FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-10495 Plaintiff-Appellee,

D.C. No.

v.  CR-07-00005-WBS

MARGARET MAES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Submitted September 8, 2008*

San Francisco, California

Filed October 10, 2008

Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,

and John W. Sedwick,** District Judge.

Opinion by Judge Gould

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable John W. Sedwick, United States District Judge for the

District of Alaska, sitting by designation. 

14455
COUNSEL

Daniel J. Broderick, Federal Defender, Jackie McQuarrie,

Certified Law Student, and Monica Knox, Assistant Federal

Defender, Sacramento, California, for appellant Margaret

Maes. 

McGregor W. Scott, United States Attorney, and Elana S.

Landau, Assistant United States Attorney, Fresno, California,

for appellee United States of America.

UNITED STATES v. MAES 14457
OPINION

GOULD, Circuit Judge: 

Defendant-Appellant Margaret Maes (“Maes”) was stopped

on Department of Veterans Affairs (“VA”) property by a VA

police officer who had seen Maes driving the wrong way

down a one-way street, and this bad driving incident had

severe consequences for Maes. The officer who saw her going

the wrong way summoned another officer, who in turn

observed drug paraphernalia on Maes’s dashboard. Upon

questioning, Maes admitted that there might be drugs in the

vehicle, and the officers searched the car. The search revealed

a small bag of marijuana, bongs, pipes, cleaning rods, and

other drug paraphernalia.

Maes was charged with one count of possession of a controlled substance in violation of 21 U.S.C. § 844(a), and with

one count of driving in the wrong direction on a posted oneway street in violation of 38 C.F.R. § 1.218(b)(32). Maes

pleaded not guilty and moved to dismiss the possession

charge, contending that she was improperly charged under 21

U.S.C. § 844(a). She argued that she should have been

charged instead solely, so far as drug possession was concerned, under 38 C.F.R. § 1.218(a)(7), a VA regulation that

reads: “The introduction or possession of alcoholic beverages

or any narcotic drug, hallucinogen, marijuana, barbiturate,

and amphetamine on [VA] property is prohibited, except for

liquor or drugs prescribed for use by medical authority for

medical purposes.” 

A magistrate judge heard oral argument on Maes’s motion

to dismiss, and denied the motion in an order. Maes later

withdrew her not-guilty plea as to both counts, entered a conditional guilty plea, and received a fine of $1000 and a special

assessment of $25 for the first count and a fine of $25 and a

special assessment of $10 on the second count. Maes then

appealed the magistrate judge’s order to the district court,

14458 UNITED STATES v. MAES
which held a hearing and later affirmed the magistrate judge’s

decision. 

Maes timely appealed to this Court, again arguing that she

should have been charged under the more specific VA regulation instead of the general federal possession statute. We conclude that the district court did not err by upholding the

sentence under 21 U.S.C. § 844(a), and we affirm. 

[1] A prosecutor generally has substantial latitude to choose

among applicable charges: “ ‘[W]here an act violates more

than one statute, the Government may elect to prosecute under

either unless the congressional history indicates that Congress

intended to disallow the use of the more general statute.’ ”

United States v. Jones, 607 F.2d 269, 271 (9th Cir. 1979)

(quoting United States v. Castillo-Felix, 539 F.2d 9, 14 (9th

Cir. 1976)). 

[2] Therefore, Maes must argue here that either the VA regulation or the relevant enabling statute repealed 21 U.S.C.

§ 844(a). The regulation itself cannot supersede the statute for

two reasons. First, as the district court noted, the VA regulations themselves contain a savings clause that expressly provides that the regulations should not be “construed to abrogate

any other Federal laws or regulations . . . or any State or local

laws and regulations applicable to the area in which the property is situated.” 38 C.F.R. § 1.218(c)(3). Second, a regulation

does not trump an otherwise applicable statute unless the regulation’s enabling statute so provides. See generally Chevron

U.S.A. Inc. v. Nat’l Res. Def. Coun., Inc., 467 U.S. 837, 842-

43 (1984). 

As for the effect of the statute, the enabling statute

declares: “The Secretary shall prescribe regulations to provide

for the maintenance of law and order and the protection of

persons and property on Department property.” 38 U.S.C.

§ 901(a)(1). It also provides that those regulations must

include rules of conduct and penalties for violations. Section

UNITED STATES v. MAES 14459
901 also addresses the possibility that the VA regulations will

set a different punishment than would apply under the criminal statutes:

The Secretary may prescribe by regulation a maximum fine less than that which would otherwise

apply under the preceding sentence or a maximum

term of imprisonment of a shorter period than that

which would otherwise apply under the preceding

sentence, or both. Any such regulation shall apply

notwithstanding any provision of title 18 or any

other law to the contrary. 

38 U.S.C. § 901(c). 

[3] Maes argues that, by the above-quoted language, Congress intended the VA regulations to repeal the more general

criminal statutes with respect to crimes committed on VA

property. However, as the government points out, the more

natural reading is that the VA was merely authorized to set a

lesser punishment for violations of its rules than would apply

if the perpetrator were charged under the criminal statutes,

with such lesser penalty to apply if the prosecutor in his or her

discretion chose to charge the offense under the VA regulation rather than the more general criminal statute. That is, a

person charged under the VA regulation would be punished

under that regulation, even if a general statute prescribed a

harsher penalty. Because section 901(c) does not explicitly

repeal 21 U.S.C. § 844(a), to prevail on this appeal, Maes

must rely on the proposition that 38 U.S.C. § 901(c) has

repealed 21 U.S.C. § 844(a) by implication with respect to

crimes committed on VA property. 

As early as Blackstone’s Commentaries, the notion of

implied repeal has been suspect: 

Where the common law and a statute differ, the common law gives place to the statute; and an old statute

14460 UNITED STATES v. MAES
gives place to a new one. . . . But this is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant

that it necessarily implies a negative.

William Blackstone, 1 Commentaries *89. The Supreme

Court has also adopted this skepticism: “[I]t is a familiar doctrine that repeals by implication are not favored.” United

States v. Tynen, 78 U.S. 88, 92 (1871). “Where there are two

acts upon the same subject, effect should be given to both if

possible.” Posadas v. National City Bank of N.Y., 296 U.S.

497, 503 (1936). We previously said that there are two types

of implied repeal: 

(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict

constitutes an implied repeal of the earlier one; and

(2) if the later act covers the whole subject of the

earlier one and is clearly intended as a substitute, it

will operate similarly as a repeal of the earlier act. 

Moyle v. Director, Office of Workers’ Comp. Programs, 147

F.3d 1116, 1120 (9th Cir. 1998)(internal quotation marks and

citations omitted). However, “[r]epeals by implication . . . are

not favored and will only be found when the new statute is

clearly repugnant, in words or purpose, to the old statute.” Id.

(internal quotation marks and citation omitted). 

[4] Applying the preceding concepts here, we conclude that

the VA enabling statute, 38 U.S.C. § 901(c), did not impliedly

repeal the criminal possession statute, 21 U.S.C. § 844(a),

with respect to possession on VA property. The enabling statute calls for the VA to craft regulations for “the maintenance

of law and order and the protection of persons and property

on Department property” and to provide penalties for the violation of those regulations. Although there is inevitably some

overlap between rules for the maintenance of “law and order”

on VA property, and the more general federal criminal statUNITED STATES v. MAES 14461
utes, the Supreme Court has instructed that “effect should be

given to both if possible.” Posadas, 296 U.S. at 503. Here, it

is possible to do so. One set of penalties would apply if a person were charged under the possession statute, while lesser

penalties would apply if that person were charged under the

VA regulation. The charging decision as usual rests with the

prosecutor. This outcome is certainly not so “repugnant” that

the statutes may not coexist, Moyle, 147 F.3d at 1120, and

therefore we must consider 21 U.S.C. § 844(a) to be viable,

and its application to this case permissible in the prosecutor’s

discretion. The two statutes do not collide in an irreconcilable

manner, nor does the VA statute in any way appear intended

to be a substitute for the more general criminal statute.

Finally, displeasure with the executive branch’s choice of permissible prosecutions in an exercise of prosecutorial discretion, should be expressed at the ballot box, not in court. See

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 483

(1982) (citing Hunter v. Erickson, 393 U.S. 385, 395 (1969)

(Harlan, J., concurring)). 

[5] Maes’s reliance on United States v. LaPorta, 46 F.3d

152 (2d Cir. 1994), is misplaced. In LaPorta, one statute contained two potential charges, only a few sentences apart. Id.

at 156. The general charge carried a mandatory minimum sentence, while the specific charge did not. Id. The prosecutor

relied on the general charge, despite the applicability of the

specific charge. Id. at 157. The proximity of the two statutory

charges made the court skeptical that Congress could have

intended the general charge to render the more specific one

meaningless. Id. By contrast, it is entirely reasonable in this

case to conclude that Congress passed 38 U.S.C. § 901 to give

the VA the power to enact specific rules for VA properties

without superseding the statutory criminal provisions that

might otherwise be applied to crimes committed on VA property. 

As the government correctly points out, Maes’s position, if

accepted, would lead to absurd results. No matter the type or

14462 UNITED STATES v. MAES
quantity of drugs seized on VA property, no matter if a truck

with millions of dollars of drugs was interdicted on VA property, the maximum penalty would be six months in prison and

a $500 fine. Given the substantial penalties for drug offenses

under the criminal statutes, it is not rationally possible that

Congress intended to make VA property a haven of such

exceptional lenity. See also United States v. Jones, 607 F.2d

269, 273 (9th Cir. 1979)(rejecting an analogous argument in

the context of Indian ruins: “[W]e would be required to

ascribe to Congress an intent to limit the punishment of theft

and depredation on Indian ruins by means of a $500 fine, no

matter how great the theft or depredation. This we cannot

do.”). 

[6] Maes has not shown that Congress intended the VA regulations to supersede the general criminal possession statutes.

Therefore, the prosecutor’s normal power to choose between

available charges controls. Jones, 607 F.2d at 271. Maes was

properly charged and sentenced under 21 U.S.C. § 844(a). 

AFFIRMED. 

UNITED STATES v. MAES 14463