U.S. v. Parker
Decision Date | 22 August 2011 |
Docket Number | 10–50250,10–50251.,Nos. 10–50248 (Lead Case),s. 10–50248 (Lead Case) |
Citation | 651 F.3d 1180,2011 Daily Journal D.A.R. 12790,11 Cal. Daily Op. Serv. 10663 |
Parties | UNITED STATES of America, Plaintiff–Appellee,v.Hobert PARKER, Jr., Defendant–Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
James H. Locklin, Assistant Federal Public Defender, Los Angeles, CA, for the defendant-appellant.Michael J. Raphael, Assistant U.S. Attorney, and Mark Remy Yohalem, Assistant U.S. Attorney, Los Angeles, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. Nos. 2:09–cr–00515–AHM–1, 2:09–cr–00517–AHM–1, 2:09–cr–00518–AHM–1.Before: BETTY B. FLETCHER, KIM McLANE WARDLAW and BRETT M. KAVANAUGH,* Circuit Judges.
Hobert Parker, Jr., appeals his misdemeanor convictions, after retrial, of three counts of violating 18 U.S.C. § 1382. He argues that his retrial violated the proscription against double jeopardy, that there was insufficient evidence to convict, and that his convictions violate his First Amendment rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.
We address the insufficiency of the evidence argument first. See Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir.1982) ( ). We review de novo the sufficiency of the evidence to support the conviction. United States v. Stanton, 501 F.3d 1093, 1099 (9th Cir.2007). There is sufficient evidence to support a conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.
Parker's charges arose from his protest activities on Ocean Avenue, which is a public road that crosses the Vandenberg Air Force Base (“VAFB”) in Santa Barbara County, California. On each of the three occasions charged, Parker was carrying signs of protest against VAFB military police along the shoulder of Ocean Avenue. Each time, Parker was advised by military officers that he was not permitted to protest on Ocean Avenue and that the VAFB Commander had designated a protest area outside the VAFB Main Gate. Each time, Parker refused to leave or relocate. After the first two incidents, Parker was cited twice for violating section 1382 and the VAFB Commander issued a “barment” letter that barred Parker from entering VAFB for any reason for a period of three years. Several days later, Parker was cited for the third time.
Section 1382 provides:
Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or
Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—
Shall be fined under this title or imprisoned not more than six months, or both.
18 U.S.C. § 1382.1
We have interpreted section 1382 to require the government to prove its absolute ownership or exclusive right to the possession of the property upon which the violation occurred. See United States v. Vasarajs, 908 F.2d 443, 446–47 (9th Cir.1990) ( ); United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir.1978) (, )cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 426 (1978); United States v. Douglass, 579 F.2d 545, 547–48 (9th Cir.1978) ( ); United States v. Packard, 236 F.Supp. 585, 586 (N.D.Cal.1964) (, )aff'd, 339 F.2d 887 (9th Cir.1964) (affirming “for the reasons stated in the opinion of the trial court.”).2
The government acknowledges our section 1382 authority, but challenges its precedential value. The government argues that the Mowat parties stipulated that section 1382 requires “absolute ownership or exclusive right of possession,” Mowat, 582 F.2d at 1206, and contends that subsequent cases merely assumed, without squarely deciding, the same.
The government is mistaken. While the parties in Mowat indeed stipulated that section 1382 requires that the government prove “absolute ownership or exclusive right of possession,” we did not blindly accept that stipulation, but did so in light of Ninth and Eighth Circuit precedent. See id. (citing Packard and Holdridge ). Moreover, at the same time Mowat was decided, a different panel of this court independently held that section 1382 requires ownership or exclusive right of possession. See Douglass, 579 F.2d at 547–48 ( ). Subsequent panels have also held so independently of Mowat. See Vasarajs, 908 F.2d at 446 (citing Holmes and Watson ).
The government further argues that our cases left open the question of what kind of government control over an area within a military base is insufficient for a section 1382 prosecution, as they all upheld section 1382 convictions and did not, in fact, involve an easement. The lack of an easement, however, was an important part of the Vasarajs and Douglass panels' rationale in upholding the convictions. See Vasarajs, 908 F.2d at 446–47 ( ); Douglass, 579 F.2d at 547 ( ).
In conclusion, our circuit's requirement that the government prove absolute ownership or exclusive right of possession does not rest on the parties' unverified stipulation in one isolated case, but has been reaffirmed and applied by multiple panels in light of authority from this and other courts. We must therefore follow this precedent as the law of the circuit, the government's arguments that it is incorrect or imprudent notwithstanding. Only the en banc court can overturn a prior panel precedent. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) () (internal quotations omitted); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001) () .
The law of the circuit rule, of course, has an important exception: a panel may disagree with the circuit precedent when intervening Supreme Court decisions have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). The government cites United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985), where the Supreme Court held that section 1382's bar against re-entry after a defendant had received a bar letter applies during an open house, as “a person may not claim immunity from [the bar letter's] prohibition on entry merely because the military has temporarily opened a military facility to the public.” 472 U.S. at 687, 105 S.Ct. 2897 (emphasis added). Albertini did not address...
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