174
Scalia, J., concurring in judgment
"Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State . . . in which such place is situated, . . . shall be guilty of a like offense and subject to a like punishment." § 13(a).
At first glance, this appears to say that state law is not assimilated if the defendant can be prosecuted under any federal statute. The Court acknowledges this, but concludes that "a literal reading of the words 'any enactment' would dramatically separate the statute from its intended purpose," ante, at 160, because, for example, a general federal assault statute would prevent assimilation of a state prohibition against murder.
It seems to me that the term "any enactment" is not the text that poses the difficulty. Whether a federal assault statute (which is assuredly an "enactment") prevents assimilation of a state murder statute to punish an assault that results in death depends principally upon whether fatal assault constitutes the same "act or omission" that the assault statute punishes. Many hypotheticals posing the same issue can readily be conceived of. For example, whether a state murder statute is barred from assimilation by a federal double-parking prohibition, when the behavior in question consists of the defendant's stopping and jumping out of his car in the traffic lane to assault and kill the victim. The federal parking prohibition is sure enough an "enactment," but the issue is whether the "act or omission" to which it applies is a different one. So also with a federal statute punishing insurance fraud, where the murderer kills in order to collect a life insurance policy on the victim.
Many lower courts have analyzed situations like these under what they call the "precise acts" test, see, e. g., United States v. Kaufman, 862 F. 2d 236 (CA9 1988), which in practice is no test at all but an appeal to vague policy intuitions.
Page: Index Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: October 4, 2007