U.S. v. Sachs, 81-1615

• Citation: 679 F.2d 1015
• Decision Date: 02 July 1982
• Docket Number: No. 81-1615,81-1615
• Parties: UNITED STATES of America, Appellee, v. Gary SACHS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1015

679 F.2d 1015

UNITED STATES of America, Appellee, v. Gary SACHS, Defendant, Appellant.

No. 81-1615.

United States Court of Appeals First Circuit.

Argued Jan. 7, 1982.

Decided June 11, 1982.

Rehearing and Rehearing En Banc Denied July 2, 1982.

Robert L. Hernandez, Boston, Mass., with whom Kenneth Quat, Maynard, Mass., was on brief, for defendant, appellant.

Janis M. Berry, Sp. Atty., U. S. Dept. of Justice, Boston, Mass., with whom William F. Weld, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

Appellant Gary Sachs was convicted of violating 40 U.S.C. § 318a, 41 C.F.R. § 101-20.304 and 41 C.F.R. § 101-20.305, which, taken together, forbid (among other things) "conduct ... which unreasonably obstructs the usual use of ... elevators" in a federal building. (See Appendix.) Viewing the evidence in the light most favorable to the Government, United States v. Benmuhar, 658 F.2d 14, 16 (1st Cir. 1981); United States v. Ciampaglia, 628 F.2d 632, 636 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221, 449 U.S. 1038, 101 S.Ct. 618, 66 L.Ed.2d 501 (1980), the conviction arose out of the following facts: On January 5, 1981, federal protective officers arrested twenty-two people during an anti-draft demonstration taking place outside the draft registry on the second floor of the John W. McCormack Post Office and Courthouse Building in Boston. Those arrested were taken to the United States Marshal's office on the fifteenth floor for processing. While this was going on, the Marshal's office requested federal protective officers to keep the area outside of the office itself clear of persons with no business there. Subsequently, Officers Morse, Donaher, and Hogan saw the appellant and a woman, Carla Wallace, standing in the hallway directly across from the door to the cellblock, partially obstructing the passage. Sachs and Wallace told the officers that they were waiting for friends. The officers said that they would have to leave unless they had official business there, at which point Sachs and Wallace sat down on the floor. After being told that they would be escorted from the area if they did not leave, they rose and went with the officers to the elevator. While in the elevator, they sat down again. The officers told them that they Sachs waived his right to be tried before a district judge and chose instead to be tried before a United States magistrate. See 18 U.S.C.A. § 3401(b),(f) (West Supp. 1982). He was convicted. The presiding magistrate then had the option of sentencing Sachs under either the Youth Corrections Act ("YCA"), 18 U.S.C. §§ 5006-5010 (1976), or other applicable law, namely 40 U.S.C. § 318c. Finding that Sachs would not benefit from treatment under the YCA, the magistrate sentenced him under 40 U.S.C. § 318c to thirty days imprisonment and a fine of $50. He appealed to the district court which affirmed both his conviction and the sentence. See 18 U.S.C. § 3402 (1976). He now appeals to this court, making several arguments, none of which is substantial.

could not "sit in the elevator blocking it, they'd have to get up and leave the area." When the elevator reached the first floor, the officers first attempted to carry Wallace from the elevator; rather than resist this attempt, Wallace rose and left the elevator. Sachs, however, refused to comply with attempts to remove him and began to struggle, swinging his arms. The officers gave him a final warning telling him that he would be arrested if he did not get up and leave. He would not do so. He was then arrested.

1. Sachs takes the language of the regulation that he is accused of violating-"unreasonably obstructs the usual use of ... elevators," 41 C.F.R. § 101-20.305-and makes three claims. First, he says that "unreasonably obstructs" means "totally obstructs," and there is no evidence that he totally obstructed the elevator. The short answer to this claim is that the words do not mean what Sachs says they mean. "Obstruction" in and of itself does not imply complete blocking; Black's Law Dictionary defines that term as "delay, impeding or hindering." Id. at 972 (5th ed. 1979). Sachs' counsel conceded at trial that his conduct "may have been an impediment ... (making) egress more difficult (and) may have even inconvenienced some people." And, in ordinary, as well as legal, English, sitting down in an elevator and impeding access without justification amounts to an "unreasonable obstruction."

Second, Sachs claims that the elevator was not open to the public when he sat down in it. Rather, it was on "independent service," being used by the federal protective officers to respond to the call on the fifteenth floor. Thus, he claims, he did not block its "usual use." The "usual use" of an elevator, however, is to take people of all kinds-both members of the public and government workers in this case-up and down. Nothing in the regulation suggests that these words should be given the restrictive meaning of "public use"-indeed, the regulation itself refers to activities which "impede( ) or disrupt( ) the performance of official duties by Government employees," as well as those activities that "prevent( ) the general public from obtaining the administrative services provided on the property in a timely manner." 41 C.F.R. § 101-20.305.

Finally, Sachs claims that if "unreasonably obstructs the usual use" does not mean "totally obstructs the public use," then § 101-20.305 is unconstitutionally vague, failing to "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954). We disagree. For one thing, in this case, the officers pointed out to Sachs that his conduct was unreasonable and unlawful. But, in any event, a law that forbids "unreasonable obstruction" of elevators plainly gives notice not to sit on the floor, refuse to move, and swing one's arms about. This is a far clearer case than those cases upholding the constitutionality of 41 C.F.R. § 101-20.304, or its predecessors, under which appellant was also convicted (but which regulation is not challenged on this appeal). United States v. Shiel, 611 F.2d 526 (4th Cir. 1979) (regulation requiring persons on official property to comply with official signs and orders of federal officers neither overbroad nor vague under First Amendment principles); United States v. Cassiagnol 2. Sachs next raises a series of constitutional claims based upon what occurred on the fifteenth floor. Essentially he argues that the officers violated the First, Fourth, and Fifth Amendments in ordering him to leave the fifteenth floor. We reject these claims for two reasons.

420 F.2d 868 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970) (regulation prohibiting, inter alia, unseemly or disorderly conduct on federal property neither vague nor overbroad as it was clearly concerned with ensuring the orderly conduct of government business and defendant's acts were obviously disruptive); United States v. Akeson, 290 F.Supp. 212 (D.Colo.1968) (same regulation neither vague nor overbroad). But see Townsend v. Carmel, 494 F.Supp. 30, 35-36 (D.D.C.1980). As noted above, appellant's actions were easily identified as "unreasonable obstruction," and as the Supreme Court has pointed out, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise." United States v. Harriss, 347 U.S. at 618, 74 S.Ct. at 812.

First, appellant never raised these arguments, involving both questions of law and of fact, in the course of his trial before the magistrate. In that court, the appellant sought to focus the trial on the actions in the elevator, not those on the fifteenth floor, repeatedly objecting to the introduction of evidence relating to the events on the fifteenth floor or to the demonstration in the building, ¹ and never once specifically identified any of the constitutional rights that he now advances. Thus, the manner in which he proceeded below provided no notice to the Government that evidence related to the conduct of the officers or others on the fifteenth floor might be relevant to a constitutional claim, nor was such relevance obvious. Cf. United States v. Levin, 606 F.2d 47 (3d Cir. 1979) (per curiam). Furthermore, the magistrate before whom the trial was conducted cannot be said to have committed error when he failed to rule on questions of law or find facts pertinent to a claim never argued to him. "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as in civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944). Appellant's newly-raised defenses were known to him at the time of trial; failure to articulate them at any time during those proceedings must constitute a waiver. Jennings v. Illinois, 342 U.S. 104, 109, 72 S.Ct. 123, 126, 96 L.Ed. 119 (1951); United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 277 (1977); Watson v. United States, 439 F.2d 442, 453-54 (D.C.Cir.1970) (en banc ). Cf. M. DeMatteo Construction Co. v. United States, 433 F.2d 1263 (1st Cir. 1970); Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497, 500 (1st Cir. 1962).

Secondly, we find no special circumstances justifying departure from that rule here. The record reveals no obvious constitutional error of the sort that appellant alleges. Rather, the Marshal's office, when particularly busy, merely asked the federal protective officers to...