United States v. Terry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4743
LEWIS CHARLES TERRY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-94-107-R)
Argued: October 31, 1997
Decided: December 10, 1997
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: John Stuart Bruce, Acting Federal Public Defender,
Greensboro, North Carolina, for Appellant. Lisa J. Stark, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Isabelle Katz Pinzler, Acting Assistant Attor-
ney General, Dennis J. Dimsey, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Lewis Terry appeals his conviction and sentence on numerous
grounds. In a previous appeal at the instance of the government, this
court held that 18 U.S.C. § 924(c) authorizes consecutive punishment
and remanded for resentencing. United States v. Terry, 86 F.3d 353(1996). In this appeal Terry claims that the Assimilative Crimes Act
(ACA) was improperly applied in this case, that a crime committed
in violation of the ACA is not a federal crime for 18 U.S.C.
§ 924(c)(1) purposes, and that his indictment was defective. We
affirm the judgment of the district court.
I
On April 16, 1994, Lewis Terry and Carlos Bishop were turkey
shooting in Jefferson National Forest. Terry was driving Bishop's car
in the forest when the victim's truck pulled up behind them. Terry
pulled to the side of the road to let the victim pass. As the truck went
by, Terry stated, "Let's kill the son of a bitching nigger." Bishop
responded by pulling out his gun and firing on the truck. A chase
ensued. It ended when the victim drove into a populated campsite in
an unsuccessful attempt to elude Terry and Bishop. Terry repeatedly
drove the car past the campsite while Bishop shot at the victim. No
one was injured but the victim's car suffered damage.
On March 15, 1995, a jury found Terry guilty of violating Va.
Code § 18.2-154 (Michie 1996), assimilated by the ACA, 18 U.S.C.
§ 13, and of using and carrying a firearm during a federal crime of
violence in violation of 18 U.S.C. § 924(c)(1). The Virginia statute
proscribes maliciously shooting into a vehicle and putting the life of
an occupant in peril.
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II
Terry first claims that the district court lacked jurisdiction to apply
the ACA. He believes that the federal assault statute, 18 U.S.C. § 113,
pre-empted the ACA in this case. He states that his conduct violated
both the federal assault statute and the Virginia statute, and based on
this fact the district court was required to use the former in his trial.
Terry asserts that by enacting the federal assault statute Congress has
already dealt with the type of crime Terry committed.
We note that jurisdictional issues may be raised at anytime during
a criminal proceeding and that a district court's jurisdiction over a
criminal offense is a question of law that is reviewed de novo. Fed.
R. Crim. P. 12(b)(2); United States v. Walczak , 783 F.2d 852, 854
(9th Cir. 1986). A state statute may not be incorporated through the
ACA if Congress has passed a federal law that punishes the same
crime. United States v. Fox, 60 F.3d 181, 183 (4th Cir. 1995). This
court has held that the use of the ACA is proper even when the con-
duct violates both state and federal law, so long as the precise act pro-
hibited by the state statute is not specifically prohibited by federal
law. United States v. Minger, 976 F.2d 185, 189 (4th Cir. 1992). The
purpose of this is to afford those citizens on federal land the same
protection as those not on federal land and to allow laws with differ-
ent purposes to have their full and intended effects. Minger, 976 F.2d
at 187; see also Fox, 60 F.3d at 185 (use of the ACA is appropriate
since federal law and state law serve different purposes).
The federal assault statute and the Virginia statute have different
purposes and each requires different elements. The Virginia statute
requires that the attack be directed at a vehicle and that the attack put
the occupant in peril. The federal statute is not this precise. Addition-
ally, the purposes behind the statutes are vastly different. The Virginia
statute is designed to protect occupied vehicles from attacks. The fed-
eral statute does not address the problems that the Virginia statute
remedies. Terry's conduct was precisely the type of conduct which
the Virginia statute was designed to prevent and punish. For these rea-
sons, the Virginia statute's assimilation in this case was proper. See,
e.g., Fox, 60 F.3d at 184-85.
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III
Terry's next claim is that an assimilated crime is not a federal
crime of violence for the purpose of prosecution and sentencing under
18 U.S.C. § 924(c).
We hold an assimilated crime is a federal crime for§ 924(c) pur-
poses and is a crime that can be prosecuted in a court of the United
States. A defendant charged with violating a statute adopted through
the ACA is charged with a federal crime. A crime committed in viola-
tion of the ACA is a crime which can be prosecuted in a court of the
United States. See United States v. Kiliz, 694 F.2d 628 (9th Cir.
1982). While the ACA incorporates state law, it does not make the
criminal violation any less federal. "When a state law is assimilated
under the ACA, the ACA transforms the state law into a federal law
for purposes of prosecution, and any violation of the state law
becomes a crime against the United States." Minger, 976 F.2d at 187.
Congress has not shown an intent to treat assimilated crimes differ-
ently from other federal crimes in this respect, and we see no reason
to do so now.
IV
Terry also argues that his conviction under § 924(c)(1) is invalid
because the indictment failed to charge that the underlying violent
crime was a federal crime of violence. In essence, Terry claims that
the indictment is defective because it did not quote the statute and
specify that the offense was one which "may be prosecuted in a court
of the United States." 18 U.S.C. § 924(c)(1).
The determination of an indictment's validity is based on practical
not technical concerns. United States v. Matzkin , 14 F.3d 1014, 1019
(4th Cir. 1994). In a postverdict challenge to an indictment, "it is
enough that the necessary facts appear in any form, or by a fair con-
struction can be found within the [indictment's] terms." Hagner v.
United States, 285 U.S. 427, 433 (1932). An indictment is not defi-
cient simply because it fails to recite the precise language of the stat-
ute. United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995).
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We hold that the indictment was sufficient to meet these standards,
even though it did not quote § 924(c)'s language. While count two of
the indictment did not state the crime was one which"may be prose-
cuted in a court of the United States," § 924(c)(1), it did specify that
the underlying crime occurred on federal land and that the United
States had concurrent jurisdiction over that land. These facts supplied
Terry with enough information to recognize that the underlying crime
was one which could be prosecuted in a court of the United States.
V
Terry also claims count one of the indictment was defective. We
find his argument without merit. Terry asserts for the first time that
the count two jury instructions were in error and that this error
requires reversal. We find no such error. We have reviewed the
remainder of his claims and find them without merit.
AFFIRMED
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