US v. Malone, Crim. No. 92-667.

Citation822 F. Supp. 1187
Decision Date01 June 1993
Docket NumberCrim. No. 92-667.
PartiesUNITED STATES of America, v. Lee MALONE.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

Richard W. Berlinger, Abington, PA, for appellant.

Eric Sitarchuk, Asst. U.S. Atty., Philadelphia, PA, for U.S.


DITTER, District Judge.

Defendant, Lee Malone, was charged with open lewdness in violation of 18 Pa.C.S.A. § 5901 (1992),1 and disorderly conduct in violation of 36 C.F.R. § 2.34(a)(2) (1992). Magistrate Judge Arnold C. Rapoport found Mr. Malone guilty on both charges after a bench trial. Malone appeals pursuant to 18 U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g). For the reasons stated below, I will reverse both convictions.

Factual Background

Viewing the evidence in the light most favorable to the government, the following occurred. On the afternoon of July 29, 1992, Mr. Malone entered the Betzwood picnic area of Valley Forge National Park. He approached Michael Hetrick, a law enforcement officer who was working undercover in this area to find "anything out of the ordinary, including sexual activity." (Notes of Testimony from November 12, 1992, hearing ("N.T.") at 18.) Malone asked Hetrick if he wanted to take a walk. Hetrick agreed, and the two walked "about 10 or 15 yards across the railroad grade to ... just above the corner of the picnic area." (N.T. 11.) At this point the men were "about five yards off of the road grade" and approximately 50 to 75 yards from the picnic tables (id.).

According to Hetrick, Malone then began to "rub his genitalia through his shorts" for "a couple of minutes." (N.T. 12.) Malone moved closer to Hetrick until he was touching Hetrick's hand, which prompted Hetrick to pull away. (N.T. 13.) Hetrick then "walked a short distance up a trail.... approximately another 20 yards from the railroad grade," (N.T. 13-14), and Malone followed. Once in that area, Malone asked Hetrick "general questions about what type of sexual activity I enjoyed, and he began to rub my chest in a circular motion." (N.T. 14-15.) Hetrick told Malone he was nervous and headed back to the railroad grade. When Malone followed, Hetrick signalled his backup officer who arrested Malone.

1. Disorderly Conduct

The government agreed at oral argument that Malone's conviction for disorderly conduct should be vacated. The pertinent regulation defines disorderly conduct as the commission of one of four prohibited acts "with intent to cause public alarm, nuisance, jeopardy or violence." 36 C.F.R. § 2.34. Knowing or reckless creation of the risk of these results is also actionable. Id.

The government is correct to concede the impropriety of that conviction, quite apart from its concerns about double jeopardy. Clearly, the evidence does not demonstrate either that Malone intended to cause or knowingly or recklessly risked causing public alarm, nuisance, jeopardy, or violence. The magistrate judge seems to have accepted the position suggested by the government at oral argument, that any "gesture, or ... display or act that is obscene" constitutes disorderly conduct. See 36 C.F.R. § 2.34(a)(2).2 However, it is clear from the regulation that such an act is only disorderly conduct if it is intended to disturb the public or if the defendant's reckless acts create a risk of public disturbance. Here, the public was not involved at all. For this reason as well as the government's concession, I will vacate Malone's disorderly conduct conviction.

2. Open Lewdness

As a matter of law, the learned magistrate judge also erred in finding the government had met its burden under 18 Pa. C.S.A. § 5901 (1992). That statute states:

A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.

It is one element of the government's burden of proof, therefore, to show Malone knew his lewd act—rubbing his genitalia through his shorts and touching Hetrick's hand—was likely to be observed by others who would be affronted or alarmed.

"Others," as used in the statute, has two possible meanings. The first is Officer Hetrick. Counsel for Malone argued at trial that Hetrick could not have been affronted or alarmed because he was working undercover with precisely the purpose of soliciting propositions like Malone's. The magistrate judge rejected this argument, saying: "It would prohibit anyone who was working in an undercover capacity, and who's seen this kind of activity, from ever being an effective law enforcement officer for the reason that he would—under your argument, never be affronted." (N.T. 54.) I think both the argument and the response miss the mark. The point is not whether Hetrick was or could have been alarmed, but whether Malone knew that Hetrick was likely to be alarmed. According to Hetrick's own testimony, Malone saw Hetrick standing alone wearing an "I love Betzwood" button in the Betzwood picnic area known for sexual propositions among strangers. (See Times Herald article, exhibit D-1.) Hetrick agreed to walk with Malone away from the picnic area and he engaged Malone in conversation.3 When Malone did start rubbing his groin, Hetrick watched for several minutes, he claims, without indicating alarm. There was nothing from either the surroundings, the conversation, or the walk together to a more secluded area which shows Malone knew Hetrick was likely to be affronted or alarmed.4

The other visitors in the park are the second possibility for "others" who may have been affronted or alarmed by Malone's actions. The government argued at trial that even if Hetrick was not likely to be alarmed, a jogger or biker passing by the railroad grade or the picnic area certainly would have been. Again, however, the statute requires that Malone knew he was committing a lewd act in...

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4 cases
  • Egolf v. Witmer
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 9 d4 Março d4 2006 be lewd, particularly when accompanied by behavior that focuses attention on intimate areas of the body. See United States v. Malone, 822 F.Supp. 1187, 1188 (E.D.Pa. 1993) (holding that defendant had committed a lewd but non-public act by rubbing genitals through his clothing). The Penns......
  • United States v. Lanning
    • United States
    • U.S. District Court — Western District of North Carolina
    • 4 d1 Junho d1 2012
    ...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.Page 81993), in support of his contention that nudity must be involved in order for conduct to rise to the level of being obscene......
  • US v. Mather
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 27 d5 Outubro d5 1995
    ...The only issue remaining is whether appellants recklessly created a risk of public alarm. The appellants rely upon United States v. Malone, 822 F.Supp. 1187 (E.D.Pa.1993) and United States v. Bender and Todd, Nos. 93-885-M-1 and 93-886-M-1 (E.D.Pa.1994) (non-jury trial) in urging us to over......
  • US v. Taylor
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 d3 Junho d3 2001
    ...has also construed the regulation at issue in this case to require conduct which involves the public. United States v. Malone, 822 F. Supp. 1187, 1189 (E.D. Pa. 1993). In that case, the court voided a conviction for disorderly conduct because "the evidence does not demonstrate either that M......

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