courts look to whether Congress has expressly preempted state law and, in
the absence of express preemption, to whether such a purpose can be implied from the
structure and purpose of the federal legislation in question. 	Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 96, 98 (1992).
{8} 	Defendants in these cases acknowledge that no federal provision expressly
preempts Section 30-16-6, and the district court rested its decision upon implied
preemption. Thus, we limit our analysis to implied preemption.
{9} 	Courts have recognized two distinct forms of implied preemption: field
preemption and conflict preemption. Gade, 505 U.S. at 98; United Nuclear Corp. v.
Gen. Atomic Co., 1980-NMSC-094, ¶ 186, 96 N.M. 155, 629 P.2d 231. 	Field
preemption occurs when “federal law so occupies the field that state courts are
prevented from asserting jurisdiction.” State v. McHorse, 1973-NMCA-144, ¶ 16, 85
N.M. 753, 517 P.2d 75. Congressional intent to occupy the field may be found if a
“scheme of federal regulation [is] so pervasive as to make reasonable the inference
that Congress left no room for the [s]tates to supplement it.” 	Rice v. Santa Fe

5
Elevator Corp., 331 U.S. 218, 230 (1947). Conflict preemption arises when there is
“an unavoidable conflict between the state law and the federal law, or [where] the
state law is an obstacle to the full accomplishment of congressional objectives.”
Alliance Health of Santa Teresa, Inc. v. Nat’l Presto Indus., Inc., 2005-NMCA-053,
¶ 31, 137 N.M. 537, 113 P.3d 360 (internal quotation marks and citation omitted).
Such a conflict should be found, however, only if “it is impossible to comply with
both state and federal requirements, or if state law obstructs the congressional
objectives underlying the federal law.” 	Azar v. Prudential Ins. Co. of Am.,
2003-NMCA-062, ¶ 35, 133 N.M. 669, 68 P.3d 909.
{10} 	There is “a strong presumption against preemption[,]” especially in areas
involving “historic police powers of the [s]tates.” 	Montoya, 1996-NMCA-067, ¶ 7
(internal quotation marks and citation omitted). This presumption exists even in cases
arising solely under federal law. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,
478-79 (1981). When, as in this case, a state’s historic police powers are at issue,
courts will find federal preemption only when that is “the clear and manifest purpose
of Congress.” Montoya, 1996-NMCA-067, ¶ 7 (internal quotation marks and citation
omitted).
{11} 	Prosecutions for fraud fall squarely within the “historic police powers” of New
Mexico. Id. (internal quotation marks and citation omitted); see also Abbate v. United

6
States, 359 U.S. 187, 195 (1959) (noting that “the [s]tates under our federal system
have the principal responsibility for defining and prosecuting crimes”). 	Fraud has
been prosecuted as a crime in New Mexico since before the advent of statehood, and
the fraud statute at issue in this case can be traced to the first criminal code of the State
of New Mexico. See Territory v. Hubbell, 1906-NMSC-033, ¶ 5, 13 N.M. 579, 86 P.
747 (involving indictment for false pretenses and discharge of the defendant); NMSA
1915, § 1551 (1854) (criminalizing “cheats and false pretenses”). Thus, Defendants
have the burden of establishing Congress’s “clear and manifest” intent to preempt
state law. 	Montoya, 1996-NMCA-067, ¶ 7 (internal quotation marks and citation
omitted); see Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 7, 126 N.M. 396,
970 P.2d 582 (stating that the burden is on the party claiming preemption occurred).
{12} 	In 	order 	to 	meet 	that 	burden, 	Defendants 	claim 	that 	the 	necessary
congressional intent can be implied from the comprehensive nature of the Act. 	In
addressing that claim, we must examine the purpose and structure of the federal law
establishing and governing the VA. 	See Gade, 505 U.S. at 96. 	This legislative
scheme is expansive, comprising the entirety of Title 38 of the United States Code and
governing substantially every aspect of the provision of federal benefits to veterans
of the armed forces. The VA, which is charged with administering all of the veterans’
benefits programs established therein, traces its history to 1930, when the agency was

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established by executive order. Exec. Order No. 5398. The G.I. Bill of Rights greatly
expanded the VA’s mission in 1944 in order to “provide [f]ederal [g]overnment aid
for the readjustment in civilian life of returning World War II veterans.” G.I. Bill of
Rights, Pub. L. No. 78-346, 58 Stat. 284. 	In 1958, all of the laws governing the
administration of federal veterans’ benefits were consolidated into Title 38 of the
United States Code. See Pub. L. No. 85-857, 72 Stat. 1105.
{13} 	Ever since, Congress has periodically reviewed and amended Title 38 to assure
“reasonable and adequate compensation for disabled veterans and their families.”
S. Rep. No. 98-604, III at 24 (1984), reprinted in 1984 U.S.C.C.A.N. 4479, 4480,
4488. In performing that task, Congress has explicitly recited that “the basic purpose
of the disability compensation program, throughout its history, has been one of
providing relief from the impaired earning capacity of veterans disabled as the result
of their military service.” 	H.R. Rep. No. 96-1155, at 4 (1980), reprinted in 1980
U.S.C.C.A.N. 3307, 3310.
{14} 	A review of Title 38 and its extensive legislative history indicates that
Congress’s central purpose therein is to provide benefits to veterans of the armed
forces in a wide variety of circumstances. 	Because of the inherent complexity
involved in administering the federal benefits at issue in Title 38, this Court is
reluctant to draw from the mere fact of that complexity an implication that Congress

8
necessarily intended to displace all state law that touches upon any topic addressed in
Title 38. 	See N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 415 (1973)
(“The subjects of modern social and regulatory legislation often by their very nature
require intricate and complex responses from the Congress, but without Congress
necessarily intending its enactment as the exclusive means of meeting the problem[.]”)
{15} 	Further, implicit in any assertion that Congress has “occupied the field” by its
enactments, is the question of identifying the field that has been occupied. Indeed,
“[e]very [a]ct of Congress occupies some field, but we must know the boundaries of
that field before we can say that it has precluded a state from the exercise of any
power reserved to it by the Constitution.” 	Hines v. Davidowitz, 312 U.S. 52, 78
(1941) (Stone, J., dissenting). To the extent that the field occupied in these cases is
the field of providing veterans’ benefits, the fraud prosecutions at issue in this case do
not intrude upon that province.
{16} 	Defendants’ contrary claim—that their prosecutions necessarily require the
district court to intrude upon the VA’s determination of entitlement to benefits—is
without merit. That claim relies upon various provisions of Title 38, committing to
the Secretary of Veterans Affairs discretion to determine what application forms and
other methods of proof will be used in determining entitlement to benefits and
providing for administrative review of benefits determinations. See 38 U.S.C. §§ 501,

9
511 (2006). Such administrative review falls within the exclusive jurisdiction of the
Board of Veterans’ Appeals (the Board), subject only to judicial review by the United
States Court of Appeals for Veterans Claims. 38 U.S.C. §§ 7104, 7252 (2006). The
prosecutions of these cases, however, do not require the district court to pass upon the
propriety of the VA’s decision to provide travel reimbursements to Defendants
pursuant to Title 38. Instead, the district court proceedings will determine whether
Defendants engaged in “fraudulent conduct, practices[,] or representations,” in the
process of obtaining those reimbursements, thereby violating New Mexico law. See
§ 30-16-6(A).
{17} 	Regardless of the outcome of these prosecutions, the VA’s decision to pay the
underlying travel reimbursements will be unaffected. Federal law does provide that
fraudulently obtained benefits may be recovered by the VA. See 38 U.S.C. § 6103(a)
(2006) (prescribing forfeiture of benefits fraudulently obtained). 	And regulations
promulgated by the VA provide an administrative mechanism by which forfeiture of
benefits may be reviewed by the Board. 	See 38 C.F.R. § 20.101(a)(20) (2001).
Defendants selectively quote the relevant regulation to this Court in an effort to
suggest that the Board—and not the district court—has exclusive jurisdiction over any
“claims or benefits for fraud.” In context, however, the regulation quoted recites that
the Board’s jurisdiction includes issues of “[f]orfeiture of rights, claims or benefits for

10
fraud, treason, or subversive activities[.]” 	38 C.F.R. § 20.101(a)(20) (emphasis
added). 	Forfeiture of veterans’ benefits is a different matter from a criminal
prosecution. Indeed, even the pendency of a forfeiture review before the Board does
not prevent a criminal prosecution from proceeding. See United States v. Roberts, 534
F.3d 560, 568 (7th Cir. 2008) (finding criminal prosecution proper notwithstanding
pending appeal before Court of Appeals for Veterans Claims).
{18} 	It may be that the conduct alleged in these indictments would be sufficient to
require that Defendants “forfeit all rights, claims, and benefits under all laws
administered by the [VA],” pursuant to relevant federal law. 38 U.S.C. § 6103(a).
Such a forfeiture, however, was not a matter before the district court. Instead, the issue
before the district court was solely whether Defendants have violated New Mexico
law, and nothing about these prosecutions intrudes upon or prevents the VA from
making 	its 	own 	determination 	about 	whether 	Defendants’ 	conduct—if
proved—should also work a forfeiture with regard to benefits administered by the VA.
{19} 	Defendants also direct this Court’s attention to 38 U.S.C. § 6102 (2006), which
provides a punishment for fraudulently obtaining funds from the VA. With regard to
that statute, Defendants assert that the existence of a federal punishment for the
conduct at issue in these cases supports their claim of field preemption. They also
asserted in the district court the possibility of conflict preemption by suggesting that

11
New Mexico’s fraud statute, which prescribes a penalty that could differ from that
authorized by § 6102, creates a conflict between the state and federal statutory
schemes. However, as a general rule, the “existence of federal legislation in an area
of law also addressed by state legislation, without more, is not enough to show
preemption.” Ashlock v. Sunwest Bank of Roswell, N.A., 1988-NMSC-026, ¶ 11, 107
N.M. 100, 753 P.2d 346, overruled on other grounds by Gonzales v. Surgidev Corp.,
1995-NMSC-036, 120 N.M. 133, 899 P.2d 576. When state and federal statutes serve
the same purpose, field preemption requires that “the purpose of the federal statute
would to some extent be frustrated by the state statute.” Colo. Anti-Discrimination
Comm’n v. Cont’l Air Lines, Inc., 372 U.S. 714, 722 (1963).
{20} 	In the criminal-law context, these basic principles are amply demonstrated by
the long history of federal criminal jurisprudence dealing with whether prosecutions
by both state and nation violate the Fifth Amendment’s proscription against double
jeopardy. See, e.g., United States v. Lanza, 260 U.S. 377, 385 (1922) (holding that
“conviction and punishment in a state court under a state law . . . is not a bar to a
prosecution in a court of the United States under the federal law for the same acts”).
In the context of double jeopardy, the United States Supreme Court declared, over 150
years ago, that:
[e]very citizen of the United States is also a citizen of a [s]tate or
territory. He may be said to owe allegiance to two sovereigns, and may

12
be liable to punishment for an infraction of the laws of either. The same
act may be an offence or transgression of the laws of both. . . . That
either or both may (if they see fit) punish such an offender, cannot be
doubted.
Moore v. Illinois, 55 U.S. 13, 20 (1852). In the same context, the Supreme Court held
that federalism requires that “[e]ach government in determining what shall be an
offense against its peace and dignity is exercising its own sovereignty, not that of the
other.” Lanza, 260 U.S. at 382. And, “[i]t follows that an act denounced as a crime
by both national and state sovereignties is an offense against the peace and dignity of
both and may be punished by each.” Id.
{21} 	Nonetheless, Defendants claim that the inclusion of a penalty provision at
38 U.S.C. § 6102 “evidences congressional intent that fraudulent veterans’ benefits
be a federal, not state, crime.” Even assuming that the fraud alleged in these cases
constitutes a federal crime, pursuant to that federal statute, it does not follow that the
State is thereby prevented from prosecuting that same fraud pursuant to Section 30-
16-6 because the underlying conduct “is an offense against the peace and dignity of
both [sovereigns].” 	Lanza, 260 U.S. at 382; 	see also State v. Haddenham,
1990-NMCA-048, ¶¶ 38-39, 110 N.M. 149, 793 P.2d 279 (finding no conflict between
state and federal laws proscribing possession of firearms by felons).
{22} 	Against this backdrop of well-settled law permitting criminal prosecutions by
both the United States and states in our federal system, we must determine whether

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the “federal law so occupies the field that state courts are prevented from asserting
jurisdiction.” 	McHorse, 1973-NMCA-144, ¶ 16. There can be no doubt that both
38 U.S.C. § 6102 and New Mexico’s Section 30-16-6 serve the purpose of deterring
and punishing fraud. 	Thus, the question is whether New Mexico’s fraud statute
somehow frustrates the purpose of the federal statute. 	Colo. Anti-Discrimination
Comm’n, 372 U.S. at 722 (noting a court must determine “that the purpose of the
federal statute would to some extent be frustrated by the state statute” before finding
the latter preempted by the former). We conclude that it does not. Given that state
prosecutions cannot be set up as a bar to federal prosecutions, we simply cannot infer
that Congress intended, merely by enacting its own punishment for fraud on the VA,
to preclude state prosecutions for the same conduct. See Rice, 331 U.S. at 230 (stating
that federal legislation must “make reasonable the inference that Congress left no
room for the [s]tates to supplement it”).
{23} 	Defendants also assert conflict preemption. 	To show conflict preemption,
Defendants must show an “unavoidable conflict between the state law and the federal
law[.]” Alliance Health, 2005-NMCA-053, ¶ 31. Nothing in these cases suggests that
it is impossible to comply with both New Mexico’s fraud statute and federal law, nor
does anything suggest that enforcement of the state statute obstructs any congressional
objectives underlying the enactment of its own penalty for fraud. Indeed, the State’s

14
prosecution in these cases will do nothing to hinder the federal statutory scheme
because federal authorities will remain free to pursue their own prosecutions under
federal law should they choose to do so. 	See Lanza, 260 U.S. at 385 (holding that
state conviction is not a bar to federal conviction pursuant to federal law “for the same
acts”). Because of the complimentary purpose of both statutes—to deter and punish
fraud—and the fact that neither statute interferes with the operation of the other, there
simply is no conflict between the state and federal statutes at issue in these cases. See
Azar, 2003-NMCA-062, ¶ 35 (noting that a conflict “does not exist unless it is
impossible to comply with both state and federal requirements, or if state law
obstructs the congressional objectives underlying the federal law”).
{24} 	We also note that, although these cases present a question of first impression
in New Mexico—whether prosecutions for fraud committed against agencies of the
federal government are preempted by the federal laws establishing and governing such
agencies—cases from other jurisdictions uniformly support our conclusion that state
law is not preempted under these circumstances. In both Commonwealth v. Morris,
575 A.2d 582, 583 (Pa. Super. Ct. 1990), and State v. Wallace, 160 Ohio App.3d 528,
2005-Ohio-1746, 828 N.E.2d 125, ¶ 20 (8 th Dist.), state appellate courts held that
federal statutes imposing penalties for improperly obtaining Social Security benefits
do not preempt state criminal prosecutions for theft. Similarly, in State v. Jones, 958

15
P.2d 938, 939 (Utah Ct. App. 1998), a defendant was convicted of communication
fraud in connection with his application to obtain benefits from the federal employees
retirement system. 	The Utah trial court’s jurisdiction over that prosecution was
affirmed, notwithstanding the comprehensiveness of the retirement system. Id. at 941,
943 (holding Congress did not intend to preempt “peripheral” matters such as state
criminal actions arising from fraudulent claims). In People v. Lewis, 693 N.E.2d 916,
917 (Ill. App. Ct. 1998), the defendant was convicted of theft for filing a fraudulent
unemployment benefits claim with the United States railroad retirement board. There,
as here, the federal statutory scheme contained a provision making punishable the
filing of a fraudulent claim. Id. at 917-18. Nonetheless, the Illinois Court of Appeals,
like this Court, held such a provision insufficient to suggest “that Congress intended
that punishment to be the only punishment” and rejected the defendant’s claims of
both field and conflict preemption. Id. at 919.
{25} 	Lastly, we pause to address the evidence received by the district court on the
issue of whether the United States government owns the VA hospital in Albuquerque.
We do so because Defendants’ argument at the consolidated hearing relied heavily
upon that evidence without ever explaining the manner in which ownership of that
property could affect the jurisdictional analysis at issue. Nonetheless, if that evidence
was sufficient to establish the exclusive jurisdiction of the federal government over

16
the conduct alleged in the indictments, this Court would affirm the dismissal of those
indictments under the right-for-any-reason doctrine. See Cordova v. World Fin. Corp.
of N.M., 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901 (“[A]ppellate courts will
affirm a district court’s decision if it is right for any reason, so long as the
circumstances do not make it unfair to the appellant to affirm.”).
{26} 	As more fully discussed above, the preemption doctrine focuses upon the intent
of Congress to preempt state law with its own enactments. See Allis-Chalmers, 471
U.S. at 208 (noting that congressional purpose “is the ultimate touchstone” in
preemption analysis (internal quotation marks and citation omitted)). Although
property ownership plays no part in that analysis, the United States Constitution does
give to Congress the power to acquire property within a state and “to exercise
[exclusive legislative] [a]uthority over all [p]laces purchased by the [c]onsent of the
[l]egislature of the [s]tate in which the [s]ame shall be, for the [e]rection of [f]orts,
[m]agazines, [a]rsenals, dock-[y]ards, and other needful [b]uildings[.]” U.S. Const.
art. I, § 8, cl. 17. As a result, if the New Mexico Legislature consents to the federal
government acquiring property within New Mexico, such as the VA hospital at issue
in these cases, Congress is empowered to “acquire derivative legislative power from
[the s]tate.” Kleppe v. New Mexico, 426 U.S. 529, 542 (1976). It is thus possible for
the federal government to “acquire [either] exclusive or partial jurisdiction over lands

17
within a [s]tate by the [s]tate’s consent or cession[.]” 	Id. 	Nonetheless, “[a]bsent
consent or cession a [s]tate undoubtedly retains jurisdiction over federal lands within
its territory[.]” Id. at 543. In New Mexico, the current procedures for providing the
necessary consent and for ceding exclusive or partial jurisdiction to the federal
government over a federal enclave within New Mexico are codified at NMSA 1978,
Section 19-2-2 (1963).
{27} 	Although Defendants introduced evidence suggesting that the VA hospital is
owned by the federal government and that at least some federal laws are enforced at
the hospital property, no evidence was introduced that New Mexico has ceded its own
jurisdiction with regard to that property, either pursuant to Section 19-2-2 or
otherwise. 	Further, although Defendants asserted that federal ownership of the
hospital somehow supported their theory of preemption, they articulated no legal
theory actually connecting ownership of that hospital to the jurisdictional issue before
the district court. Defendants did not explain how federal ownership of that hospital
could lead to it becoming a federal enclave, beyond the jurisdictional reach of the
state; rather, they argued preemption. Whether the VA hospital sits on federal land,
however, is irrelevant to the question of whether New Mexico’s criminal statutes are
preempted by federal legislation.

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{28} 	As a result, the federal government’s potential ownership of that hospital cannot
have formed any proper part of the district court’s basis for dismissing the cases here
appealed. 	The issue actually litigated before the district court was whether New
Mexico’s fraud statute has been preempted by federal law, and this Opinion is
confined to addressing that question.
CONCLUSION
{29} 	The Veterans’ Benefits Act neither preempts the State’s prosecution nor creates
an unavoidable conflict with state law. 	Accordingly, the orders of dismissal are
reversed, and the cases are remanded to proceed on the indictments.
{30} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
RODERICK T. KENNEDY, Chief Judge
____________________________________
JONATHAN B. SUTIN, Judge