United States v. Zombory
| Decision Date | 06 November 2013 |
| Docket Number | 12-cr-00717 (KM) |
| Parties | UNITED STATES, Plaintiff, v. THOMAS B. ZOMBORY , Defendant. |
| Court | U.S. District Court — District of New Jersey |
The defendant, Thomas Zombory, 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). The area where the offense occurred is a clothing-optional beach. There is no contention that nudity as such would constitute any sort of violation. On the other hand, no party contends that the authorities, having accommodated sunbathers that far, may not draw a line in the sand and prohibit public sexual acts.
United States Magistrate Judge Anthony R. Mautone conducted a nonjury trial on October 10, 2012. After hearing testimony from four witnesses and reviewing exhibits, he found Zombory guilty. Magistrate Judge Mautone imposed a sentence of two years' unsupervised probation, a two-year ban from Sandy Hook, a fine of $1000, a special assessment of $10, and a processing fee of $25. T 107.1 Judgment was entered on October 18, 2012. Zombory filed a timely appeal to this Court. See 28 U.S.C. § 3402; Fed. R. Crim. P. 58(g)(2)(B); L. Crim. R. 58.1(d)(1).
"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 thedistrict court of the district in which the offense was committed." 28 U.S.C. § 3402; see also Fed. R. Crim. P. 58(g)(2)(B) (); United States v. Pethick, 513 F.3d 1200, 1201 (10th Cir. 2008). "The scope of review upon appeal shall be the same as an appeal from a judgment of the District Court to the Third Circuit." L. Crim. R. 58.1(d)(1) (D.N.J.); accord United States v. Jackson, 2008 U.S. Dist. LEXIS 46179 (D.N.J. June 11, 2008).
The standard of review on appeal from a judgment of criminal conviction after a bench trial is well-settled. On appeal after a nonjury trial, this Court will apply "de novo review to the legal determinations made by the [Magistrate Judge] and review ... factual findings for clear error." United States v. Solorzano, Crim. 06-922 JBS, 2008 WL 5451040 (D.N.J. Dec. 30, 2008). Plenary, or de novo, review of legal matters requires little comment. Clearly-erroneous review, too, is a familiar standard when a judge's findings of fact are at issue.2 See United States v. Orgovan, 377 F. App'x 227, 229 (3d Cir. 1010) (not precedential); United States v. Delerme, 457 F.2d 156, 160 (3d Cir. 1972). A finding is clearly erroneous when "the court is left with the definite and firm conviction that a mistake has been committed." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972); accord United States v. Howe, 543 F.3d 128, 133 (3d Cir. 2008); United States v. Igbonwa, 120 F.3d 437, 440 (3d Cir. 1997). Under the clearly-erroneous standard, a judge's finding of fact must be upheld unless it "(1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data." United States v. Antoon, 933 F.2d 200, 204 (3d Cir. 1991) (quoting Krasnov, 465 F.2d at 1302).
In light of certain contentions at trial and on appeal, it is appropriate to emphasize this Court's limited role under the applicable standard of review. The defendant, Zombory, has protested that prosecution of his acts is unduly harsh, and that a conviction will hinder his plans to seek employment in the school system as a librarian. The importance of punishing lewd conduct on a nude beach through criminal prosecution or the wisdom of allocating scarce government resources to that pursuit are not for me to decide. Those are valid considerations, and the prosecutorial and investigative authorities should take them into account. I, however, cannot legitimately bend my analysis to accommodate those considerations. Indeed, it is irrelevant whether I, as finder of fact, would have reached the same result. The standard of review confines my deliberations here.
I summarize the pertinent testimony and exhibits, noting some conflicts in the evidence.
The events in question occurred between 3:00 and 3:30 p.m. on March 23, 2012, at Gunnison Beach, one of eight beaches at Sandy Hook. All agree that Gunnison is a clothing-optional beach.
Adam Hubert, an experienced park ranger, was on foot patrol on an access road, scanning the beach through binoculars. (T 7-8, 11). His observations, initially from a distance of approximately 70 yards (T 11), formed the basis for issuance of the summons that led to this prosecution. Hubert testified that he had a clear and unobstructed view. (T 14, 30-31).
Hubert saw the defendant, Thomas Zombory, and his fiancée sunbathing at Gunnison Beach. They sat side-by-side in beach chairs. Mr. Zombory was unclothed, and his fiancée may have been unclothed as well.3 Both testified that they were facing west toward the dunes, i.e., facing away from the ocean, and were partially sheltered by a wind screen.4 It was an unusually warm day for March. (T 57, 64-65). There were other people walking around or seated on the beach with wind screens. (T 13-14).
Hubert, through his binoculars, watched Zombory and his fiancée for about five minutes. He timed that interval with his wrist watch, andintermittently took the binoculars away from his eyes. (T 12-13, 29). He saw Zombory tapping, grasping and then "stroking his penis in an up and down motion." (T11). Defendant's penis was at first "semi-erect," and then "fully erect." (T 11-12). Hubert did not see Zombory "itching" or "scratching" his penis. (T 18).
Meanwhile, Zombory's fiancée did nothing improper. To Hubert, she appeared to be talking to Zombory, "off and on." (T 14).
Hubert walked toward the beach, and toward Zombory. On the way he passed another man ("John Doe"), who was about 20 yards away from Zombory, looking in Zombory's direction and "grasping his penis with his left hand, stroking it." (T 16-17). Charges, if any, brought against "Doe" are not disclosed in the record.
Hubert then arrested Zombory for public lewdness and issued a violation notice. He had Zombory don his clothes, and then took Zombory to the Law Enforcement Division building for processing. During routine booking inquiries, Zombory mentioned a "medical condition" and said he had been displaying it to his companion. (T 19, 23). He stated that he was not on any medications. (T 22-23). Zombory protested that he had seen other people on the beach doing more serious things than he had done. (T23-24) Hubert inventoried Zombory's possessions, but did not recall seeing any medicine, cream or lotion. (T 26-27).
Zombory offered medical testimony from Dr. Taner Turkes. Turkes was not Zombory's treating physician. He had examined Zombory once, on August 29, 2012, some five months after the incident. He testified that Zombory had cystic acne, a condition that causes irresistible itching in the affected area "if there is a flare-up." Turkes did not see Zombory scratch, but observed scratch marks. Turkes testified that records showed that Zombory had been "seen by a doctor" for this condition as early as 2010. (T 34-39, 50). On cross-examination, Turkes said he did not know if this condition would have rendered Zombory incapable of masturbation (T 45), but that scratching would not cause an individual's penis to become erect (T 51). Turkes did not prescribe anything for the condition, but told Zombory to go to a dermatologist. (T 50).
Zombory's fiancée testified and corroborated his version of the events. She stated that she and Zombory had visited Gunnison Beach some 15 times. (T 56-59). She had been aware of Zombory's medical condition in the previous summer, but never saw him apply any medication. (T 62-63).
The fiancée testified that she and Zambory had been sitting side-by-side, facing the dunes, with a wind screen behind them to block the breeze from the ocean. She stated that Zombory had shown her his medical condition, and thathe was not masturbating. (T 53-55). She did not know whether he had an erection or not. (T 66).
Finally, the defense called Zombory himself to testify. Zombory testified to having suffered from cystic acne, and stated that it had erupted on March 23, 2012, causing him to touch it. He denied that he was masturbating at the time. (T 68-69, 77). He believed that the sun might be therapeutic for the condition. (T 79-80). Although he had consulted treating physicians, he had not taken medication of any kind. Surgical treatment was later proposed or performed (the record is somewhat unclear). (T 92).
Zombory allowed that scratching "could" cause an erection, but that it did not happen on this occasion. (T 82-83). He stated that he did immediately tell an arresting officer, apparently not Hubert, about his condition. (T 83). Cross-examination established that Zombory could resist the urge to itch, at least in social or professional contexts. (Zombory conceded that Doctor Turkes had perhaps "mischaracterized" the condition in this respect.) (T 84-86).
Zombory testified that he and his fiancée had been sitting facing a "forbidden dune area," where people are not permitted to walk. (T 71). They were some 20 yards east of a dune fence. (T 72). With respect to another photograph, he seemed to indicate that that the dune fence was 40, not 20, yards away. (T 73). There was undulating terrain, and surrounding vegetation. Zombory stated that he had thought the location was "private." (T 88) Zombory testified that he was unaware of "John Doe's" presence in the dune area until he stood up. (T 90).
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