847 F.2d 609 (9th Cir. 1988), 87-3101, United States v. Stansell

Docket Nº:87-3101, 87-3102.
Citation:847 F.2d 609
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Warren STANSELL; Patricia A. Donohue; Peter C. Donohue; Michael P. Hardt; Greg K. Vinson, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth James GARRISON, Defendant-Appellant.
Case Date:May 27, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 609

847 F.2d 609 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


John Warren STANSELL; Patricia A. Donohue; Peter C.

Donohue; Michael P. Hardt; Greg K. Vinson,


UNITED STATES of America, Plaintiff-Appellee,


Kenneth James GARRISON, Defendant-Appellant.

Nos. 87-3101, 87-3102.

United States Court of Appeals, Ninth Circuit

May 27, 1988

        Argued and Submitted April 5, 1988.

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        John Mellen, Woodley & Thurston, Kirkland, Wash., for defendants-appellants.

        Kenneth G. Bell, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

        Appeal from the United States District Court for the Western District of Washington.

        Before BEEZER, HALL and WIGGINS, Circuit Judges.

        BEEZER, Circuit Judge:

        Defendants John Stansell and others (collectively, defendants) appeal their convictions based on violations of 40 U.S.C. Secs. 318a, 318c and 41 C.F.R. Sec. 101-20.304 (1986). We affirm.


        On August 15, 1986, defendants participated in a protest demonstration at the Jackson Federal Building in Seattle. As part of the demonstration, some of the demonstrators attempted to chain shut the doors at the Second Avenue entrance. After Federal Protective Service (FPS) officials cut and removed the chains, the demonstrators sat in front of the doorway, preventing federal employees from entering.

        FPS officials announced that the protesters had to move clear of the doorways, and that if they failed to move, they would be arrested. Defendants refused to move. After FPS officials advised defendants individually to move and were again refused, the officials arrested defendants. The remaining protesters moved away from the doors and continued the demonstration.

        Defendants were charged with violating 40 U.S.C. Secs. 318a, 318c, and 41 C.F.R. Sec. 101-20.304 (1986). Before trial, the Magistrate denied defendants' motions for a jury trial and to dismiss on grounds of overbreadth and vagueness. At a bench trial, the Magistrate convicted six of the seven defendants, acquitting defendant Siptroth, sentencing defendants Stansell and Donahue to serve ten-day jail terms, and sentencing the remaining defendants to pay fines of fifty dollars each.

        The district court affirmed the convictions, reasoning that (1) the motion for jury trial was properly denied and (2) 41 C.F.R. Sec. 101-20.304 (1986) was not unconstitutionally

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vague or overbroad. Defendants timely appeal.


  1. Motion for Jury Trial

            The denial of defendants' motion for jury trial is a question of law reviewed de novo. Rife v. Godbehere, 814 F.2d 563, 564, amended, 825 F.2d 185 (9th Cir.1987). Defendants contend that they were unconstitutionally denied their right to jury trial. Moreover, they maintain that when a criminal prosecution raises substantial first amendment issues, a jury trial must be allowed even for petty offenses.

            The sixth amendment right to jury trial does not extend to all criminal cases. District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 661-62, 81 L.Ed.2d 843 (1937); Rife, 814 F.2d at 564. This constitutional right to a jury attaches only to "serious" offenses, and not to "petty" offenses. Frank v. United States, 395 U.S. 147, 148-49, 89 S.Ct. 1503, 1504-05, 23 L.Ed.2d 162 (1969); Rife, 814 F.2d at 564; United States v. Jenkins, 734 F.2d 1322, 1326 (9th Cir.1983), cert. denied, 469 U.S. 1217, 105 S.Ct. 1198, 84 L.Ed.2d 342 (1985). The question before us is thus whether violation of section 101-20.304 is a serious or petty offense.

            The Supreme Court has generally used the severity of the maximum authorized penalty as the most relevant criteria in determining whether an offense is petty or serious. See Baldwin v. New York, 399 U.S. 66, 68, 90 S.Ct. 1886, 1887-88, 26 L.Ed.2d 437 (1970) (plurality opinion); Frank, 395 U.S. at 148, 89 S.Ct. at 1504-05; Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1452-53, 20 L.Ed.2d 491 (1968). The Baldwin plurality concluded that "no offense can be declared 'petty' for purposes of the right to trial by jury when imprisonment for more than six months is authorized." 399 U.S. at 69, 90 S.Ct. at 1888. The general rule has become that an offense is petty if the maximum penalty provided does not exceed six months imprisonment, a $500 fine, or both. See Jenkins, 734 F.2d at 1326; see also 18 U.S.C. Sec. 1(3) (defining a petty offense). 1

            The maximum authorized penalty at the time of the defendants' conviction for a violation of 41 C.F.R. subpart 101-20.3 was "a fine of not more than $50 or imprisonment of not more than 30 days, or both." 41 C.F.R. Sec. 101-20.315 (1986); see also 40 U.S.C. Sec. 318c. 2 Because the maximum

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    punishment faced by the defendants here falls far below the standards for a serious offense, the offense is properly deemed petty. Accordingly, defendants are not entitled to a jury trial. 3

  2. Overbreadth and Vagueness

            We review de novo defendants' constitutional challenge that 41 C.F.R. Sec. 101-20.304 (1986) is both overbroad and vague on its face. United States v. Westbrook, 817 F.2d 529, 531 (9th Cir.1987); United States v. Gilbert, 813 F.2d 1523, 1526 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 173, 98 L.Ed.2d 127 (1987). The regulation at issue provides:

    Sec. 101-20.304--Conformity with signs and directions. Persons in and on property shall at all times comply with official signs of a prohibitory, regulatory, or directory nature and with the direction of Federal protective officers and other authorized individuals.

            41 C.F.R. Sec. 101-20.304 (1986). 4

            1. Overbreadth

            Defendants contend that section 101-20.304 is unconstitutionally overbroad on its face because there are no easily identifiable acts of any kind that it prohibits. They also maintain that there are no reasonable limiting constructions that would make the regulation constitutional.

            Under the overbreadth doctrine in first amendment cases, a litigant is "permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908,

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    2916, 37 L.Ed.2d 830 (1972). Attacks are allowed on regulations that "delegate[ ] standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights." Id. at 613, 93 S.Ct. at 2916. The Supreme Court warned, however, that "[a]pplication of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked where a limiting construction has been or could be placed on a challenged statute." Id. (emphasis added). Moreover, if a statute covers both conduct and speech, as the regulation does here, the Supreme Court requires that "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 615, 93 S.Ct. at 2918 (emphasis added).

            The Supreme Court has defined "substantial overbreadth" as the

    criterion the Court has invoked to avoid striking down a statute on its face simply because of the possibility that it might be applied in an unconstitutional manner. It is appropriate in cases where, despite some possibly impermissible application, the " 'remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscribable ... conduct....' " In such a case, the Court has required a litigant to demonstrate that the statute "as applied" to him is unconstitutional.

            Secretary of State of Md. v. J.H. Munson Co., 467 U.S. 947, 964-65, 104 S.Ct. 2839, 2851, 81 L.Ed.2d 786 (1984) (citations omitted) (emphasis added). However, if there is "no core of easily identifiable and constitutionally proscribable conduct" then the statute is unconstitutionally overbroad. Id. at 965, 104 S.Ct. at 2851. As will be shown below, we conclude that there is both a reasonable limiting construction of the regulation and a core of identifiable conduct that may be constitutionally controlled on federal property.

            Two district courts have held that section 101-20.304 is unconstitutionally overbroad because it is not conducive to any limiting construction. See United States v. Parisi, 564 F.Supp. 855, 860-61 (N.D.Ill.1981); Townsend v. Carmel, 494 F.Supp. 30, 35-36 (D.D.C.1979) (also holding that the regulation was unconstitutionally vague). Both district courts reasoned that the regulation granted FPS officers unfettered discretion to exercise limitless police powers. Parisi, 564 F.Supp. at 860-61; Townsend, 494 F.Supp. at 35.

            Two courts of appeal, however, have held that section 101-20.304 is not unconstitutionally overbroad because it could be properly circumscribed with a limiting construction that would confine the statute to permissible applications. See United States v. Bader, 698 F.2d 553, 556 (1st Cir.1983); United States v. Shiel, 611 F.2d 526, 528 (4th Cir.1979). In Bader, seventeen defendants conducted a sit-in inside a post office in which they blocked the doorway leading to a draft registration room. After refusing to comply with the FPS officers' instructions to move, defendants were arrested. They were convicted of violating, inter alia, section 101-20.304. On appeal to the First Circuit, defendants argued that, inter alia, their convictions violated rights protected by the first amendment. The court concluded that the first amendment...

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