United States v. Maes

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10495
Plaintiff-Appellee,
v.  D.C. No.
CR-07-00005-WBS
MARGARET MAES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted September 8, 2008*
San Francisco, California
Filed October 10, 2008
Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,
and John W. Sedwick,** District Judge.
Opinion by Judge Gould
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
14455
UNITED STATES v. MAES 14457
COUNSEL
Daniel J. Broderick, Federal Defender, Jackie McQuarrie,
Certified Law Student, and Monica Knox, Assistant Federal
Defender, Sacramento, California, for appellant Margaret
Maes.
McGregor W. Scott, United States Attorney, and Elana S.
Landau, Assistant United States Attorney, Fresno, California,
for appellee United States of America.
14458 UNITED STATES v. MAES
OPINION
GOULD, Circuit Judge:
Defendant-Appellant Margaret Maes (“Maes”) was stopped
on Department of Veterans Affairs (“VA”) property by a VA
police officer who had seen Maes driving the wrong way
down a one-way street, and this bad driving incident had
severe consequences for Maes. The officer who saw her going
the wrong way summoned another officer, who in turn
observed drug paraphernalia on Maes’s dashboard. Upon
questioning, Maes admitted that there might be drugs in the
vehicle, and the officers searched the car. The search revealed
a small bag of marijuana, bongs, pipes, cleaning rods, and
other drug paraphernalia.
Maes was charged with one count of possession of a con-
trolled substance in violation of 21 U.S.C. § 844(a), and with
one count of driving in the wrong direction on a posted one-
way street in violation of 38 C.F.R. § 1.218(b)(32). Maes
pleaded not guilty and moved to dismiss the possession
charge, contending that she was improperly charged under 21
U.S.C. § 844(a). She argued that she should have been
charged instead solely, so far as drug possession was con-
cerned, under 38 C.F.R. § 1.218(a)(7), a VA regulation that
reads: “The introduction or possession of alcoholic beverages
or any narcotic drug, hallucinogen, marijuana, barbiturate,
and amphetamine on [VA] property is prohibited, except for
liquor or drugs prescribed for use by medical authority for
medical purposes.”
A magistrate judge heard oral argument on Maes’s motion
to dismiss, and denied the motion in an order. Maes later
withdrew her not-guilty plea as to both counts, entered a con-
ditional guilty plea, and received a fine of $1000 and a special
assessment of $25 for the first count and a fine of $25 and a
special assessment of $10 on the second count. Maes then
appealed the magistrate judge’s order to the district court,
UNITED STATES v. MAES 14459
which held a hearing and later affirmed the magistrate judge’s
decision.
Maes timely appealed to this Court, again arguing that she
should have been charged under the more specific VA regula-
tion instead of the general federal possession statute. We con-
clude that the district court did not err by upholding the
sentence under 21 U.S.C. § 844(a), and we affirm.
[1] A prosecutor generally has substantial latitude to choose
among applicable charges: “ ‘[W]here an act violates more
than one statute, the Government may elect to prosecute under
either unless the congressional history indicates that Congress
intended to disallow the use of the more general statute.’ ”
United States v. Jones, 607 F.2d 269, 271 (9th Cir. 1979)
(quoting United States v. Castillo-Felix, 539 F.2d 9, 14 (9th
Cir. 1976)).
[2] Therefore, Maes must argue here that either the VA reg-
ulation or the relevant enabling statute repealed 21 U.S.C.
§ 844(a). The regulation itself cannot supersede the statute for
two reasons. First, as the district court noted, the VA regula-
tions themselves contain a savings clause that expressly pro-
vides that the regulations should not be “construed to abrogate
any other Federal laws or regulations . . . or any State or local
laws and regulations applicable to the area in which the prop-
erty is situated.” 38 C.F.R. § 1.218(c)(3). Second, a regulation
does not trump an otherwise applicable statute unless the reg-
ulation’s enabling statute so provides. See generally Chevron
U.S.A. Inc. v. Nat’l Res. Def. Coun., Inc., 467 U.S. 837, 842-
43 (1984).
As for the effect of the statute, the enabling statute
declares: “The Secretary shall prescribe regulations to provide
for the maintenance of law and order and the protection of
persons and property on Department property.” 38 U.S.C.
§ 901(a)(1). It also provides that those regulations must
include rules of conduct and penalties for violations. Section
14460 UNITED STATES v. MAES
901 also addresses the possibility that the VA regulations will
set a different punishment than would apply under the crimi-
nal statutes:
The Secretary may prescribe by regulation a maxi-
mum fine less than that which would otherwise
apply under the preceding sentence or a maximum
term of imprisonment of a shorter period than that
which would otherwise apply under the preceding
sentence, or both. Any such regulation shall apply
notwithstanding any provision of title 18 or any
other law to the contrary.
38 U.S.C. § 901(c).
[3] Maes argues that, by the above-quoted language, Con-
gress intended the VA regulations to repeal the more general
criminal statutes with respect to crimes committed on VA
property. However, as the government points out, the more
natural reading is that the VA was merely authorized to set a
lesser punishment for violations of its rules than would apply
if the perpetrator were charged under the criminal statutes,
with such lesser penalty to apply if the prosecutor in his or her
discretion chose to charge the offense under the VA regula-
tion rather than the more general criminal statute. That is, a
person charged under the VA regulation would be punished
under that regulation, even if a general statute prescribed a
harsher penalty. Because section 901(c) does not explicitly
repeal 21 U.S.C. § 844(a), to prevail on this appeal, Maes
must rely on the proposition that 38 U.S.C. § 901(c) has
repealed 21 U.S.C. § 844(a) by implication with respect to
crimes committed on VA property.
As early as Blackstone’s Commentaries, the notion of
implied repeal has been suspect:
Where the common law and a statute differ, the com-
mon law gives place to the statute; and an old statute
UNITED STATES v. MAES 14461
gives place to a new one. . . . But this is to be under-
stood only when the latter statute is couched in nega-
tive terms, or where its matter is so clearly repugnant
that it necessarily implies a negative.
William Blackstone, 1 Commentaries *89. The Supreme
Court has also adopted this skepticism: “[I]t is a familiar doc-
trine that repeals by implication are not favored.” United
States v. Tynen, 78 U.S. 88, 92 (1871). “Where there are two
acts upon the same subject, effect should be given to both if
possible.” Posadas v. National City Bank of N.Y., 296 U.S.
497, 503 (1936). We previously said that there are two types
of implied repeal:
(1) where provisions in the two acts are in irreconcil-
able conflict, the later act to the extent of the conflict
constitutes an implied repeal of the earlier one; and
(2) if the later act covers the whole subject of the
earlier one and is clearly intended as a substitute, it
will operate similarly as a repeal of the earlier act.
Moyle v. Director, Office of Workers’ Comp. Programs, 147
F.3d 1116, 1120 (9th Cir. 1998)(internal quotation marks and
citations omitted). However, “[r]epeals by implication . . . are
not favored and will only be found when the new statute is
clearly repugnant, in words or purpose, to the old statute.” Id.
(internal quotation marks and citation omitted).
[4] Applying the preceding concepts here, we conclude that
the VA enabling statute, 38 U.S.C. § 901(c), did not impliedly
repeal the criminal possession statute, 21 U.S.C. § 844(a),
with respect to possession on VA property. The enabling stat-
ute calls for the VA to craft regulations for “the maintenance
of law and order and the protection of persons and property
on Department property” and to provide penalties for the vio-
lation of those regulations. Although there is inevitably some
overlap between rules for the maintenance of “law and order”
on VA property, and the more general federal criminal stat-
14462 UNITED STATES v. MAES
utes, the Supreme Court has instructed that “effect should be
given to both if possible.” Posadas, 296 U.S. at 503. Here, it
is possible to do so. One set of penalties would apply if a per-
son were charged under the possession statute, while lesser
penalties would apply if that person were charged under the
VA regulation. The charging decision as usual rests with the
prosecutor. This outcome is certainly not so “repugnant” that
the statutes may not coexist, Moyle, 147 F.3d at 1120, and
therefore we must consider 21 U.S.C. § 844(a) to be viable,
and its application to this case permissible in the prosecutor’s
discretion. The two statutes do not collide in an irreconcilable
manner, nor does the VA statute in any way appear intended
to be a substitute for the more general criminal statute.
Finally, displeasure with the executive branch’s choice of per-
missible prosecutions in an exercise of prosecutorial discre-
tion, should be expressed at the ballot box, not in court. See
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 483
(1982) (citing Hunter v. Erickson, 393 U.S. 385, 395 (1969)
(Harlan, J., concurring)).
[5] Maes’s reliance on United States v. LaPorta, 46 F.3d
152 (2d Cir. 1994), is misplaced. In LaPorta, one statute con-
tained two potential charges, only a few sentences apart. Id.
at 156. The general charge carried a mandatory minimum sen-
tence, while the specific charge did not. Id. The prosecutor
relied on the general charge, despite the applicability of the
specific charge. Id. at 157. The proximity of the two statutory
charges made the court skeptical that Congress could have
intended the general charge to render the more specific one
meaningless. Id. By contrast, it is entirely reasonable in this
case to conclude that Congress passed 38 U.S.C. § 901 to give
the VA the power to enact specific rules for VA properties
without superseding the statutory criminal provisions that
might otherwise be applied to crimes committed on VA prop-
erty.
As the government correctly points out, Maes’s position, if
accepted, would lead to absurd results. No matter the type or
UNITED STATES v. MAES 14463
quantity of drugs seized on VA property, no matter if a truck
with millions of dollars of drugs was interdicted on VA prop-
erty, the maximum penalty would be six months in prison and
a $500 fine. Given the substantial penalties for drug offenses
under the criminal statutes, it is not rationally possible that
Congress intended to make VA property a haven of such
exceptional lenity. See also United States v. Jones, 607 F.2d
269, 273 (9th Cir. 1979)(rejecting an analogous argument in
the context of Indian ruins: “[W]e would be required to
ascribe to Congress an intent to limit the punishment of theft
and depredation on Indian ruins by means of a $500 fine, no
matter how great the theft or depredation. This we cannot
do.”).
[6] Maes has not shown that Congress intended the VA reg-
ulations to supersede the general criminal possession statutes.
Therefore, the prosecutor’s normal power to choose between
available charges controls. Jones, 607 F.2d at 271. Maes was
properly charged and sentenced under 21 U.S.C. § 844(a).
AFFIRMED.