Our friend, Adam (California Guardian), has said that the Postal Service can’t use California state law to trespass auditors from U.S. Postal Service offices. He grounds that claim on the 9th Circuit court decision in United States v. Waites, 198 F.3d 1123(2000). [1] I will take a closer look at Adam’s claim here.
The Waites Case
Mr. Waites was a homeless man. At night, he would sleep inside the post office in Astoria, Oregon, which was accessible 24 hours. On several occasions, security personnel told Mr. Waites that he could not sleep inside the post office and the postmaster eventually gave him written notice of the same. Mr. Waites ignored the warnings and continued to sleep inside the post office. Finally, Mr. Waites was cited for violating the postal rules of conduct on postal property (39 C.F.R. 232.1)[2] and three counts of disorderly conduct under those rules. The Federal Government also charged Mr. Waites with trespass under Oregon’s state trespass law and Mr. Waites was subsequently convicted of all charges at bench trial.
Mr. Waites appealed his trespass conviction, claiming that the federal government was barred from prosecuting him under Oregon’s state law, claiming the federal government had its own law that applied to trespassing and was restricted to using federal law to charge and prosecute him.
The Assimilative Crimes Act: Filling the Gap
The United States Department of Justice (DOJ) describes the Assimilative Crimes Act (18 U.S.C. 13), thus:
The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress. [3] Thus, where someone engages in prohibited conduct on federal property that is not made punishable under federal law/regulation, the federal government may use state law that does make such prohibited conduct punishable under state law. In other words, the feds incorporate (assimilate) the state law into federal law. The DOJ describes the effect of assimilating state law, as:
Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference. In addition to minor violations, the statute has been invoked to cover a number of serious criminal offenses defined by state law such as burglary and embezzlement. However, the Assimilative Crimes Act cannot be used to override other Federal policies as expressed by acts of Congress or by valid administrative orders.
Thus, where there is a gap in federal law that doesn’t address and punish specific acts/omissions, the state law that does address such specific acts/omissions is used to fill that gap. However, where federal law/regulation does exist that covers the specific acts the feds cannot incorporate state law and use it in prosecutions.
Back to Waites
Mr. Waites claimed that Congress had already provided for regulations/law that addressed trespass on federal property under the postal rules of conduct regulation; therefore, he claimed, Oregon state trespassing law could not be assimilated into federal law to prosecute trespass. The Court agreed:
We hold that the Act [Assimilative Crimes Act] does not assimilate the Oregon statute, because the federal regulations comprehensively regulate Appellant's conduct. It was therefore improper to prosecute Appellant under the Oregon statute. Accordingly, the district court erred by affirming the magistrate judge's judgment of conviction. (See Waites supra.)
Adam’s Conclusion
Based on the holding above, Adam concludes that the 9th Circuit has ruled that the feds can’t use California trespass law to prosecute auditors. However, Waites addressed Oregon trespass law, which differs greatly from California trespass law. The Court did not hold that federal assimilation of all state trespass laws within 9th Circuit jurisdiction is barred. The feds could still attempt to assimilate California trespass law and use it to prosecute post office trespassers.
United States v Souza: Assimilation Wins
In 2004, 4 years post the Waites decision, the 9th Circuit took up another state law assimilation appeal; United States v. Souza[4] Mr. Souza had broken into a vehicle which was parked on Hawaii Volcanoes National Park property, removed a couple of items from the vehicle, placed them inside a pickup truck, and then began to drive away. Park Rangers stopped Souza and arrested him for unauthorized entry into a motor vehicle under Hawaii state law. Souza pled guilty at trial but then appealed on the claim that there were federal laws which covered his conduct and so the feds could not use (assimilate) state law to punish the same conduct.
The Court found that there were several federal criminal statutes that did address and punish Souza’s conduct. Among those was tampering and theft federal statutes:
We conclude that Souza's actions are punishable under these congressional enactments. It is not in dispute that Souza stole and carried away items from the van, which brings his activity squarely under 18 U.S.C. § 661 and 36 C.F.R. § 2.30(a)(1). His unauthorized entry into the van and the manipulation of the contents therein also constitutes tampering under 36 C.F.R. § 2.31(a)(2). (See Souza supra.)
The Court next addressed whether the fact that Souza’s acts were addressed under federal law barred the feds from assimilating state unauthorized entry into motor vehicle law.
Given that Souza's behavior is punishable under several federal provisions, we turn to the second element of the Lewis inquiry, which asks whether the federal provisions preclude application of the state law. The ultimate issue is whether there is a gap in federal law that may be filled by the Hawaii UEMV [Unauthorized Entry into Motor Vehicle] statute. (Ibid.)
The Court addressed the matter, thus:
The federal theft statute, 18 U.S.C. § 661, is a standard theft provision that would punish activity involving nothing more than a thief's taking and absconding with someone else's unprotected belongings. Souza's activity involved not only theft, but also the separate behavior of unauthorized breaking and entering into a motor vehicle. Title 36 C.F.R. § 2.30 adds nothing, because it also simply operates as a general theft provision. Title 36 C.F.R. § 2.31(a)(1) is a simple trespassing provision, which does not capture the distinction between trespassing and burglary. (Ibid.)
The Court held that the nature of Souza’s specific actions were different from those covered under the federal regulations and were covered under Hawaii state law such that it was proper for the feds to assimilate state law to prosecute him.
Even though Souza can be convicted for trespassing and theft under federal law, a gap remains, because there is no applicable federal provision that punishes specifically the unauthorized entry into a motor vehicle, which Hawaii courts have equated with burglary. (Ibid.)
And,
Because the federal enactments are general in nature and do not address the specific conduct of burglary or unauthorized entry into a motor vehicle, this is not a case in which the federal enactments occupy the field and preclude the invocation of state law. Application of the Hawaii statute does not present the specter of rewriting the definition of an offense that Congress has considered. There is no indication of an overriding federal policy with which the Hawaii UEMV statute interferes.
After comparing the Hawaii UEMV statute with the general federal enactments, we conclude that there is a “substantial difference in the kind of wrongful behavior covered,” Lewis, 523 U.S. at 166, 118 S.Ct. 1135, which indicates the presence of a gap in federal law that the Hawaii statute properly fills under the ACA. (Ibid)
Conclusion
Whether the use of California state law to prosecute trespass on postal property would survive an appeal is not certain. It would depend on if the state law addressed trespass in a way that the federal regulation did not substantially cover. There is no 9th Circuit case I know of which has forbidden assimilation of California state trespass law, to date.
Even if California state trespass law, as was Oregon state trespass law, is precluded from assimilation and use to prosecute trespass on postal property, trespassers could still be prosecuted under federal regulation.
[1] U.S. v Waites FindLaw's United States Ninth Circuit case and opinions.
[2] Conduct on Postal Property, 39 C.F.R. 232.1 39 CFR § 232.1 - Conduct on postal property.
[3] United States Department of Justice 667. Assimilative Crimes Act, 18 U.S.C. § 13
[4] United States v. Souza 392 F.3d 1050(2004) FindLaw's United States Ninth Circuit case and opinions.
The Waites Case
Mr. Waites was a homeless man. At night, he would sleep inside the post office in Astoria, Oregon, which was accessible 24 hours. On several occasions, security personnel told Mr. Waites that he could not sleep inside the post office and the postmaster eventually gave him written notice of the same. Mr. Waites ignored the warnings and continued to sleep inside the post office. Finally, Mr. Waites was cited for violating the postal rules of conduct on postal property (39 C.F.R. 232.1)[2] and three counts of disorderly conduct under those rules. The Federal Government also charged Mr. Waites with trespass under Oregon’s state trespass law and Mr. Waites was subsequently convicted of all charges at bench trial.
Mr. Waites appealed his trespass conviction, claiming that the federal government was barred from prosecuting him under Oregon’s state law, claiming the federal government had its own law that applied to trespassing and was restricted to using federal law to charge and prosecute him.
The Assimilative Crimes Act: Filling the Gap
The United States Department of Justice (DOJ) describes the Assimilative Crimes Act (18 U.S.C. 13), thus:
The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress. [3] Thus, where someone engages in prohibited conduct on federal property that is not made punishable under federal law/regulation, the federal government may use state law that does make such prohibited conduct punishable under state law. In other words, the feds incorporate (assimilate) the state law into federal law. The DOJ describes the effect of assimilating state law, as:
Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference. In addition to minor violations, the statute has been invoked to cover a number of serious criminal offenses defined by state law such as burglary and embezzlement. However, the Assimilative Crimes Act cannot be used to override other Federal policies as expressed by acts of Congress or by valid administrative orders.
Thus, where there is a gap in federal law that doesn’t address and punish specific acts/omissions, the state law that does address such specific acts/omissions is used to fill that gap. However, where federal law/regulation does exist that covers the specific acts the feds cannot incorporate state law and use it in prosecutions.
Back to Waites
Mr. Waites claimed that Congress had already provided for regulations/law that addressed trespass on federal property under the postal rules of conduct regulation; therefore, he claimed, Oregon state trespassing law could not be assimilated into federal law to prosecute trespass. The Court agreed:
We hold that the Act [Assimilative Crimes Act] does not assimilate the Oregon statute, because the federal regulations comprehensively regulate Appellant's conduct. It was therefore improper to prosecute Appellant under the Oregon statute. Accordingly, the district court erred by affirming the magistrate judge's judgment of conviction. (See Waites supra.)
Adam’s Conclusion
Based on the holding above, Adam concludes that the 9th Circuit has ruled that the feds can’t use California trespass law to prosecute auditors. However, Waites addressed Oregon trespass law, which differs greatly from California trespass law. The Court did not hold that federal assimilation of all state trespass laws within 9th Circuit jurisdiction is barred. The feds could still attempt to assimilate California trespass law and use it to prosecute post office trespassers.
United States v Souza: Assimilation Wins
In 2004, 4 years post the Waites decision, the 9th Circuit took up another state law assimilation appeal; United States v. Souza[4] Mr. Souza had broken into a vehicle which was parked on Hawaii Volcanoes National Park property, removed a couple of items from the vehicle, placed them inside a pickup truck, and then began to drive away. Park Rangers stopped Souza and arrested him for unauthorized entry into a motor vehicle under Hawaii state law. Souza pled guilty at trial but then appealed on the claim that there were federal laws which covered his conduct and so the feds could not use (assimilate) state law to punish the same conduct.
The Court found that there were several federal criminal statutes that did address and punish Souza’s conduct. Among those was tampering and theft federal statutes:
We conclude that Souza's actions are punishable under these congressional enactments. It is not in dispute that Souza stole and carried away items from the van, which brings his activity squarely under 18 U.S.C. § 661 and 36 C.F.R. § 2.30(a)(1). His unauthorized entry into the van and the manipulation of the contents therein also constitutes tampering under 36 C.F.R. § 2.31(a)(2). (See Souza supra.)
The Court next addressed whether the fact that Souza’s acts were addressed under federal law barred the feds from assimilating state unauthorized entry into motor vehicle law.
Given that Souza's behavior is punishable under several federal provisions, we turn to the second element of the Lewis inquiry, which asks whether the federal provisions preclude application of the state law. The ultimate issue is whether there is a gap in federal law that may be filled by the Hawaii UEMV [Unauthorized Entry into Motor Vehicle] statute. (Ibid.)
The Court addressed the matter, thus:
The federal theft statute, 18 U.S.C. § 661, is a standard theft provision that would punish activity involving nothing more than a thief's taking and absconding with someone else's unprotected belongings. Souza's activity involved not only theft, but also the separate behavior of unauthorized breaking and entering into a motor vehicle. Title 36 C.F.R. § 2.30 adds nothing, because it also simply operates as a general theft provision. Title 36 C.F.R. § 2.31(a)(1) is a simple trespassing provision, which does not capture the distinction between trespassing and burglary. (Ibid.)
The Court held that the nature of Souza’s specific actions were different from those covered under the federal regulations and were covered under Hawaii state law such that it was proper for the feds to assimilate state law to prosecute him.
Even though Souza can be convicted for trespassing and theft under federal law, a gap remains, because there is no applicable federal provision that punishes specifically the unauthorized entry into a motor vehicle, which Hawaii courts have equated with burglary. (Ibid.)
And,
Because the federal enactments are general in nature and do not address the specific conduct of burglary or unauthorized entry into a motor vehicle, this is not a case in which the federal enactments occupy the field and preclude the invocation of state law. Application of the Hawaii statute does not present the specter of rewriting the definition of an offense that Congress has considered. There is no indication of an overriding federal policy with which the Hawaii UEMV statute interferes.
After comparing the Hawaii UEMV statute with the general federal enactments, we conclude that there is a “substantial difference in the kind of wrongful behavior covered,” Lewis, 523 U.S. at 166, 118 S.Ct. 1135, which indicates the presence of a gap in federal law that the Hawaii statute properly fills under the ACA. (Ibid)
Conclusion
Whether the use of California state law to prosecute trespass on postal property would survive an appeal is not certain. It would depend on if the state law addressed trespass in a way that the federal regulation did not substantially cover. There is no 9th Circuit case I know of which has forbidden assimilation of California state trespass law, to date.
Even if California state trespass law, as was Oregon state trespass law, is precluded from assimilation and use to prosecute trespass on postal property, trespassers could still be prosecuted under federal regulation.
[1] U.S. v Waites FindLaw's United States Ninth Circuit case and opinions.
[2] Conduct on Postal Property, 39 C.F.R. 232.1 39 CFR § 232.1 - Conduct on postal property.
[3] United States Department of Justice 667. Assimilative Crimes Act, 18 U.S.C. § 13
[4] United States v. Souza 392 F.3d 1050(2004) FindLaw's United States Ninth Circuit case and opinions.
