United States v. Tate ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4086
FRED ALBERT TATE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-96-356-A)
Submitted: October 14, 1997
Decided: October 29, 1997
Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Dale Warren Dover, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Brian P. Lennon, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Fred Albert Tate appeals his conviction for operating a motor vehi-
cle after having been adjudicated an habitual offender; this being his
second or subsequent such offense. Tate was arrested on the Marine
Corps military base in Quantico, Virginia ("MCB Quantico" or "the
base"). Because there is no federal statute covering this offense, Tate
was charged under the Assimilated Crimes Act ("ACA"), 18 U.S.C.A.
§ 13 (West Supp. 1997), with violating the applicable Virginia statute,
Va. Code Ann. § 46.2-357(B)(3) (Michie Supp. 1997).1 Tate chal-
lenges the district court's denial of his motion to suppress statements
made to the military police and the denial of his motion seeking a
judgment of acquittal.2 We affirm.
Tate drove a motor vehicle onto Fuller Road into the visitor's lane
at Gate One at MCB Quantico without a Department of Defense
(DOD) decal or Town of Quantico sticker.3 Tate asked for directions
to a location on the base. The sentry gave Tate the requested direc-
tions and asked Tate for a driver's licence to record his name, driver's
license number, vehicle's license plate number, and intended destina-
tion in the visitor's pass log.4 Tate informed the sentry that he did not
have his wallet and could not produce his license. When asked if he
were licensed to drive in the Commonwealth of Virginia, Tate
responded affirmatively. The sentry then asked for Tate's social
security number for a routine check through the Virginia Criminal
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1 Under the ACA, "in the absence of a governing federal statute, a per-
son who commits a state crime on a federal enclave``shall be guilty of
a like offense and subject to a like punishment.'" United States v. Pierce,
75 F.3d 173, 176 (4th Cir. 1996) (quoting 18 U.S.C.§ 13(a); see United
States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994)).
2 See Fed. R. Crim. P. 29.
3 At Gate One, there are two lanes of inbound traffic--one for vehicles
with Department of Defense (DOD) decals and one for visitors to the
base and residents and visitors to the Town of Quantico.
4 This request was made pursuant to Provost Marshals Instruction 23-
90, which requires gate sentries to maintain an accurate visitor pass log
and that visitors show a valid state driver's license.
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Information Network (VCIN) to confirm Tate's identity and ensure
that he was a licensed driver. Tate complied. The sentry then
instructed Tate to pull to the side of the road so as not to obstruct traf-
fic.
While the routine VCIN check was being completed, Tate
approached the sentry and told him that the report would show that
his licence was suspended and stated that he didn't want to go to jail.
Tate then asked if he could leave. The sentry declined. The VCIN
check revealed that Tate's driving privileges had been revoked in the
Commonwealth of Virginia because he had previously been adjudi-
cated an habitual offender. Tate was immediately arrested and taken
to the military police station on the base.
Because Tate's offense occurred on a closed military base, which
is not subject to the Fourth Amendment's requirement of probable
cause for searches and seizures, the district court denied Tate's
motion to suppress the statements he made to the gate sentry. Further,
in denying Tate's Rule 29 motion for judgment of acquittal, the dis-
trict court found that Tate had notice of the order declaring him to be
an habitual offender and held that Fuller Road is a highway of the
Commonwealth of Virginia.
Both parties here recognize that searches and seizures of closed
military bases are exempt from the Fourth Amendment's requirement
for probable cause.5 The question we must decide in this appeal is
whether MCB Quantico is a closed military base. We find that it is.
The base houses the Marine Corps' Presidential helicopter squadron
as support for the President of the United States. The base also serves
as headquarters for the Marine Corps' Systems Command, training
every Marine Corps officer, as well as many high-ranking foreign
military officers. There are signs posted at every gate, stating that the
base is closed and warning of the possibility of search of all entering
persons and their vehicles. Because of the highly public or national
interest issues involved, we find that Tate had no right of unrestricted
access to MCB Quantico; thus the military police were not restricted
by the probable cause requirements of the Fourth Amendment. There-
fore, the district court properly denied Tate's suppression request.
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5 See United States v. Jenkins, 986 F.2d 76, 78 (4th Cir. 1993).
3
We review a district court's denial of a motion for judgment of
acquittal under a sufficiency of the evidence standard.6 In reviewing
the sufficiency of the evidence supporting a criminal conviction, our
role is limited to considering whether "there is substantial evidence,
taking the view most favorable to the Government, to support it."7
Reversal for insufficient evidence is reserved for the rare case "where
the prosecution's failure is clear."8
Virginia's Habitual Offender Statute provides:
It shall be unlawful for any person to drive any motor
vehicle . . . on the highways of the Commonwealth while the
revocation of the person's driving privileges remains in
effect . . . . Any person found to be an habitual offender
under this article who is thereafter convicted of driving a
motor vehicle in the Commonwealth while the revocation
determination is in effect shall be punished as follows . . . .9
To obtain a conviction under the habitual offender statute, the Gov-
ernment must prove that the defendant had actual notice that he had
been declared an habitual offender.10 Here, Tate does not challenge
that he had actual notice of his adjudication as an habitual offender.
But he does contend that he was entitled to a judgment of acquittal
because the Government failed to prove that Fuller Road met the stat-
utory definition of being a "highway of the Commonwealth." Tate
bases this contention on the premise that Fuller Road is not open to
the public because the Marine Corps has the absolute authority to
close a portion of that road leading into the base. We disagree.
The Virginia Habitual Offender Statute plainly provides that if any
person is convicted of driving a motor vehicle in the Commonwealth
after being adjudicated as an habitual offender and while the revoca-
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6 See United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992).
7 Glasser v. United States, 315 U.S. 60, 80 (1942).
8 Burks v. United States, 437 U.S. 1, 17 (1978).
9 Va. Code Ann. § 46.2-357.
10 See Reed v. Virginia, 424 S.E.2d 718, 720-21 (Va. App. 1992); see
generally Long v. Virginia, 478 S.E.2d 324, 327-28 (Va. App. 1996).
4
tion determination is still in effect, then that person shall be punished
according to its terms.11 Therefore, there is no requirement that the
offensive driving be done on the highways of the Commonwealth of
Virginia. Accordingly, because Tate does not contest that he was
within the physical geographical confines of the Commonwealth of
Virginia when arrested, his challenge to the sufficiency of the evi-
dence supporting his conviction must fail.
For the foregoing reasons, we affirm Tate's conviction. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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11 See Va. Code Ann. § 46.2-357.
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