USA v. Stephon Greene

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12566
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHON GREENE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:20-cr-00017-BWC-1
____________________
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2 Opinion of the Court 21-12566
Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit
Judges.
PER CURIAM:
Stephon Greene, incarcerated at the Federal Correctional In-
stitute Jesup (“FCI Jesup”), appeals his conviction following a jury
trial before a magistrate judge for violating the Assimilated Crimes
Act, 18 U.S.C. §§ 7 and 13, for public indecency in violation of
O.C.G.A. § 16-6-8. The government has moved for summary re-
versal. We GRANT the government’s motion.1
The Assimilated Crimes Act prohibits acts or omissions in
areas subject to federal jurisdiction if those acts or omissions would
be punishable if committed or omitted “within the jurisdiction of
the State, Territory, Possession, or District in which such place is
situated.” 18 U.S.C. § 13(a). The Act defines areas subject to federal
jurisdiction as “any of the places now existing or hereafter reserved
or acquired as provided in section 7 of this title, or on, above, or
below any portion of the territorial sea of the United States not
within the jurisdiction of any State, Commonwealth, territory, pos-
session, or district.”
Id. Section 7, in turn, provides that the “special
1 The government represents that Greene consents to such relief.
We DENY AS MOOT the government’s motion to stay the briefing schedule.
Because we grant the government’s motion for summary reversal, we do not
consider the arguments Greene advanced in his brief on appeal, which was
filed before the government filed this motion.
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21-12566 Opinion of the Court 3
maritime and territorial jurisdiction of the United States” includes,
as relevant here, “[a]ny lands reserved or acquired for the use of the
United States, and under the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by the
United States by consent of the legislature of the State in which the
same shall be, for the erection of a fort, magazine, arsenal, dock-
yard, or other needful building.”
Id. § 7(3).
Under Georgia law, a person commits the offense of public
indecency when he performs a “lewd exposure of the sexual or-
gans” in a public place. O.C.G.A. § 16-6-8(a)(2).
So, to secure a conviction against Greene of the crime for
which he was tried, the government had to prove that he (1) com-
mitted a lewd exposure of his sexual organs (2) in a public place,
(3) while on land acquired for the use of the United States and un-
der the exclusive or concurrent jurisdiction thereof.
See 18 U.S.C.
§§ 7, 13; O.C.G.A. § 16-6-8(a)(2). Regarding the third element, the
government moved for the court to take judicial notice of the fact
that FCI Jesup was located on land acquired for the use of the
United States and under its special territorial jurisdiction.
See Fed.
R. Evid. 201(b)(2). The magistrate judge granted the motion and
took judicial notice of this fact. Now, however, the government
represents that judicial notice was improper because its “jurisdic-
tion over FCI-Jesup is merely proprietary, which is insufficient un-
der section 7.” Motion at 6–7. Thus, the government says, it failed
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4 Opinion of the Court 21-12566
to prove an essential element of the charge, and “Greene’s convic-
tion is invalid.”
Id. at 7.2
Given the government’s concessions that FCI Jesup is not
under exclusive or concurrent federal jurisdiction and that
Greene’s conviction is invalid, summary reversal is appropriate.
We therefore GRANT the government’s motion, vacate Greene’s
conviction, and remand for further proceedings consistent with
this opinion.
2 Summary disposition is appropriate, in part, where “the position of . . . the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case, or where, as is more frequently the
case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
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