United States v. Hill ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4092
RODNEY T. HILL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(2:05-cr-00044-JBF)
Argued: November 30, 2006
Decided: January 10, 2007
Before KING and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge King and Judge Shedd joined.
COUNSEL
ARGUED: David Wayne Bouchard, Chesapeake, Virginia, for
Appellant. Joseph L. Kosky, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Chuck Rosenberg, United States
Attorney, Norfolk, Virginia, for Appellee.
2 UNITED STATES v. HILL
OPINION
HAMILTON, Senior Circuit Judge:
The sole issue in this criminal appeal is whether the stretch of
Nider Boulevard between Shore Drive and Gate 4 of the United States
Naval Amphibious Base Little Creek, located in Virginia Beach, Vir-
ginia, constituted a "highway" under Virginia law on August 10,
2004, the date of the charged conduct in this case. Answering this
question in the affirmative, we affirm Rodney Hill’s convictions
under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, on one
count of driving a motor vehicle on a Virginia "highway" after being
declared a habitual offender, third offense (felony), and one count of
driving a motor vehicle on a Virginia "highway" while his driver’s
license was suspended or revoked, sixth offense (misdemeanor). Id.(assimilating Va. Code §§ 46.2-301 & 357(B)(3)).
I.
The United States Naval Amphibious Base Little Creek (the Base)
is a military installation located in Virginia Beach, Virginia. Gate 4,
one of the guarded entrances to the base, is located on Nider Boule-
vard near the intersection of Nider Boulevard and Shore Drive. The
approximately 200 yard stretch of Nider Boulevard between Gate 4
and Shore Drive is owned and maintained by the United States Navy,
yet remains completely open to the public.
In order to enter the Base through Gate 4, a person must be granted
access by presenting photo identification to the guard posted at Gate
4. On the day of the charged conduct involved in this case, a sign
posted on the fence to the right of Gate 4 read:
WELCOME
PLEASE NOTE
• No weapons allowed
• Military working dog on patrol
• All persons and vehicles may be searched
• All subject to regulations 50 USC 797
UNITED STATES v. HILL 3
(J.A. 91). Next to this sign, on the same fence, another sign read: "NO
TRESPASSING." A signed posted on a stand at Gate Four also
stated: "STOP — 100% ID CARD CHECK IN PROGRESS HAVE
ID READY." Id.
Also, the entrance to Boone Branch Medical Clinic (Boone Clinic)
is located on the stretch of Nider Boulevard between Gate 4 and
Shore Drive. The public may access the entrance to Boone Clinic
from Nider Boulevard without restriction. Boone Clinic is a Navy
facility on Navy property.
On August 10, 2004, at approximately 8:35 a.m., Officer Bryan
Ainsworth (Officer Ainsworth), the civil police officer manning Gate
4 on behalf of the Base at the time, observed Hill in the driver’s seat
of a vehicle approaching Gate 4.* Upon Hill’s vehicle reaching Gate
4, Officer Ainsworth stopped Hill and requested identification. Hill,
who was employed by a contractor working on the Base, showed
Officer Ainsworth an identification card. However, when Officer
Ainsworth asked Hill for his driver’s license, Hill responded that he
had left it at home in his other pair of pants.
While waiting for a report on the status of Hill’s driver’s license
from the Virginia Department of Motor Vehicles, Officer Ainsworth
asked Hill if the report would come back showing that his license had
been suspended. Hill responded affirmatively, and the report subse-
quently confirmed the accuracy of his response.
On March 24, 2005, a federal grand jury sitting in the Eastern Dis-
trict of Virginia indicted Hill under the ACA, 18 U.S.C. § 13, on one
count of driving a motor vehicle on a Virginia "highway" after being
declared a habitual offender, third offense (felony), and one count of
driving a motor vehicle on a Virginia "highway" while his driver’s
license was suspended or revoked, sixth offense (misdemeanor). Id.(assimilating Va. Code §§ 46.2-301 & 357(B)(3)). Hill waived his
right to a jury trial and consented to be tried by the district court. As
*Officer Ainsworth testified at trial, without contradiction, that at the
time of trial he had served a total of six years as a police officer at the
Base. Two of those six years he served as a military police officer, while
the remaining four years he served as a civilian police officer.
4 UNITED STATES v. HILL
evidence against Hill, the government presented the live testimony of
Officer Ainsworth as well as trial exhibits, including photographs of
the stretch of Nider Boulevard at issue.
Of relevance in the present appeal, at trial, Hill contested the
charges against him on the ground that the stretch of Nider Boulevard
between Gate 4 and Shore Drive did not constitute a "highway" under
Virginia law.
Following Hill’s bench trial, the district court entered a judgment
of conviction with respect to the two counts against Hill. The district
court sentenced Hill to a total term of thirty months’ imprisonment.
On appeal, Hill challenges his convictions on the sole ground that the
stretch of Nider Boulevard between Gate 4 and Shore Drive did not
constitute a "highway" under Virginia law, as required to sustain his
convictions.
II.
Whether the stretch of Nider Boulevard between Gate 4 and Shore
drive was encompassed within the legal definition of a "highway"
under Virginia law on the day of Hill’s charged conduct presents a
question of law, which we review de novo. See United States v. Han,
74 F.3d 537, 540 (4th Cir. 1996) (Court of Appeals reviews questions
of law de novo). We review the underlying facts as found by the dis-
trict court in support of its legal conclusion that Hill’s charged con-
duct occurred on a "highway" under Virginia law for clear error. See
United States v. Smith, 395 F.3d 516, 520-21 (4th Cir. 2005) (review-
ing district court’s underlying factual findings in support of its con-
clusion that access road in front of headquarters of United States
Central Intelligence Agency in McLean, Virginia was encompassed
within legal definition of a "highway" under Virginia law for clear
error). The Supreme Court held in United States v. United States Gyp-
sum Co., 333 U.S. 364, 395 (1948), and reaffirmed in Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985), that "‘[a] finding is "clearly
erroneous" when although there is evidence to support it, the review-
ing court on the entire evidence is left with the definite and firm con-
viction that a mistake has been committed.’"
We begin our analysis of this issue by setting forth the Virginia
statute at issue. The Virginia Code defines the term "highway," as that
UNITED STATES v. HILL 5
term is found in the Virginia criminal offenses of which Hill was con-
victed through assimilation under the ACA, as:
the entire width between the boundary lines of every way or
place open to the use of the public for purposes of vehicular
travel in the Commonwealth, including the streets and
alleys, and, for law-enforcement purposes, (i) the entire
width between the boundary lines of all private roads or pri-
vate streets that have been specifically designated "high-
ways" by an ordinance adopted by the governing body of
the county, city, or town in which such private roads or
streets are located . . . .
Va. Code § 46.2-100. With respect to this statutory definition of
"highway," the Virginia Supreme Court has explained that the "‘true
test’ of whether a ‘way’ is a highway is ‘whether the way or place of
whatever nature is open to the use of the public for purposes of vehic-
ular travel.’" Caplan v. Bogard, 563 S.E.2d 719, 723 (Va. 2002)
(quoting Prillaman v. Commonwealth, 100 S.E.2d 4, 8 (Va. 1957));
see also Furman v. Call, 362 S.E.2d 709, 710 (Va. 1987) ("[T]he test
for determining whether a way is a ‘highway’ depends upon the
degree to which the way is open to public use for vehicular traffic.").
Here, the district court based its legal conclusion that, on the day
of Hill’s charged conduct, the stretch of Nider Boulevard between
Gate 4 and Shore Drive constituted a "highway" under Virginia law,
upon its finding of fact that such stretch of Nider Boulevard "is com-
pletely open to public access," (J.A. 96). The district court based this
finding upon: (1) Officer Ainsworth’s testimony that any person,
without restriction, is allowed to proceed down Nider Boulevard up
to the actual check point at Gate 4 and then turn around in the cut-
through median; (2) Officer Ainsworth’s testimony that any person
visiting Boone Clinic may travel on Nider Boulevard to access the
entrance and parking lot to Boone Clinic; and (3) no signage was
posted on or near the stretch of Nider Boulevard between Gate 4 and
Shore drive restricting public access to such stretch of road in any
manner.
Hill argues that Nider Boulevard was not a "highway" under Vir-
ginia law when he was stopped by Officer Ainsworth, because the
6 UNITED STATES v. HILL
stretch of Nider Boulevard between Gate 4 and Shore Drive, as well
as Boone Clinic, was private property of the United States Navy with
access to such property under the control of the Base’s commanding
officer. In support, Hill primarily relies upon our decisions in United
States v. Smith, 395 F.3d 516 (4th Cir. 2005) and United States v.
Adams, 426 F.3d 730 (4th Cir. 2005).
Hill’s argument is without merit. To begin with, the district court’s
factual finding that the stretch of Nider Boulevard between Gate 4
and Shore Drive "is completely open to public access," (J.A. 96), is
not clearly erroneous, as we are not left with a definite and firm con-
viction that a mistake has been committed after reviewing the entire
record. See United States Gypsum Co., 333 U.S. at 395. Indeed, after
reviewing the entire record, we are firmly convinced that a mistake
has not been committed. First, the record contains the undisputed tes-
timony of Officer Ainsworth, who had served a total of six years as
a police officer at the Base, that any person in a vehicle was allowed
to proceed without restriction down Nider Boulevard up to the actual
check point at Gate 4 and then turn around in the cut through median.
Second, the record contains the undisputed testimony of Officer Ains-
worth that any person visiting Boone Clinic by vehicle may travel on
Nider Boulevard to access the clinic’s entrance and parking. Third,
the record contains the undisputed testimony of Officer Ainsworth
that, to his knowledge, there had never been a physical barrier or
restriction to making the left or right turn onto Nider Boulevard from
Shore Drive during his six years of duty at the Base. Finally, the
record is undisputed that no signage was posted on or near the stretch
of Nider Boulevard between Gate 4 and Shore drive restricting the
public’s vehicular use of such stretch of road in any manner.
With no restrictions on vehicular public use of the stretch of Nider
Boulevard between Gate 4 and Shore Drive, such stretch of road falls
comfortably within the statutory definition of "highway" under Vir-
ginia law, as elucidated by the Virginia Supreme Court. See Va. Code
§ 46.2-100; Caplan, 563 S.E.2d at 723. Specifically, the stretch of
Nider Boulevard between Gate 4 and Shore Drive is "a ‘way’ . . .
[that] is open to the use of the public for purposes of vehicular
travel,’" Caplan, 563 S.E.2d at 723 (quoting Prillaman, 100 S.E.2d
at 8), and is thus a "highway" under Virginia law. Finally, we observe
that Hill’s point that the stretch of road at issue is always under the
UNITED STATES v. HILL 7
control of the Base’s commanding officer is of no moment given that
we can reasonably and easily infer from the undisputed evidence in
the record that such commanding officer had placed no restrictions on
the public’s use of such stretch of road on the day of Hill’s charged
conduct.
We next conclude that Smith and Adams do not compel reversal of
Hill’s convictions. Indeed, Smith and Adams are materially distin-
guishable from the instant case. In Smith, the defendant, who was
under the influence of alcohol, drove to the call box on the access
road leading to the main gate of the Central Intelligence Agency
headquarters in McLean, Virginia, seeking directions. Smith, 395 F.3d
at 517-18. An ensuing check of the defendant’s licensing status
revealed a suspended license, resulting in a citation. Id. In concluding
the access road was not a "highway" under Virginia law and reversing
the defendant’s conviction for driving with a suspended license under
the ACA, we focused on the presence of signage expressly restricting
use of the access road to employees and those with authorized busi-
ness, plainly establishing that the road was not open to public use.
Smith, 395 F.3d at 521 ("[T]he presence of signs barring unauthorized
admittance [to the access road] is sufficient to establish that the access
road is not ‘open to the use of the public for purposes of vehicular
travel.’" (quoting Va. Code § 46.2-100)). The instant case is materi-
ally distinguishable from Smith, because, as we have explained, the
stretch of road at issue here did not have any signage limiting the pub-
lic’s access or use.
Following the reasoning of Smith, in Adams, we held that a
national park road in a federal wildlife refuge, which road was nor-
mally open to the public but which had been closed in order to repair
hurricane damage, was not open to public use and consequently was
not a "highway" under Virginia law. Adams, 426 F.3d at 732. Again,
signage was posted at the entrances to the road prohibiting unautho-
rized entry and several press releases were issued to inform the public
that the wildlife refuge was closed until further notice. Id. We con-
cluded that the prohibition on public access divested the road of its
highway status under Virginia law and reversed the defendant’s con-
viction for driving with a suspended or revoked license on the
national park road while it was closed. Id. ("The government does not
dispute that on January 3, 2004, Jericho Ditch Road was completely
8 UNITED STATES v. HILL
closed to public use for an undetermined period of time. The road,
therefore, was not a highway under Virginia law."). The material dis-
tinction between the instant case and Adams is obvious. Unlike the
facts in Adams, there is no evidence in the instant case that the stretch
of Nider Boulevard between Gate 4 and Shore Drive was closed or
restricted at the time of Hill’s charged conduct.
Finally, we note that the facts of the instant case are even stronger
in favor of affirming Hill’s convictions than those in Coleman v.
Commonwealth, 433 S.E.2d 33 (Va. Ct. App. 1993). In Coleman, the
defendant challenged his conviction on one count of operating a
motor vehicle on a Virginia "highway" after having been declared a
habitual offender on the ground that the road on which he drove was
within a federal enclave, and, therefore, not a "highway" under Vir-
ginia law. The Court of Appeals of Virginia affirmed.
The road at issue in Coleman was a road within a federal enclave
located in Chesterfield County, Virginia. Id. at 34. Access to the
enclave through the front gate was restricted, as vehicles not bearing
registration decals were permitted to pass the front gate only after the
operators stated their business. Id. Access to the enclave through the
rear gate was unlimited when the gate was open from morning until
evening, Monday through Friday. Id. The Court of Appeals of Vir-
ginia, finding the enclave’s "minimal restriction in no way consti-
tute[d] an appropriation of the property to private use," held "[t]he
road on which Coleman drove [within the federally owned enclave]
was open to the use of the public for purposes of vehicular travel"
and, thus, was a "highway" under Virginia law. Id. at 35. The court
reasoned that "[t]he roads are maintained by the United States govern-
ment for the use of those traveling them on government business or
simply for the purpose of going on or through the enclave." Id. "Noth-
ing in the arrangement," the court stated, "justifies denying to those
travelers the protection of Virginia’s public safety highway laws." Id.Likewise, in the instant case, the undisputed evidence shows that
the stretch of Nider Boulevard between Gate 4 and Shore Drive is
maintained by the United States government for the use of those trav-
eling on government business or simply for the purpose of entering
the parking lot of Boone Clinic or even just turning around. More-
over, the evidence in the instant case is even more compelling in
UNITED STATES v. HILL 9
favor of the road at issue being a "highway" under Virginia law,
because the stretch of Nider Boulevard at issue was outside the Base’s
fencing and guard gates.
In sum, we hold the district court’s finding that the stretch of Nider
Boulevard between Gate 4 and Shore Drive was open to the use of
the public for purposes of vehicular travel on the day of Hill’s
charged conduct was not clearly erroneous. We, therefore, hold the
district court did not err in concluding that such stretch of road consti-
tuted a "highway" under Virginia law. See Va. Code § 46.2-100;
Caplan, 563 S.E.2d at 723; Coleman, 433 S.E.2d at 34-35. Accord-
ingly, we affirm Hill’s convictions.
AFFIRMED