United States v. Lanning, CRIMINAL CASE NO. 1:10cr47

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Decision Date04 June 2012
Docket NumberCRIMINAL CASE NO. 1:10cr47
PartiesUNITED STATES OF AMERICA, Appellee, v. JOE L. LANNING, Appellant.

JOE L. LANNING, Appellant.



Signed: June 4, 2012


THIS MATTER is before the Court on the Appellant's Notice of Appeal. [Doc. 2].


On November 12, 2009, Joe L. Lanning (Lanning) was issued a citation by United States Park Ranger Joseph Darling (Darling or Ranger Darling) for disorderly conduct within the special territorial jurisdiction of the United States; that is, the Blue Ridge Parkway, in violation of 36 C.F.R. §2.34(a)(2). [Doc. 1 at 2]. On July 22, 2010, Lanning moved to dismiss the citation. [Doc. 8-2]. His case came before Magistrate Judge Dennis L. Howell on July 27, 2010 at which time the Magistrate Judge denied the motion and proceeded to conduct a bench trial. After hearing the evidence, the Magistrate Judge found Lanning

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guilty of disorderly conduct, sentenced him to serve fifteen days imprisonment, and ordered that he pay a fine of $1,000.00 along with an assessment of $10.00 and a processing fee of $25.00. [Doc. 1]. The Magistrate Judge also banned Lanning from all federal land except for the use of main thoroughfares for a two year period. [Id.]. From this conviction and sentence, Lanning has appealed.


A defendant who is convicted and sentenced by a magistrate judge is not entitled to a trial de novo by a district court. Fed.R.Crim.P. 58(g)(2)(D).

An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court and this section shall apply ... as though the appeal were to a court of appeals from a sentence imposed by a district court.

18 U.S.C. §3742(h). In other words, "[t]he scope of appeal shall be the same as an appeal from a judgment of a district court to a court of appeals." Fed.R.Crim.P. 58(g)(2)(D).


Ranger Darling was on duty on November 12, 2009 at the Sleepy Gap Overlook area of the Blue Ridge Parkway in Buncombe County. [Doc. 6 at 39-40]. Due to a large number of complaints made to park headquarters about sexual activity in that area, the decision had been made to conduct a joint

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operation between the National Park Service and the United States Forest Service. [Id. at 40; 43]. Ranger Darling was acting in an undercover plainclothes capacity on that day and was wearing a body wire and microphone. [Id. at 44]. Darling drove to the overlook, got out of his car and began walking around. [Id. at 44-45]. While walking on the trail, he encountered two men, one of whom was Lanning. [Id.]. When Ranger Darling walked past Lanning, Lanning grabbed his own groin but continued to walk. [Id.]. Ranger Darling said hello to Lanning as he passed. [Id.]. Darling walked on a ways and then circled back to engage Lanning in conversation. [Id.]. After casual conversation about the weather for a few moments, Ranger Darling mentioned that Asheville is an open community. [Id. at 47-48]. Lanning then told the ranger that he wanted Darling to have sex with him.1 [Id. at 47]. Darling recalled that he said "okay" or words to that effect. [Id. at 51]. About twenty seconds later, Lanning walked over to Darling with his left hand extended and grabbed the ranger's genitals. [Id. at 47-48]. Based on the firmness of the grasp, Ranger Darling did not believe this was an accidental touching; however, he testified that he did not consent to the same. [Id. at 51-55]. At that point, Ranger Darling placed Lanning under arrest. [Id.

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at 47-48].

On cross-examination, Ranger Darling admitted that the purpose of the operation on that particular day was to focus on sexual solicitation by men of other men. [Id. at 56]. Although that was the goal on that particular day, had Darling encountered a heterosexual couple engaging in sexual conduct in public, they also would have been arrested. [Id. at 85]. In fact, up to that day, the only citations for disorderly conduct involving sex which Ranger Darling had issued were for heterosexual sex. [Id. at 88]. During the encounter with Lanning, there was no discussion of money and none was exchanged. [Id. at 61]. Ranger Darling admitted that he would not have arrested Lanning but for the grabbing of his genitals. [Id. at 48-61]. He also admitted, however, that his sole purpose in the encounter was to make Lanning believe that Darling was interested in having sex with Lanning. [Id. at 79].

The Magistrate Judge found that the Government had proven each element of the offense of disorderly conduct beyond a reasonable doubt. After considering the sentencing factors of 18 U.S.C. §3553, he sentenced Lanning to fifteen days imprisonment as well as the fines, assessments and banishment referenced above.

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Insufficient evidence.

Lanning's first argument on appeal is that there was insufficient evidence to prove beyond a reasonable doubt that he committed the offense of disorderly conduct.

In reviewing the sufficiency of the evidence following a conviction, the court is to construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it, and will sustain the [conviction] if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. If there is substantial evidence to support the [conviction], after viewing all of the evidence and the inferences therefrom in the light most favorable to the Government, the court must [sustain it]. Furthermore, this court cannot make [its] own credibility determinations but must assume that the [trier of fact] resolved all contradictions in testimony in favor of the Government.

United States v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir.), cert. denied __ U.S. __, 132 S.Ct. 564, 181 L.Ed.2d 407 (2011) (internal quotations and citations omitted; emphasis in original). In determining the issue of whether there is substantial evidence, this Court does not weigh the evidence. United States v. Combs, 26 F. App'x. 198, 201 (4th Cir.), cert. denied 535 U.S. 1072, 122 S.Ct. 1949, 152 L.Ed.2d 852 (2002) (citing United States v. Arrington, 719 F.2d 701, 704 (4th Cir.), cert. denied 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984)).

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The regulation at issue, 36 C.F.R. §2.34(a)(2) provides in pertinent part that a "person commits disorderly conduct when, with intent to cause public alarm ..., or knowingly or recklessly creating a risk thereof, such person ... uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing[.]" The elements of this offense therefore are: (1) having the intent to cause public alarm; or, knowingly or recklessly creating a risk of public alarm; (2) using language, an utterance, or a gesture; or, engaging in a display or act; (3) which is obscene, physically threatening or menacing. United States v. Coutchavlis, 260 F.3d 1149 (9th Cir. 2001); United States v. Mather, 902 F.Supp. 560, 562 (E.D.Pa. 1995), affirmed 91 F.3d 127 (3rd Cir. 1996) ("the regulation is sufficiently plain on its face that we shall apply the ordinary meaning of its terms").

Lanning does not dispute that the conduct at issue occurred in public, nor could he. Mather, 902 F.Supp. at 564 ("a national park is the quintessential public place"). He does, however, dispute that grabbing his own groin and then grabbing the genitals of another person are obscene gestures or displays. In this regard, the Court notes that "the National Park Service expends significant public funds in its efforts to attract visitors, including countless children, to national parks." Id. These visitors should be

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able to explore the parks "without concern of happening upon an open sex act." Id. Lanning also does not dispute that his conduct was sexual in nature.

Lanning does, however, argue that his conduct cannot be considered obscene because "no clothes were removed and there was no nudity." [Doc. 8 at 9]. According to Lanning, he "merely touched a consenting adult outside of [that adult's] clothing." [Id.] (emphasis in original). The Court first notes that appellate counsel repeatedly points to the allegedly consentual nature of this encounter. Ranger Darling testified that he did not consent to having his genitals grabbed, and the Magistrate Judge found his testimony credible. Whether the act was consensual or non-consensual, however, does not bear on whether it was obscene in this public park frequented by children and other adults not interested in such conduct. Mather, 902 F.Supp. 560 (consensual masturbation by two men in park obscene and violation of the disorderly conduct regulation); United States v. Lanen, 716 F.Supp. 208 (D.Md. 1989) (defendant who exposed himself to undercover ranger committed obscene act and convicted of disorderly conduct).

The federal regulation, unlike some state statutes, does not include nudity as an element of the obscene act, and no case has been found which so holds. Appellant cites United States v. Malone, 822 F.Supp. 1187 (E.D.Pa.

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1993), in support of...

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