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United States v. Akongmbom

United States District Court, D. Maryland

January 18, 2018

UNITED STATES OF AMERICA
v.
SANJI AKONGMBOM, Defendant

          MEMORANDUM OPINION AND ORDER OF COURT

          Thomas M. DiGirolamo United States Magistrate Judge

         This matter is before the Court on Defendant's motion for judgment of acquittal under Fed. R. Crim. P. 29. For the reasons discussed below, Defendant's motion is DENIED.

         BACKGROUND

         At Defendant's bench trial on October 23, 2017, United States Park Police (“USPP”) Officer Robert Usher testified that his patrol assignment on the Baltimore-Washington Parkway includes patrolling Powder Mill Road. Officer Usher further testified that, while patrolling Powder Mill Road through the Beltsville Agricultural Research Center (the “BARC”) at about 1:00 a.m. on May 14, 2017, he observed Defendant's white Mercedes SUV parked off the road, in a driveway to a gated entrance to an area within the BARC. Officer Usher approached the vehicle on foot and observed Defendant asleep in the driver's seat. The vehicle's engine was not running, and the ignition key was on the driver's lap. The officer relayed the vehicle's registration to dispatch and then knocked several times on the driver's window to get Defendant's attention. Defendant did not respond, so the officer opened the driver's unlocked door in order to awaken him. Upon awakening, Defendant appeared startled and began to grab the steering wheel and the shift in the center console as if to drive away. Officer Usher detected the odor of an alcoholic beverage emanating from Defendant, so the officer asked Defendant to exit the vehicle so he could conduct field sobriety tests to determine whether Defendant was impaired. Officer Usher administered a horizontal-gaze nystagmus (“HGN”) test[1] and arrested Defendant for operating or being in actual physical control of a motor vehicle while under the influence of alcohol (“DUI”). Before arresting Defendant, Officer Usher administered a roadside test of Defendant's breath, but the officer conducted no other field sobriety tests.

         After Defendant was arrested, he was transported to the police station for processing. The desk processing officer, Officer Gerald Ferreyra, testified at trial that he processed Defendant at the station, and generated a printout obtained from the station's computer system of Defendant's Maryland driver's license status (Gov't Ex. 2, which the Government withdrew). See Md. Code Ann., Transp. § 12-113(b)(2). Although he was not certified to do so at the time, Officer Ferreyra administered an alcohol test of Defendant's breath. The officer also conducted an HGN test. During the observation period Officer Ferreyra detected the odor of alcohol from Defendant's breath and observed that his eyes were bloodshot and watery. On the basis of Officer Ferreyra's observations and the results of the HGN test, he opined that Defendant was intoxicated. Defendant ultimately was charged with (1) driving without a driver's license, in violation of Md. Code Ann., Transp. § 16-101(a), as incorporated by 36 C.F.R. § 4.2(a) (violation number 7213719); (2) DUI with an alcohol concentration of 0.08 or more, in violation of 36 C.F.R. § 4.23(a)(2) (violation number 7213720); (3) DUI, in violation of 36 C.F.R. § 4.23(a)(1) (violation number 7213722); and (4) parking on a park roadway, in violation of 36 C.F.R. § 4.12 (violation number 7213723).

         At trial, over Defendant's objection, the Government introduced under Fed.R.Evid. 803(6) and 902 Defendant's certified driving record from the Maryland Motor Vehicle Administration (“MVA”) dated July 19, 2017, showing that Defendant had a valid Maryland license as of May 24, 2017 (Gov't Ex. 1). The Government dismissed Defendant's citations for parking on a park roadway, in violation of 36 C.F.R. § 4.12, and for DUI, in violation of 36 C.F.R. § 4.23(a)(2). Defendant moved for judgment of acquittal on the remaining charges, contending that the USPP lacked jurisdiction on the BARC; that he did not have actual physical control of his motor vehicle; that the Government failed to produce sufficient evidence to prove beyond a reasonable doubt that he did not possess a Maryland driver's license on May 14, 2017; and that the violation notices are insufficient to place him on notice of the pending charges because they do not properly allege jurisdiction, are vague, and do not properly describe the charged offenses. The Court took Defendant's motion under advisement.

         DISCUSSION

         A. USPP Jurisdiction

         Defendant first contends that the USPP does not have jurisdiction to police the BARC. The regulations in 36 C.F.R. Chapter I, Part 4, which relate to vehicles and traffic safety, apply to, among other things, “[l]ands and waters in the environs of the District of Columbia, policed with the approval or concurrence of the head of the agency having jurisdiction or control over such reservations.” 36 C.F.R. § 1.2(a)(4); see Id. § 4.1 (“The applicability of the regulations in this part [relating to vehicles and traffic safety] is described in § 1.2 of this chapter.”). “Other Federal reservations in the environs of the District of Columbia” means

Federal areas, which are not under the administrative jurisdiction of the National Park Service, located in Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and the City of Alexandria in Virginia and Prince Georges [sic], Charles, Anne Arundel, and Montgomery Counties in Maryland, exclusive of military reservations, unless the policing of military reservations by the U.S. Park Police is specifically requested by the Secretary of Defense or a designee thereof.

Id. § 1.4(a); see D.C. Code Ann. § 5-208 (West 2001) (defining “the environs of the District of Columbia” for purposes of USPP's authority to make arrests and execute warrants on federal reservations “as embracing Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and the City of Alexandria in Virginia, and Prince George's, Charles, Anne Arundel, and Montgomery Counties in Maryland”).

         Here, the Court takes judicial notice under Fed.R.Evid. 201(b) that the BARC is in Beltsville, Maryland, which is in Prince George's County, as “geographical information is especially appropriate for judicial notice.” United States v. Johnson, 726 F.2d 1018, 1021 (4th Cir. 1984); see United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (noting that “[g]eography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial and thus it is within the general definition contained in Fed.R.Evid. 201(b)”). The BARC thus is within “the environs of the District of Columbia” as defined in 36 C.F.R. § 1.4(a) and D.C. Code Ann. § 5-208. Further, the BARC is within the special maritime and territorial jurisdiction of the United States and under the administrative jurisdiction of the Department of Agriculture, not the National Park Service. See United States v. McClure, 241 Fed.Appx. 105, 106 (4th Cir. 2007) (per curiam); 7 C.F.R. § 502.1. The USPP thus has the authority under 36 C.F.R. §§ 1.2(a)(4) and 4.1 and D.C. Code Ann. § 5-206 to police, with the approval of the Secretary of Agriculture, DUI offenses occurring at the BARC as violations of either 36 C.F.R. § 4.23 or 7 C.F.R. § 502.8.[2]

         Defendant maintains that, assuming that his arrest occurred on BARC property, the only correct regulation under which the Government may charge him is 7 C.F.R. § 502.8 and not 36 C.F.R. § 4.23. The “savings clause” or “non-abrogation clause” of 7 C.F.R. § 502.16 provides, however, that “[n]othing contained in the rules and regulations in this part [relating to conduct at the BARC] shall be construed as abrogating or authorizing the abrogation of any other regulations or any Federal law or any laws and regulations of the State of Maryland.” Moreover, “the prosecutor's normal power to choose between available charges controls.” United States v. Maes, 546 F.3d 1066, 1070 (9th Cir. 2008) (holding that defendant was permissibly charged and sentenced under 21 U.S.C. § 844(a) rather than under 38 C.F.R. § 1.218(a)(7) for possession of controlled substance on VA property). Because the Government may charge Defendant under 36 C.F.R. § 4.23 for DUI on BARC property pursuant to 36 C.F.R. §§ 1.2(a)(4) and 4.1, his argument to the contrary is unavailing.

         Defendant further seeks acquittal because the Government presented no evidence of the Secretary of Agriculture's approval of the USPP's police powers at the BARC. The Court, however, may take judicial notice under Fed.R.Evid. 201(b) that the USPP has exclusive jurisdiction at the BARC because this fact is “not subject to reasonable dispute, ” as it “is generally known within the trial court's territorial jurisdiction” and “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” See 2 Prince George's County Police Dep't, General Order Manual ch. 13, at 10-11, https://www.princegeorgescountymd.gov/DocumentCenter/Home/View/16571 (noting that USPP has exclusive jurisdiction in the BARC and that Prince George's County Police Department officers serve as “special police officers” when assisting USPP under what is now 54 U.S.C. § 102701(b)); https://www.nps.gov/subjects/uspp/district-4.htm (noting that USPP's Greenbelt Park Station provides police services to federal reservations in Prince George's County, including the Agricultural Research Center); see also United States v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017) (noting that courts routinely take judicial notice of information contained on state and federal government websites); United States v. Robinson, 670 Fed.Appx. 144, 145 (4th Cir. 2016) (per curiam) (holding that magistrate judge did not abuse discretion in relying on officer's testimony to take judicial notice that USPP is authorized to perform law enforcement functions on land owned by United States Fish and Wildlife Service); Driebel v. City of Milwaukee, 298 F.3d 622, 630-31 n.2 (7th Cir. 2002) (taking judicial notice of Milwaukee Police Department's Manual of Rules and Regulations containing rules and regulations promulgated by chief of police, approved by city council, and published for use in normal course of business by police department). The Court also credits Officer Usher's testimony that the area of Powder Mill Road where these alleged offenses occurred is on BARC property. For these reasons, Defendant's jurisdictional arguments fail.[3]

         B. Driving Without a Driver's License

         Defendant further asserts that the Government failed to produce sufficient evidence to prove beyond a reasonable doubt that he had no Maryland driver's license at the time of his arrest, in violation of Md. Code Ann., Transp. § 16-101(a).[4] In this case, to obtain a conviction under section 16-101, the Government need only prove beyond a reasonable doubt that Defendant did not have a Maryland driver's license at the time of his arrest. See Smith v. State, 40 A.3d 428, 429 (Md. 2012). Defendant seeks acquittal of this charge because he argues that the record only shows that he obtained a new Maryland driver's license on May 24, 2017, but does not show that he did not have a Maryland driver's license before that date. His argument is unavailing, as Government's Exhibit 1 shows that that the MVA issued a new, “limited term temporary” Maryland driver's license to Defendant on May 24, 2017, but does not show that he had a valid Maryland's driver's license before that date.[5] The Court accordingly finds that the Government has produced sufficient evidence to prove beyond a reasonable doubt ...


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