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United States v. Davenport

United States District Court, D. New Mexico

September 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
VALERI A. DAVENPORT, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

         This matter is before the Court on Defendant's Opposed Motion to Dismiss for Lack of Jurisdiction [ECF. No. 26] brought under Federal Rule of Criminal Procedure 12(b)(2). For 70 years the State of New Mexico prosecuted crimes occurring on the Maxwell Housing area of Kirtland Airforce Base in Albuquerque. On March 13, 2018, however, the New Mexico Legislature allegedly ceded state jurisdiction over Base property to the United States, giving the federal government the right to prosecute crimes on that property. Five days later, on March 18, 2018, Defendant was arrested for driving while intoxicated on the Base. Under the United States Constitution, if a state cedes jurisdiction over federal property in the state, the United States has exclusive jurisdiction to prosecute offenses committed on that federal property. But because federal jurisdiction over state held land implicates federal-state relations, jurisdiction must be ceded following the state's cession statutes, and the federal government must give notice that it is accepting jurisdiction. If these steps are not followed - and Defendant contends that they were not - the federal government does not obtain jurisdiction over such lands. In the critical five-day period between the alleged cession and her arrest, Defendant argues the United States had not taken jurisdiction and thus her crimes are not prosecutable in federal court. After careful consideration of the motion, briefs, evidence, and relevant, the Court finds that the motion should be granted.

         I. FACTUAL BACKGROUND

         On January 3, 2018 the Department of the Air Force sent New Mexico Governor Susana Martinez a Letter of Request to acquire legislative jurisdiction over three parcels of land - (1) Maxwell Housing, (2) Pershing Housing/Commissary/Gibson Gate, and (3) New Mexico National Guard - on the Base that were under state criminal jurisdiction. See Letter from Susana Martinez, Gov. of New Mexico, to Members of the Legislature 1 (Feb. 5, 2018) (Martinez Letter), ECF No. 30-1; Affidavit of Lauren A. Shure ¶ 4, ECF No. 28-1 (Shure Aff.). The last jurisdictional cessation of Base land to the federal government occurred 54 years ago. See Def.'s Mot. at 15. Governor Martinez transmitted a February 5, 2018 letter to New Mexico legislators, explaining that she supported the federal government's “intent[ion] to clarify jurisdictional issues dating back to the early 1940s” and that she recommended that the legislature cede jurisdiction of the requested parcels to the federal government. See Martinez Letter at 2.

         On February 14, 2018, state legislators adopted the governor's recommendation, ceding to the United States “exclusive legislative jurisdiction” over the three parcels identified in the Air Force's Letter of Request. See N.M. H.R.J. Res. 13, 53rd Leg., 2d Sess. (Joint Resolution). The Joint Resolution gave the federal government broad power “to legislate with respect to such land and persons present or residing on it, subject only to the United States and state constitutional restraints.” Id. The Joint Resolution said that it was “in reference to the notice received by the legislature from the governor” - i.e. Governor Martinez's February 5, 2018 letter to legislators in which she recommended ceding jurisdiction to the federal government. Pursuant to New Mexico's cession statute, which prescribes the manner in which jurisdiction is transferred, see N.M.S.A. § 19-2-2, the governor's office recorded the Joint Resolution in the Bernalillo County Clerk's Office on March 13, 2018.

         Five days later, in the early morning hours of March 18, 2018, Defendant got off work from Circle K, met some friends for drinks, and then drove home to the Maxwell Housing area, which is the name of the military-civilian family housing neighborhood on the Base. See Def.'s Mot. at 2; Crim. Compl. 1, ECF. No. 2. As she approached Maxwell Gate - the manned control point that regulates traffic into and out of the Maxwell Housing area - Defendant rode her brakes, drove extremely slowly, nearly hit three bollards, and had bloodshot eyes and slurred speech. See Crim. Compl. ¶ 5. Airmen manning the gate breathalyzed Defendant twice, returning blood alcohol content results of .15 and .12, levels unlawful under New Mexico's driving while intoxicated statutes. See id. ¶ 6.

         II. PROCEDURAL BACKGROUND

         Relying on the federal Assimilative Crimes Act, 18 U.S.C. § 13 (ACA)[1], which borrows, or “assimilates, ” state criminal law to “federal enclaves, ” federal prosecutors by Information charged Defendant on March 20, 2018 with two misdemeanor counts under New Mexico's driving while intoxicated statutes, N.M.S.A. 1978 § 66-8-102(A) (Count 1) and § 66-9-102(C)(1). See Information, ECF No. 9. The United States superseded the Information on April 4, 2018, maintaining the same two counts but adding an increased state law penalty provision. See Superseded Information, ECF No. 14. The Superseded Information alleged that Defendant drove while intoxicated “within … the territorial jurisdiction of the United States.” Id.

         On May 16, 2018 Defendant moved to dismiss the Information under Fed. R. Crim. P. 12(b)(2), asserting that the Court lacked subject matter jurisdiction. Defendant submitted to the Court documents showing four instances of state cession of jurisdiction of Base land to the federal government occurring between 1952 and 1964. See Def.'s Exs. D, E; Mot. at 13-15. Defendant's analysis of the Public Land Survey System[2] tended to show that none of these four jurisdictional transfers included the Maxwell Gate where Defendant was arrested. See Def.'s Mot. at 16-21. Defendant therefore argued that for the case to be prosecutable in federal court the United States had to “come forward with evidence of [] a fully executed transfer from the State of New Mexico to the federal government, subsequent to the four cessions [], that encompasses Maxwell Gate, ” and that the federal government had to show that it filed a “notice of acceptance” under 40 U.S.C. § 3112, which is the federal statute prescribing how the federal government accepts state offered jurisdiction. See Def.'s Mot. at 16.

         The United States responded by submitting to the Court official government maps, an affidavit from an Air Force Judge Advocate, and the New Mexico Legislature's Joint Resolution to prove that the federal government acquired “exclusive/federal legislative jurisdiction on” March 13, 2018 and that the state had no criminal jurisdiction over the Base after that date. Shure Aff. ¶ 5; see Govt.'s Exs. 1-3. As for the federal government's acceptance of the jurisdiction, the United States argued that the Joint Resolution's language that it was passed “in reference to the notice received by the legislature from the governor, ” was evidence of the federal government's acceptance of the jurisdiction. Govt.'s Resp. 4, ECF. No. 28.

         In her reply brief, Defendant argued that the United States was confusing things - the “notice” mentioned in the Joint Resolution was referring to Governor Martinez's February 5 letter to the legislature in which she recommended granting jurisdiction; it was not a § 3112 notice of acceptance the Air Force had to file to receive the offered jurisdiction. In supplemental briefing, Defendant submitted evidence showing that the United States never filed a § 3112 notice of acceptance for Base property with the state governor's office. See Def.'s Notice of Supplemental Authority, ECF No. 32; Exs. B, C, ECF Nos. 32-2, 32-3. The United States filed no supplemental briefing countering this evidence. Section 3112 acceptance aside, Defendant additionally argued that the state and federal governments did not comply with New Mexico's cession statute in the first place. Specifically, Defendant contended that New Mexico's cession procedures required the governor to record the Department of the Air Force's January 3, 2018 letter, and that the governor's office never did so.

         In sum, Defendant's principal challenges are that the state did not properly cede criminal jurisdiction because of the defective recording, and that the United States did not accept the jurisdiction because it did not file a § 3112 notice of acceptance.

         III. LEGAL STANDARD FOR JURISDICTIONAL CHALLENGE

         “The party seeking to invoke the jurisdiction of a federal court must demonstrate that the case is within the court's jurisdiction.” United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994). “When there is no factual dispute as to whether the facility or site is a federal enclave, the court may take judicial notice of that fact or give a mandatory [jury] instruction that the facility or site is a federal enclave.” Pattern Crim. Jury Inst. 10th Cir. 2.97 (2011) (citing United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980)). However, as here, “if the nature of the location is in issue, the appropriate method for resolving that issue is normally by a pretrial motion to dismiss for lack of jurisdiction.” Pattern Crim. Jury Inst. 10th Cir. 2.97. “As a general matter, the trial court decides the jurisdictional status of a particular property or area and then leaves to the jury the factual determination of whether the alleged crime occurred at the site.” United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999) (citing United States v. Hernandez-Fundora, 58 F.3d 802, 812 (2d Cir.1995) (district court may determine whether a federal prison falls within the territorial jurisdiction of the United States)). “[T]he burden is on the party claiming that the court has subject matter jurisdiction” to persuade the court by a preponderance of the evidence that it has jurisdiction. Bustillos, 31 F.3d at 933.

         IV. ...


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