U.S. v. Cinca, No. 93-3215

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHARRY T. EDWARDS
Citation56 F.3d 1409
Decision Date13 June 1995
Docket NumberNo. 93-3215
PartiesUNITED STATES of America, Appellee, v. Robert CINCA, Appellant.

Page 1409

56 F.3d 1409
312 U.S.App.D.C. 339
UNITED STATES of America, Appellee,
v.
Robert CINCA, Appellant.
No. 93-3215.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 21, 1995.
Decided June 13, 1995.

Page 1410

Appeal from the United States District Court for the District of Columbia (No. 93cr00066).

Allen E. Burns, Asst. Federal Public Defender, Washington, DC, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender, Washington, DC.

Preston Burton, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Roy W. McLeese, III, and Steven W. Pelak, Asst. U.S. Attys., Washington, DC.

Before: EDWARDS, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.

HARRY T. EDWARDS, Chief Judge:

In this case, appellant Robert Cinca challenges his conviction for demonstrating in front of the White House without a permit. The regulations governing the National Capital Region parks require that groups of more than 25 persons have a permit to demonstrate on the sidewalk in front of the White House. The regulations give the ranking United States Park Police officer the authority to revoke a group's permit during the demonstration if the group violates any of the regulations--including a regulation prohibiting stationary signs in the center portion of the sidewalk--or if the event presents a clear and present danger to the public safety, good order or health.

Pursuant to the regulations, a group called Students Against the War secured a permit to demonstrate on the White House sidewalk on January 15, 1991. On that day, appellant Robert Cinca went to the White House by himself to demonstrate against the war in the Persian Gulf. Cinca marched and prayed in front of the White House, and then joined the protest of Students Against the War. Cinca testified that he sat on the center portion of the White House sidewalk with members of Students Against the War and chanted protests with the group. The record shows that the group held signs while sitting on the center portion of the sidewalk, contrary to the regulations, and that the group blocked the sidewalk, forcing pedestrians into the street. The ranking Park Police official on duty at the scene of the demonstration revoked the group's permit. After warning the demonstrators that their permit had been revoked and that those who did not leave the area would be subject to arrest, the Park Police officers arrested the remaining demonstrators. Cinca was one of approximately thirty demonstrators arrested. He was charged with demonstrating without a permit in violation of 36 C.F.R. Sec. 7.96(g)(1), (2), (5), and (6) (1990), and, after a trial before Magistrate Judge Robinson, was convicted of those charges.

Appellant challenges the sufficiency of the evidence introduced by the Government to support his conviction. He does not dispute that he was demonstrating on the day of his arrest, nor that he joined the demonstration of Students Against the War. In addition, he does not contest that Students Against the War had a permit and that its permit was revoked by the ranking Park Police officer at the scene of the demonstration. Rather, the principal issue raised by Cinca in this appeal is whether the circumstances

Page 1411

surrounding the group's protest justified the revocation of the permit. At trial, the Government presented the testimony of two Park Police officers on duty during the demonstration. The officers testified that the demonstrators violated the rules by holding signs while sitting on the center portion of the sidewalk. They also testified that the demonstrators obstructed the sidewalk, effectively forcing pedestrians into the street, which presented a clear and present danger to the public safety, good order or health. We hold, that viewing the evidence in the light most favorable to the Government, as we must, a rational trier of fact could have found beyond a reasonable doubt that Cinca violated 36 C.F.R. Sec. 7.96(g)(1), (2), (5), and (6). Accordingly, we affirm appellant's conviction.

I. BACKGROUND

The National Park Service regulations at issue in this case govern demonstrations 1 on the White House sidewalk. 2 See 36 C.F.R. Sec. 7.96(g). The regulations require a permit for demonstrations involving more than 25 persons on the White House sidewalk, and exempt individuals or groups of 25 or less persons from the permit requirement. See id. Sec. 7.96(g)(2). 3 The regulations grant the ranking U.S. Park Police official the authority to revoke a permit during the demonstration for specified reasons, two of which are at issue in this case. See id. Sec. 7.96(g)(6). 4 First, the regulations forbid stationary signs on the center portion of the White House sidewalk. See id. Sec. 7.96(g)(5)(viii). 5 Second, the regulations allow the ranking Park Police official to revoke a permit "if continuation of the event presents a clear and present danger to the public safety, good order or health." Id. Sec. 7.96(g)(6). Section 1.3 of the regulations criminalizes violations of section 7.96 and provides for punishment by fine or imprisonment. See id. Sec. 1.3(a). 6

Appellant Robert Cinca was charged with demonstrating without a permit on January 15, 1991, in violation of section 7.96(g)(1), (2), (5), and (6). On April 30, 1991, in a bench trial before Magistrate Judge Robinson, the

Page 1412

Government presented the testimony of two U.S. Park Police officers on duty at the scene of the demonstration on that day, Sergeant Robert Rule and Officer Jeffrey Hertel. See United States v. Cinca, Crim. No. 91-0204M-01, Trial Tr. ("Tr.") (Apr. 30, 1991) at 6-45, 47-60, reprinted in Appendix for Appellant ("App.") 35-74, 76-89. The Government also submitted a video tape recording of the events from approximately 1:30 to 3:00 p.m. See id. at 17-18, reprinted in App. 46-47. For the defense, appellant testified in his own behalf. See id. at 69-89, reprinted in App. 98-118.

Cinca, who was a student at the University of Maryland at College Park, testified that on January 15, 1991, he went alone to the White House sidewalk to protest the war in the Persian Gulf. See id. at 71-72, reprinted in App. 100-01. Cinca testified that, upon arriving at the White House, he marched up and down the sidewalk and then knelt and prayed in protest. See id. at 71, 88, reprinted in App. 100, 117. According to Cinca, shortly after praying on the sidewalk, sometime between 1 and 2 p.m., he sat down on the sidewalk with approximately twenty other protestors. See id. at 83, 85, reprinted in App. 112, 114. Cinca testified that the number of demonstrators sitting on the sidewalk rose to approximately sixty people. See id. at 83, reprinted in App. 112. Cinca also testified that, at times, the group chanted protests against the war, in which Cinca joined. See id. at 86-87, reprinted in App. 115-16. The group to which Cinca referred was Students Against the War. Prior to the demonstration, the group had secured a permit to demonstrate on that day on the White House sidewalk. 7 See id. at 7, 28 (testimony of Sergeant Rule), reprinted in App. 36, 57; id. at 81 (identifying permit), reprinted in App. 110.

Sergeant Rule, who was on duty that day, gave an account that was substantially similar to that stated by Cinca. He testified that on January 15, 1991, at approximately 1 p.m., Students Against the War began "marching on the sidewalk with signs and banners," and that approximately twenty minutes later, "a group of the students sat down in the center portion of the sidewalk." Id. at 8, reprinted in App. 37. Sergeant Rule testified that "there were people that were seated with signs" in "the center section of the White House sidewalk." Id. at 12, reprinted in App. 41. He also testified that "the group was seated in a circle, blocking the area between the [White House] fence and the street," and that, because of the closure of the sidewalk, pedestrians were forced to walk in the street. Id. at 9-10, 24, reprinted in 38-39, 53. Sergeant Rule testified that Major Carl Holmberg was the supervising Park Police official on the scene that day and that Major Holmberg made the decision to revoke the group's permit. See id. at 10-13, reprinted in App. 39-42.

Sergeant Rule testified that he gave the group three warnings, transmitted over a loudspeaker, see id. at 13, reprinted in App. 42, in which he stated:

This is Sergeant Rule of the United States Park Police. Your permit to demonstrate on the White House sidewalk has been revoked. You must leave the White House sidewalk at this time or be subject to arrest.

Id. at 16, reprinted in App. 45. According to Sergeant Rule, approximately twenty individuals left the area in response to the warnings. See id. at 14, reprinted in App. 43. After the third warning, the officers cordoned off the White House sidewalk at either end and arrested the remaining individuals. See id. Approximately thirty demonstrators were arrested that afternoon. See id. at 16, reprinted in App. 45. Cinca remained in the cordoned area; sometime after the arrests began, he moved to the fence (which was also within the cordoned area) where he again knelt and prayed. See id. at 50 (testimony of Officer Hertel), reprinted in App. 79; id. at 72 (testimony of Cinca), reprinted in App. 101. Appellant Cinca was the last individual arrested. See id. at 38 (testimony of Sergeant Rule), reprinted in App. 67; id. at 52

Page 1413

(testimony of Officer Hertel), reprinted in App. 81.

The Magistrate Judge found Cinca guilty as charged and sentenced him to time served. See id. at 94, reprinted in App. 123. Cinca appealed his conviction to the District Court. He argued that the Government offered insufficient evidence to support his conviction and contended that the regulations as applied to him violated his First Amendment rights. The District Court rejected appellant's...

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2 practice notes
  • U.S. v. Sheehan, No. 07-3002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 11, 2008
    ...of appeals. The Judge indicated, however, that appellant could raise the issue on appeal: The Court: As I read [United States v. Cinca, 56 F.3d 1409 (D.C.Cir.1995)], certainly our circuit appears to have not found that particular section of the [NPS regulation] wanting in terms of constitut......
  • Ohio Civ. Rights Comm. v. Case W. Res. Univ., No. 95-387
    • United States
    • United States State Supreme Court of Ohio
    • July 31, 1996
    ...fact in the process of conducting such a rulemaking, 58 Fed.Reg. 65634, and the petitioners have already filed comments therein." Id., 56 F.3d at 1409. Unwittingly, the majority has elevated the status of the AAMC guidelines to the level of a federal regulation. This is particularly inappro......
2 cases
  • U.S. v. Sheehan, No. 07-3002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 11, 2008
    ...of appeals. The Judge indicated, however, that appellant could raise the issue on appeal: The Court: As I read [United States v. Cinca, 56 F.3d 1409 (D.C.Cir.1995)], certainly our circuit appears to have not found that particular section of the [NPS regulation] wanting in terms of constitut......
  • Ohio Civ. Rights Comm. v. Case W. Res. Univ., No. 95-387
    • United States
    • United States State Supreme Court of Ohio
    • July 31, 1996
    ...fact in the process of conducting such a rulemaking, 58 Fed.Reg. 65634, and the petitioners have already filed comments therein." Id., 56 F.3d at 1409. Unwittingly, the majority has elevated the status of the AAMC guidelines to the level of a federal regulation. This is particularly inappro......

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