U.S. v. Paternostro., 91-4677

• Decision Date: 02 July 1992
• Docket Number: No. 91-4677,91-4677
• Citation: 966 F.2d 907
• Parties: 22 Envtl. L. Rep. 21,021 UNITED STATES of America, Plaintiff-Appellee, v. Charles J. PATERNOSTRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 907

966 F.2d 907

22 Envtl. L. Rep. 21,021

UNITED STATES of America, Plaintiff-Appellee, v. Charles J. PATERNOSTRO, Defendant-Appellant.

No. 91-4677.

United States Court of Appeals, Fifth Circuit.

July 2, 1992.

Rehearing Denied Aug. 14, 1992.

Charles J. Paternostro, Paternostro & Associates, Dallas, Tex., David D. Parron, Fort Worth, Tex., for defendant-appellant.

Paul E. Naman, Asst. U.S. Atty., Beaumont, Tex., Bob Wortham, U.S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Charles J. Paternostro appeals from his second conviction for violating Corps of Engineers regulations by failing to abide by the terms of his Shoreline Use permit. Finding no error, we affirm.

Paternostro's family bought property on Lake Texoma in 1965 and built a boathouse on the property. The boathouse was built pursuant to a permit issued in 1968 by the Corps of Engineers. In 1988, Paternostro replaced an old diving platform next to the boathouse with a three-tiered metal structure atop a platform. The structure, which Paternostro refers to as a "wet and wild" facility contains several diving boards and three water slides. It was not part of the approved plan for the boathouse and Paternostro did not obtain Corps of Engineers approval for constructing the new water slide platform.

On November 2 and again on November 16, 1989, the Army Corps of Engineers issued Paternostro Notices of Violation for failing to obtain proper approval for building the water slide platform. Paternostro was charged under 36 C.F.R. § 327.19(a) which makes it a violation to refuse or fail to comply with the conditions of any permit issued under Part 327. Paragraph 17 of Paternostro's Lakeshore Use Permit issued under Part 327 provides that:

If an inspection ... reveals conditions which ... deviate from the approved plans, such conditions will be corrected immediately by the owner upon receipt of notification. No deviation or change from approved plans will be permitted without prior written approval of the Resource Manager.

After a bench trial, the district court convicted Paternostro for failing to receive approval for constructing the platform in violation of 36 C.F.R. § 327.19(a). He was fined $400 under 36 C.F.R. § 327.25 and charged a $10 special assessment. Paternostro did not appeal this conviction.

After his conviction, Paternostro applied for approval of the water slide platform by submitting plans and a letter from an engineer certifying that the platform was safe. The Corps of Engineers rejected his application. Paternostro did not appeal the rejection of his application. The water slide platform remained in place beside the boathouse. Two weeks after the first conviction became final, the Corps of Engineers issued another Notice of Violation for failure to obtain approval for the water slide platform. The district court conducted a bench trial and again found Paternostro guilty. The court fined Paternostro $5,000 and sentenced him to five years probation. Paternostro appeals from this second conviction.

1. Double Jeopardy

The Double Jeopardy Clause protects against (1) a second prosecution after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Paternostro's principal argument is that he is being punished multiple times for the single act of building these water slides in violation of his permit. We disagree. His crime as defined by the applicable regulations is the continuing offense of failure to abide by the terms of his Shoreline Use permit by maintaining the non-conforming water slide platform.

The Double Jeopardy Clause's protection against multiple punishments is "limited to assuring that the court does not exceed its legislative authorization." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Our inquiry then is whether the legislature has authorized the multiple punishments. The government relies upon the fact that the governing regulations provide that "[a]ny violation of any section of this part 327 shall constitute a separate violation for each calendar day in which it occurs." 36 C.F.R. § 327.1(g). Therefore, unlike the Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we need not struggle to discern the intent to impose multiple punishments: the rulemaking body at issue here has explicitly stated its desire to treat each day of the continuing violation as a separate offense. The Brown court, which held that a defendant who was convicted of joy riding could not be retried for auto theft, stated that it "would have a different case if the Ohio Legislature had provided that joy riding is a separate offense for each day in which a motor vehicle is operated without the owner's consent." 432 U.S. at 169 n. 8, 97 S.Ct. at 2227 n. 8; see United States v. Holloway, 905 F.2d 893, 894 (5th Cir.1990) (where cumulative punishments are authorized for "even the same offense, the Double Jeopardy Clause of the Fifth Amendment is not offended.").

We agree that if Congress explicitly provided for these multiple punishments this would be an easy case under Brown and its progeny. However, this case is different from Brown in one important way which makes it more difficult to resolve: the explicit decision to create separate offenses on a daily basis was made by a regulatory agency, not by Congress. We have found no authority specifically answering the question whether regulatory intent should be treated as the equivalent of legislative intent for double jeopardy purposes. We note, however, that in another context, the Supreme Court has held that congressional intent may be found in federal regulations promulgated by an administrator in the exercise of delegated congressional authority. Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982) (court looks to regulations in determining whether Congress intended to pre-empt state law).

In determining whether the legislative intent was to provide for cumulative punishments, we believe that it is consistent with the purposes of the Double Jeopardy Clause to attribute to Congress the intent embodied in these regulations. The double jeopardy guarantee "serves principally as a restraint on courts and prosecutors." Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225. When the Corps of Engineers enacts regulations it is not acting as either court or prosecutor; its role is that of a quasi-legislative rulemaker. We believe that the "legislative intent" referred to in the Supreme Court's double jeopardy analysis in Brown and Grady includes rulemaking pursuant to a valid grant of congressional authority. Paternostro has not asserted that the Corps of Engineers acted outside its authority as delegated by Congress in dividing this continuing offense into daily offenses. See 16 U.S.C. § 460d. Our task of statutory interpretation is at an end once we determine that cumulative punishment is specifically authorized; we need not determine whether these offenses are the same under the Blockburger analysis. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). Because we find that Congress has authorized cumulative punishments, there is no double jeopardy violation in Paternostro's punishment.

Paternostro also asserts that his prosecution violates the Double Jeopardy Clause because he has been subjected to the harassment of multiple prosecutions. United States v. Houltin, 566 F.2d 1027, 1033 (5th Cir.1978) (Double Jeopardy Clause protects defendant from harassing multiple prosecutions). We need not address whether repeated prosecutions for daily offenses may impinge upon the Double Jeopardy Clause in some circumstances because Paternostro has not been subjected to harassing multiple prosecutions.

Where the defendant continues engaging in an offense after an original conviction and sentence become final, he cannot rely upon the Double Jeopardy Clause to prevent a later prosecution and conviction. Unlike the defendant in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), Paternostro is not being prosecuted for acts committed in the past but for his conduct continuing after the first prosecution. As the Supreme Court has said "one who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting." Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985); United States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir.1990).

In this case, Paternostro has not stopped dancing. His prosecution for his continuing refusal to abide by the terms of his Shoreline Use permit is not barred by double jeopardy because the government could not have brought this case in the earlier prosecution. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (double jeopardy does not bar prosecution for murder after conviction of assault where victim did not die until after first trial). Paternostro was prosecuted once for his violations in November 1989. The Corps did not take any further prosecutorial action until that conviction became final and then relied only upon violations occurring after that date. The Corps could not have tried Paternostro for these separate violations at his first trial because they had not yet occurred. Paying his $400 fine in the first case does not immunize Paternostro from prosecution for his continued willful violation of the Corps of Engineers regulations. We conclude that Paternostro's prosecut...