MARC GRIFFITH, PETITIONER V. UNITED STATES OF AMERICA No. 90-6761 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A2) is not reported. A prior opinion of the court of appeals in this case (Pet. App. A3-A6) is reported at 864 F.2d 421. JURISDICTION The judgment of the court of appeals was entered on November 6, 1990. The petition for a writ of certiorari was filed on January 7, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was properly convicted under the Assimilative Crimes Act. STATEMENT Following a jury trial in the United States District Court for the Middle District of Tennessee, petitioner was convicted of reckless aggravated assault in violation of Tenn. Code Ann. 39-2-101 (1982), as charged under the Assimilative Crimes Act (ACA), 18 U.S.C. 13. He was sentenced to five years' probation. The court of appeals affirmed. Pet. App. A1-A2. 1. On December 29, 1985, petitioner trespassed on the federal reservation at Fort Campbell, Tennessee, while hunting deer with a rifle. Petitioner had hunted in the area before and knew that it was reserved for bow hunters, who were not required to wear orange clothing. Sighting what he believed was a deer, petitioner shot a bow hunter clad in camouflage clothing, putting out his eye and causing other injuries. Pet. App. A1-A2, A4. Because the shooting occurred on a federal reservation, petitioner was subject to prosecution under the ACA, which incorporates state criminal law to fill gaps in the federal criminal code for conduct committed on federal lands. /1/ Petitioner was indicted on one count of reckless aggravated assault, defined under then-existing Tennessee law as causing "serious bodily injury to another * * * recklessly under circumstances manifesting extreme indifference to the value of human life." Tenn. Code Ann. 39-2-101(b)(1) (1982). /2/ The district court granted petitioner's motion to dismiss the indictment. Pet. App. A7-A13. The court noted that 18 U.S.C. 113 provides criminal penalties for assault, and concluded that the ACA cannot be used to enlarge the federal definition of assault. Pet. App. A7-A13. 2.a. The court of appeals reversed. Pet. App. A3-A6. The court observed that in Williams v. United States, 327 U.S. 711 (1946), this Court held that the ACA does not permit prosecution under state law "where the exact act * * * was already criminal under federal law and only the definition or boundary condition differed in the state law." Pet. App. A5. The court noted that cases decided since Williams fall into four categories. The first category comprises cases (such as Williams itself) in which all actions criminal under federal law are also criminal under state law, but state law also criminalizes certain additional acts. In the second category are cases in which federal law is broader than state law, but the state law carries heavier penalties or presents fewer problems of proof for the government. In cases falling into either of these categories, the existence of the federal law bars use of the ACA to prosecute the defendant under state law. Pet. App. A5. The third and fourth categories consist of cases in which the state and federal laws overlap to some degree, but each also criminalizes some behavior that the other does not. In the third category, the conduct at issue is criminal under both federal and state law. In the fourth category, the conduct is a crime under state law but not under federal law. In these two categories of cases, the courts have held that prosecution under the ACA is permitted because the state statute and the federal statute provide different theories of prosecution. The court held that this case falls within the fourth category. Because the federal assault statute requires proof of intent, reckless shooting is not a crime under federal law. Furthermore, the court said, the theory of Tennessee's reckless endangerment offense is quite different from that of ordinary assault. And in addition, the state law requires proof of an attempt to inflict dangerous bodily harm, while the federal assault statute requires only a minimal degree of bodily harm. Pet. App. A6. The court concluded that its interpretation is consistent with the purpose of the ACA, which is to fill gaps in the federal criminal code. Although "(a) large portion of the panoply of state criminal law" concerns acts that could be prosecuted as assaults under 18 U.S.C. 113, Congress clearly did not intend to bar "prosecutions under the ACA for crimes such as malicious shooting, injury to a child, or any other aggravated or otherwise varied forms of these crimes." Pet. App. A6. Because the federal criminal statutes do not address unintentional assaults, it was proper to use the ACA to fill this gap by drawing on state law. Pet. App. A5. This Court denied a petition for a writ of certiorari. 109 S.Ct. 3167. b. Following his conviction, petitioner filed a second appeal in which, inter alia, he renewed his contention that he was not subject to prosecution under the ACA. The court of appeals affirmed on the basis of its previous opinion. Pet. App. A1-A2. ARGUMENT 1. The ACA authorizes the prosecution of crimes committed on federal reservations "which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State" in which the reservation is located. 18 U.S.C. 13(a). The purpose of the ACA is to adopt state criminal laws "in so far as said laws were not displaced by specific laws enacted by Congress." Franklin v. United States, 216 U.S. 559, 568 (1910). Contrary to petitioner's contention, Tennessee's reckless endangerment statute has not been displaced by 18 U.S.C. 113. /3/ As the court of appeals noted (Pet. App. A6), Section 113 has been construed to punish only intentional assaults. The language of Section 113 expressly provides that intent is an element of assault with intent to commit murder (Section 113(a)), assault with intent to commit any felony (Section 113(b)), and assault with a dangerous weapon with intent to do bodily harm (Section 113(c)). In addition, the courts have held that conviction under other subsections of Section 113 requires proof of a general intent to commit an assault. See United States v. Lewis, 780 F.2d 1140, 1142-1143 (4th Cir. 1986) (assault resulting in serious bodily injury under Section 113(f) requires proof of intent to commit assault, but not proof of intent to cause serious bodily injury); United States v. Big Crow, 728 F.2d 974, 975 & n.2 (8th Cir. 1984) (same); United States v. Martin, 536 F.2d 535, 535-536 (2d Cir.) (intent "to strike," but not intent to cause injury, is required under Sections 113(d) and (e)), cert. denied, 429 U.S. 862 (1976). Because petitioner thought he was shooting a deer, he lacked the criminal intent that has been held to be necessary for criminal liability under 18 U.S.C. 113. Thus, even if Section 113 is viewed as comprehensive federal statute dealing with intentional assaults, it does not deal with petitioner's reckless behavior in this case. And there is no reason to conclude that Congress, in enacting a statute proscribing various types of intentional assaults, implicitly rejected criminal liability for reckless behavior. Statutes imposing criminal liability for reckless endangerment are quite different from, and more recent than, traditional criminal liability for intentional assault. See Model Penal Code Section 211.2 comment 1, at 195 (1980) (reckless endangerment statutes "an innovation in the penal law"); 2 C. Torcia, Wharton's Criminal Law Section 203, at 335 (14th ed. 1979) (reckless endangerment a "relatively modern offense"). 2. The decision below does not conflict with this Court's decision in Williams v. United States, 327 U.S. 711 (1946). In Williams, the defendant had sexual intercourse with a female who was older than 16 but younger than 18 years of age. His conduct was an offense under Arizona's statutory rape law (which set the age of consent at 18), but not under federal law (which set the age of consent at 16). The Court held that the ACA did not make the Arizona statute applicable because "the precise acts upon which the conviction depends have been made penal by the laws of Congress defining adultery," and "the offense known to Arizona as that of 'statutory rape' has been defined and prohibited by the Federal Criminal Code, and is not to be redefined and enlarged by application to it of the (ACA)." 327 U.S. at 717. The Court emphasized that Congress had specifically considered the appropriate age of consent and fixed it at 16. Id. at 724-725. As the court of appeals recognized (Pet. App. A5), this case is different from Williams. The act for which petitioner was convicted is not covered by 18 U.S.C. 113, and Congress did not consider whether defendants should be liable for recklessly causing serious injury to another person. Moreover, the State's reckless endangerment offense is quite different from the intentional assault offenses defined by Congress in Section 113. Thus, Williams does not bar the instant prosecution. 3. The court of appeals' decision is consistent with the decisions of other courts of appeals that have considered whether prosecutions under the ACA are barred by Section 113. In United States v. Eades, 633 F.2d 1075 (4th Cir. 1980) (en banc), cert. denied, 450 U.S. 1001 (1981), the court held that a prosecution under the ACA for sexual contact was not barred by Section 113 because the state offense was not the kind of offense punished by Section 113. 633 F.2d at 1077. Similarly, in United States v. Brown, 608 F.2d 551, 553-554 (5th Cir. 1979), the court held that Section 113 did not bar the defendant's conviction under a state statute and the ACA for causing serious bodily injury to a child because the precise act of injury to a child was not covered by Section 113. And in Fields v. United States, 438 F.2d 205, 207-208 (2d Cir.), cert. denied, 403 U.S. 907 (1971), the court held that the state malicious shooting statute was not preempted by Section 113 because the state statute and Section 113 were based on different theories of criminal liability. Contrary to petitioner's suggestion (Pet. 8), the decision in this case does not conflict with United States v. Butler, 541 F.2d 730 (8th Cir. 1976), or United States v. Patmore, 475 F.2d 752 (10th Cir. 1973). In Butler, the Eighth Circuit held that the defendant could not be prosecuted under the ACA and state law for possession of a firearm by a felon because 18 U.S.C. App. 1202(a)(1) and 922(h) barred the "generic conduct" of acquisition and possession of firearms by felons. The court rejected the government's contention that the additional federal requirements of a nexus with interstate commerce and venue were sufficient to permit prosecution under the state statute. 541 F.2d at 736-737. Of course Butler did not concern 18 U.S.C. 113. Moreover, there was little difference between the federal and state statutes at issue in Butler, and the defendant was indicted for violating both federal and state law. 541 F.2d at 731. Here, in contrast, petitioner did not commit an intentional assault punishable under Section 113, and Tennessee's statute punishing reckless conduct is essentially different from the federal offenses punishable under Section 113. In Patmore, the Tenth Circuit held that the defendant could not be prosecuted for the state crime of aggravated battery under the ACA because Section 113(c) barred the same conduct. Although the state aggravated assault statute did not require specific intent, state law defined the crime of assault as an intentional threat or attempt to do bodily harm to another. See 475 F.2d at 753. Accordingly, the court of appeals concluded that the state offense of assault was the equivalent of the assault barred by Section 113(c). 475 F.2d at 753. In this case, in contrast, the state reckless endangerment offense is different from, and not the equivalent of, the offenses punished by Section 113. Finally, petitioner contends (Pet. 8-9) that review should be granted because the courts of appeals have employed different approaches in deciding whether a federal criminal statute preempts prosecution under the ACA. It is true that the Eighth Circuit has employed a "generic conduct" test to determine whether federal law preempts the ACA, see United States v. Butler, supra, while the Second Circuit has held that prosecution under the ACA is permissible as long as the state law provides a "different theory" of prosecution than federal law, see Fields v. United States, supra. Even assuming these differing verbal formulations may lead to different results in some cases, this is not such a case. The conduct for which petitioner was prosecuted -- recklessly causing serious harm to another -- is essentially different from the intentional assaults proscribed by 18 U.S.C. 113. Accordingly, whether evaluated under the "generic conduct" test or the "different theory" test, a prosecution for reckless endangerment under the ACA is not barred by Section 113. CONCLUSION The petition for a writ of certiorari should be denied Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney MARCH 1991 /1/ The ACA provides, in part: Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, 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 of omission, shall be guilty of a like offense and subject to a like punishment. 18 U.S.C. 13(a). /2/ Tennessee's reckless aggravated assault statute is now codified at Tenn. Code Ann. 39-13-102 (1990 Supp.). /3/ Section 113 provides that it is a criminal offense to commit, within the special maritime and territorial jurisdiction of the United States, assault with intent to commit murder (Section 113(a)); assault with intent to commit a felony (Section 113(b)); assault with a dangerous weapon, with intent to do bodily harm (Section 113(c)); assault by striking, beating or wounding (Section 113(d)); simple assault (Section 113(e)); or assault resulting in serious bodily injury (Section 113(f)).