795 F.

2d 888

UNITED STATES of America, Plaintiff-Appellee,

v.
Harold W. SAIN, Defendant-Appellant.
Nos. 85-2489, 85-2490.

United States Court of Appeals,

Tenth Circuit.
June 24, 1986.

Steven M. Angel of Hughes & Nelson, Oklahoma City, Okl., for

defendant-appellant.
Robert E. Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., with
him on brief), Oklahoma City, Okl., for plaintiff-appellee.
Before BARRETT, McKAY and MOORE, Circuit Judges.
JOHN P. MOORE, Circuit Judge.

After a bench trial, defendant Harold Sain was convicted under the Assimilative
Crimes Act, 18 U.S.C. Sec. 13, of driving while impaired in violation of
Okla.Stat. tit. 47, Sec. 761 (1981), and of transporting a nonintoxicating
beverage in an opened container in violation of Okla.Stat. tit. 21, Sec. 1220
(1981), 618 F.Supp. 270. He appealed, contending that reversal of his
convictions is required because the government failed to prove essential
elements of each of the offenses. In addition, he argues that if his conviction for
driving while impaired is not reversed, the case should be remanded for a jury
trial, because his right to a trial by jury was erroneously denied by the district
court. We conclude that there is no right under the Assimilative Crimes Act to a
jury trial for the charge of driving while impaired, a petty offense under federal
law, and that the government's evidence was sufficient to prove all elements of
the offense. We therefore affirm defendant's conviction for driving while
impaired. Because we conclude the government failed to prove all elements of
the offense of transporting a nonintoxicating beverage in an opened container,
we reverse defendant's conviction on that charge.

The case arose out of the events of the night of March 28, 1985, when the
defendant and a friend, Captain Randy Irwin, returned to Tinker Air Force
Base, Oklahoma, from the Skytrain Night Club. Captain Irwin testified that
during the evening he and defendant consumed one beer each before leaving
the base for the night club, one beer each in defendant's car while parked
outside the club before they entered the club, and two or three beers each while
at the club. Upon reaching the gate to Tinker Air Force Base, defendant's car
was stopped for an identification check. After detecting the odor of beer,
observing two open bottles labeled "Miller High Life" containing a yellow
liquid in the console between the driver's and passenger's seats, and observing
that defendant experienced difficulty in producing his identification and in
exiting his vehicle, Airman Noel Ward conducted field sobriety tests. Ward and
his supervisor, Sergeant Randall Menning, who observed the field tests,
determined defendant was impaired and should not be driving. Defendant was
then taken to the Del City police department where a breathalyzer test was
performed. The test indicated that defendant's blood alcohol was between
0.07% and 0.08%.

I.
3

Defendant contends the district court improperly denied him a jury trial for the
charge of driving while impaired. Under Okla.Stat. tit. 47, Sec. 761 (1981),
conviction of a first offense of driving while impaired carries a fine of not less
than $100 nor more than $300. Article 2, Sec. 19, of the Oklahoma constitution
provides a right to jury trial in all criminal cases unless the offense carries a
fine of less than $100. Defendant argues that the scope of the Assimilative
Crimes Act includes the entire criminal law of the surrounding jurisdiction,
including the right to a jury trial. Because he would have been entitled to a jury
trial in the courts of Oklahoma on the charge of driving while impaired, he
contends that it was error to deny his request for jury trial.

The district court determined the Assimilative Crimes Act adopts state law to
define the elements of the offense and to establish the appropriate range of
punishment, but that no further adherence to state law was required. After
noting the penalty for driving while impaired as prescribed by Okla.Stat. tit. 47,
Sec. 761 (1981), comes within the definition of a petty offense under federal
law, 18 U.S.C. Sec. 1(3), the district court concluded there was no right to jury
trial for that offense.

The precise question whether the Assimilative Crimes Act adopts state law with
respect to the right to jury trial is one of first impression. After consideration of
the scope of the Act as defined by the federal courts, we conclude the district

court correctly determined that adherence to state law regarding the right to jury
trial is not required.
6

The purpose of the Assimilative Crimes Act is to provide a method of

punishing a crime committed on government reservations in the way and to the
extent that it would have been punishable if committed within the surrounding
jurisdiction. United States v. Dunn, 545 F.2d 1281, 1282 (10th Cir.1976). The
Act fills in gaps in federal criminal law by providing a set of criminal laws for
federal enclaves. United States v. Mayberry, 774 F.2d 1018, 1020 (10th
Cir.1985), quoting United States v. Prejean, 494 F.2d 495, 496 (5th Cir.1974).
The reason for adopting local laws is not that Congress passed on their merits
after examining each individually, but that as a practical matter, Congress had
to proceed on a wholesale basis to establish criminal laws for federal enclaves.
United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295, 2 L.Ed.2d
282 (1958).

We have held that federal courts are not required to follow specific provisions
of state law which go beyond establishing the elements of an offense and the
range of punishment. United States v. Pinto, 755 F.2d 150, 154 (10th Cir.1985)
(federal court not required to follow state law prescribing parole terms when
sentencing a defendant convicted under the Assimilative Crimes Act).
Furthermore, state law which is inconsistent with federal policies expressed in
federal statutes is not assimilated by the Act. Cheyenne-Arapaho Tribes of
Oklahoma v. State of Oklahoma, 618 F.2d 665, 668 (10th Cir.1980).

A federal statute, 18 U.S.C. Sec. 1(3), defines a petty offense as "[a]ny

misdemeanor, the penalty for which does not exceed imprisonment for a period
of six months or a fine of not more than $500, or both." The Supreme Court has
held that there is no right to a trial by jury under the Constitution for petty
offenses. Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41
L.Ed.2d 912 (1974); District of Columbia v. Clawans, 300 U.S. 617, 624, 57
S.Ct. 660, 661, 81 L.Ed. 843 (1937). The Oklahoma provision affording jury
trials for the petty offense of driving while impaired conflicts with federal
statutory and case law. Therefore, we hold that the Assimilative Crimes Act
does not adopt Oklahoma law with respect to the right to trial by jury.

II.
9

Defendant contends the district court erred in denying his motion for a directed
verdict on the charge of driving while impaired in violation of Okla.Stat. tit. 47,
Sec. 761 (1981). He argues the government failed to prove that his ability to
drive was actually impaired as required by Okla.Stat. tit. 47, Sec. 756(b) (1984

Supp.)1 . None of the government's witnesses observed the defendant operating

the car and, therefore, could not testify that his driving was actually impaired.
10

The district court correctly concluded that Sec. 756(b) does not require direct
observation by the arresting officer or other eyewitness that the defendant's
driving was actually impaired.2 The statute merely requires some evidence, in
addition to a blood alcohol content in the applicable range, that the defendant
operated a motor vehicle while his physical or mental abilities were affected by
alcohol to the extent that the public health and safety were threatened. Section
756(b) does not specify that observation of the defendant's driving or any
particular evidence is required to sustain a conviction.

11

Under the Assimilative Crimes Act, federal courts are not bound by the
interpretations of assimilated statutes provided by the courts of the surrounding
jurisdiction because the prosecution is for enforcement of federal law, rather
than state law. United States v. Brown, 608 F.2d 551, 553 (5th Cir.1979).
However, Oklahoma case law supports our interpretation of the statute. In
Perry v. State, 561 P.2d 112 (Okla.Crim.App.1977), the court determined that a
blood alcohol content of 0.06%, coupled with the testimony of the arresting
officer that the defendant appeared intoxicated at the time of his arrest, was
sufficient to support a conviction for the offense of driving while impaired.

12

Here, the district court found that while the evidence was in conflict, the more
credible evidence established that defendant's reaction time, coordination, and
balance were impaired by alcohol. Both Airman Ward and Sergeant Menning
testified that defendant failed the field sobriety tests, which included touching a
finger to the nose with eyes closed, heel-to-toe walking, and turning around in a
circular fashion. Both witnesses had received prior training in the detection of
alcohol impairment or intoxication. Sergeant Menning, who had 12 years'
experience as a security policeman and had participated in 50 to 100 arrests for
drunk driving, testified that defendant was glassy-eyed and flushed and that he
exhibited slurring of his speech. On appeal, defendant has not established that
the district court's finding of impairment based on the evidence presented was
clearly erroneous. Therefore, we affirm the district court's denial of defendant's
motion for a directed verdict.

III.
13

Defendant argues that his conviction for transporting a nonintoxicating

beverage in an opened container in violation of Okla.Stat. tit. 21, Sec. 1220
(1981), should be reversed because the government failed to prove that the
liquid in the container found in his car contained more than 1/2 of 1% alcohol

by volume and not more than 3.2% alcohol by weight as required by the
statute.3 The district court denied defendant's motion for acquittal on the
charge, finding that while the government failed to test the alcohol content of
the liquid in the open bottles taken from the passenger compartment of
defendant's car, circumstantial evidence was sufficient to support the
conclusion that the bottles contained beer. The court found the evidence
established that the bottles bore the label of a name brand of beer, that they
were one-quarter to one-half full of a pale yellow liquid that smelled of alcohol,
and that the bottles were cold. The district court also noted that the government
was prevented from testing the contents of the bottles because defendant's
passenger, Captain Irwin, poured the liquid into a paper sack after Airman
Ward requested that the bottles be handed to him.
14

We agree with the defendant that the government failed to prove an essential
element of the offense prescribed by Okla.Stat. tit 21, Sec. 1220 (1981). The
statute includes both a lower and an upper limit for the alcohol content of
beverages, the transportation of which is proscribed. While the circumstantial
evidence may have been sufficient to establish that the liquid in the bottles
contained some alcohol, there was no evidence in the record to support a
finding that the alcohol content did not exceed the statutory upper limit of 3.2%.
Therefore, the government's evidence did not establish that defendant violated
the statute charged in transporting the liquid contained in the bottles taken from
his vehicle. Accordingly, we reverse defendant's conviction for violation of
Okla.Stat. tit. 21, Sec. 1220 (1981).

15

Affirmed in part and reversed in part.

Okla.Stat. tit. 47, Sec. 756 (1984 Supp.), Admission of evidence shown by tests,
reads in pertinent part:
(b) evidence that there was, at the time of the test, an alcohol concentration in
excess of five-hundredths (0.05) but less than ten-hundredths (0.10) is relevant
evidence that the person's ability to operate a motor vehicle was impaired by
alcohol. However, no person shall be convicted of the offense of operating or
being in actual physical control of a motor vehicle while such person's ability to
operate such vehicle was impaired by alcohol solely because there was, at the
time of the test, an alcohol concentration in excess of five-hundredths (0.05) but
less than ten-hundredths (0.10) in the blood or breath of the person in the
absence of additional evidence that such person's ability to operate such vehicle
was affected by alcohol to the extent that the public health and safety was
threatened or that said person had violated a state statute or local ordinance in

the operation of a motor vehicle.

2

Defendant points out that Airman Ward did not have an opportunity to observe
defendant's operation of his vehicle because he was stopped at the gate to
Tinker Air Force Base. Despite the fact that defendant was stopped and taken
into custody at the entrance to the federal enclave, he does not complain of a
lack of federal jurisdiction, but rather bases his argument on the government's
failure to prove an element of the assimilated offense

0kla.Stat. tit. 21, Sec. 1220 (1981), provides in pertinent part:

It shall be unlawful for any person to knowingly transport in any moving
vehicle upon a public highway, street or alley any nonintoxicating beverage
containing more than one-half of one percent ( 1/2 of 1%) alcohol by volume
and not more than three and two-tenths percent (3.2%) alcohol by weight
except in the original container which shall not have been opened and from
which the original cap or seal shall not have been removed, unless the opened
container be in the rear trunk or rear compartment, which shall include ... any
outside compartment which is not accessible to the driver or any other person in
the vehicle while it is in motion.