U.S. v. McCoy

• Citation: 866 F.2d 826
• Decision Date: 14 March 1989
• Docket Number: No. 86-1902,86-1902
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joan McCOY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 826

866 F.2d 826

UNITED STATES of America, Plaintiff-Appellee, v. Joan McCOY, Defendant-Appellant.

No. 86-1902.

United States Court of Appeals Sixth Circuit.

Argued July 30, 1987.

Decided Jan. 19, 1989.

Rehearing and Rehearing En Banc Denied March 14, 1989.

William T. Street argued, Klimaszewski & Street, Saginaw, Mich., for defendant-appellant.

James Brunson argued, Asst. U.S. Atty., Bay City, Mich., for plaintiff-appellee.

Before KENNEDY and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

With two co-defendants, appellant Joan McCoy was tried and convicted on three counts of reentering a military installation, in violation of 18 U.S.C. Sec. 1382, after having been ordered by the commanding officer not to reenter. ¹ The alleged reentries occurred when Mrs. McCoy stationed herself in the driveway of the main entrance of Wurtsmith Air Force Base to pass out leaflets to people entering the base. She did not interfere with anyone's access to the base, as we infer from the record, and conducted herself in an orderly and peaceful manner at all times pertinent to our inquiry.

Sitting without a jury, the district court found the driveway to be "part of the military base...." Mrs. McCoy's main argument on appeal is that the government failed to sustain its burden of proving that the driveway was in fact part of the base. And even if the driveway was within the confines of the base, she argues, the refusal to let her distribute leaflets there restricted the exercise of her First Amendment rights unreasonably.

Upon review, we conclude that the evidence before the trial court was sufficient to support the court's finding that the driveway was part of the military base. That being the case, we do not believe that the Air Force had any constitutional duty to make the driveway available for the dissemination of leaflets by civilians who had been barred from the base under Sec. 1382.

I

Wurtsmith Air Force Base (formerly Oscoda Army Air Field) is a federal military installation located in Iosco County, Michigan. The main entrance to the base is situated on the west side of a county highway known as Highway F-41.

Iosco County does not hold a fee interest in the land occupied by the highway. The County Road Commission's Director of Surveys, called as a witness by the defendants, testified that the federal government apparently had granted a right-of-entry to the State Highway Department for construction of the highway, as had the State Conservation Department. (Certain lease agreements received in evidence suggest that the United States leases the base from the State of Michigan; the land may at one time have come within the jurisdiction of the Conservation Department.) The Highway Department subsequently relinquished its right-of-entry to the county. It is clear, as the Director of Surveys testified, that the county does not "own" the road. The Highway Department "couldn't give us the property," he explained, "because they didn't own it. All they had was a highway easement release, which was a right of entry. All we have today is the same instrument."

The government's evidence established without contradiction that Wurtsmith Air Force Base is not an "open base." Members of the public who wish to come on the base are supposed to request permission at a manned gatehouse located at the main entrance.

Security at the base, it would appear, has not always been perfect. In October of 1983, according to the testimony of a co-defendant, Mrs. McCoy and 16 others participated in a "public vigil" conducted on the airstrip of the base. The purpose of occupying the airstrip was to protest the deployment of missiles on the base and in Europe.

The 1983 incident resulted in Mrs. McCoy and her co-defendants receiving letters from the base commander barring them from reentering the base. The letter to Mrs. McCoy, dated 23 October 1983 and signed by her to acknowledge receipt, cited 18 U.S.C. Sec. 1382 and ordered Mrs. McCoy not to reenter the confines of the installation without the written permission of the commander or his designee.

Mrs. McCoy received a second such letter in June of 1984. She acknowledged from the witness stand that prior to March of 1986 "I was barred twice" from entry onto Wurtsmith Air Force Base. Mrs. McCoy does not contend that there was any defect in the bar letters, or that their issuance was unreasonable or unlawful. And Mrs. McCoy could not profess ignorance of the law; the letters explained Sec. 1382 to her, and the record indicates that she had a prior conviction under the statute in any event.

The first of the three acts of alleged trespass involved in the present case occurred on March 9, 1986, at a time when Mrs. McCoy and her co-defendants were engaged in what they described as "monthly leafletting" at the base. Mrs. McCoy testified that as she was passing out her leaflets on the west side of Highway F-41 in a paved area that she believed was within the public right-of-way, a person from the military approached her and informed her that she was on base property. He instructed her to leave--and, as she conceded, he gave her an opportunity to do so. She did not leave, but continued to hand out her leaflets from the spot that she had been told was base property. She was then taken into custody by military personnel.

Following this incident the Air Force decided to have a white line painted across the driveway at the main entrance to identify the boundary of the base. The line was painted by military prisoners working under the direction of a master sergeant. Instructions on where the line was to be painted "got messed up between the master sergeant and the prisoners," according to the base operations officer, a Captain Kerby, and the prisoners did their painting in the wrong place. This happened on or about May 1, 1986, according to the testimony.

To correct the mistake, Captain Kerby had the line painted over with black paint and had a new line painted where he had been told the actual boundary was. He had intended from the beginning that the line be placed there. The correction was made on or about May 8, 1986, and the new line was in place before Mrs. McCoy's next visit.

That visit occurred on May 11, 1986, a day referred to in Mrs. McCoy's testimony as "Mothers' Peace Day." Mrs. McCoy testified that on this occasion she not only saw the freshly painted line, she "straddled it" in the course of passing out leaflets for an hour and a half or more. From time to time she stepped over the line in order to avoid traffic, Mrs. McCoy said, and in handing a leaflet to the occupant of a car that was in motion, she would sometimes step over the line in her "excitement." Asked if she "did at times go within the [base] confines," her answer was "yes." When asked by the court if she continued to try to do the same thing after realizing that occasionally she had to step off the line, Mrs. McCoy again answered "yes."

It is undisputed that on May 11, as on March 9, Mrs. McCoy was asked to leave after Captain Kerby thought she had crossed the boundary of the base. Reading aloud from a prepared statement, Captain Kerby told Mrs. McCoy that she was on Wurtsmith Air Force Base without the permission of the base commander and would have to leave immediately. As on March 9, she did not leave; again she was taken into custody.

On June 8, 1986, Mrs. McCoy again stationed herself in the driveway at the entrance to the base. Again she was instructed to leave, again she was given an opportunity to step away from the area asserted to be base property, again she stood her ground, and again she was arrested. At no time, she testified, did she have any difficulty understanding the instructions to leave.

Although the legal status of the spot where Mrs. McCoy chose to pass out her leaflets is disputed, its physical position is not. The location is marked with the letter "C" on Exhibit 8, an aerial photograph that depicts Highway F-41, the gatehouse, two driveways that run between the gatehouse and the highway, and a grass-covered "island" that lies between the two driveways. The relationship of the key elements in the photograph is shown in the following diagram:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As indicated by the diagram, there is a turning lane on the west side of the highway for use by southbound traffic preparing to turn in at the driveway to the gatehouse. A painted line--a line that marks the boundary of the base, according to Captain Kerby--separates the turning lane from the through traffic lane. The painted boundary line did not extend across the driveway on March 9, but it did on May 11. ² Captain Kerby testified that on March 9, 1986, Mrs. McCoy was positioned in the driveway to the west of the then unextended line at the point marked "C." She has never disputed that this was the point at which she was standing on March 9. Moreover, as we have seen, she admitted that on May 11, after the line had been extended across the driveway, she knowingly stepped to the west of the line in the course of her leafletting activities. There is no controversy about her having done the same thing on June 8.

The position of the island, which was emphasized in the findings of the trial court, is of particular interest. The island extends from the gatehouse all the way to the boundary line, making it impossible for traffic heading south in the turning lane to continue to move in the same direction without turning. The island was plainly part of the base. Prominently displayed on the island was a large sign bearing the legend reproduced below:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Because the island extended all the way to the edge of the southbound traffic lane of the highway, a person standing in the driveway next to the island at the point marked "C" on the diagram would not normally have to worry about...