United States v. Charles W. Atwell, George H. Geissel, Milford J. White

FACTS

Appellants, who are Navy personnel, were charged by citation with driving under the influence of alcohol, in violation of the Assimilative Crimes Act, 18 U.S.C. § 13 (assimilating California Vehicle Code § 23102(a)). They sought dismissal on the ground that since the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., is applicable to them and contains a prohibition against drunk driving, they could not be prosecuted under the Assimilative Crimes Act. A magistrate granted appellants’ motion to dismiss. The government appealed to the district court pursuant to Rule 7(a) of the Rules of Procedure for the Trial of Minor Offenses before United States Magistrates. The district court reversed the dismissal and denied a motion for reconsideration. This appeal followed.

JURISDICTION

It is clear that this court does not have jurisdiction over this appeal. There has been no “final decision” for purposes of 28 U.S.C. § 1291 .

This case involves the denial of a motion to dismiss for lack of subject matter jurisdiction. We have recently held that such an action is not appealable before trial. United States v. Layton, 645 F.2d 681, 683 (CA9 1981), cert. denied, 452 U.S. 972 ,…