United States v. Kenneth A. Lee, and Magistrate Bert S. Tokairin and the United States District Court for the District of Hawaii

786 F.2d 951 UNITED STATES of America, Plaintiff-Appellant, v. Kenneth A. LEE, et al., Defendants-Appellees, and Magistrate Bert S. Tokairin and the United States District Court For the District of Hawaii, Appellees. Nos. 85-1047 through 85-1056. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 20, 1985. Decided April 8, 1986. John F. DePue, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellant. David C. Schutter, Priscilla L. Mills, Honolulu, Hawaii, for defendants-appellees. Appeal from the United States District Court for the District of Hawaii. Before SKOPIL, FLETCHER, and ALARCON, Circuit Judges. FLETCHER, Circuit Judge: 1 The United States appeals from the district court's refusal to entertain prosecutions against civilians accused of committing misdemeanor traffic offenses on Air Force bases in Hawaii because the Air Force does not also prosecute military offenders in federal court. The Air Force has a policy of prosecuting civilian violators in federal court through the U.S. Attorney's Office, but retaining jurisdiction over military personnel for prosecution under the Uniform Code of Military Justice (UCMJ). In opposition to the Air…

The United States appeals from the district court’s refusal to entertain prosecutions against civilians accused of committing misdemeanor traffic offenses on Air Force bases in Hawaii because the Air *954 Force does not also prosecute military offenders in federal court. The Air Force has a policy of prosecuting civilian violators in federal court through the U.S. Attorney’s Office, but retaining jurisdiction over military personnel for prosecution under the Uniform Code of Military Justice (UCMJ). In opposition to the Air Force’s policy, the district court has a policy that all on-base traffic offenders must be prosecuted in federal court or none at all.

The government contends that in refusing to entertain the prosecutions of civilian offenders, the district court impermissibly interfered with prosecutorial discretion. In opposition, the district court argues that the Air Force policy constitutes impermissible selective prosecution, and that the court retains inherent authority to supervise the administration of criminal justice. We reverse and remand.

FACTUAL BACKGROUND

In 1975, the U.S. District Court for the District of Hawaii established a policy relating to traffic…

concurring,

I agree we possess appellate jurisdiction under either 18 U.S.C. § 3731 (1982) or 28 U.S.C. § 1291 (1982). I also agree there was no impermissible selective prosecution in these cases. Nevertheless, I write separately to voice my concern that the Air Force’s policy of refusing to refer its personnel for prosecution in federal court violates at least the spirit of Department of Defense policies and creates an unfortunate impression of unnecessary disparate treatment between civilians and military personnel accused of identical crimes.

Until 1980, Department of Defense Instruction, DoD Inst. 6055.4 (Nov. 7, 1978) provided that all traffic violations occurring on military installations must be referred to a United States magistrate or to a state or local magistrate. An amendment to that policy provided that such referrals may be made. The amended policy nevertheless makes clear that such referrals are made “in the interest of impartial judicial determination and effective law enforcement.” DoD Inst. 6055.4 (amended June 4, 1980). Despite this policy directive, the Air Force has decided its personnel should be punished exclusively under the Uniform Code of Military…