United States 4th Circuit Court of Appeals Reports
U.S. v. HILL, 06-4092 (4th Cir. 1-10-2007) UNITED STATES OF
AMERICA, Plaintiff-Appellee, v. RODNEY T. HILL,
Defendant-Appellant. No. 06-4092. United States Court of
Appeals, Fourth Circuit. Argued November 30, 2006. Decided
January 10, 2007.
Appeal from the United States District Court for the
Eastern District of Virginia, at Norfolk. Jerome B.
Friedman, District Judge. (2:05-cr-00044-JBF).
ARGUED: David Wayne Bouchard, Chesapeake, Virginia, for
Appellant. Joseph L. Kosky, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
ON BRIEF: Chuck Rosenberg, United States Attorney, Norfolk,
Virginia, for Appellee.
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote
the opinion, in which Judge King and Judge Shedd joined.
OPINION
HAMILTON, Senior Circuit Judge.
The sole issue in this criminal appeal is whether the
stretch of Nider Boulevard between Shore Drive and Gate 4
of the United States Naval Amphibious Base Little Creek,
located in Virginia Beach, Virginia, constituted a
“highway” under Virginia law on August 10, 2004, the date
of the charged conduct in this case. Answering this question
in the affirmative, we affirm Rodney Hill’s convictions
under the Assimilative Crimes Act (ACA), 18 U.S.C. §
13, on one count of driving a motor vehicle on a Virginia
“highway” after being declared a habitual offender, third
offense (felony), and one count of driving a motor vehicle
on a Virginia “highway” while his driver’s license was
suspended or revoked, sixth offense (misdemeanor). Id.
(assimilating Va. Code §§ 46.2-301 &
357(B)(3)).
I.
The United States Naval Amphibious Base Little Creek (the
Base) is a military installation located in Virginia Beach,
Virginia. Gate 4, one of the guarded entrances to the base,
is located on Nider Boulevard near the intersection of
Nider Boulevard and Shore Drive. The approximately 200 yard
stretch of Nider Boulevard between Gate 4 and Shore Drive
is owned and maintained by the United States Navy, yet
remains completely open to the public.
In order to enter the Base through Gate 4, a person must be
granted access by presenting photo identification to the
guard posted at Gate 4. On the day of the charged conduct
involved in this case, a sign posted on the fence to the
right of Gate 4 read:
WELCOME
PLEASE NOTE
— No weapons allowed
— Military working dog on patrol
— All persons and vehicles may be searched
— All subject to regulations 50 USC 797
(J.A. 91). Next to this sign, on the same fence, another
sign read: “NO TRESPASSING.” A signed posted on a stand at
Gate Four also stated: “STOP – 100% ID CARD CHECK IN
PROGRESS HAVE ID READY.” Id.
Also, the entrance to Boone Branch Medical Clinic (Boone
Clinic) is located on the stretch of Nider Boulevard
between Gate 4 and Shore Drive. The public may access the
entrance to Boone Clinic from Nider Boulevard without
restriction. Boone Clinic is a Navy facility on Navy
property.
On August 10, 2004, at approximately 8:35 a.m., Officer
Bryan Ainsworth (Officer Ainsworth), the civil police
officer manning Gate 4 on behalf of the Base at the time,
observed Hill in the driver’s seat of a vehicle approaching
Gate 4.* Upon Hill’s vehicle reaching Gate 4,[fn*] Officer
Ainsworth stopped Hill and requested identification. Hill,
who was employed by a contractor working on the Base,
showed Officer Ainsworth an identification card. However,
when Officer Ainsworth asked Hill for his driver’s license,
Hill responded that he had left it at home in his other
pair of pants.
While waiting for a report on the status of Hill’s driver’s
license from the Virginia Department of Motor Vehicles,
Officer Ainsworth asked Hill if the report would come back
showing that his license had been suspended. Hill responded
affirmatively, and the report subsequently confirmed the
accuracy of his response.
On March 24, 2005, a federal grand jury sitting in the
Eastern District of Virginia indicted Hill under the ACA,
18 U.S.C. § 13, on one count of driving a motor
vehicle on a Virginia “highway” after being declared a
habitual offender, third offense (felony), and one count of
driving a motor vehicle on a Virginia “highway” while his
driver’s license was suspended or revoked, sixth offense
(misdemeanor). Id. (assimilating Va. Code §§
46.2-301 & 357(B)(3)). Hill waived his right to a jury
trial and consented to be tried by the district court. As
evidence against Hill, the government presented the live
testimony of Officer Ainsworth as well as trial exhibits,
including photographs of the stretch of Nider Boulevard at
issue.
Of relevance in the present appeal, at trial, Hill
contested the charges against him on the ground that the
stretch of Nider Boulevard between Gate 4 and Shore Drive
did not constitute a “highway” under Virginia law.
Following Hill’s bench trial, the district court entered a
judgment of conviction with respect to the two counts
against Hill. The district court sentenced Hill to a total
term of thirty months’ imprisonment. On appeal, Hill
challenges his convictions on the sole ground that the
stretch of Nider Boulevard between Gate 4 and Shore Drive
did not constitute a “highway” under Virginia law, as
required to sustain his convictions.
II.
Whether the stretch of Nider Boulevard between Gate 4 and
Shore drive was encompassed within the legal definition of
a “highway” under Virginia law on the day of Hill’s charged
conduct presents a question of law, which we review de
novo. See United States v. Han, 74 F.3d 537, 540 (4th Cir.
1996) (Court of Appeals reviews questions of law de novo).
We review the underlying facts as found by the district
court in support of its legal conclusion that Hill’s
charged conduct occurred on a “highway” under Virginia law
for clear error. See United States v. Smith, 395 F.3d 516,
520-21 (4th Cir. 2005) (reviewing district court’s
underlying factual findings in support of its conclusion
that access road in front of headquarters of United States
Central Intelligence Agency in McLean, Virginia was
encompassed within legal definition of a “highway” under
Virginia law for clear error). The Supreme Court held in
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948), and reaffirmed in Anderson v. Bessemer City, 470
U.S. 564, 573 (1985), that “`[a] finding is “clearly
erroneous” when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'”
We begin our analysis of this issue by setting forth the
Virginia statute at issue. The Virginia Code defines the
term “highway,” as that term is found in the Virginia
criminal offenses of which Hill was convicted through
assimilation under the ACA, as:
the entire width between the boundary lines of every way
or place open to the use of the public for purposes of
vehicular travel in the Commonwealth, including the
streets and alleys, and, for law-enforcement purposes, (i)
the entire width between the boundary lines of all
private roads or private streets that have been
specifically designated “highways” by an ordinance adopted
by the governing body of the county, city, or town in
which such private roads or streets are located. . . .
Va. Code § 46.2-100. With respect to this statutory
definition of “highway,” the Virginia Supreme Court has
explained that the “`true test’ of whether a `way’ is a
highway is `whether the way or place of whatever nature is
open to the use of the public for purposes of vehicular
travel.'” Caplan v. Bogard, 563 S.E.2d 719, 723 (Va. 2002)
(quoting Prillaman v. Commonwealth, 100 S.E.2d 4, 8 (Va.
1957)); see also Furman v. Call, 362 S.E.2d 709, 710 (Va.
1987) (“[T]he test for determining whether a way is a
`highway’ depends upon the degree to which the way is open
to public use for vehicular traffic.”).
Here, the district court based its legal conclusion that,
on the day of Hill’s charged conduct, the stretch of Nider
Boulevard between Gate 4 and Shore Drive constituted a
“highway” under Virginia law, upon its finding of fact that
such stretch of Nider Boulevard “is completely open to
public access,” (J.A. 96). The district court based this
finding upon: (1) Officer Ainsworth’s testimony that any
person, without restriction, is allowed to proceed down
Nider Boulevard up to the actual check point at Gate 4 and
then turn around in the cut-through median; (2) Officer
Ainsworth’s testimony that any person visiting Boone Clinic
may travel on Nider Boulevard to access the entrance and
parking lot to Boone Clinic; and (3) no signage was posted
on or near the stretch of Nider Boulevard between Gate 4
and Shore drive restricting public access to such stretch
of road in any manner.
Hill argues that Nider Boulevard was not a “highway” under
Virginia law when he was stopped by Officer Ainsworth,
because the stretch of Nider Boulevard between Gate 4 and
Shore Drive, as well as Boone Clinic, was private property
of the United States Navy with access to such property
under the control of the Base’s commanding officer. In
support, Hill primarily relies upon our decisions in United
States v. Smith, 395 F.3d 516 (4th Cir. 2005) and United
States v. Adams, 426 F.3d 730 (4th Cir. 2005).
Hill’s argument is without merit. To begin with, the
district court’s factual finding that the stretch of Nider
Boulevard between Gate 4 and Shore Drive “is completely
open to public access,” (J.A. 96), is not clearly
erroneous, as we are not left with a definite and firm
conviction that a mistake has been committed after reviewing
the entire record. See United States Gypsum Co., 333 U.S.
at 395. Indeed, after reviewing the entire record, we are
firmly convinced that a mistake has not been committed.
First, the record contains the undisputed testimony of
Officer Ainsworth, who had served a total of six years as a
police officer at the Base, that any person in a vehicle
was allowed to proceed without restriction down Nider
Boulevard up to the actual check point at Gate 4 and then
turn around in the cut through median. Second, the record
contains the undisputed testimony of Officer Ainsworth that
any person visiting Boone Clinic by vehicle may travel on
Nider Boulevard to access the clinic’s entrance and
parking. Third, the record contains the undisputed
testimony of Officer Ainsworth that, to his knowledge,
there had never been a physical barrier or restriction to
making the left or right turn onto Nider Boulevard from
Shore Drive during his six years of duty at the Base.
Finally, the record is undisputed that no signage was
posted on or near the stretch of Nider Boulevard between
Gate 4 and Shore drive restricting the public’s vehicular
use of such stretch of road in any manner.
With no restrictions on vehicular public use of the stretch
of Nider Boulevard between Gate 4 and Shore Drive, such
stretch of road falls comfortably within the statutory
definition of “highway” under Virginia law, as elucidated
by the Virginia Supreme Court. See Va. Code §
46.2-100; Caplan, 563 S.E.2d at 723. Specifically, the
stretch of Nider Boulevard between Gate 4 and Shore Drive
is “a `way’ . . . [that] is open to the use of the public
for purposes of vehicular travel,'” Caplan, 563 S.E.2d at
723 (quoting Prillaman, 100 S.E.2d at 8), and is thus a
“highway” under Virginia law. Finally, we observe that
Hill’s point that the stretch of road at issue is always
under the control of the Base’s commanding officer is of no
moment given that we can reasonably and easily infer from
the undisputed evidence in the record that such commanding
officer had placed no restrictions on the public’s use of
such stretch of road on the day of Hill’s charged conduct.
We next conclude that Smith and Adams do not compel
reversal of Hill’s convictions. Indeed, Smith and Adams are
materially distinguishable from the instant case. In Smith,
the defendant, who was under the influence of alcohol,
drove to the call box on the access road leading to the
main gate of the Central Intelligence Agency headquarters
in McLean, Virginia, seeking directions. Smith, 395 F.3d at
517-18. An ensuing check of the defendant’s licensing
status revealed a suspended license, resulting in a
citation. Id. In concluding the access road was not a
“highway” under Virginia law and reversing the defendant’s
conviction for driving with a suspended license under the
ACA, we focused on the presence of signage expressly
restricting use of the access road to employees and those
with authorized business, plainly establishing that the
road was not open to public use. Smith, 395 F.3d at 521
(“[T]he presence of signs barring unauthorized admittance
[to the access road] is sufficient to establish that the
access road is not `open to the use of the public for
purposes of vehicular travel.'” (quoting Va. Code §
46.2-100)). The instant case is materially distinguishable
from Smith, because, as we have explained, the stretch of
road at issue here did not have any signage limiting the
public’s access or use.
Following the reasoning of Smith, in Adams, we held that a
national park road in a federal wildlife refuge, which road
was normally open to the public but which had been closed
in order to repair hurricane damage, was not open to public
use and consequently was not a “highway” under Virginia
law. Adams, 426 F.3d at 732. Again, signage was posted at
the entrances to the road prohibiting unauthorized entry and
several press releases were issued to inform the public
that the wildlife refuge was closed until further notice.
Id. We concluded that the prohibition on public access
divested the road of its highway status under Virginia law
and reversed the defendant’s conviction for driving with a
suspended or revoked license on the national park road
while it was closed. Id. (“The government does not dispute
that on January 3, 2004, Jericho Ditch Road was completely
closed to public use for an undetermined period of time.
The road, therefore, was not a highway under Virginia
law.”). The material distinction between the instant case
and Adams is obvious. Unlike the facts in Adams, there is
no evidence in the instant case that the stretch of Nider
Boulevard between Gate 4 and Shore Drive was closed or
restricted at the time of Hill’s charged conduct.
Finally, we note that the facts of the instant case are
even stronger in favor of affirming Hill’s convictions than
those in Coleman v. Commonwealth, 433 S.E.2d 33 (Va.Ct.App.
1993). In Coleman, the defendant challenged his conviction
on one count of operating a motor vehicle on a Virginia
“highway” after having been declared a habitual offender on
the ground that the road on which he drove was within a
federal enclave, and, therefore, not a “highway” under
Virginia law. The Court of Appeals of Virginia affirmed.
The road at issue in Coleman was a road within a federal
enclave located in Chesterfield County, Virginia. Id. at
34. Access to the enclave through the front gate was
restricted, as vehicles not bearing registration decals
were permitted to pass the front gate only after the
operators stated their business. Id. Access to the enclave
through the rear gate was unlimited when the gate was open
from morning until evening, Monday through Friday. Id. The
Court of Appeals of Virginia, finding the enclave’s
“minimal restriction in no way constitute[d] an
appropriation of the property to private use,” held “[t]he
road on which Coleman drove [within the federally owned
enclave] was open to the use of the public for purposes of
vehicular travel” and, thus, was a “highway” under Virginia
law. Id. at 35. The court reasoned that “[t]he roads are
maintained by the United States government for the use of
those traveling them on government business or simply for
the purpose of going on or through the enclave.” Id.
“Nothing in the arrangement,” the court stated, “justifies
denying to those travelers the protection of Virginia’s
public safety highway laws.” Id.
Likewise, in the instant case, the undisputed evidence
shows that the stretch of Nider Boulevard between Gate 4
and Shore Drive is maintained by the United States
government for the use of those traveling on government
business or simply for the purpose of entering the parking
lot of Boone Clinic or even just turning around. Moreover,
the evidence in the instant case is even more compelling in
favor of the road at issue being a “highway” under Virginia
law, because the stretch of Nider Boulevard at issue was
outside the Base’s fencing and guard gates.
In sum, we hold the district court’s finding that the
stretch of Nider Boulevard between Gate 4 and Shore Drive
was open to the use of the public for purposes of vehicular
travel on the day of Hill’s charged conduct was not clearly
erroneous. We, therefore, hold the district court did not
err in concluding that such stretch of road constituted a
“highway” under Virginia law. See Va. Code §
46.2-100; Caplan, 563 S.E.2d at 723; Coleman, 433 S.E.2d at
34-35. Accordingly, we affirm Hill’s convictions.
AFFIRMED
[fn*] Officer Ainsworth testified at trial, without
contradiction, that at the time of trial he had served a
total of six years as a police officer at the Base. Two of
those six years he served as a military police officer,
while the remaining four years he served as a civilian
police officer.