U.S. v. Baer

• Decision Date: 12 May 1978
• Docket Number: No. 77-1553,77-1553
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold J. BAER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1295

575 F.2d 1295

UNITED STATES of America, Plaintiff-Appellee, v. Harold J. BAER, Jr., Defendant-Appellant.

No. 77-1553.

United States Court of Appeals, Tenth Circuit.

Submitted Feb. 16, 1978.

Decided April 17, 1978.

Rehearing Denied May 12, 1978.

Bryan Morgan, Denver, Colo. (Harold A. Haddon, Denver, Colo., on the brief), of Haddon & Morgan, Denver, Colo., for defendant-appellant.

Rod W. Snow, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before BARRETT, BREITENSTEIN and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Harold J. Baer, Jr. (Baer) appeals from a finding of guilt and judgment rendered following trial to the District Court on a two-count Information charging him with illegal parking violations at the Denver Federal Center on November 4 and 26, 1976, in violation of 41 C.F.R. § 101-20 311(c) (1977) promulgated pursuant to 40 U.S.C.A. §§ 318a and 318c.

No challenges are raised on appeal relating to the sufficiency of the evidence, trial errors or the finding of guilt. Rather, the sole contention is that the sentence is so severe and excessive that it could only have been imposed in reprisal for Baer's election to have the matter heard before the United States District Court, rather than before the United States magistrate. Baer contends that this is evidenced by certain statements made by the court showing an attitude of vindictiveness.

Baer is employed by the United States Government as an attorney serving as a staff advisor in the Regional Office of the Department of the Interior with offices in the Denver Federal Center complex.

The trial commenced at 8:00 a. m. on May 16, 1977, and was heard that morning, continued over and concluded on the morning of May 19, 1977.

At the conclusion of the proceedings had the first day of trial and after the court had continued it over to 8:00 a. m. on May 19, 1977, Baer stated that he was to be in Pueblo, Colorado, that morning on official Government business. The court said: "You can get somebody else to handle your Pueblo matter. I cannot schedule this trial around your other commitment. After all, the usual place to try matters such as this is before the United States magistrate, and you are the one who elected to get it up here in the district court, and we are going to have to treat it like a district court case. It was not our idea; it was yours." (R., Vol. II, pp. 32, 33.) Baer responded that the only reason he transferred the matter to the district court was because the case involved constitutional issues and he did not believe the magistrate's court was the proper place to present them. The district court thereupon observed that such matters can be handled by the magistrate with right of appeal. (R., Vol. II, p. 33.) The court concluded: "And you are the one who elected to put this parking matter up in this court with this court's present calendar. You are going to get a trial. It is going to be treated exactly like any other case in this court." (R., Vol. II, p. 33.)

Among the witnesses called by the Government during the course of the hearing were Howard M. Watts, a member of the Federal Protection Service, employed at the Center, who testified about the issuance of the citations on the two charged dates, the description of the foreign built Lancia vehicle illegally parked and the Colorado license plate thereon; John R. Little, Jr., Regional Solicitor, Denver Region, Department of the Interior, with offices in the Denver Federal Center and with whom Baer served as a staff member; Harold Chantker, a United States police officer assigned to the Federal Protective Service at the Center, who testified to photographs he had taken which were admitted in evidence, identifying the subject parking areas; Lewis Richardson, Investigator for the Colorado Department of Revenue, Motor Vehicle Division, who identified the Lancia vehicle and its license plate number as registered to Harold J. Baer and a driver's license application of Harold Julian Baer, Jr., all of which list the identical address of 1065 Logan, No. 207, Denver, Colorado; Albert V. Witham, Assistant Regional Solicitor, Department of the Interior, with offices in the Denver Federal Center, who testified to certain attendance records kept in the regular course of Government business which indicated Baer was paid for services at the Center on the two days involving the illegal parking charges.

Baer did not testify. However, he called John M. Hewins, an attorney in the office of the Regional Counsel, Region 8, General Services Administration, in an effort to obtain Hewins' interpretive opinion as to whether the regulation under which he (Baer) was charged is directed against the owner or the driver of a vehicle. (R., Vol. II, p. 29.) The court indicated that Hewins' expertise must be developed if the purpose of his testimony was that of explaining the regulation as written; however, if his testimony involved only the matter of "merely interpreting the regulation, that is for me to do." (R., Vol. II, p. 30.) Hewins acknowledged that he had not conducted any research into the particular regulation with which Baer was charged. The court observed that one cannot, as an agency expert, interpret a regulation which he has no knowledge of and of which he has not undertaken any research. Even so, the court stated that Hewins could, if he wanted to, express his individual interpretation or opinion without looking into the regulation and its background. The matter, however, was not pursued by Baer. (R., Vol. II, pp. 30, 31.)

At the conclusion of the hearing, Baer moved for judgment of acquittal on two grounds: First, that the government failed to prove it had jurisdiction inasmuch as "the Denver Federal Center is acquired land and there's no proof of cession by the State of Colorado of jurisdiction," and, second, that the Government failed to show beyond a reasonable doubt that he parked his vehicle on the two occasions charged or that he was even at the Denver Federal Center and that the regulation does not in anywise refer to a "traffic island." (R., Vol. III, pp. 17, 18.) The court rejected these arguments and denied the motion.

During the course of the second morning of trial, the court remarked to witness Little, Regional Solicitor for the Department of the Interior, that he (the court) was sure Little had important business to attend to but that " . . . we cannot permit people just to defy the court; so when they do, we just have to impose on people's time and ask that you come, and I thank you for coming." (R., Vol. III, p. 16.)

Following all of the evidence and arguments, the court opined that the violations had been clearly established and that the parking had occurred in an area so clearly an unauthorized (parking) location that " . . . if a member of the bar, or a government lawyer doesn't think so, once more I'm going to take a long look at 18 United States Code, Section 4205." Baer responded that "It should make no difference, your Honor, whether a person is a member of the bar or not." The trial court rejoined: "Yes, it should. A member of the bar has a greater responsibility to respect the law . . . a member of the bar is presumed to have common sense. So I do think the fact that you are a member of the bar is important . .. Let me explain to you you're not being discriminated against. I think every judge when he has occasion to have a lawyer appear before him on a criminal case, be it income tax or any other type of case, holds the defendant to a higher standard simply because he has been given a license to practice law and is earning a living working for his government as a lawyer, I repeat, I apply a higher standard." (R., Vol. III, pp. 20, 21.) The trial court then reminded Baer of the "incident" which occurred at Baer's arraignment. The Information containing the parking charges was filed against one Harold Baer. When Baer appeared with counsel at arraignment, his counsel (at Baer's urging) stated that the defendant, Harold Baer, had not been in Colorado at the time of the offenses charged and was, in fact, then in Wisconsin. Prior thereto, Baer had informed the United States Attorney that he "had the wrong party." (R., Vol. III, p. 23.) The court stated that Baer's contention had created considerable concern, which was unjustified. The court observed that Baer's contention that the "wrong party" had been charged because the Information contained the "wrong name" was patently absurd because the suffix "Senior" or "Junior" added to a name is not part of the name, citing Baer to a number of legal authorities in support thereof. When the court inquired of Baer if he had authority to the contrary, Baer acknowledged that he did not. The court then quoted from Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), for the proposition that it would verge on incompetence for a lawyer to file an initial pleading without researching such issues as jurisdiction, venue, standing, exhaustion of remedies, proper parties and types of relief. (R., Vol. III, p. 25.)

The trial court found Baer guilty beyond a doubt and ordered a presentence report. The court again acknowledged that one such as Baer has the right to by-pass the United States magistrate and bring his case directly to the federal district court but that the court was "really troubled by it." The court further remarked that because Baer is an attorney employed by the United States Government, his "handling" of this matter did not "make it easy" for the court to resolve the case.

Following submission of the presentence report, the sentencing hearing-proceeding was held on June 10, 1977. The court found that Baer was guilty of the parking violations beyond a reasonable doubt. The court then stated that Baer is "a lawyer, he is a member of the bar, he is an employee of the Federal Center (R., Vol. IV, p. 2.); that when Baer filled out...