NOTE 1: The Assimilative Crimes Act. Violations of State law that occur within areas of exclusive or concurrent Federal jurisdiction within the State become violations of Federal law under the Assimilative Crimes Act, 18 U.S.C. Section 13, provided other Federal criminal law, including the UCMJ, has not defined an applicable offense for the alleged misconduct. Accordingly, a specification alleging violations of State law, as assimilated into Federal law, at a location not under Federal exclusive or concurrent jurisdiction does not ordinarily state an offense.
NOTE 2: Limitations on offenses under Article 134. A capital offense may not be tried under Article 134. The General Article should not be charged when the offense is prohibited by Articles 80-132. Under the preemption doctrine, the General Article also may not be used to charge a residuum of the elements of an Article 80-132 offense, such as charging larceny less the element of intent. See MCM, Part IV, Paragraph 91c(5).
NOTE 3: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
Based on the assimilated state statute allegedly violated. If the assimilated state statute provides for confinement for 1 year or more, DD and TF are also authorized; if 6 months or more, BCD and TF are also authorized; if less than 6 months, 2/3 forfeitures per month for the maximum period of confinement is authorized. See 18 U.S.C. section 13(a) (last phrase) and RCM 1003(c)(1)(B)(ii). (Criteria)
b. SAMPLE SPECIFICATION:
NOTE 4: The MCM does not provide a sample specification for violation of offenses under Clause 3 of Article 134. Ordinarily a specification alleging an offense in violation of Article 134 substantially as below should be sufficient.
In that __________ (personal jurisdiction data) did at __________, a place under exclusive or concurrent federal jurisdiction, on or about __________, (allege all elements of state offense), in violation of (Article 27, Section 35A, of the Code of Maryland) (__________), an offense not capital, assimilated into Federal law by 18 U.S. Code Section 13.
NOTE 5: Alleging state statutes. The specification should cite the official statute of the state, not a commercial compilation. For example, allege a violation of the Texas Penal Code, not Vernon’s Annotated Texas Penal Code.
c. ELEMENTS:
NOTE 6: Identifying elements and applicable definitions. The military judge should ordinarily seek the position of counsel as to the elements and applicable definitions and hold an Article 39(a) session early in the trial to clarify generally what instructions may be given. Allege all the elements of the state statute violated, including any required data as to location of offense.
NOTE 7: Jurisdiction as an element of the offense. Extraterritorial jurisdiction does not extend to the Federal Assimilative Crimes Act, which requires the commission of the offense concerned upon an enclave of federal exclusive or concurrent jurisdiction. Exclusive or concurrent federal jurisdiction—not merely a possessory interest or military control—is therefore an element of an Assimilative Crimes Act specification and must be determined by the fact finder, although in an appropriate case judicial notice may substitute for other evidence. See Instruction 7-6.
NOTE 8: Terminal Element. The specification must expressly allege, and the military judge must instruct as a separate element, that the charged State offense is not a capital offense.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Provide all pertinent definitions from the state statute.