United States v. Asan

• Decision Date: 10 March 2014
• Docket Number: 13-cr-0224 (KM)
• Parties: UNITED STATES, v. MUAMER ASAN, Defendant.
• Court: U.S. District Court — District of New Jersey

UNITED STATES, v. MUAMER ASAN, Defendant.

13-cr-0224 (KM)

UN1TED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Dated: March 10, 2014

OPINION

KEVIN MCNULTY, U.S.D.J.

The defendant, Muamer Asan, was convicted of one misdemeanor offense of public lewdness, in violation of 36 C.F.R. § 7.29(c). The offense was tried before a federal Magistrate Judge because it occurred at Sandy Hook, a federal enclave that is part of the Gateway National Recreation Area. See 18 U.S.C. § 13; United States v. Hall, 979 F.2d 320 (3d Cir. 1992). Because I have recently written on virtually the same subject,¹ I will repeat some of the material in my earlier opinion, but I will shorten the background discussion somewhat.

On March 23, 2012, at Sandy Hook, Mr. Asan was issued a violation notice for public lewdness. On July 11, 2012, he had an initial appearance, at which he entered a plea of not guilty, and an Assistant Federal Public Defender Counsel was appointed counsel for him. (Magistrate Docket no. 12-mj-09135) On November 28, 2012, United States Magistrate Judge Anthony R. M-0autone conducted a non-jury trial, at which the arresting park ranger and the defendant testified. After hearing the testimony and receiving exhibits, Magistrate Judge Mautone found Asan guilty. 1T 57-59.²

A Presentence Report was prepared. On March 20, 2013, Magistrate Judge Mautone imposed a sentence of two years' probation, a two-year ban from Sandy Hook, a fine of $1000, and a special assessment of $10. 2T 7-9. Judgment was entered on April 2, 2013. Case 12-mj-9135, Document no. 5. Asan filed a timely appeal to this Court. Document no. 1; see 18 U.S.C. § 3402; Fed. R. Crim. P. 58(g)(2)(B); L. Crim. R. 58.1(d)(1).

EVIDENCE AT TRIAL

The government's sole witness was Adam Hubert, a park ranger assigned to the Gateway Recreational Area.

The events in question occurred at about 3:00 p.m. on March 23, 2012. (1T 7). See also Violation Notice, Mag. No. 12-mj-9135 Document No. 1. The locale was Gunnison Beach, one of eight beaches at Sandy Hook. All agree that Gunnison is a clothing-optional beach, and that mere nudity would not have constituted a violation of any kind.

Adam Hubert, an experienced park ranger, was scanning Gunnison Beach through binoculars. (1T 7-8). Standing at the dune line of the beach, Hubert initially observed Thomas Zombory³ from a distance of approximately 70 yards. Zombory was stroking his penis. (1T 8). Hubert began walking toward Zombory. The area through which he walked was sloped, with patches of dune grass at a height of about 12 inches. (1T 9-10)

Where the dune line ends and the beach begins, however, Hubert saw Mr. Asan. Asan was sitting in a beach chair by a retention fence that was nearly buried. (1T 10, 22) Hubert approached Asan from behind, to Asan's right. (1T 10, 18) From a distance of about three feet, Hubert looked over Asan's right shoulder. Asan appeared to be watching Zombory and/or Zombory's companion. Asan was nude from the waist down. He had his left hand on his penis and was stroking it back and forth.⁴ (1T 10, 11, 25-26) Hubert had no further recollection as to the appearance or condition of the defendant's genitals. (1T 26)

No bushes, shrubs, tents or artificial structures obstructed Mr. Asan's position from the beach. To Asan's left, about ten yards away, was a person in a beach chair. To Asan's right, also about ten yards away, was another person in a beach chair. Zombory and his companion were about 25 yards away. Some other visitors were walking to and from the beach area. (1T 11) To the west of the fence by which Asan sat, however, was the dune area, from which the public was excluded. (1T 23)

Hubert counted about ten seconds. Asan had not stopped stroking his penis. Hubert then told Asan he was under arrest for public lewdness. Hubert was in full uniform; Asan was "startled,'' and said that he "wasn't doing anything." (1T 12) Hubert did not see Asan applying sun tan lotion or any other ointment. (1T 12, 25)

Hubert told Asan to dress and pack his belongings, and Asan complied. At some point (the timing is a little unclear), Asan said he had been applying suntan lotion to himself. (1T 19)⁵ Taking Asan with him, Hubert then walked over to Zombory. (1T 13)

The ranger's inventory of property reveals that, at the time of his arrest, Asan possessed a wallet, sunglasses, vehicle keys, beach items, Geritol, a beach screen, and $62 in cash. (1T 14; Govt' Ex. 1) The inventory was not necessarily exhaustive, however, and it did not state whether Asan possessed suntan lotion. (1T 19-20, 24-25) Asked about the beach screen, Hubert could not recall anything about its appearance or position. (1T 15, 17)

The sole witness for the defense was Mr. Asan himself.

Asan testified that he had been sitting in his beach chair with a fabric wind screen that "surrounds me almost." (1T 29) The court admitted in evidence a picture of the chair and screen, taken in Asan's back yard sometime after his arrest. (Def. Ex. 1; 1T 35) From his position, Asan testified, he could see "a couple people." (1T 35) Asan, who is 58, denied masturbating, stating that he had not done so since he was a teenager. (1T 36) In fact, he said, he was eating fruit when Hubert approached. (1T 36)

Asan testified that he had applied suntan lotion to himself. (1T 37) He acknowledged on cross-examination that it was March, and he was wearing a sweatshirt with a hood. (1T 45) He then said he had been applying the suntan lotion to his foot and other areas. (1T 46) On further questioning, Asan twice agreed that he had applied suntan lotion to "your feet, your ankles, your legs, your calves, your thighs and your penis." (1T 47, 48) Asan added that theranger, approaching from behind, could not possibly have seen him applying suntan lotion. (1T 37-38)

Asan stated that his wind screen was in segments, each 10 feet long, and that he had it configured in an "L" shape that day (not a "1T that would surround, or almost surround, him). (1T 38) The two legs of the L were in front of Asan and to his right. (1T 40) Thus, he testified, he could be seen from the left or from behind, but not from the right or the front. (1T 41-42) Asan stated that he could see two people about 50 feet away, at the one o'clock position. (1T 42-43) When looking over the screen from the seated position, he could see people only from the chest up. (1T 50)

The Magistrate Judge admitted in evidence a photograph of the windscreen and chair. Asan took the photo in his back yard. (A copy of Exhibit D-1, the photo, is attached to defendant's appeal brief as Da-8. Document 13 at p. 14.) The photograph was admitted for the limited purpose of depicting the wind screen; it was not, and was not offered as, a photograph of the scene at Gunnison Beach. (1T 31-35)

Asan testified that Hubert accused him of "watching those two and masturbating," or "playing with yourself and watching those two people." (1T 39, 51) Asan replied that he was "not doing anything." (1T 47) The ranger appeared to Asan to be "two minded" (undecided, of two minds) about arresting him. (1T 39-40)

FINDINGS AND VERDICT

Immediately before rendering his verdict, the Magistrate Judge heard the summations and arguments of counsel. (1T 51-57) During those arguments, he made comments and interjections that shed light on his conclusions. To some degree, I refer to them below in the discussion of the issues. This, however, was the Magistrate Judge's formal statement of the guilty verdict:

THE COURT: I find beyond a reasonable doubt, in fact I don't have any doubt, that the Government has sustained its burden of proof in this case.

And as damning to the Defendant as the testimony of the ranger was, his own testimony, which he chose to give, not being any - not being in any situation where he needed to do so, was as damaging to him as the testimony of the ranger.

I don't believe a thing he said. And I admitted into evidence, even over the objection of the Government, this photograph, D-1 in evidence. I don't believe for a moment that this photograph, D-1,depicts the wind screen and the position of the chair in the position that it was on the beach.

I understand the Defendant's explanation that he took it some time later. I understand that he took it in his yard. I understand that the yard shows that it's taken on grass, as opposed to the beach. But look at the way it's situated.

He wants us to believe, by showing us this photograph, that you can't see him. And he wants to bolster the argument of his attorney that he was trying to seclude himself from view, when just the opposite is the case, according to his testimony.

His testimony supports the testimony of the ranger. Remember that he said and even gestured, his original testimony on direct was that he had this wind screen on his left and behind him and to his right. And then he testified and further explained to the Court that he could see these other people on an angle at approximately a 1:00 angle to the right.

It's clear to me that the testimony of the ranger that as he approached the Defendant from behind him on the Defendant's right, that the Defendant neither saw him coming or cared about his approach and that the ranger was in a position to see what the Defendant was doing and that the Defendant was in a position, and I don't know whether he did or not and it's not relevant, but he was in a position to see the other two people on the beach and he admitted so in his testimony.

I have no doubt, and certainly no doubt beyond a reasonable doubt, that the ranger's testimony is credible and the Defendant's testimony is incredible and I find him guilty as charged.

(1T 57-59)

DISCUSSION

I. Sufficiency of the Evidence to Establish the Elements of the Offense

A. Standard of Review

"In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court of the district in which the offense was committed." 18 U.S.C. § 3402; ...