United States v. Kenny Koonge

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4350
KENNY KOONGE,
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-99-129)
Argued: April 4, 2000
Decided: May 19, 2000
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and Roger J. MINER, Senior Circuit Judge of the
United States Court of Appeals for the Second Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant.
Rita Marie Glavin, Special Assistant United States Attorney,
UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kenny Koonge appeals from an order of the district court affirming
his conviction after a bench trial before a United States Magistrate
Judge. Koonge was convicted of 1) driving under the influence of
alcohol ("DUI") in violation of 36 C.F.R.§ 4.23(a)(1); 2) reckless
driving in violation of 36 C.F.R. § 4.2, incorporating Va. Code
§ 46.2-852; and 3) crossing the median in violation of 36 C.F.R.
§ 4.10(a). The judge imposed a sentence of 18 months' probation with
special conditions, fines of $950 and a special assessment of $30. We
affirm.
I.
On November 21, 1998, at approximately 8:00 a.m., the vehicle
that Koonge was driving crossed the median of the George Washing-
ton Parkway in northern Virginia and struck an oncoming vehicle.
Because the Parkway is within the special maritime and territorial
jurisdiction of the federal government, the United States Park Police
responded to the accident. Koonge was issued citations for the follow-
ing infractions: 1) DUI in violation of 36 C.F.R.§ 4.23(a)(1); 2) reck-
less driving in violation of 36 C.F.R. § 4.2, incorporating Va. Code
§ 46.2-852; 3) operating an uninsured vehicle in violation of 36
C.F.R. § 4.2, incorporating Va. Code § 46.2-707; 4) driving over the
median in violation of 36 C.F.R. § 4.10(a); and 5) operating a motor
vehicle on a suspended license in violation of 36 C.F.R. § 4.2, incor-
porating Va. Code § 46.2-301.
Koonge appeared before a federal magistrate judge on February 16,
1999 and pled not guilty to all of the charges. The charges for driving
an uninsured vehicle and for driving on a suspended license were sub-
sequently dropped. Koonge also moved for dismissal of either the
reckless driving charge or the DUI charge, pursuant to a Virginia stat-
ute that provides as follows:
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Whenever any person is charged with a violation of§ 18.2-
51.4 or § 18.2-266 [driving under the influence of alcohol or
drugs] or any similar ordinances of any county, city, or town
and reckless driving growing out of the same act or acts and
is convicted of one of these charges, the court shall dismiss
the remaining charge.
Va. Code § 19.2-294.1 (LEXIS 1999). Koonge claimed that this pro-
vision of the Virginia Code was incorporated into the reckless driving
charge, pursuant to 36 C.F.R. § 4.2, which provides in relevant part
that
[u]nless specifically addressed by regulations in this chapter,
traffic and the use of vehicles within a [national] park area
are governed by State law. State law that is now or may later
be in effect is adopted and made a part of the regulations in
this part.
36 C.F.R. § 4.2(a). The court denied the motion, finding that Va.
Code § 19.2-294.1 is procedural in nature and inapplicable to federal
courts. The case then proceeded to trial.
The evidence at trial showed that Koonge's vehicle had crossed the
median and struck another vehicle. The driver of the other vehicle,
Dr. Thareparambil Jacob Joseph, testified that following the accident,
he approached Koonge and smelled alcohol on his person. The Park
Police at the scene administered field sobriety tests, which Koonge
failed. Breathalyzer tests were also administered approximately 2
hours after the accident. Koonge registered .063 and.058, both of
which are within the "under the influence" range and below the level
of intoxication.*
At trial, Koonge testified that he had consumed only one alcoholic
beverage during the time period from 11:00 p.m. until the time the
accident occurred the next morning. He further testified that he
entered the median after simply losing control of his vehicle. (In his
statement at the scene, Koonge told the Park Police that he had
_________________________________________________________________
*Intoxication is a reading of .10 or higher. See 36 C.F.R. § 4.23(a)(2).
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swerved into the median when he was cut off by another vehicle.) The
Magistrate Judge rejected Koonge's testimony and found him guilty
of all charges.
The defendant then reasserted his contention that the dual convic-
tions for reckless driving and DUI were improper, in light of Va.
Code § 19.2-294.1. The court rejected that argument, finding no pro-
hibition against conviction on both counts in federal court. Koonge
was sentenced to 18 months' probation with special conditions,
including the completion of an alcohol education program and
restricted driving privileges, and to fines of $950 and a $30 special
assessment.
On April 23, 1999, the district court affirmed the decision of the
Magistrate Judge, over Koonge's objections. The court found 1) that
the evidence was sufficient to sustain the conviction, and 2) that Va.
Code § 19.2-294.1 was a procedural rule and inapplicable in federal
court. This appeal followed.
II.
A.
We review sufficiency of the evidence to sustain a guilty charge by
asking whether, when viewed in the light most favorable to the gov-
ernment, the evidence at trial provided a sufficient basis for having
found the defendant guilty beyond a reasonable doubt. See United
States v. Williams, 405 F.2d 14, 17 (1968) (bench trial); United States
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (trial by jury).
See also Jackson v. Virginia, 443 U.S. 307, 319 (1979); Glasser v.
United States, 315 U.S. 60, 80 (1942).
Here, Koonge contends that the evidence was insufficient to sustain
either the DUI or the reckless driving charge. We disagree. Several
individuals testified that Koonge smelled of alcohol at the scene and
appeared disoriented. Additionally, Koonge's own testimony was
inconsistent, and he admitted he crossed the median. Thus, there was
sufficient evidence from which a reasonable trier of fact could have
determined that Koonge was driving under the influence of alcohol on
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the George Washington Parkway and that his failure to control his
vehicle amounted to reckless driving. As there was independent evi-
dence to support these conclusions, we cannot fault the magistrate
judge for choosing to discredit the testimony of Koonge. The fact-
finder's credibility determinations are not a subject of appellate
review. See United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997).
B.
We review de novo the district court's legal conclusions. See
United States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000). Koonge
contends that the trial court erred in refusing to dismiss the reckless
driving charge, as Va. Code § 19.2-294.1 instructs Virginia courts to
do when a defendant is also charged with DUI. Koonge argues that,
contrary to the trial court's finding, this provision is substantive in
nature and therefore is assimilated into the federal law that governs
his conviction. See United States v. King, 824 F.2d 313, 315 (4th Cir.
1987) (stating that the Assimilative Crimes Act of 1942, 18 U.S.C.
§ 13, (the "ACA") assimilates the entire substantive criminal law of
the state); Kay v. United States, 255 F.2d 476, 478 (4th Cir. 1958)
(holding that the ACA assimilates entire substantive law but does not
generally adopt state procedural rules). We reject the contention,
however, that at issue here is whether the Virginia state law prohibi-
tion on dual convictions for DUI and reckless driving is a substantive
or a procedural rule.
We find persuasive the government's position that the ACA is
irrelevant in this case. We find Koonge's reliance on Virginia law to
be inapposite, since he was convicted under federal regulations. See
United States v. Eubanks, 435 F.2d 1261, 1262 (4th Cir. 1971) (per
curiam). Because Koonge was charged pursuant to the Secretary of
the Interior's regulations governing vehicles and traffic safety in
parks, forests, and public property under the purview of the Depart-
ment of the Interior, the ACA simply was not invoked in charging
Koonge with reckless driving. Specifically, Koonge's DUI charge
arose under federal law, i.e., 36 C.F.R. § 4.23(a)(1), the federal DUI
offense. Koonge's reckless driving offense, charged pursuant to 36
C.F.R. § 4.2, is likewise a federal offense, although it relies on the
reckless driving provision of the Va. Code for its elements. Even if
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we were to find that this reckless driving provision brought along
with it the prohibition on dual convictions for DUI and reckless driv-
ing under Virginia law, that finding would not alter the outcome in
this case. Here, the DUI conviction is for a purely federal offense, and
therefore the prohibition on dual convictions under Virginia state law
is not triggered.
AFFIRMED
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