United States of America, Plaintiff-appellee, v. John Robert Compton Defendant-appellant, 13 F.3d 407 (10th Cir. 1993)

Defendant John Robert Compton appeals from the district court's judgment affirming his conviction and sentence by a federal magistrate judge for driving while under the influence of intoxicating liquor ("DUI") in violation of N.M.Stat.Ann. Sec. 66-8-102.¹  Since the offense was committed on a federal military installation, it is cognizable as a federal crime pursuant to the Assimilative Crimes Act, 18 U.S.C. § 13.² 

Compton was arrested on February 20, 1992 after he was stopped by a federal security officer while driving through the Kirtland Air Force Base in Albuquerque, New Mexico. The arrest occurred shortly after Compton left the Guardsman's Club at Kirtland Air Force Base, where he had been drinking. Although he refused to take a breath test, Compton agreed to a blood test. When the laboratory tests revealed his blood alcohol to be 0.227 percent, Compton was advised of his rights and was issued a violation notice for driving while under the influence of intoxicating liquors.

The notice document charging Compton with violating New Mexico Stat.Ann. 66-8-102 did not specifically allege a violation of the Assimilative Crimes Act, 18 U.S.C. § 13. The charging document, however, was clearly labeled as a "United States District Court Violation Notice," and stated that a mandatory court appearance was required. The violation notice further stated that the violation occurred on the Kirtland Air Force Base. Compton and his attorney both signed a United States District Court consent form, agreeing to proceed before the United States magistrate in a petty offense case. At no time during the proceeding before the federal magistrate did Compton object to the jurisdiction of the federal court.

Under these circumstances, we reject Compton's claim on appeal that the magistrate judge did not have jurisdiction to hear the petty offense case, or that Compton did not have adequate notice of the charge against him. Compton was fully apprised of the nature and elements of the offense with which he was charged--driving while under the influence of alcohol in violation of New Mexico law while on a United States military installation. We are satisfied that Compton could not possibly have been prejudiced in his ability to defend against the DUI charge clearly referenced on the violation notice. We therefore refuse to dismiss the charge against Compton of driving while under the influence of alcohol.³  See Fed. R. Crim. P. 58; United States v. Bedonie, 913 F.2d 782, 791 (10th Cir. 1990), cert. denied, 113 S. Ct. 2895 (1991); United States v. Brotzman, 708 F. Supp. 713, 716 (D. Md. 1989).

We, however, agree with Compton and the Government that this case must be reversed and remanded to the district court, which in turn may remand to the federal magistrate judge either to afford Compton his right to a jury trial or, alternatively, to sentence him as a first-time offender. When the trial began before the federal magistrate judge, Compton was charged as a first-time offender and, therefore, risked a maximum statutory penalty of 90-days imprisonment. Although he was not at that time entitled to a jury trial, Blanton v. City of North Las Vegas, 489 U.S. 538, 539 (1989), Compton's right to a jury trial attached when the federal magistrate judge informed him at trial that he faced an enhanced sentence of up to a year imprisonment as a second offender.⁴  United States v. Nachitigal, 113 S. Ct. 1072, 1073-74 (1993); Baldwin v. New York, 399 U.S. 66, 69 n. 6 (1970).

Once the maximum penalty exceeded six months the DUI charge no longer was a petty offense, and the magistrate judge could no longer proceed on the violation notice as the charging document. Fed. R. Crim. P. 58(b) (1); United States v. Cocoman, 903 F.2d 127, 129-30 (2d Cir. 1990).

REVERSED AND REMANDED for further proceedings consistent with the foregoing opinion.