U.S. v. Sheehan

• Decision Date: 11 January 2008
• Docket Number: No. 07-3002.,07-3002.
• Citation: 512 F.3d 621
• Parties: UNITED STATES of America, Appellee v. Cindy SHEEHAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

512 F.3d 621

UNITED STATES of America, Appellee v. Cindy SHEEHAN, Appellant.

No. 07-3002.

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2007.

Decided January 11, 2008.

Appeal from the United States District Court for the District of Columbia, (No. 05mj00649-17).

Catherine M.A. Carroll argued the cause for appellant. With her on the briefs were David S. Cohen and Jennifer M. O'Connor.

Florence Y. Pan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor; U.S. Attorney, and Roy W. McLeese III and Michael Truscott, Assistant U.S. Attorneys.

Before: SENTELLE and ROGERS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

Appellant Cindy Sheehan was arrested in September 2005 for demonstrating without a permit on the White House sidewalk during an antiwar protest. She was charged with violating 36 C.F.R. § 7.96(g)(2), a National Park Service ("NPS") regulation promulgated pursuant to the authority granted by 16 U.S.C. § 3. The regulation governs demonstrations in all park areas in the National Capital Region, including the White House sidewalk, and provides that demonstrations involving more than 25 people may be held only pursuant to a permit. Following a bench trial before a Magistrate Judge, appellant was convicted and assessed a $50 fine and a $25 administrative fee.

Appellant appealed her conviction to the District Court pursuant to 18 U.S.C. § 3402 ("an appeal of right shall lie from the judgment of the magistrate to a judge of the district court of the district in which the offense was committed") and Federal Rule of Criminal Procedure 58(g)(2). The District Court rejected appellant's arguments that the NPS regulations were unconstitutional and that the evidence was insufficient to support a conviction, and affirmed the judgment of the Magistrate Judge:

[T]he National Park Service regulation at issue—36 C.F.R. § 7.96—does not impose strict liability and may be interpreted to require that an accused "knowingly" demonstrate without a permit. Moreover, even if the regulation were deemed to lack a mens rea element, the appellants waived their right to challenge the constitutionality of the regulation on that ground by failing to raise the argument below. The Court also concludes that the evidence was sufficient for a fair-minded and reasonable trier of fact to find the appellants guilty beyond a reasonable doubt of demonstrating without a permit in violation of 36 C.F.R. § 7.96.

Sheehan v. United States, No. 05-MJ-00649, 2006 WL 3756349, at *9 (D.D.C. Dec.19, 2006).

On appeal to this court, appellant contests the District Court's judgment on five principal grounds. She asserts the following: (1) the First Amendment challenge to the NPS regulations was properly preserved at trial; (2) the NPS permit requirement is facially unconstitutional under the First Amendment, because it imposes strict liability on protected expressive conduct; (3) there is no evidence of appellant's mens rea, because the Government prosecuted the case on the premise that strict liability applied and the Magistrate Judge excluded evidence that addressed appellant's mens rea; (4) the evidence does not show that appellant was "demonstrating" within the meaning of the NPS regulations; and (5) the evidence does not show that appellant knowingly demonstrated without a permit.

We hold that appellant's facial challenge to the constitutionality of the regulations is properly before the court, but that it fails. We agree with the District Court that the NPS regulations should be construed to contain a mens rea requirement. We also reject appellant's claim that a valid permit existed for demonstrations on the White House sidewalk on the day of her arrest. We reverse and remand for a new trial, however, because appellant was convicted of a crime that does not exist and prevented from offering a viable defense. There is no strict liability under 36 C.F.R. § 7.96. Yet, the Magistrate Judge allowed the Government to prosecute the case against Ms. Sheehan on the erroneous premise that the disputed regulations imposed strict liability for her alleged expressive activity, and sustained the prosecutor's objections when appellant sought to advance a defense based on her knowledge and intent. As a result, appellant's conviction is based on errors of law that eliminated the prosecutor's burden to prove mens rea and barred the appellant from presenting a defense on that issue. We are therefore obliged to reverse and remand for a new trial.

BACKGROUND

On July 20, 2005, individuals from a group called the Iraq Pledge of Resistance ("IPR") submitted an application to the NPS for a permit to hold a demonstration near the White House on September 26, 2005. The stated purpose of the demonstration was to "peaceful[ly] protest against the Iraq War and [memorialize] those killed in it." Appendix to Brief of Appellant ("App.") A22. This first permit request indicated that the location of the proposed activity was "[t]he Ellipse, Constitution Avenue between 14th and 16th Streets N.W., The Ellipse Drive (behind the White House)." Id.

On July 28, 2005, IPR submitted a revised application, this time designating the demonstration location as "Lafayette Square, sidewalk surrounding the park" and "White House sidewalk." Id. at A25. NPS took no action on the amended application. The NPS regulations governing the National Capital Region state that "[al demonstration applications . . . are deemed granted, subject to all limitations and restrictions applicable to said park area, unless denied within 24 hours of receipt." 36 C.F.R. § 7.96(g)(3). Therefore, by the end of July 2005, IPR had a "deemed granted" permit to demonstrate on the White House sidewalk.

On September 22 and 23, 2005, an individual affiliated with IPR corresponded by email with NPS officials regarding details of the upcoming event. App. A28-33. In an email sent on September 23, the IPR representative indicated that the group no longer sought to include the White House sidewalk as a designated location in the demonstration permit:

I want to communicate that we do NOT wish our permit to include the White House sidewalk. We would like to include the Ellipse and Lafayette Park, of course, as we have discussed previously, but to repeat we do not want the permit to include the White House sidewalk.

Id. at A31. A written permit was faxed by NPS to IPR coordinators later that day. The permit specified that the approved location of the public gathering was "The Ellipse—SE quadrant, Lafayette Park east-side." Id. at A15. The White House sidewalk was not listed on the written permit.

On September 26, 2005, appellant and four other members of an organization called Gold Star Families for Peace approached the northwest gate of the White House and requested a meeting with the President of the United States to discuss the Iraq War. When the guard at the gate informed them that no one would meet with them, the five walked a short distance away from the gate and sat down on the White House sidewalk. Appellant remained there for approximately one hour. Meanwhile, more than 200 other people assembled on the White House sidewalk to Protest the Iraq War. By all accounts, these participants engaged in nonviolent conduct that included singing, chanting, and carrying signs, and their activities drew a crowd of spectators. Around 1:30 p.m., an officer of the United States Park Police ("USPP") announced that the demonstrators were in violation of NPS regulations and instructed them to leave the area or risk arrest. Using a megaphone amplified by the loudspeaker system on two police cars, the officer repeated the warning three times, with two to five minutes between warnings. After the final warning, the police officers cordoned off the sidewalk and then arrested the people remaining on the sidewalk within the enclosure. Appellant was among those arrested.

Appellant and the persons with whom she was arrested were charged with demonstrating without a permit on the White House sidewalk in violation of 36 C.F.R. § 7.96(g)(2). On November 16 and 17, 2005, appellant and 28 other defendants were tried together before a Magistrate Judge pursuant to 18 U.S.C. § 3401. The only evidence offered against appellant was that she was sitting on the White House sidewalk when the area was cordoned off by USPP officers. Both the Magistrate Judge and the Government proceeded with the trial of the case on the premise that there was no inns rea requirement under the NPS regulations. And the Magistrate Judge prevented appellant and her co-defendants from offering evidence of their intent and knowledge. When Ms. Sheehan and the other codefendants attempted to proffer testimony about what they knew during the day of the demonstration, the prosecutor objected, arguing that intent was irrelevant, and the Magistrate Judge sustained the objection and expressly stated that intent was irrelevant. See, e.g., Trial Tr. (11/17/05) at 60-62 (Testimony of Defendant Manijeh Saba); id. at 103 (Testimony of Defendant Cindy Sheehan). Although police officers testified about the bullhorn warnings they had given the demonstrators, appellant and other defendants were prevented from providing testimony to the contrary and were therefore prevented from advancing a defense on a principal element of the charged offense.

On November 17, 2005, the Magistrate Judge found appellant and all of her codefendants guilty of demonstrating without a permit. The Magistrate Judge subsequently filed a written decision and judgment. United States v. Allen, Mag.Crim. No. 05-00649 (D.D.C. Dec. 7, 2005). Appellant was assessed a $50 fine and a $25 administrative fee. Appellant then appealed her conviction to the District Court pursuant to 18 U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g)(2),...