U.S. v. Bjerke, 85-3653

• Decision Date: 07 August 1986
• Docket Number: No. 85-3653,85-3653
• Citation: 796 F.2d 643
• Parties: The UNITED STATES of America v. Mitchell Wayne BJERKE, also known as "Mitch Bjerke", Constance L. Brown, Margaret Scott, and Martha Zoller. Appeal of UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

Page 643

796 F.2d 643

The UNITED STATES of America v. Mitchell Wayne BJERKE, also known as "Mitch Bjerke", Constance L. Brown, Margaret Scott, and Martha Zoller.

Appeal of UNITED STATES of America.

No. 85-3653.

United States Court of Appeals, Third Circuit.

Argued June 5, 1986.

Decided July 10, 1986.

Rehearing and Rehearing In Banc Denied Aug. 7, 1986.

J. Alan Johnson, U.S. Atty., Constance M. Bowden (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellant.

H. David Rothman (argued), Pittsburgh, Pa., for appellees.

Before ADAMS, WEIS, and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

These cases arise from the efforts of the United States Postal Service to bar potentially disruptive charitable solicitation on its property, efforts which frustrated an attempt by political activists to solicit financial contributions near the doorways of two local post offices. The United States Magistrate found the four defendants guilty of soliciting and depositing literature in violation of applicable Postal Service regulations. Relying in part on the First Amendment, the district court vacated all the convictions. Because we differ with the district court's constitutional analysis, we will reverse and remand the matter in order that a portion of the magistrate's judgment may be reinstated.

I.

The four defendants--Mitchell Bjerke, Constance Brown, Martha Zoller, and Margaret Scott--are affiliated with the National Democratic Policy Committee. That organization is closely associated with Lyndon H. LaRouche, Jr., an independent candidate for President on several state ballots in the 1984 general election.

Beginning in the early summer of 1984, defendants engaged in political activities outside a number of post offices in the Pittsburgh area. Their usual practice was to set up a card table near a post office entrance, and then to encourage those using the post office facilities to purchase political literature displayed on the table.

At three post offices--McKnight, Monroeville, and Mars--defendants were issued citations and charged with depositing nongovernmental literature on postal premises, in violation of 39 C.F.R. Sec. 232.1(o) (1985), and soliciting contributions on such property, a violation of 39 C.F.R. Sec. 232.1(h)(1) (1985). Following conviction before the magistrate on all counts, the district court vacated the convictions, ruling that there was insufficient evidence to support the charges of depositing literature, and that the convictions of Bjerke and Brown for soliciting abridged their First Amendment rights.

The solicitation charges against Bjerke and Brown, the subject of this appeal by the government, are based upon three incidents: On November 16, 1984, Brown was observed at a card table set up on a walkway four to five feet from the entrance of the McKnight post office in Pittsburgh, attempting to solicit contributions; on December 12, 1984, Bjerke engaged in similar activity on a grassy area a little farther from the entrance; and on November 29, 1984 both Bjerke and Brown were seen at a table set up on a walkway one foot from the entrance of the post office in Monroeville, Pennsylvania. For these incidents, the magistrate imposed fines and assessments totalling $100 each on Bjerke and Brown.

There is no evidence that defendants at any time blocked access to the buildings. Nor is there any showing that defendants' activities caused any disturbance at the Monroeville facility. However, there is considerable evidence that the operations at the McKnight post office were affected by the solicitors.

Both the McKnight branch manager and another postal official testified that over a six-month period numerous customers of the post office complained about the solicitations, causing window clerks and the managers themselves to spend a significant amount of time placating irate patrons. Twenty customers added their names to a list of complainants maintained by clerks, until the branch manager ended the practice of keeping a list of complaints. In addition, the McKnight manager stated, regular bulk mailers began arriving late in the day in order to avoid the activists, requiring the post office to stay open as much as a half-hour beyond its regular closing time.

The United States has filed a timely appeal, contesting only that portion of the district court's ruling holding that Bjerke and Brown's convictions for soliciting violate the First Amendment.

II.

A preliminary question is whether this Court has jurisdiction to review the district court's decision favoring the defendants. The prosecution asserts that our jurisdiction rests on 18 U.S.C. Sec. 3731 (1982). That statute reads, in relevant part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Defendants argue first that because this prosecution for petty offenses was initiated by citations, and not an indictment or information, the statute is inapplicable. But in United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975), the Supreme Court held that Sec. 3731 is designed to remove all barriers to appeals by the government in criminal cases, and to permit such appeals wherever the Constitution so allows. In addition, the statute itself states: "The provisions of this section shall be liberally construed to effectuate its purposes." Accordingly, it is reasonable to permit an appeal even where the case involves a petty offense. United States v. Moore, 586 F.2d 1029, 1031 (4th Cir.1978) (violation notice for petty offense is "functional equivalent" of indictment or information); see also United States v. Lee, 786 F.2d 951, 956 (9th Cir.1986).

The relief sought by the United States is also within the contemplation of the statute. After the district court's decision, the only course available to the magistrate is dismissal of the citations on which the charges are based. Section 3731 permits the government to appeal under these circumstances. See United States v. Beck, 483 F.2d 203, 206 (3d Cir.1973) (looking to the "practical effect" of the district court's decision), cert. denied, 414 U.S. 1132, 94 S.Ct. 873, 38 L.Ed.2d 757 (1974).

Further, double jeopardy presents no bar to this Court's review of the district court's order vacating convictions entered by a magistrate. The double jeopardy clause is implicated only where there is a threat of multiple punishments or a second prosecution. Wilson, 420 U.S. at 344, 95 S.Ct. at 1022. Such is not the case where, as here, the appellate court is asked only to reinstate a vacated verdict. Id. at 345, 95 S.Ct. at 1022.

Therefore, we hold that Sec. 3731 provides this Court with jurisdiction over the present appeal by the government, and there is no constitutional bar to such an appeal. Other courts of appeals have reached the same conclusion in cases involving district court reversals of convictions entered by magistrates. United States v. Forcellati, 610 F.2d 25, 29-30 (1st Cir.1979), cert. denied, 445 U.S. 944, 100 S.Ct. 1342, 63 L.Ed.2d 778 (1980); Moore, supra.

III.

Our analysis of the merits begins with the applicable Postal Service regulation. It states:

Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or distributing commercial advertising on postal premises are prohibited.

39 C.F.R. Sec. 232.1(h)(1) (1985). As the government concedes, the rule does not prohibit the distribution of literature or the discussion of public affairs on post office property. ¹

The government further concedes that solicitation activities are expressive speech within the protection of the First Amendment. "[S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and ... without such solicitation the flow of such information and advocacy would likely cease." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73 (1980). See also Cornelius v. NAACP Legal Defense and Educational Fund, Inc., --- U.S. ----, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985).

Nonetheless, the United States contends that the content-neutral prohibition of financial solicitation on postal premises is a constitutionally valid exercise of control over its property.

A.

In a long line of cases, the Supreme Court has made clear that the government, "no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966) (upholding trespass conviction arising out of demonstration held on the nonpublic grounds of a county jail). Thus, whether the government must permit access to public property for expressive activities depends on the nature of that property.

The Supreme Court recently set forth the appropriate analysis for resolving claims of access to public property in Cornelius v. NAACP Legal Defense and Educational Fund, Inc., --- U.S. ----, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). If the public property to which individuals seek access is a traditional public forum such as a street or park, the Court explained, any exclusion must be based on a compelling state interest, narrowly tailored to promote that interest. A time, place or manner restriction is also permitted if it is content-neutral, and if it is designed to advance a significant governmental interest. Id., 105 S.Ct. at 3448. The same rules apply to a...