U.S. v. Hogue, 84-1154
| Decision Date | 08 February 1985 |
| Docket Number | No. 84-1154,84-1154 |
| Citation | 752 F.2d 1503 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Janet HOGUE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lamond Mills, U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.
Randall J. Roske, Asst. Federal Public Defender, Las Vegas, Nev., for defendant-appellant.
Appeal from the United States District Court for the District of Nevada.
Before DUNIWAY, KENNEDY, and ANDERSON, Circuit Judges.
Janet Hogue appeals her conviction of an offense that will not be recorded in the annals of major crime. The issue she raises, though, merits careful consideration. Hogue had parked her car in a remote part of the Lake Mead Recreation Area, a national park, to sleep off the effects of an ample portion of beer she had consumed earlier in the evening. She was discovered by park rangers at about 10:45 p.m. Her car was not parked in a designated campground, and Hogue, wearing high heeled shoes, was not attired for camping. The rangers detected a strong odor of alcohol from the car's open window and saw two empty beer cans in the front of the car and ten in the back. They awakened Hogue, administered a sobriety test, and determined she was intoxicated. Hogue was cited for a violation of 36 C.F.R. Sec. 2.16(a) (1983), convicted before a federal magistrate, and fined $25.00. We affirm the conviction.
The regulation in question provides:
(a) Presence in a park area when under the influence of alcohol, to a degree that may endanger oneself, or another person, or property, or may cause unreasonable interference with another person's enjoyment of a park area is prohibited.
(The successor provision of this regulation is codified at 36 C.F.R. Sec. 2.35(c) (1984)).
Hogue contends the regulation is vague. Her principal point is that there is imprecision in the word "may" in the clause prohibiting intoxicated presence to a degree that "may endanger oneself or another person or property."
Where speech is not the explicit subject of a statute or regulation and is not otherwise implicated in the case, and if related constitutional rights are not expressly invoked in a challenge to facial validity, we need only examine the vagueness challenge under the facts of the particular case and decide whether, under a reasonable construction of the statute or regulation, the conduct in question is prohibited. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975) (citations omitted); United States v. Mussry, 726 F.2d 1448, 1454 (9th Cir.1984). Cf., Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1859, 75 L.Ed.2d 903 (1983). Under these principles, we do not address whether the prohibition before us may be vague or overbroad in its other potential applications. United States v. Mazurie, 419 U.S. at 550, 95 S.Ct. at 714.
The word "may" does not render the regulation imprecise to a fatal degree. The rule of strict construction for criminal laws does not permit us to ignore the evident purpose of an enactment, United States v. Campos-Serrano, 404 U.S. 293, 298, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971), and the evident purpose of this regulation is to prohibit the creation of unreasonable and unnecessary risks in federal park lands. Application of the regulation to Hogue is consistent with this purpose and with a fair and reasonable interpretation of the language used. The criminal law can punish certain types of conduct that pose the risk of injury whether or not the injury occurs.
A criminal sanction is not vague if it provides fair notice of the conduct proscribed. United States v. Pruit, 719 F.2d 975, 977 (9th Cir.) (per curiam), cert. denied, --- U.S. ----, 104 S.Ct. 536, 78 L.Ed.2d 716 (1983). A defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the rule in question. United States v. Bohonus, 628 F.2d 1167, 1173-74 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980). That close questions may arise in interpreting the language of a statute or regulation...
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...arise in interpreting the language of a statute or regulation does not, without more, render the enactment vague." United States v. Hogue , 752 F.2d 1503, 1504 (9th Cir. 1985). Rather, the "touchstone" of the "fair warning requirement" is "whether the statute, either standing alone or as co......
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