United States v. Parker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50248

Plaintiff-Appellee, (Lead Case)

v. No. 10-50250

No. 10-50251

HOBERT PARKER, JR.,

Defendant-Appellant. D.C. No.

2:09-cr-00515-

 AHM-1

D.C. No.

2:09-cr-00517-

AHM-1

D.C. No.

2:09-cr-00518-

AHM-1

 OPINION

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

March 11, 2011—Pasadena, California

Filed August 22, 2011

Before: Betty B. Fletcher, Kim McLane Wardlaw and

Brett M. Kavanaugh,* Circuit Judges.

Per Curiam Opinion

*The Honorable Brett M. Kavanaugh, Circuit Judge for the District of

Columbia Circuit, sitting by designation.

11307

11310 UNITED STATES v. PARKER

COUNSEL

James H. Locklin, Assistant Federal Public Defender, Los

Angeles, California, for the defendant-appellant.

Michael J. Raphael, Assistant U.S. Attorney, and Mark Remy

Yohalem, Assistant U.S. Attorney, Los Angeles, California,

for the plaintiff-appellee.

OPINION

PER CURIAM:

Hobert Parker, Jr., appeals his misdemeanor convictions,

after retrial, of three counts of violating 18 U.S.C. § 1382. He

argues that his retrial violated the proscription against double

jeopardy, that there was insufficient evidence to convict, and

that his convictions violate his First Amendment rights. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

We address the insufficiency of the evidence argument

first. See Polar Shipping Ltd. v. Oriental Shipping Corp., 680

F.2d 627, 630 (9th Cir. 1982) (courts should not pass upon a

constitutional question if there is a nonconstitutional ground

upon which the case may be decided). We review de novo the

sufficiency of the evidence to support the conviction. United

States v. Stanton, 501 F.3d 1093, 1099 (9th Cir. 2007). There

is sufficient evidence to support a conviction if, “viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id.

Parker’s charges arose from his protest activities on Ocean

Avenue, which is a public road that crosses the Vandenberg

Air Force Base (“VAFB”) in Santa Barbara County, Califor-

nia. On each of the three occasions charged, Parker was carry-

UNITED STATES v. PARKER 11311

ing signs of protest against VAFB military police along the

shoulder of Ocean Avenue. Each time, Parker was advised by

military officers that he was not permitted to protest on Ocean

Avenue and that the VAFB Commander had designated a pro-

test area outside the VAFB Main Gate. Each time, Parker

refused to leave or relocate. After the first two incidents, Par-

ker was cited twice for violating section 1382 and the VAFB

Commander issued a “barment” letter that barred Parker from

entering VAFB for any reason for a period of three years.

Several days later, Parker was cited for the third time.

[1] Section 1382 provides:

Whoever, within the jurisdiction of the United

States, goes upon any military, naval, or Coast

Guard reservation, post, fort, arsenal, yard, station,

or installation, for any purpose prohibited by law or

lawful regulation; or

Whoever reenters or is found within any such reser-

vation, post, fort, arsenal, yard, station, or installa-

tion, after having been removed therefrom or ordered

not to reenter by any officer or person in command

or charge thereof—

Shall be fined under this title or imprisoned not more

than six months, or both.

18 U.S.C. § 1382.1

[2] We have interpreted section 1382 to require the gov-

ernment to prove its absolute ownership or exclusive right to

the possession of the property upon which the violation

1

Parker was cited twice for violating the first paragraph of section 1382,

and once—after the VAFB Commander issued the bar letter—for violat-

ing the second paragraph of section 1382. This distinction is irrelevant for

the purposes of this appeal.

11312 UNITED STATES v. PARKER

occurred. See United States v. Vasarajs, 908 F.2d 443, 446-47

(9th Cir. 1990) (the government must have control, in addi-

tion to “absolute ownership, or an exclusive right to the pos-

session” of the property in question, to preserve the right to

exclude others pursuant to section 1382); United States v.

Mowat, 582 F.2d 1194, 1206 (9th Cir. 1978) (accepting, in

light of precedent, the parties’ stipulation that the government

“was required to prove, as an element of the offense, absolute

ownership or the exclusive right to the possession of the prop-

erty upon which the violation occurred”), cert. denied, 439

U.S. 967 (1978); United States v. Douglass, 579 F.2d 545,

547-48 (9th Cir. 1978) (holding that “[m]ere toleration of cer-

tain uses by the public designed for their convenience does

not result in the loss of the right to exclusive use” and that the

requisite “ownership and possession of the area to enable [the

United States] to exclude the appellant” had been estab-

lished); United States v. Packard, 236 F. Supp. 585, 586

(N.D. Cal. 1964) (holding that the government met its burden

of establishing “absolute ownership, or an exclusive right to

the possession, of the road”), aff’d, 339 F.2d 887 (9th Cir.

1964) (affirming “for the reasons stated in the opinion of the

trial court.”).2

2

Our position is consistent with that of several other courts and the U.S.

Attorney’s Manual. See, e.g., United States v. Allen, 924 F.2d 29, 31 (2d

Cir. 1991) (“[A] naval reservation includes (1) property owned by the

United States Navy and (2) property over which the United States Navy

exercises dominion and control and from which it may exclude the general

public.”) (citing Mowat); Holdridge v. United States, 282 F.2d 302,

306-08 (8th Cir. 1960) (holding that “exclusive possession of the premises

in the government has been appropriately established” where public use of

roads traversing military base was extinguished in condemnation proceed-

ing); U.S. Attorney’s Manual, Title 9, Criminal Resource Manual § 1634

(2010) (citing Holdridge for the proposition that Section 1382 “applies to

any military, naval, or coast guard reservation, post, fort, arsenal, yard,

station or installation over which the United States has exclusive posses-

sion.”). But see United States v. McCoy, 866 F.2d 826, 830 n. 4 (6th Cir.

1989) (rejecting Mowat and holding that “if proceedings under 18 U.S.C.

§ 1382 are comparable to trespass actions, centuries of legal history sup-

port the government’s refusal to concede that anything more than a pos-

sessory interest had to be shown”).

UNITED STATES v. PARKER 11313

The government acknowledges our section 1382 authority,

but challenges its precedential value. The government argues

that the Mowat parties stipulated that section 1382 requires

“absolute ownership or exclusive right of possession,”

Mowat, 582 F.2d at 1206, and contends that subsequent cases

merely assumed, without squarely deciding, the same.

[3] The government is mistaken. While the parties in

Mowat indeed stipulated that section 1382 requires that the

government prove “absolute ownership or exclusive right of

possession,” we did not blindly accept that stipulation, but did

so in light of Ninth and Eighth Circuit precedent. See id. (cit-

ing Packard and Holdridge). Moreover, at the same time

Mowat was decided, a different panel of this court indepen-

dently held that section 1382 requires ownership or exclusive

right of possession. See Douglass, 579 F.2d at 547-48 (citing

Packard, Holmes, and Watson). Subsequent panels have also

held so independently of Mowat. See Vasarajs, 908 F.2d at

446 (citing Holmes and Watson).

[4] The government further argues that our cases left open

the question of what kind of government control over an area

within a military base is insufficient for a section 1382 prose-

cution, as they all upheld section 1382 convictions and did

not, in fact, involve an easement. The lack of an easement,

however, was an important part of the Vasarajs and Douglass

panels’ rationale in upholding the convictions. See Vasarajs,

908 F.2d at 446-47 (the government exercised actual control

over area involved and defendant did not argue that either she

or the public at large benefitted from an easement burdening

the portion of roadway at issue, or that she or the public at

large gained title to that portion of roadway through adverse

possession or an implied dedication); Douglass, 579 F.2d at

547 (rejecting appellant’s argument that the area at issue “was

not a part of the base because the United States did not have

the requisite ownership and possession of the area to enable

it to exclude the appellant” where appellant has not chal-

lenged the title of the United States to the area, there was no

11314 UNITED STATES v. PARKER

easement residing in the public with respect to this area, aris-

ing either by grant or by reservation, nor was there a relin-

quishment of control over the area by the base personnel).

[5] In conclusion, our circuit’s requirement that the gov-

ernment prove absolute ownership or exclusive right of pos-

session does not rest on the parties’ unverified stipulation in

one isolated case, but has been reaffirmed and applied by

multiple panels in light of authority from this and other

courts. We must therefore follow this precedent as the law of

the circuit, the government’s arguments that it is incorrect or

imprudent notwithstanding. Only the en banc court can over-

turn a prior panel precedent. See Miranda B. v. Kitzhaber, 328

F.3d 1181, 1186 (9th Cir. 2003) (per curiam) (“[W]here a

panel confronts an issue germane to the eventual resolution of

the case, and resolves it after reasoned consideration in a pub-

lished opinion, that ruling becomes the law of the circuit,

regardless of whether doing so is necessary in some strict log-

ical sense.”) (internal quotations omitted); Hart v. Massanari,

266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves

an issue in a precedential opinion, the matter is deemed

resolved, unless overruled by the court itself sitting en banc,

or by the Supreme Court . . . . [A] later three-judge panel con-

sidering a case that is controlled by the rule announced in an

earlier panel’s opinion has no choice but to apply the earlier-

adopted rule; it may not any more disregard the earlier panel’s

opinion than it may disregard a ruling of the Supreme

Court.”).

[6] The law of the circuit rule, of course, has an important

exception: a panel may disagree with the circuit precedent

when intervening Supreme Court decisions have undercut the

theory or reasoning underlying the prior circuit precedent in

such a way that the cases are clearly irreconcilable. Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The

government cites United States v. Albertini, 472 U.S. 675

(1985), where the Supreme Court held that section 1382’s bar

against re-entry after a defendant had received a bar letter

UNITED STATES v. PARKER 11315

applies during an open house, as “a person may not claim

immunity from [the bar letter’s] prohibition on entry merely

because the military has temporarily opened a military facility

to the public.” 472 U.S. at 687 (emphasis added). Albertini

did not address the scenario where a military base or area

thereof is permanently open to the public by virtue of a public

easement. Albertini and the line of Ninth Circuit cases requir-

ing absolute ownership or exclusive right of possession are

therefore not irreconcilable. Cf. Vasarajs, 908 F.2d at 447

(holding that Albertini supports the view that the government

“must exercise control over its property in order to preserve

the right to exclude others from it pursuant to § 1382”).

[7] In this case, the evidence conclusively shows that

Ocean Avenue had been established pursuant to a public road

easement that the United States had initially granted to the

State of California, which later relinquished it to the County

of Santa Barbara. The road is subject to the concurrent juris-

diction of the County of Santa Barbara and VAFB, with the

county exercising primary responsibility for the enforcement

of criminal laws.

[8] In all three incidents, Parker was within the physical

limits of the public road easement corresponding to Ocean

Avenue, a fact which the government does not challenge.

Because the government does not have an exclusive right of

possession over Ocean Avenue, under this court’s precedent,

Parker’s presence and protest activities cannot constitute vio-

lations of section 1382.

The judgment of conviction is therefore VACATED.

REVERSED.