700 F.2d 1253 (9th Cir. 1983), 82-1149, United States v. Christopher

Docket Nº:82-1149 to 82-1151, 82-1156 and 82-1203.
Citation:700 F.2d 1253
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Danny C. CHRISTOPHER, Jack Herer, John B. Michel, John Gefall, and Kenneth R. Klotz, Defendants-Appellants.
Case Date:March 08, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1253

700 F.2d 1253 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Danny C. CHRISTOPHER, Jack Herer, John B. Michel, John

Gefall, and Kenneth R. Klotz, Defendants-Appellants.

Nos. 82-1149 to 82-1151, 82-1156 and 82-1203.

United States Court of Appeals, Ninth Circuit

March 8, 1983

Argued and Submitted Dec. 7, 1982.

Page 1254

[Copyrighted Material Omitted]

Page 1255

Gefall & Klotz, Yoland Orozco, Los Angeles, Cal., for Christopher.

Michael R. Levine, Honolulu, Hawaii, for Herer.

Michael D. Nasatir, Nasatir, Sherman & Hirsch, Los Angeles, Cal., for Michel.

William F. Fahey, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before SNEED, and SKOPIL, Circuit Judges and INGRAM, District Judge. [*]

SKOPIL, Circuit Judge.

OVERVIEW

Appellants appeal their misdemeanor convictions on charges of being present on federal property after normal work hours in violation of 41 C.F.R. Secs. 101-20.302 and 101-20.315 (1981). 1 Appellants contend

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that (1) the information was vague and indefinite; (2) they were selectively prosecuted; (3) there was insufficient evidence to establish every element of the crime beyond a reasonable doubt; and (4) the regulation is unconstitutional. We reject these arguments. Appellant Michel contends that he was improperly arraigned and tried in his absence. We agree. Accordingly, the convictions are affirmed with the exception of Michel.

FACTS AND PROCEEDINGS BELOW

Appellants are members of an organization whose goal was the passage of the California Marijuana Initiative. Appellant Herer is founder and leader of the group.

On November 6, 1981 Herer and associates set up a table on the corner of federal building property in west Los Angeles. The group sought to collect petition signatures in support of the initiative, distribute information and register voters. The location was selected because of pedestrian traffic and proximity to a busy entertainment center, commercial area and the U.C.L.A. campus. The group announced its intention to occupy the area continuously for seventeen days. Along with the table appellants brought display signs, sleeping bags, blankets and various boxes.

On the first night of the group's activities, a Federal Protective Service officer informed Herer that the property was closed. Herer was asked to leave the property. When he refused, Herer was cited for being on government property after normal working hours.

On November 10, 1981 at approximately 6:00 p.m. another Federal Protective Service officer approached the table and requested that all depart the area. The request was repeated an hour later. Most people complied. Those remaining at the table were cited.

Arraignment was scheduled immediately before trial. Defendant Michel was not present. The court questioned Michel's attorney on his client's whereabouts. When no one could account for Michel's absence, the court suggested that it was appropriate to proceed under Fed.R.Crim.P. 43. Michel's counsel did not object.

The trial proceeded on the limited factual issue of the meaning of the phrase "normal working hours". The government called witnesses to establish the complex's normal working hours. No witnesses were called by the defense.

ISSUES

  1. Was the charging information vague and indefinite?

  2. Were appellants selectively prosecuted?

  3. Is the regulation unconstitutional?

  4. Was there sufficient evidence to establish every element of the crime beyond a reasonable doubt?

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  5. As to appellant Michel, was there constitutionally inadequate assistance of counsel and did the district court err in proceeding through arraignment and trial in Michel's absence?

    DISCUSSION

  6. Insufficient Information

    Appellants argue that the charging information was insufficient because it (1) failed to state one element of the criminal offense and (2) lacked factual particularity and was overly vague and indefinite. Our review is de novo. United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982); United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980).

    Appellants argue that while they are charged with "presence" at the federal property, the regulation forbids only "entry upon". 2 Appellants reason that once a person has legally "entered" the property, remaining after hours is not impermissible under the terms of the regulation. The district court rejected this distinction. We agree.

    The Supreme Court in Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962), held that a legally sufficient indictment must state the elements of an offense charged with sufficient clarity to apprise a defendant of what to defend against. An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied. United States v. Anderson, 532 F.2d 1218, 1222 (9th Cir.1976).

    An indictment may be insufficient if it fails to allege an essential element of the offense. United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979) (insufficient even though it tracked the language of the statute). Nonetheless, "[c]onvictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused." Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959). Appellants' argument that a person may legally remain on federal property after hours as long as that person arrives beforehand is without merit.

    Appellants contend that the information was fatally flawed because it lacked specificity and was vague and indefinite. The information failed to specify the exact times of the trespass or what times are included in the phrase "normal working hours".

    Fed.R.Crim.P. 7 mandates that an indictment be a "plain, concise and definitive written statement of the essential facts constituting the offense charged." The instrument must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the elements of the specific offense. Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974); United States v. Cecil, 608 F.2d 1294, 1296 (9th Cir.1979). In construing the language of the indictment courts must be guided by common sense and practicality. Anderson, 532 F.2d at 1222.

    The information charged appellants with being present on federal property after normal working hours. Times were not specified in the information. Nor did the information specify the "normal working hours" of the federal facility. Nonetheless, such information is not necessary if the appellants were sufficiently informed of the charges against them. E.g., United States v. Inryco, Inc., 642 F.2d 290, 294 (9th Cir.1981) (interpretation of the indictment cannot ignore the plain language and inferences drawn therefrom). There is no indication that appellants were not fully aware of the nature of the charges against them. Nothing suggests that "normal working hours" means anything so unusual that appellants would have to guess its meaning.

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  7. Selective Prosecution

    Herer argues that the government impermissibly cited him because he was a vocal leader of the organization. The remaining appellants argue that they were impermissibly selected because of their petitioning activities, while other trespassers were not cited. The district court's denial of the motion to dismiss for selective prosecution is reviewed under the clearly erroneous standard. United States v. Wilson, 639 F.2d 500, 503 (9th Cir.1981).

    The promise of equal protection of the laws necessarily extends to their application. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349 (9th Cir.1982). A defendant cannot stand convicted if there is unconstitutional discrimination in the administration of the penal statute. United States v. Steele, 461 F.2d 1148, 1151 (9th Cir.1972). Mere selectivity in prosecution, however, creates no constitutional problem. E.g., Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). The impermissible selection must be shown to be based on an unjustifiable standard such as the exercise of the first amendment right of free speech. United States v. Choate, 619 F.2d 21, 23 (9th Cir.1980); United States v. Scott, 521 F.2d 1188, 1195 (9th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976).

    The burden of proof falls on the defendants. Choate, 619 F.2d at 23. They must show that (1) others were not prosecuted for the same conduct, and (2) the decision to prosecute was based upon impermissible grounds. Wilson, 639 F.2d at 503.

    Appellants' burden requires them to overcome the presumption that the prosecution was undertaken in good faith and in a nondiscriminatory fashion. United States v. Falk, 479 F.2d 616, 620 (7th Cir.1963) (en banc ). The government advanced several reasons for the prosecution. While admitting that others were trespassing, the government distinguishes those individuals who were simply passing through the grounds and not camping there. Further, the government argued below that the group may have been responsible for human waste found on the grounds. Concern was expressed over noise and security on the grounds.

    The district court found that appellants failed to meet their burden. Given the several plausible grounds for prosecution advanced by the government, we cannot say that the district court's findings are clearly erroneous.

  8. Constitutionality

    Appellants argue that (1) the regulation is unconstitutionally vague on its face; (2) the regulation, even if facially valid, is unconstitutional as applied to them; and (3) the imposition of a...

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