U.S. v. Gilbert, 93-8716

• Decision Date: 17 March 1995
• Docket Number: No. 93-8716,93-8716
• Citation: 47 F.3d 1116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abraham GILBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1116

47 F.3d 1116

UNITED STATES of America, Plaintiff-Appellee, v. Abraham GILBERT, Defendant-Appellant.

No. 93-8716.

United States Court of Appeals, Eleventh Circuit.

March 17, 1995.

L. Burton Finalyson, Federal Defender Program, Inc., Paul Kish, Asst. Federal Public Defender, Atlanta, GA, for appellant.

Joe D. Whitley, Beverly Sumner Mitchell, U.S. Attys., Amy Levin Weil, Asst. U.S. Atty., Atlanta, GA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

HATCHETT, Circuit Judge:

Abraham Gilbert, the appellant, attacks the sufficiency of the evidence supporting his convictions for failing to follow the lawful directive of a federal protective officer and for unreasonably obstructing the entrance to a federal building. Based upon our review of the record, we reverse Gilbert's conviction for failing to follow the lawful directive of a federal protective officer and affirm Gilbert's conviction for unreasonably obstructing the entrance to a federal building.

FACTS

Abraham Gilbert has for many years conducted protests in front of the federal courthouse in Atlanta, Georgia. In 1989, the government sought a civil restraining order to enjoin Gilbert from protesting and to prevent him from sleeping in front of the building. See United States v. Gilbert, 720 F.Supp. 1554 (N.D.Ga.1989). In that case, the district court granted summary judgment for the government. On appeal, this court partially reversed the district court's ruling, upholding the district court's order prohibiting Gilbert from protesting or sleeping in the portico area, the area beneath the colonnade in front of the building's entrance, but allowing Gilbert to sleep in the unenclosed plaza beyond the portico area as long as it was part of his protest.

This case arises from Gilbert's protest in the restricted portico area on February 22, 1993. On that date, the courthouse building manager advised Gilbert to move his protest beyond the planters surrounding the entrances to the building and also informed When Gilbert resisted, the protective officer instructed Gilbert to accompany him inside the federal courthouse to fill out criminal citations. After receiving the citations, Gilbert attempted to remain in the building. When a federal protective officer instructed Gilbert to leave the building, Gilbert lay down on the floor. Consequently, two federal protective officers carried Gilbert out of the building and placed him in the portico area near the entrance and exit doors of the building. When the officers told Gilbert to move beyond the planters surrounding the building's entrance, Gilbert once again lay down on the ground. The officers then carried Gilbert beyond the planters. Gilbert returned to the portico area with a sign, continuing to protest. The protective officers arrested him.

Gilbert that he would have to obtain a permit to demonstrate in front of the building. When Gilbert refused to move, the building manager instructed a federal protective officer to remove Gilbert from his location.

After a bench trial, the district court found Gilbert guilty of failing to comply with the lawful direction of a federal protective officer through the act of placing his duffel bag, bedroll, and other personal belongings in the portico area of the federal courthouse after lawfully being instructed not to do so. See 41 C.F.R. Sec. 101-20.304. The district court also found Gilbert guilty of unreasonably obstructing the usual use of the entrance of the federal courthouse through the acts of lying down and shouting in front of the courthouse entrance. See 41 C.F.R. Sec. 101-20.305.

On appeal, Gilbert challenges the sufficiency of the evidence supporting his convictions.

CONTENTIONS

On appeal, the government concedes that the facts presented at trial to support the failure to comply charge differed from the specific facts charged in the criminal information; consequently, insufficient evidence supported Gilbert's conviction for failing to comply with the lawful directive of a federal protective officer, in violation of 41 C.F.R. Sec. 101-20.304. We agree. Therefore, we will only address the issue of whether sufficient evidence supports Gilbert's conviction for unreasonably obstructing the usual use of the entrance to the federal courthouse.

Essentially, Gilbert contends that he did not unreasonably obstruct the entrance to the building when he lay on the ground outside because patrons could and did enter the building through either the adjacent revolving door or several other entrances. Gilbert also contends that no evidence demonstrates that patrons were dissuaded from entering the building due to his presence. Finally, Gilbert contends that the minimal delay he caused and his minimal obstruction when balanced against his First Amendment rights, preponderates against his conviction for obstructing the entrance to a federal building.

The government responds that Gilbert need not have obstructed every possible avenue for entering the building to be found guilty of obstructing the entrance to a federal building. The government asserts...