United States v. Wasylyshyn

• Decision Date: 03 November 2020
• Docket Number: August Term, 2018,Docket No. 18-1344
• Parties: UNITED STATES of America, Appellee, v. Marina WASYLYSHYN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

979 F.3d 165

UNITED STATES of America, Appellee,

v.Marina WASYLYSHYN, Defendant-Appellant.

Docket No. 18-1344

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: May 20, 2019

Decided: November 3, 2020

Michael F. Perry, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

Donna Aldea, Barket Epstein & Kearon LLP, Garden City, NY, for Defendant-Appellant.

Before: Livingston and Carney, Circuit Judges, and Berman, District Judge.^*

Carney, Circuit Judge:

Defendant-Appellant Marina Wasylyshyn appeals her conviction following a bench trial for creating a loud noise and nuisance at the Binghamton federal courthouse. Wasylyshyn entered the lobby of the Binghamton courthouse to retrieve tax forms, but was told by court security officers ("CSOs") Alan Canfield and David Lawrence that she was not allowed to go to the IRS office inside the building without an appointment. Wasylyshyn then engaged in a loud argument with Canfield, aggressive on both sides. During the argument, Canfield arrested her. Federal Protective Service ("FPS") Inspector Joseph Chapman issued Wasylyshyn a violation notice charging Wasylyshyn with creating a "loud or unusual noise or a nuisance" in the courthouse, in violation of 41 C.F.R. § 102-74.390(a) (the "Noise Regulation"). Wasylyshyn was convicted of the violation at a bench trial before Magistrate Judge Thérèse Wiley Dancks of the United States District Court for the Northern District of New York,¹ and her conviction was upheld on an initial appeal to Chief District Judge Suddaby.²

Wasylyshyn now challenges her conviction on three grounds. She argues first that her conviction is invalid because (she asserts) the Noise Regulation was not conspicuously posted in the courthouse and she was not otherwise on notice that her conduct was illegal. Wasylyshyn contends next that the mens rea for the violation at issue is "knowledge that the action is wrongful," Appellant's Br. 30, and that the prosecution failed to make the necessary showing. Finally, Wasylyshyn urges that the regulation is unconstitutionally vague as applied to her conduct.

We reject these arguments. First, by failing to raise the conspicuous-posting argument in her initial appeal to the District Court, Wasylyshyn forfeited any challenge to her conviction on this ground. Next, under United States v. Weintraub , 273 F.3d 139, 147 (2d Cir. 2001), a conviction for violating the Noise Regulation requires proof only of a defendant's general intent. The proof presented at trial was sufficient to meet this standard as to Wasylyshyn. Finally, the Noise Regulation is not unconstitutionally vague as applied to Wasylyshyn's conduct.

We therefore AFFIRM the decision and order of the District Court.

BACKGROUND

I. The Courthouse Incident

The following account is drawn from the record made before Magistrate Judge Dancks at the bench trial. In view of Wasylyshyn's conviction, we summarize the facts in the light most favorable to the government. See Garbutt v. Conway , 668 F.3d 79, 80 (2d Cir. 2012). The evidence presented consisted primarily of testimony given by Wasylyshyn, CSOs Canfield and Lawrence, and FPS Inspector Chapman; photographs of the Binghamton courthouse lobby; and video footage of Wasylyshyn's encounter with the CSOs.

Near noon on February 14, 2017, Dr. Marina Wasylyshyn visited the Federal Building and U.S. Courthouse in Binghamton, New York, to collect tax forms from a self-service rack in a hallway off the building's lobby, as she had done in previous years. CSOs Canfield and Lawrence were behind the security desk in the courthouse lobby, facing the revolving door through which the public entered the building. After Wasylyshyn entered the building through the revolving door, Lawrence asked her "where she wanted to go." App'x 51.³ A protest was assembling outside the building and the CSOs did not know whether Wasylyshyn was a protester. Wasylyshyn replied that she wanted to visit the office of the Internal Revenue Service. Lawrence informed Wasylyshyn that, under a new policy, "she [needed] an appointment to get into the I.R.S.," and "[t]hey no longer [accepted] walk-ins." Id. at 51-52. Wasylyshyn replied, "I don't need an appointment. I am just here to pick up some tax forms." Id. at 109. Lawrence turned to retrieve a flyer that provided a telephone number for scheduling an appointment with the IRS. As he retrieved the flyer, Lawrence asked Wasylyshyn which forms she needed and told her he "would get them for her." Id. at 90.

According to both Canfield's and Lawrence's testimony, at this point in the exchange Wasylyshyn had become "agitated." Id. at 52, 90. She "slammed" her purse on the counter, and then searched in her bag for a list of the forms she wanted. Id. at 52, 70, 90. Canfield stood up and joined Lawrence at the desk. Lawrence directed Wasylyshyn to "calm down." Id. at 60, 105. Video surveillance footage shows Canfield extending his right arm and pointing a finger close to Wasylyshyn's face.⁴ Lawrence testified that Wasylyshyn told him in a "very loud" voice that she was a doctor. Id. at 90. Lawrence responded that he did not care that she was a doctor and that "this is how it [is] done." Id. at 90-91. Wasylyshyn replied that she "pays [his] salary," that he was "a public servant," and that he "ha[s] to do what she tells [him] to do." Id. at 91. Next, Wasylyshyn handed Lawrence her list of forms. Lawrence took the paper and walked to the tax form rack in a hallway off the lobby, about 40 to 45 feet away. From there, Lawrence could hear Wasylyshyn "yelling about how [Lawrence and Canfield were] public servants" and how she "pays [their] salary," but he could not see Wasylyshyn or Canfield. Id. at 53, 91-92. The Magistrate Judge characterized Wasylyshyn as "shouting" during the encounter. Id. at 153-54.

Back at the security desk, Canfield advised Wasylyshyn that his "function" was not to help her; rather, he was "there for the security of the federal court only." Id. at 61. Wasylyshyn told Canfield that he was a federal employee, to which Canfield responded he was not, because he worked for a private company that contracted with the federal government. Canfield parried that "if she didn't like the rules in the building [she should] leave." Id. at 54, 61. Canfield acknowledged in his testimony that, during this argument, his "voice level" may have "exceeded hers." Id. at 79.

Canfield then walked out from behind the counter, approached Wasylyshyn, and pointed at her face. She backed away from him, toward the door. The surveillance footage shows (and no one disputes) that Canfield advanced several steps toward Wasylyshyn, pointing and appearing to speak aggressively, while Wasylyshyn continued to retreat. Eventually, Wasylyshyn stopped, stepped toward Canfield, and thrust her face toward Canfield's face. Magistrate Judge Dancks found based on the video footage that Wasylyshyn "stepp[ed] toward the CSO[,] ... getting extremely close to him, if not touching him." Id. at 154. Canfield testified that Wasylyshyn made contact with him in "kind of a belly bump." Id. at 54-55. Canfield then placed Wasylyshyn under arrest, taking hold of her arm and directing her back to the security desk. Once at the security desk, Canfield took Wasylyshyn's purse from her hands, placed it on the desk, and struggled to pull Wasylyshyn's hands behind her back while he arrested her. At the same time, Canfield called for Lawrence to return.

When Lawrence returned from the tax form rack, he saw Canfield standing behind Wasylyshyn, with Canfield holding her arms behind her back. Canfield instructed Lawrence to retrieve Wasylyshyn's driver's license from her purse. Wasylyshyn "squirm[ed] around" and "yell[ed]" at Lawrence to tell Canfield to release her. Id. at 62, 93. Lawrence directed her to stand still and told her that she was under arrest. Wasylyshyn continued to move, and Lawrence stopped looking through her purse and assisted Canfield in handcuffing Wasylyshyn. After Wasylyshyn had been handcuffed, she asked why she was under arrest. Canfield answered that Wasylyshyn was under arrest "for being a bitch." Id. at 62-63, 93-94. Lawrence testified that he "clarified" this statement by explaining to Wasylyshyn that she was under arrest for "dis con or disorderly conduct." Id. at 94.

The CSOs detained Wasylyshyn for twenty to thirty minutes after handcuffing her; they also called for assistance. When FPS Inspector Chapman arrived at the scene in response to their call, he issued Wasylyshyn a violation notice for creating a "loud or unusual noise or a nuisance" in breach of the Noise Regulation, 41 C.F.R. § 102-74.390(a),⁵ and released her. App'x 5, 33-34, 95. Wasylyshyn was then permitted to walk into the hallway past the CSO security desk to retrieve the tax forms she had come for.

Wasylyshyn later filed a complaint with the U.S. Marshal about the incident and Canfield received a formal reprimand for his verbal insult to Wasylyshyn.

II. Notice

During the bench trial, the government elicited testimony and introduced photographs to establish the size and placement of a poster entitled "GSA Rules and Regulations Governing Conduct on Federal Property" (the "Notice"). The Notice was posted roughly seven-and-a-half feet behind the security desk, on a bulletin board behind an x-ray machine and inside a glass frame. Although the Noise Regulation was printed on the Notice, Lawrence testified that an individual standing in front of the security desk could read only the bold-text title at the top of the document—the substance of the rules and regulations was illegible from that distance. Lawrence testified that he at no point saw Wasylyshyn reading the Notice and that he did not inform Wasylyshyn of the regulations posted on the Notice before he arrested her.

The District Court found, and no one disputed, that the regulations had been posted in the...