U.S. v. Bader, 82-1346

• Citation: 698 F.2d 553
• Decision Date: 24 January 1983
• Docket Number: No. 82-1346,82-1346
• Parties: UNITED STATES of America, Appellee, v. Mark BADER, et al., Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 553

698 F.2d 553

UNITED STATES of America, Appellee, v. Mark BADER, et al., Defendants, Appellants.

No. 82-1346.

United States Court of Appeals First Circuit.

Argued Nov. 2, 1982.

Decided Jan. 24, 1983.

Alan D. Rose, with whom Joseph F. Keefe, and Nutter, McClennen & Fish, Boston Brackett B. Denniston, III, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Mass., were on brief, for defendants, appellants.

Before CAMPBELL and BREYER, Circuit Judges, and HEMPHILL, ^* Senior District Judge.

BREYER, Circuit Judge.

The seventeen appellants in this case conducted a sit-in inside the John W. McCormack Post Office and Courthouse Building in order to protest draft registration. They were arrested and charged with violating 40 U.S.C. Sec. 318c, which, taken together with 41 C.F.R. Sec. 101-20.304 ("Sec. 304") and 41 C.F.R. Sec. 101-20.305 ("Sec. 305"), forbids (among other things) failing to obey "the direction of Federal protective officers" and creating certain disturbances in federal buildings. (See appendix.)

They were tried before a United States Magistrate in two groups, three defendants on January 13, 1981, and fourteen others two weeks later. The evidence at both trials was basically the same. It consisted of stipulations, copies of regulations posted in the McCormack Building, testimony of federal protective officers, and photographs of the demonstration. The photographs and testimony show that the defendants sat close together in the doorway leading to the draft registration room. As the defendants themselves stated, they were "blocking" the doorway. Those registering had to step over them; some registrants were helped by the protective officers. The officers told the defendants to leave, and after the defendants refused to do so, the officers arrested them. The government did not introduce evidence showing that anyone was actually prevented from registering or that defendants' activities interfered with the performance of the duties of any other government employee.

Appellants were convicted and sentenced to the maximum penalty of thirty days' imprisonment and a $50 fine. They appealed to the district court, under 18 U.S.C. Sec. 3402, and their convictions were affirmed. They now appeal to this court, arguing first, that the government did not prove the crime it charged; second, that their convictions violated rights protected by the First Amendment; and third, that the Magistrate did not properly explain to them their rights to counsel. We reject these contentions and affirm the convictions.

1. Defendants' "inadequate proof" argument is highly technical. One of the regulations they were charged with violating prohibits

[a]ny unwarranted loitering, disorderly conduct, or other conduct on property which creates loud or unusual noise or a nuisance; which unreasonably obstructs the usual use of entrances ...; which otherwise impedes or disrupts the performance of official duties by Government employees; or which prevents the general public from obtaining the administrative services provided on the property in a timely manner ....

41 C.F.R. Sec. 101-20.305. In its complaint, the government charged them with violating this regulation in part by

creat[ing] ... a disturbance that unreasonably obstructed the usual use of entrances, ... thus impeding and disrupting the performance of official duties by Government employees and preventing the general public from obtaining the services provided in the J.W. McCormack Building ....

Appellants argue that, because the government used the word "thus" in its complaint, it must prove both that they "unreasonably obstructed the usual use of entrances" and that this obstruction disrupted official duties or prevented the public from obtaining services. They argue that the government failed to make this latter showing.

We reject this argument because the government adequately proved that the defendants "unreasonably obstructed the usual The complaint does not use the statute's disjunctive "or," for the simple reason that, when a statute is phrased in the disjunctive, it is well-established that a criminal complaint based on that statute must be phrased in the conjunctive. See, e.g., United States v. Murray, 621 F.2d 1163, 1171 n. 10 (1st Cir.1980); 1 C. Wright, Federal Practice & Procedure: Criminal 2d Sec. 125 (1982). (If the complaint used the word "or," the defendant would not know which act he was charged with committing. The use of "and" merely notifies the defendant that the government will try to prove each of the connected offenses listed in the complaint.) It is equally well-established that the government need prove only one of the conjunctively connected offenses to warrant conviction. Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970). And, the government did so here.

                use" of the entrances to the draft registration room.  The government need prove no more.  Section 305 is phrased in the alternative.    Conduct violates the regulation if it "creates ... a nuisance" or if it "unreasonably obstructs the use of entrances," or if it "otherwise impedes or disrupts the performance of official duties" or if it "prevents the general public from obtaining services."
                

Appellants point to the complaint's use of the word "thus" instead of "and." But it is difficult to see why that makes a difference. The purpose of the pleading is to inform the defendant of the charge so that he can prepare a defense. United States v. Jones, 647 F.2d 696, 699 (6th Cir.1981); United States v. Contris, 592 F.2d 893 (5th Cir.1979). We do not see that the use of this word confused the appellants or otherwise interfered with their preparations. The word "thus" in context suggests "and therefore." If anything, it clarifies the charge, for it implies that the "obstructing" is what created the "impeding," instead of the "impeding" having been caused by some other, independent act. In any event, the lack of prejudice is indicated by the fact that the appellants apparently did not think to make this argument to the courts below--a fact that might independently bar appellants from making the argument here, were the matter substantively more difficult. See Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979).

2. Appellants argue that the First Amendment bars their conviction. Contrary to appellants' claim, however, the conduct in which they engaged--despite its symbolic purpose--is not immune from punishment. Even were "pure speech" at issue, the government can restrict "[t]he right to use a public place for expressive activity" through "reasonable 'time, place and manner' regulations [which] may be necessary to further significant government interests...." Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). Moreover, where, as here,

'speech and nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). It is well established that the need to safeguard the normal functioning of public facilities is a "substantial government interest" sufficient to warrant reasonable restrictions on even "pure speech," let alone symbolic conduct. Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965). If the government can punish those who demonstrate in an orderly way on jailhouse grounds, Adderley, supra, those who peacefully picket "near" a courthouse, Cox, supra, those who interfere with traffic on public ways, see Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), and those who would make speeches in the reading room of a public library, see Grayned, 408 U.S. at 116, 92 S.Ct. at 2303, it surely can punish those who physically obstruct a doorway, and make it more difficult for the public to conduct its business--especially since, unlike Appellants alternatively argue that, even if their activity is punishable as "obstruction," they were also charged with violating Sec. 304, which requires obedience to directives of Federal protective officers. They argue that Sec. 304 might be used to inhibit other speech activity which the Constitution protects from punishment. Therefore, asserting the interests of others, they ask that Sec. 304 be declared invalid on its face as overbroad. See Monaghan, Overbreadth, 1981 Sup.Ct.Rev. 1.

                a street or sidewalk, see Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939), a post office and courthouse building is not customarily open for use for demonstrations or similar speech-related purposes.  Governing precedent makes clear that a sit-in that obstructs an entryway in such a building during normal business hours is "basically incompatible with the normal activity of [that] particular place at [that] particular time."   Grayned v. City of Rockford, 408 U.S. at 116, 92 S.Ct. at 2303.  See L. Tribe, American Constitutional Law Sec. 12.21
                

The courts that have previously considered this argument, for Sec. 304 and other similar regulations, have rejected it. 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); United States v. Cassiagnol, 420 F.2d 868 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed. 654 (1970) (regulation prohibiting, inter alia, unseemly or disorderly conduct on federal property); United States v. Akeson, 290 F.Supp. 212 (D.Colo.1968) (same regulation). But see Townsend v. Carmel, 494 F.Supp. 30, 35-36 (D.D.C.1980). We have previously cited these cases with approval. United States v. Sachs, 679 F.2d 1015, 1017-18 (1st Cir.1982)...