27 F.

3d 111

UNITED STATES of America, Plaintiff-Appellee,

v.
Timothy L. HARRIS, Defendant-Appellant.
No. 93-5671.

United States Court of Appeals,

Fourth Circuit.
Argued April 14, 1994.
Decided June 22, 1994.

ARGUED: Randolph Brian Monchick, Asst. Federal Public Defender,

Raleigh, NC, for appellant. Paul Arthur Raaf, Judge Advocate General's
Corps, Fort Bragg, NC, for appellee.
ON BRIEF: James R. Dedrick, U.S. Atty., Tracy D. Knox, Sp. Asst. U.S.
Atty., Fort Bragg, NC, for appellee.
Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and
DOUMAR, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Vacated and remanded by published opinion. Senior Judge BUTZNER
wrote the opinion, in which Judge RUSSELL and District Judge
DOUMAR joined.
OPINION
BUTZNER, Senior Circuit Judge:

Timothy Harris appeals his conviction and sentence for driving while impaired
by alcohol. He contends that the magistrate judge committed prejudicial error
by submitting the criminal information to the jury without appropriate
clarifying instructions in response to a question from the jury. He also assigns
error to the magistrate judge's deviation from the assimilated North Carolina
sentencing provision. The district court affirmed the magistrate judge's
judgment and sentence. Concluding that the magistrate judge improperly

instructed the jury and erred in sentencing Harris, we vacate the district court's
judgment.
2

* On January 23, 1992, a military police officer found Timothy Harris parked
at the entrance gate to Pope Air Force Base. Suspecting that Harris was
intoxicated, the MP administered field sobriety tests and a breath test. The
United States subsequently charged Harris with Driving While Impaired in
violation of N.C. Gen.Stat. Sec. 20-138.1, assimilated by 18 U.S.C. Sec. 13.

The magistrate court suppressed the prosecution's blood alcohol concentration

evidence, which the government derived from the breath test. The validity of
the suppression order is not an issue in this appeal.

At the trial, the MP testified to Harris' behavior at the entrance to the Base and
to his performance in the field sobriety tests. Harris testified that he was not
intoxicated but was sick and had pulled over to rest.

After the jury retired, the magistrate judge, without objection, sent the criminal
information to the jury. It stated, in part, that Harris had "a blood alcohol
concentration of .10% or more."

During its deliberation, the jury submitted a question to the court concerning
the criminal information:

7 charge refers to a statute concerning blood alcohol concentration of .10 percent.

The
Is this a reference to the law or a statement of fact that the content was .10 percent or
more? There was no mention of a breathalyzer test.
8

Harris's attorney asked the magistrate judge to instruct the jury that there was
no evidence concerning Harris's blood alcohol concentration.

The magistrate judge did not grant Harris's request. Instead, he responded to the
jury's question by instructing the jury as follows:

I10listed for you during the first set of instructions the three elements which the
government must prove beyond a reasonable doubt. I think your question probably
refers more to that third element that requires the government to establish that at the
time the defendant was driving the vehicle he was under the influence of an
impairing substance.
This third element may be proved by evidence beyond a reasonable doubt
11

establishing either one of the following alternatives: The third element may be
proved by establishing that at the time the defendant was driving the vehicle, he was
under the influence of an impairing substance. As I said, with respect to this
alternative, alcohol is an impairing substance.
12person is under the influence of an impairing substance within the meaning and
A
intent of the law when he has taken or consumed a sufficient quantity of that
impairing substance to cause him to lose the normal control of his bodily or mental
faculties or both to such an extent that there is an appreciable impairment of either or
both.
13 third element of impaired driving may also be established if the government
The
proves that at the time the defendant was driving the vehicle he had consumed
sufficient alcohol such that at any relevant time after the driving he had an alcohol
concentration of .10 or more grams of alcohol per 210 liters of breath.
14relevant time is at any time after the driving in which the driver still has in his
A
body alcohol consumed during or before the driving. In determining whether this
third element of impaired driving has been established, bear in mind that it is not
necessary for the government to prove both; that the defendant was under the
influence of an impairing substance, and that he had an alcohol concentration of .10
or higher.
15
Either
one will suffice. However, remember that even though the third element may
be proved by either method, the government must still establish the existence of this
third element beyond a reasonable doubt.
II
16

When one of two independent grounds for conviction is unconstitutional or

illegal, a general verdict cannot stand if the court instructed the jury that it
could rely on either of the two grounds. Griffin v. United States, --- U.S. ----, ---, 112 S.Ct. 466, 472, 116 L.Ed.2d 371 (1991); accord United States v. Taylor,
966 F.2d 830, 834 (4th Cir.1992). The verdict will stand if one of the grounds
is "merely unsupported by sufficient evidence." --- U.S. at ----, 112 S.Ct. at 472.

17

The magistrate judge instructed the jury that it could rely on either of two
independent grounds in determining whether Harris drove his vehicle while
under the influence of an impairing substance. The jury, however, could not
legally convict Harris on the second ground--that the defendant had a blood
alcohol concentration of at least .10 percent. The court had suppressed evidence
of blood alcohol concentration.

18

Nevertheless, the verdict may very well have rested on this illegal ground. The
criminal information the judge sent to the jury contained a sworn statement by
the prosecutor that Harris had a blood alcohol concentration of at least .10
percent. Although initially the judge had told the jury that the criminal
information was not evidence of guilt, the jury's question regarding the
information indicates that they were confused about its role and may have
considered the statement as one of fact. The judge's supplemental instructions
did not clarify the function of the criminal information. This was not an error
arising merely from insufficient evidence. The error arose because the jury
illegally was allowed to rest conviction on the prosecutor's sworn statement in
the information that Harris had a blood alcohol concentration of .10 percent or
more. Because Harris had no opportunity to cross examine the prosecutor, he
was denied his right of confrontation secured by the Sixth Amendment.

19

We conclude that the magistrate judge should not have sent the criminal
information to the jury without deleting the reference to Harris's alleged blood
alcohol level. This error was compounded by the equivocal supplementary
instruction regarding Harris's blood alcohol concentration in response to the
jury's question. We also conclude that the Sixth Amendment violation was
plain error. The judgment convicting Harris must be vacated.

III
20

Harris was charged with violating the Assimilative Crimes Act, 18 U.S.C. Sec.
13, which assimilated N.C. Gen.Stat. Sec. 20-138.1. The North Carolina statute
provides that a person who is convicted of operating a vehicle on a public road
while under the influence of alcohol shall be punished in accordance with N.C.
Gen.Stat. Sec. 20-179. Section 20-179(k), which the magistrate judge and both
counsel agreed was applicable, provides:

21defendant subject to Level Five punishment may be fined up to one hundred

A
dollars ($100.00) and must be sentenced to a term of imprisonment that includes a
minimum term of not less than 24 hours and a maximum term of not more than 60
days. The term of imprisonment must be suspended, on the condition that the
defendant:
22

(1) Be imprisoned for a term of 24 hours as a condition of special probation; or

23

(2) Perform community service for a term of 24 hours; or

24

(3) Not operate a motor vehicle for a term of 30 days; or

(4) Any combination of these conditions.

25
The judge may in his discretion impose any other lawful condition of probation and,
26
if required by subsection (m), must impose the conditions relating to assessment,
treatment, and education described in that subsection.
27

Pursuant to Sec. 20-179(m) the judge must require a defendant to obtain a

substance abuse assessment as a condition of probation. Upon recommendation
of the assessing agency, the judge may require a defendant to participate in an
appropriate treatment program at the defendant's expense.

28

The magistrate judge did "not consider himself bound strictly by the North
Carolina statute." Addressing Harris he also stated, "I intend to impose a
punishment which I think fits not only what took place, but which fits the story
that you gave about what took place." The magistrate judge imposed a sevenday jail term, a $100 fine, a $25 assessment, 100 hours of community service, a
substance abuse assessment, and probation for one year.

29

On appeal to the district court, Harris protested that the magistrate judge did
not comply with the Assimilative Crimes Act, 18 U.S.C. Sec. 13, and that he
wrongfully enhanced his sentence for perjury in contravention of state and
federal law then in effect.

30

Affirming the judgment that the magistrate judge imposed, the district court
held that the Assimilative Crimes Act assimilates only the state's maximum and
minimum sentences and that the magistrate judge could exercise discretion
within this range, giving due regard to the federal guidelines. The district court
also held that the magistrate judge did not enhance the sentence for perjury but
instead "sentenced him within the appropriate ranges established by North
Carolina law."

IV
31

The Assimilative Crimes Act provides that in the absence of federal law, a
person who commits a state crime on a federal enclave "shall be guilty of a like
offense and subject to a like punishment." 18 U.S.C. Sec. 13(a). In United
States v. Press Publishing Co., 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65 (1911),
the Supreme Court interpreted the predecessor of Sec. 13 that spoke of the
"same punishment" as follows:

32 is apparent that the statute, instead of fixing by its own terms the punishment for
[I]t
crimes committed on such reservations which were not previously provided for by a

law of the United States, adopted and wrote in the state law, with the single
difference that the offense, although punished as an offense against the United
States, was nevertheless punishable only in the way and to the extent that it would
have been punishable if the territory embraced by the reservation remained subject to
the jurisdiction of the State.
33

219 U.S. at 9-10, 31 S.Ct. at 213-14.

34

The interpretation placed on the predecessor of Sec. 13 applies to the

requirement of "like punishment" stipulated in Sec. 13(a). See United States v.
Minger, 976 F.2d 185, 187-88 (4th Cir.1992). The phrase "like punishment,"
however, does not encompass every incident of a state's sentencing policy. For
example, it has long been recognized that the Act does not require adherence to
state parole eligibility. The rationale supporting this principle is that a federal
prisoner, though convicted and sentenced in accordance with Sec. 13, should be
subject to federal correctional policies. This avoids confining two classes of
prisoners in federal prisons. See United States v. Smith, 574 F.2d 988, 991-92
(9th Cir.1978).

35

When Congress enacted the Sentencing Reform Act of 1984, it repealed many
conflicting provisions of the criminal code. But it did not repeal or amend Sec.
13(a). Instead, 18 U.S.C. Sec. 3551(a), as amended in 1990 to explicitly
encompass Sec. 13, provides:

36
Except
as otherwise specifically provided, a defendant who has been found guilty of
an offense described in any Federal statute, including sections 13 and 1153 of this
title ... shall be sentenced in accordance with the provisions of this chapter so as to
achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)
(2) to the extent that they are applicable in light of all the circumstances of the case.
37

Since Congress clearly recognized that both Sec. 13(a) and Sec. 3551(a) are
"capable of co-existence," courts are obliged to regard "each as effective."
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 2881, 81
L.Ed.2d 815 (1984) (quotation and citation omitted). They "are not at liberty to
pick and choose among congressional enactments...." Morton v. Mancari, 417
U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974).

38

The Sentencing Commission outlined the means for reconciling Secs. 13(a) and
3551(a) in U.S.S.G. Sec. 2X5.1, comment. (n.1). This commentary reiterates
that the Sentencing Guidelines apply to convictions under Sec. 13. Most state
penal statutes, like most federal statutes, stipulate a maximum and minimum

sentence leaving to the trial court discretion to impose a punishment within

these limits. Under such circumstances application of the federal Sentencing
Guidelines to an assimilative crime is relatively straightforward. A federal
judge, like his state counterpart, has discretion to impose a sentence within the
state statutory limits. In exercising this discretion, a federal judge must adhere
to the most analogous offense guideline. In U.S.S.G. Sec. 2X5.1, comment.
(n.1), the Sentencing Commission has set forth appropriate guidelines and
policy statements that can be applied under such circumstances.
39

United States v. Young, 916 F.2d 147, 150-51 (4th Cir.1990), upon which the
district court relied, is consistent with Sec. 2X5.1. But neither Young nor any
other case that has come to our attention has dealt with a situation such as we
have before us.V

40

Harris's offense is a class B misdemeanor, since the maximum sentence under

Sec. 20-179(k) is more than 30 days but less than six months. Other subsections
of Sec. 20-179 authorize more severe punishment than that permitted by
subsection (k). But the government did not prove the elements necessary to
bring Harris within the purview of the other subsections.

41

The Sentencing Guidelines do not apply to a class B misdemeanor, and the

court is directed to impose a sentence authorized by statute. See U.S.S.G. Sec.
1B1.9 and comment. (n.1). Two statutes are pertinent. Section 13(a) directs the
court to determine the punishment the state prescribes for the assimilated
offense and then impose "like punishment." Section 3551(a) directs the court to
sentence a defendant "so as to achieve the purposes set forth in subparagraphs
(A) through (D) of section 3553(a)(2) to the extent that they are applicable in
light of all the circumstances of the case."

42

Title 18 U.S.C. Sec. 3553(a) directs a court to consider the following factors
when imposing a sentence:

(2) the need for the sentence imposed-43

44

(A) to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;

45

(B) to afford adequate deterrence to criminal conduct;

46

(C) to protect the public from further crimes of the defendant; and

47

(D) to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner;....

48

It is readily apparent that N.C. Gen.Stat. Sec. 20-179(k) satisfies the

requirements of Sec. 3553(a)(2). Moreover, nothing in Sec. 3553(a)(2)
precludes application of the Assimilative Crimes Act.

49

The North Carolina legislature has accorded the trial court broad discretion in
Sec. 20-179(k) subject to one important restriction regarding punishment-initially the state trial court cannot imprison the defendant more than 24 hours.
This mandatory restriction in a very real sense is the maximum sentence a state
trial judge can impose under Sec. 20-179(k), unless the defendant later violates
a condition of probation. The "like punishment" clause of Sec. 13 of the Act
places the same restriction on a federal court that is implementing the
Assimilative Crimes Act. The federal court, like its state counterpart, cannot
imprison a defendant more than 24 hours, unless he violates probation. Nor can
the federal court impose a fine in excess of $100. With respect to conditions of
probation, both state and federal courts have considerable discretion, except that
the federal court should exercise its discretion in accordance with Sec. 3553(a)
(2).

50

The judgment of the district court is vacated, and the case is remanded for
further proceedings consistent with this opinion.

51

VACATED AND REMANDED.