United States v. Moriello

• Decision Date: 18 November 2020
• Docket Number: No. 19-4464,19-4464
• Citation: 980 F.3d 924
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Rebecca A. MORIELLO, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

980 F.3d 924

UNITED STATES of America, Plaintiff - Appellee,

v.Rebecca A. MORIELLO, Defendant - Appellant.

No. 19-4464

United States Court of Appeals, Fourth Circuit.

Argued: September 10, 2020

Decided: November 18, 2020

ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE PLLC, Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: William T. Stetzer, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before MOTZ, KING, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Motz and Judge King joined.

FLOYD, Circuit Judge:

Appellant Beckie Moriello challenges her conviction under two administrative regulations for repeatedly refusing to comply with directions from an immigration judge and a courtroom bailiff to cease distracting conduct during an immigration proceeding. Moriello argues that the regulations are unconstitutionally vague, violate the nondelegation doctrine, and run afoul of the Tenth Amendment. She also challenges the district court's interpretation of the regulations and the sufficiency of the evidence supporting her conviction. We reject each of Moriello's challenges and conclude that the regulations are constitutional, the district court properly interpreted the regulations, and sufficient evidence supports Moriello's conviction.

I.

A.

Moriello works as an immigration attorney in Charlotte, North Carolina. On June 29, 2017, she appeared for a hearing on behalf of a client at the Charlotte Immigration Court. The Charlotte Immigration Court is a federal facility of the Executive Office of Immigration Review (EOIR) on property managed by the General Services Administration (GSA). A placard displayed near the entrance notifies visitors that federal regulations govern the facility.

Two such regulations are relevant here. The first, 41 C.F.R. § 102-74.385 (the "Direction Regulation"), requires "[p]ersons in and on [the] property ... [to] comply with official signs of a prohibitory, regulatory or directory nature and with the lawful direction of Federal police officers and other authorized individuals." The second, 41 C.F.R. § 102-74.390 (the "Conduct Regulation"), prohibits "[a]ll persons entering in or on Federal property ... from loitering, exhibiting disorderly conduct[,] or exhibiting other conduct on property that ... [o]therwise impedes or disrupts the performance of official duties by Government employees."

Following the hearing on behalf of her own client, Moriello observed an unrelated asylum hearing over which Immigration Judge Barry J. Pettinato presided. Although the proceedings were closed, Moriello obtained permission to observe from the asylum-seeker's attorney and sat in the courtroom gallery. A sign outside the courtroom stated: "Persons in EOIR space must turn off their electronic devices (e.g., smartphone, laptop). For clear and immediate business purposes only, attorneys and other representatives are exempt from this rule ...." J.A. 327.

Protective Security Officer (PSO) Pinar Bridges was on duty as the uniformed bailiff in the courtroom. PSOs at EOIR are independent contractors supervised by the Federal Protective Service (FPS). Agent Frank Skrtic, an FPS special agent investigator, testified at Moriello's bench trial that PSOs "have the power to detain" people, "conduct administrative searches, put people on notice," "enforce the Federal Management Regulations" at the facility, and otherwise carry out all the functions of FPS officers other than "mak[ing] a full blown arrest." J.A. 168–69. During the proceeding, PSO Bridges saw Moriello typing on her phone in the courtroom. PSO Bridges knew that Moriello was not representing anyone in the proceeding, so she assumed that Moriello had no immediate business inside the courtroom. When PSO Bridges asked Moriello to turn off her phone, Moriello responded that it was "her right" to use the phone for business purposes and refused to turn off the phone. J.A. 196. PSO Bridges returned to her normal location next to Judge Pettinato.

Though unaware of Moriello's initial exchange with PSO Bridges, Judge Pettinato also noticed Moriello typing on her phone. He saw that Moriello held her phone at chest-level, easily visible to others in the courtroom. Judge Pettinato testified:

Ms. Moriello had specifically asked for permission to come into a private confidential asylum hearing which is very rarely allowed. And I assumed it was so that she could learn something from it. The entire time that Ms. Moriello was sitting in my courtroom I did not see her paying attention to what was going on with the attorney or with the witness. She was pretty much non-stop glued to her cell phone and she was texting away, and I found it to be very distracting. I also found it to be very disrespectful given that she had asked for permission to sit in on this very sensitive matter, and she was not paying attention.

J.A. 216–17. Judge Pettinato went off the record to direct PSO Bridges to tell Moriello to stop using her phone.¹ After Judge Pettinato resumed the asylum hearing, PSO Bridges again approached Moriello to ask her to comply with the Judge's instruction to stop using her phone.

Moriello again refused. She "became argumentative," telling PSO Bridges that she was using her phone for business purposes and that she can "do whatever she wants." J.A. 407. Judge Pettinato observed PSO Bridges speaking with Moriello for "some considerable period of time." J.A. 218. At some point, Judge Pettinato saw Moriello stand and move to the back of the courtroom as PSO Bridges continued to try to get her to either stop using her phone or leave the courtroom. Though their conversation was not loud, Judge Pettinato found the exchange to be "very disruptive visually." Id . PSO Bridges requested help from a second PSO. The two PSOs together were unable to convince Moriello to either stop using her phone or leave—all while the immigration proceedings remained ongoing. PSO Bridges then called the Charlotte-Mecklenburg Police Department (CMPD).

Judge Pettinato eventually called for a recess in the hearing "because [he] could see that it had escalated into a more serious situation." J.A. 219. During the recess, Moriello remained in the courtroom and continued using her phone. The CMPD officers responded to PSO Bridges's call during the recess. They conveyed Judge Pettinato's direction to stop using her phone, and PSO Bridges also repeated the instruction. Moriello again refused. The CMPD officers then escorted Moriello out of the courtroom and spoke with her about leaving the premises. According to PSO Bridges, Moriello told the CMPD officers "that the Judge cannot tell her what to do. That's her right. She can be on the phone. It's business purposes only." J.A. 198. Two FPS officers arrived and one of them wrote Moriello a citation for violating the Direction Regulation.

B.

Shortly after Moriello's case was filed in the Western District of North Carolina, the government offered to settle the charge with no admission of guilt and a civil fine—at one point as little as $300. Moriello rejected the offer and requested a criminal trial.

Moriello moved to dismiss the citation, alleging charging deficiencies. The government subsequently filed a superseding two-count bill of information. Count One charged Moriello with failing to comply with the lawful direction of an authorized individual while on property under the authority of the GSA in violation of the Direction Regulation. See 41 C.F.R. § 102-74.385. Count Two charged Moriello with impeding and disrupting the performance of official duties by government employees while on property under the authority of the GSA in violation of the Conduct Regulation. See 41 C.F.R. § 102-74.390. Both offenses are Class C misdemeanors and are therefore petty offenses subject to a maximum term of imprisonment of 30 days and a maximum fine of $5,000. See 18 U.S.C. §§ 19, 3571(b)(6), 3559(a)(8) ; 41 C.F.R. § 102-74.450.

Moriello's case was assigned to a magistrate judge. Moriello filed two motions to dismiss. Her first motion argued that the regulations were unconstitutionally vague and violated the separation of powers doctrine. Her second motion argued that the two counts were multiplicitous under the Double Jeopardy Clause of the Fifth Amendment. The magistrate judge denied both motions and thereafter presided over Moriello's bench trial. At the conclusion of the trial, the magistrate judge found Moriello guilty on both counts and ordered her to pay a fine of $2,500.

On appeal to the district court, Moriello argued as follows: (1) PSO Bridges's and Judge Pettinato's orders were not lawful under the Direction Regulation; (2) Moriello's conduct was not disruptive under the Conduct Regulation; (3) neither PSO Bridges nor Judge Pettinato met the definition of an "authorized individual" under the Direction Regulation or a "Government employee" under the Conduct Regulation; (4) both regulations were promulgated pursuant to unconstitutional delegations of authority under the nondelegation doctrine and the Tenth Amendment; and (5) both regulations were unconstitutionally vague.

The district court affirmed the magistrate judge's decision, holding that the regulations were constitutional and sufficient evidence supported her conviction. Moriello timely appealed to this Court.

II.

We review a trial court's findings of fact for clear error, and findings of law de novo. See United States v. Bursey , 416 F.3d 301, 306 (4th Cir. 2005). For questions of law such as the "construction of an administrative regulation, we review the district court's ruling de novo." Radford v. Colvin , 734 F.3d 288, 293 (4th Cir. 2013).

When considering a challenge to the sufficiency of the evidence to support a conviction, this Court is "obliged to sustain a guilty verdict if, viewing the...