United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Juan C.
Vasquez's Partial Motion to Dismiss [Doc. 32], Defendant
Billy G. Adames' Motion to Join and Adopt Motion to
Dismiss Filed by Codefendant [Doc. 35], the Government's
Response to Defendant's Partial Motion to Dismiss [Doc.
38], and Defendant Vasquez's Reply to Response to Partial
Motion to Dismiss [Doc. 42].
6, 2017, Defendants Billy G. Adames and Juan C. Vasquez
("Defendants") were charged in a Bill of
Indictment. [Doc. 1]. Defendant Adames was charged with one
count of speeding and driving recklessly, in violation of
N.C. G.S. § 20-140, while fleeing and attempting to
elude a law enforcement officer by motor vehicle, all in
violation of N.C. G.S. § 20-141.5(b) and 18 U.S.C.
§ 13; and one count of possession of marijuana in
violation of 21 U.S.C. § 844(a). [jdj. Defendant Vasquez
was charged with one count of speeding and driving
recklessly, in violation of N.C. G.S. § 20-140, while
fleeing and attempting to elude a law enforcement officer by
motor vehicle, all in violation of N.C. G.S. §
20-141.5(b) and 18 U.S.C. § 13. dj. Defendants'
initial appearances and arraignments were held on June 7,
2017. The matter was set for trial during the June 19, 2017
trial term. Then, pursuant to 18 U.S.C. § 3161(c)(2),
the Magistrate Judge ordered that the matter be continued to
the September 5, 2017 trial term.
August 1, 2017, the Defendants were charged in a Superseding
Bill of Indictment, which charged the same offenses and added
a Notice of Forfeiture by which the Government notified the
Defendants that the motor vehicles driven by persons charged
with the offense of felony speeding to elude arrest are
subject to forfeiture. [Doc. 20]. On August 9, 2017,
arraignments on the Superseding Indictment were held.
Defendants waived their appearances at the arraignments. On
August 18, 2017, Defendant Vasquez moved for dismissal of the
forfeiture proceedings in the Superseding Indictment on the
grounds that the Court lacks subject matter jurisdiction over
such proceedings. [Doc. 32]. On August 21, 2017, Defendant
Adames filed a "Motion to Join and Adopt Motion to
Dismiss Filed by Codefendant." [Doc. 35]. On August 25,
2017, the Government filed its response to Defendants'
partial motion to dismiss. [Doc. 38] and on August 30, 2017,
Defendant Vasquez filed his reply. [Doc. 42]. Defendant
Adames did not move to join in this reply. On August 28,
2017, the Court continued the case to its current setting
during the November 6, 2017 trial term. [Doc. 40].
move to dismiss, pursuant to Federal Rule of Criminal
Procedure 12(b)(2), "the forfeiture proceedings set
forth as 'NOTICE OF FORFEITURE AND FINDING OF PROBABLE
CAUSE' in the Superseding Indictment [Doc. 20] on the
grounds that this Court lacks subject matter jurisdiction
over such proceedings." [Doc. 32]. The NOTICE OF
FORFEITURE provides, in relevant part:
Under [18 U.S.C. §] 13(a), a person guilty under the
charges set forth in this indictment shall be subject to like
punishment in the federal case as if he was punished under
the jurisdiction of the State. Further, under Sections
20-28.2 and 20-28.3 of the North Carolina General Statutes, a
vehicle driven by a person charged with the offense of felony
speeding to elude arrest is subject to forfeiture.
[Doc. 20 at 3]. Section 13(a) is the Assimilative Crimes Act
(the "ACA"), which subjects persons on federal
lands to federal prosecution in federal court for violations
of state criminal statutes in "enclaves" where
federal lands are located. See Lewis v. U.S., 523
U.S. 155, 155 (1998); U.S. v. Fox, 60 F.3d 181, 183
(4th Cir. 1995). "The ACA transforms a crime against the
state into a crime against the federal government."
U.S. v. Kiliz, 694 F.2d 628, 629 (9th Cir. 1982)
(citing U.S. v. Press Publishing Co., 219 U.S. 1
(1911)). Here, the conduct alleged - felony fleeing on a
motor vehicle and attempting to elude arrest while driving
recklessly in doing so - occurred in the Great Smoky National
Park, a federal "enclave" located within Swain
County, North Carolina. [See Doc. 20]. As such,
Defendants were charged under the ACA for violations of North
Carolina criminal statute, N.C. G.S § 20-141.5(b), that
make such conduct illegal had it happened on State land.
present motion, Defendants argue that this Court lacks
subject matter jurisdiction over the forfeiture proceedings
as pled in the Superseding Indictment because the ACA
incorporates only criminal law of the jurisdiction within
which the federal enclave exists and the forfeiture
proceedings that are implicated by the Defendants'
conduct, N.C. G.S. §§ 20-28.2 and 20-28.3, are
civil in nature. [Doc. 33 at 2]. The Government's
response is twofold. First, it argues that any motion to
dismiss the Notice of Forfeiture is premature and should be
denied. Second, even if not premature, the plain language of
the ACA demonstrates that Congress intended for all
punishments available to the state court be available to the
federal judge, including forfeiture arising from a felony
conviction in the instant case. The Defendants' motion
is, in fact, premature. The Court, therefore, need not reach
the substantive arguments of the parties.
Notice of Forfeiture is only what its name implies - a
notice. Rule 32.2(a) of the Criminal Rules of Federal
Procedure requires that the Government give notice in the
information or indictment to a criminal defendant of its
intent to seek forfeiture of property. Without such notice, a
court cannot enter judgment of forfeiture in criminal
proceedings. Fed. R. Crim. P. 32.2(a). Rule 32.2 specifically
provides, "[t]he notice should not be designated as a
count of the indictment or information." \(L
(emphasis added). The Government's Notice of Forfeiture
advised Defendants that, should Defendants be found or plead
guilty, "a vehicle driven by a person charged with the
offense of felony speeding to elude arrest is subject to
forfeiture." [Doc. 20 at 3]. Forfeiture can be sought
only after Defendants are found or plead guilty.
Defendants may contest forfeiture, if at all, "after the
verdict or finding of guilt." See Fed. R. Crim. P.
32.2(b)(1)(B). Until then, there are no forfeiture
proceedings and nothing for this Court to dismiss.
IS, THEREFORE, ORDERED that the Defendant Billy G.
Adames' Motion to Join and Adopt Motion to Dismiss Filed
by Codefendant [Doc. 35] is GRANTED and
Defendant Juan C. Vasquez's Partial Motion to Dismiss
[Doc. 32] is DENIED WITHOUT PREJUDICE.