651 F.3d 1180 (9th Cir. 2011), 10-50248, United States v. Parker

Docket Nº:10-50248 (Lead Case), 10-50250, 10-50251.
Citation:651 F.3d 1180
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hobert PARKER, Jr., Defendant-Appellant.
Attorney:James H. Locklin, Assistant Federal Public Defender, Los Angeles, CA, for the defendant-appellant. Michael J. Raphael, Assistant U.S. Attorney, and Mark Remy Yohalem, Assistant U.S. Attorney, Los Angeles, CA, for the plaintiff-appellee.
Judge Panel:Before: BETTY B. FLETCHER, KIM McLANE WARDLAW and BRETT M. KAVANAUGH,[*] Circuit Judges.
Case Date:August 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1180

651 F.3d 1180 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Hobert PARKER, Jr., Defendant-Appellant.

Nos. 10-50248 (Lead Case), 10-50250, 10-50251.

United States Court of Appeals, Ninth Circuit.

August 22, 2011

Argued and Submitted March 11, 2011.

Page 1181

James H. Locklin, Assistant Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Michael J. Raphael, Assistant U.S. Attorney, and Mark Remy Yohalem, Assistant U.S. Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. Nos. 2:09-cr-00515-AHM-1, 2:09-cr-00517-AHM-1, 2:09-cr-00518-AHM-1.

Before: BETTY B. FLETCHER, KIM McLANE WARDLAW and BRETT M. KAVANAUGH,[*] Circuit Judges.

OPINION

PER CURIAM:

Hobert Parker, Jr., appeals his misdemeanor convictions, after retrial, of three counts of violating 18 U.S.C. § 1382. He argues that his retrial violated the proscription against double jeopardy, that there was insufficient evidence to convict, and that his convictions violate his First Amendment rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

We address the insufficiency of the evidence argument first. See

Page 1182

Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir.1982) (courts should not pass upon a constitutional question if there is a nonconstitutional ground upon which the case may be decided). We review de novo the sufficiency of the evidence to support the conviction. United States v. Stanton, 501 F.3d 1093, 1099 (9th Cir.2007). There is sufficient evidence to support a conviction if, " viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.

Parker's charges arose from his protest activities on Ocean Avenue, which is a public road that crosses the Vandenberg Air Force Base (" VAFB" ) in Santa Barbara County, California. On each of the three occasions charged, Parker was carrying signs of protest against VAFB military police along the shoulder of Ocean Avenue. Each time, Parker was advised by military officers that he was not permitted to protest on Ocean Avenue and that the VAFB Commander had designated a protest area outside the VAFB Main Gate. Each time, Parker refused to leave or relocate. After the first two incidents, Parker was cited twice for violating section 1382 and the VAFB Commander issued a " barment" letter that barred Parker from entering VAFB for any reason for a period of three years. Several days later, Parker was cited for the third time.

Section 1382 provides:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—

Shall be fined under this title or imprisoned not more than six months, or both.

18 U.S.C. § 1382.1

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