United States v. 2010-08-17 | 09-30149 | USA V. TERESITA DOTSON | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-30149
v.  D.C. No.
CR 08-5761 RBL TERESITA DOTSON,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-30150
v.  D.C. No.
CR 08-5760 RBL WARREN F. FISHER,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 09-30158
Plaintiff-Appellee, D.C. No.
v.  CR 08-5757 RBL
ANNIE JONES, OPINION
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
March 5, 2010—Seattle, Washington
Filed August 17, 2010
12043

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Before: A. Wallace Tashima, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
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COUNSEL
Penny Fields, Perkins Coie Community Service Fellow, Fed-
eral Public Defender’s Office, Seattle, Washington, for the
defendants-appellants.
Aravind Swaninathan, Assistant United States Attorney, Seat-
tle, Washington, for the plaintff-appellee.
OPINION
TASHIMA, Circuit Judge:
Teresita Dotson, Warren Fisher, and Annie Jones (collec-
tively, “Defendants”) appeal their convictions for furnishing
liquor to minors, in violation of Wash. Rev. Code
§ 66.44.270, assimilated into federal law under the Assimila-
tive Crimes Act (“ACA”), 18 U.S.C. § 13(a). We have juris-
diction pursuant to 12 U.S.C. § 1291. Because assimilation of
Washington state law was proper, we affirm.
BACKGROUND
Defendants were employed at McChord Air Force Base,
Washington, by on-base establishments that sold alcohol.
Each was caught serving alcohol to underage servicemen.
Defendants were charged separately by information with sup-
plying liquor to persons under the age of 21 in violation of 18
U.S.C. §§ 7 and 13 and Wash. Rev. Code § 66.44.270,1a gross
misdemeanor.
1Wash. Rev. Code § 66.44.270 states:
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Defendants filed identical motions to dismiss for lack of
subject matter jurisdiction, arguing that § 66.44.270 is not
properly assimilated under the ACA. After a magistrate judge
orally denied all three motions, Defendants entered condi-
tional guilty pleas, pursuant to Federal Rule of Criminal Pro-
cedure 11(a)(2). Each Defendant was sentenced to pay a
$75.00 fine and $25.00 special assessment.
On appeal, the district court affirmed the judgments of con-
viction, concluding that § 66.44.270 was assimilated under
the ACA, such that federal jurisdiction existed. Defendants
timely appealed, and we consolidated the appeals.
ANALYSIS
We review de novo whether the ACA assimilates a state
law crime. See United States v. Souza, 392 F.3d 1050, 1052
(9th Cir. 2004).
(1) It is unlawful for any person to sell, give, or otherwise supply
liquor to any person under the age of twenty-one years or permit
any person under that age to consume liquor on his or her prem-
ises or any premises under his or her control. . . . A violation of
this subsection is a gross misdemeanor punishable as provided
for in chapter 9A.20 RCW.
***
(3) Subsections (1) and (2)(a) of this section do not apply to
liquor given or permitted to be given to a person under the age
of twenty-one years by a parent or guardian and consumed in the
presence of the parent or guardian . . . .
(4) This section does not apply to liquor given for medicinal pur-
poses to a person under the age of twenty-one years by a parent,
guardian, physician, or dentist.
(5) This section does not apply to liquor given to a person under
the age of twenty-one years when such liquor is being used in
connection with religious services and the amount consumed is
the minimal amount necessary for the religious service.
Id.
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[1] Congress enacted the ACA “to borrow state law to fill
in the gaps of federal criminal law applicable to federal
enclaves that occur when Congress has not passed specific
criminal statutes with respect to the missing offenses.” United
States v. Clark, 195 F.3d 446, 449 (9th Cir. 1999) (citing
Lewis v. United States, 523 U.S. 155, 160 (1998)). The ACA
provides:
Whoever within or upon any of the places now exist-
ing or hereafter reserved or acquired as provided in
section 7 of this title, or on, above, or below any por-
tion of the territorial sea of the United States not
within the jurisdiction of any State, Commonwealth,
territory, possession, or district is guilty of any act or
omission which, although not made punishable 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.
18 U.S.C. § 13(a). Thus, the ACA “subjects ‘persons on fed-
eral lands to federal prosecution in federal court for violations
of criminal statutes of the state in which the federal lands are
located.’ ” Clark, 195 F.3d at 449 (quoting United States v.
Kiliz, 694 F.2d 628, 629 (9th Cir. 1982)). In so doing, the
ACA “establishes uniformity in a state’s prohibitory laws
where such conduct is not made penal by federal statutes.”
United States v. Marcyes, 557 F.2d 1361, 1364 (9th Cir.
1977).
[2] Under the ACA, a state statute is properly assimilated
if it “is penal, it is prohibitory, and it is not precluded by gen-
erally applicable federal law that evinces an intent to punish
the culpable conduct to the exclusion of state law.” Clark, 195
F.3d at 448. Thus, there are two primary reasons the ACA
may not assimilate a state law: (1) the act or omission at issue
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is already made punishable by an enactment of Congress that
precludes application of the state statute to be assimilated; or
(2) the state statute to be assimilated is regulatory rather than
prohibitory. See, e.g., id. at 449-51 (addressing whether unau-
thorized practice of law statute was properly assimilated
based on the argument that it was regulatory rather than pro-
hibitory and on the argument that defendant’s conduct was
punishable under the Uniform Code of Military Justice); Mar-
cyes, 557 F.2d at 1364-66 (addressing whether fireworks law
was properly assimilated based on the argument that it was
regulatory rather than prohibitory and on the argument that
“Congress has provided other standards which are controlling
and preempt the field”).
In addition to these arguments, we also consider whether
failure to assimilate the law would “circumvent” the state’s
“determination that [the conduct] is dangerous to the general
welfare of its citizens,” and whether assimilation would fur-
ther the ACA’s purpose of establishing uniformity. See Mar-
cyes, 557 F.2d at 1364-65.
A
[3] We begin with the question whether furnishing alcohol
to a minor is an act already made punishable by an enactment
of Congress.2 A state statute may be assimilated “only if no
2A preemption-based challenge to assimilation is most often mounted in
a case where the state statute at issue is unquestionably prohibitory and
criminal in nature. See, e.g., United States v. Rocha, 598 F.3d 1144 (9th
Cir. 2010) (considering whether California statute prohibiting assault com-
mitted by means of force likely to produce great bodily injury was prop-
erly assimilated). However, preemption may also be raised as a secondary
argument against assimilation, where the primary issue litigated is whether
the law is prohibitory or regulatory. See, e.g., Clark, 195 F.3d at 450-51;
Marcyes, 557 F.2d at 1365-66. Although Defendants’ brief focused on the
contention that § 66.44.270 is regulatory rather than prohibitory, Defen-
dants touch on a preemption argument by arguing that assimilation of
§ 66.44.270 would not further the ACA’s gap-filling function.
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act of Congress makes such conduct punishable.” Marcyes,
557 F.2d at 1365. This presents a species of preemption
inquiry, for which we apply a two-part test:
“[T]he ACA’s language and its gap-filling purpose
taken together indicate that a court must first ask the
question that the ACA’s language requires: Is the
defendant’s act or omission made punishable by any
enactment of Congress. If the answer to this question
is ‘no,’ that will normally end the matter. The ACA
presumably would assimilate the statute. If the
answer to the question is ‘yes,’ however, the court
must ask the further question whether the federal
statutes that apply to the ‘act or omission’ preclude
application of the state law in question . . . .”
United States v. Rocha, 598 F.3d 1144, 1148 (9th Cir. 2010)
(quoting Lewis, 523 U.S. at 164) (emphasis in Lewis).
[4] Our inquiry ends at the first step, because we conclude
that no enactment of Congress makes punishable the conduct
at issue. Defendants direct our attention to 50 U.S.C. app.
§ 473, which authorizes the Secretary of Defense
to make such regulations as he may deem to be
appropriate governing the sale, consumption, posses-
sion of or traffic in beer, wine, or any other intoxi-
cating liquors to or by members of the Armed Forces
or the National Security Training Corps at or near
any camp, station, post, or other place primarily
occupied by members of the Armed Forces or the
National Security Training Corps.
Id. Defendants contend that this statute demonstrates that the
ACA’s gap-filling purpose would not be furthered by assimi-
lation of § 66.44.270 because the statute already makes the
conduct in question punishable.
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[5] We note that § 473 is a statute that grants rulemaking
authority to the Secretary of Defense, but that does not itself
set forth any rules or regulations governing the sale, consump-
tion, possession of or traffic in beer, wine, or any other intoxi-
cating liquors.3 Even if § 473 did set forth specific
prohibitions, it would not preclude assimilation unless those
prohibitions were “of general applicability.” See Clark, 195
F.3d at 451 (“[A]lthough only those laws governing conduct
‘not made punishable by any enactment of Congress’ may be
assimilated, . . . ‘any enactment’ refers only to enactments of
general applicability.” (citing United States v. Debevoise, 799
F.2d 1401, 1403 (9th Cir. 1986))). In both Clark and Debev-
oise, we held that state statutes were properly assimilated
even though the defendant was also subject to punishment
under certain articles of the Uniform Code of Military Justice
(“UCMJ”) because those articles were not “of general appli-
cability.” Clark, 195 F.3d at 451; Debevoise, 799 F.2d at
1402-03; accord United States v. Mariea, 795 F.2d 1094,
1100 (1st Cir. 1986) (“It stands to reason that the federal laws
Congress had in mind as barring assimilation of state laws
were federal laws of a character similar to the state laws they
preempted — i.e., criminal laws of general application. The
articles of the UCMJ, however, pertain only to members of
the armed forces.”).
[6] Defendants also rely on Secretary of the Air Force
Instruction 34-219 (Oct. 17, 2007) (“AFI 34-219”). Although
they do so in support of the argument that § 66.44.270 is regu-
latory rather than prohibitory, a contention we address in the
next section, we also briefly consider whether the instruction
constitutes an enactment of Congress that would preclude
3Similarly, 10 U.S.C. § 2683, does not itself govern the furnishing of
alcohol to minors, but rather authorizes and instructs the Secretary to do
so. See id. (“[Subject to certain exceptions], the Secretary concerned shall
establish and enforce as the minimum drinking age on a military installa-
tion located in a State the age established by the law of that State as the
State minimum drinking age.”).
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assimilation. AFI 34-219 “applies to all personnel who sell,
serve, purchase, or consume alcohol on Air Force installations
or aircraft” and “Air National Guard [ ] units and members
when on Air Force bases.” Id. Failure to comply with the rele-
vant portions of the instruction is a violation of Article 92 of
the UCMJ, and violations may also “result in administrative
disciplinary action without regard to otherwise applicable
criminal or civil sanctions for violations of related laws.” Id.
Because the prohibitions in the instruction are limited to mili-
tary personnel, as opposed to civilians, they cannot be consid-
ered “of general applicability.” See Clark, 195 F.3d at 451
(citing Debevoise, 799 F.2d at 1403).4
[7] Because 50 U.S.C. app. § 473 and AFI 34-219 contain
no generally applicable prohibitions, they “do not establish
federal policy against which a state statute must be measured
for conflict or inconsistency.” See Clark, 195 F.3d at 451 (cit-
ing Debevoise, 799 F.2d at 1403). Accordingly, we conclude
that no enactment of Congress precludes assimilation of
§ 66.44.270 under the ACA.
B
We turn now to the question whether § 66.44.270 is regula-
tory or prohibitory. To answer this question, we consider the
intent behind the statute: If the “statute is intended to prohibit
particular conduct in order to promote the general welfare,”
it is a properly assimilated prohibitory law; if, on the other
hand, the statute is “primarily a licensing law aimed at regu-
lating particular conduct . . . and generating revenues,” it is
regulatory. Clark, 195 F.3d at 450; see also Marcyes, 557
F.2d at 1364.
4Defendants do not contend that the limited authority of a commanding
officer to lower the drinking age on base, see AFI 34-219, was invoked
with respect to these sales, so that authority likewise poses no obstacle to
assimilation here.
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The inquiry presents an issue of framing. Defendants urge
us to focus on Washington’s Title 66, which contains
§ 66.44.270. They contend that the intent behind the title is to
permit the sale, distribution, and consumption of alcohol, sub-
ject to regulation. The government counters that § 66.44.270
flatly prohibits the furnishing of alcohol to minors, with only
limited exceptions.
In support of their approach to framing, Defendants rely on
California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987). In Cabazon, the Supreme Court considered whether a
California law governing bingo was prohibitory or regulatory.5
Id. at 208-12. “In light of the fact that California permits a
substantial amount of gambling activity, including bingo, and
actually promotes gambling through its state lottery,” the
Supreme Court concluded, “California regulates rather than
prohibits gambling in general and bingo in particular.” Id. at
211. Defendants contend that, like California’s gambling stat-
utory scheme, in which California allowed for and benefitted
from gambling, Washington’s alcohol statutory scheme
allows for widespread sale and consumption, authorizing
state-run liquor stores, and generating income from alcohol-
related taxes and fees. Defendants, however, focus on the
overarching scheme to the exclusion of the specific statute at
issue. Contrary to Defendants’ arguments, such an approach
is not condoned by Cabazon, which, in addition to discussing
California’s approach to gambling generally, specifically
noted that California did not prohibit but rather regulated
bingo “in particular.” See id. (noting that bingo was widely
5Cabazon did not address the ACA, but rather Public Law 280, Pub. L.
No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 28
U.S.C. § 1360, 25 U.S.C. § 1321-1326), which allows application of state
laws on tribal lands if Congress expressly so provides. 480 U.S. at 207.
The prohibitory/regulatory distinction applies in both contexts. See Caba-
zon, 480 U.S. at 211 n.10 (noting that Marcyes applied the prohibitory/
regulatory distinction); Clark, 195 F.3d at 449 (entertaining a Cabazon-
based argument against assimilating a state law under the ACA).
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played and legally sponsored by several organizations, pursu-
ant to the state statute).
Indeed, we previously have rejected Defendants’ approach
to framing. In Clark, we considered whether a provision mak-
ing the unauthorized practice of law a misdemeanor was prop-
erly assimilated under the ACA. 195 F.3d at 448. The
defendant argued that the provision was regulatory because
the statutory scheme as a whole regulated the practice of law,
rather than prohibited the unauthorized practice of law. Id. at
449. The defendant in Clark invoked Cabazon in support of
her argument that “the district court misfocused the inquiry by
analyzing the unauthorized practice of law rather than the
practice of law,” contending that “California statutes regulat-
ing the practice of law are similar to its gambling statutes,
which the Supreme Court held [in Cabazon] are regulatory
because California did not prohibit all forms of gambling but
only certain types of high stakes bingo.” Id. (citing Cabazon,
480 U.S. at 211-12).
[8] We rejected this argument, emphasizing that a penal
provision that is part of a larger regulatory scheme can none-
theless be assimilated where the penal provision is criminal
and prohibitory. Id. at 450. We held that the statute at issue
was properly assimilated under the ACA because the unautho-
rized practice of law was “flatly prohibited and criminally
penalized.” Id.
[9] Here, too, the conduct at issue — the furnishing of
alcohol to minors — is flatly prohibited and criminally penal-
ized. Section 66.44.270’s limited exceptions for alcohol given
by a parent or guardian and consumed in the parent’s or
guardian’s presence, alcohol given for medicinal purposes,
and alcohol given for religious services do not remove it from
the realm of prohibitory laws. See Marcyes, 557 F.2d at 1364
(holding that fireworks statute was prohibitory even though
there were exceptions for public displays and movies).
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[10] The specific statute at issue, § 66.44.270, is the type
of prohibitory law we previously have deemed properly
assimilated under the ACA. See, e.g., United States v. Que-
mado, 26 F.3d 920, 922 (9th Cir. 1994) (holding that state
statute prohibiting driving after suspension or revocation of
license was properly assimilated); United States v. Foumai,
910 F.2d 617, 619 (9th Cir. 1990) (noting that state statutes
prohibiting driving without insurance and driving with a sus-
pended license were assimilated); United States v. DeWater,
846 F.2d 528, 529 (9th Cir. 1988) (noting that state statute
prohibiting driving under the influence was assimilated); cf.
United States v. Carlson, 900 F.2d 1346, 1347-48 (9th Cir.
1990) (holding that state speed limit law that categorized non-
compliance as a violation rather than a criminal offense was
not properly assimilated). Its presence in what is arguably a
regulatory scheme does not alter our conclusion that Section
66.44.270 is prohibitory.6
C
Finally we consider Washington’s public policy and the
effect of assimilation on the ACA’s uniformity goal. We
agree with the government that declining to assimilate
§ 66.44.270 would “circumvent” the state’s purpose in penal-
izing the conduct at issue. See Clark, 195 F.3d at 450 (noting
that “failure to assimilate [the state statute] would circumvent
California’s determination that the unauthorized practice of
law poses a threat to the general public”); Marcyes, 557 F.2d
at 1364 (noting that declining to assimilate “would entirely
circumvent Washington’s determination that the possession of
fireworks is dangerous to the general welfare of its citizens”).
6Defendants contend that AFI 34-219 is “further evidence” that
§ 66.44.270 is regulatory because “the Air Force has also chosen to regu-
late the furnishing of liquor to those under the legal drinking age in a state,
but has done so differently than the State of Washington.” Our inquiry,
however, focuses on the intent behind the state statute to be assimilated.
The existence of an Air Force instruction on the same subject is not rele-
vant to that inquiry.
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[11] The Washington Supreme Court has clearly identified
the purpose behind § 66.44.270 as “protect[ing] minors’
health and safety interests from their ‘own inability to drink
responsibly’ and . . . protect[ing] against the particular hazard
of ‘alcohol in the hands of minors.’ ” Schooley v. Pinch’s Deli
Market, Inc., 951 P.2d 749, 753 (Wash. 1998) (quoting Han-
sen v. Friend, 824 P.2d 483, 486 (Wash. 1992)).7 Like the
unauthorized practice of law statute and the fireworks statute
at issue in Clark and Marcyes, respectively, § 66.44.270
reflects a specific determination by Washington that particular
conduct poses a certain threat. Failure to assimilate
§ 66.44.270 would circumvent that determination.
[12] We also conclude that assimilating § 66.44.270 fur-
thers the ACA’s goal of uniformity. “Congress’ purpose in
enacting the ACA was to fill in the gaps in the criminal law
applicable to federal enclaves created by the failure of Con-
gress to pass specific criminal statutes.” Marcyes, 557 F.2d at
1364 (citing United States v. Sharpnack, 355 U.S. 286 (1958),
and Williams v. United States, 327 U.S. 711 (1946)). Thus, a
statute is properly assimilated where assimilation would “up-
hold[ ] [Congressional] policy by insuring that [a state’s laws]
will be uniformly applied to all citizens . . . on or off [the fed-
eral enclave].” Marcyes, 557 F.2d at 1364-65.
[13] Applying the state law governing the furnishing of
alcohol to minors on base would further uniformity between
the base and the state of Washington. Defendants misunder-
7Citing to Schooley, Defendants assert that Washington’s underlying
interest is “seek[ing] generally to promote the health and safety of its citi-
zens.” They argue that if this interest were a sufficient justification for
assimilation, any provision of Title 66 could be assimilated, as its stated
purpose is “the protection of the welfare, health, peace, morals, and safety
of the people of the state.” See Wash. Rev. Code § 66.08.010. The concern
that assimilating § 66.44.270 would lead to widespread assimilation of any
law whose purpose was to protect the general welfare is unfounded, how-
ever, because Schooley articulated the state’s interest much more specifi-
cally.
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stand the ACA’s goal of uniformity, contending that, in light
of an Air Force instruction that permits the suspension of the
drinking age requirement in specific instances, the criminal
law that would apply to military personnel on base, and the
civilian personnel that serve them, would differ from that
applied to civilian employees on base. Our inquiry, however,
does not concern the level of uniformity within the federal
enclave, but rather the level of uniformity between the federal
enclave and the state in which it is situated.
AFI 34-219 states that, as a general rule, the minimum
drinking age “must be consistent with the law of the state . . .
in which the installation is located.” Id. However, the instruc-
tion allows a Major Air Command Director of Services to
approve a suspension of the minimum drinking age “for
attendees at a particular unit gathering” when “an entire unit
marks a unique or non-routine military occasion on a military
installation.” Id. Where such a suspension occurs, military or
civilian personnel on base are permitted to furnish alcohol to
certain underage military personnel on base, but are not per-
mitted to furnish alcohol to other underage military personnel
or civilians. This lack of on-base uniformity would exist irre-
spective of assimilation, as the general minimum drinking age
under the instruction — which would remain in effect for all
those not subject to an exception — is the same as the state
in which the base is located. Moreover, the lack of uniformity
within a federal enclave is not the uniformity problem the
ACA aims to rectify. See Sharpnack, 355 U.S. at 295.
Defendants also argue that if § 66.44.270 is assimilated,
civilians and military personnel off base would have a differ-
ent law applied to them than military personnel on base. This
argument focuses on the proper uniformity question. How-
ever, the apparent anomaly is a result of the discrepancy
between the Air Force instruction, which applies on base, and
the state law, which applies off base. This discrepancy, too,
will exist irrespective of whether § 66.44.270 is assimilated.
Indeed if § 66.44.270 is assimilated, the discrepancy will be
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ameliorated, because sales to underage civilians and sales to
underage military personnel that occur while a suspension of
the drinking age is not in effect will be subject to the same
rules whether the underage individuals are on or off base.
CONCLUSION
[14] Accordingly, we conclude that § 66.44.270 is penal,
prohibitory, and not precluded by generally applicable federal
law, and that assimilation of § 66.44.270 furthers the ACA’s
uniformity purpose.
For the foregoing reasons, the judgements of conviction are
AFFIRMED.
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