Petition for Writ of Certiorari — Rebecca A. Moriello, Petitioner v. United States
Supreme Court briefMar 19, 2021
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No. _________
In The
Supreme Court of the United States
REBECCA A. MORIELLO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________________
PETITION FOR WRIT OF CERTIORARI
_____________________
W. ROB HEROY
Counsel of Record
GOODMAN, CARR PLLC
301 South McDowell Street
Suite 602
Charlotte, NC 28204
(704) 372-2770
rheroy@goodmancarr.net
Counsel for Petitioner
GibsonMoore Appellate Services, LLC
206 East Cary Street ♦ P.O. Box 1460 (23218) ♦ Richmond, VA
804-249-7770 ♦
www.gibsonmoore.net
23219
QUESTIONS PRESENTED
1)
Whether 41 C.F.R. § 102-74.38 and 41 C.F.R. § 102-74.390 are
inconsistent with the separation of powers doctrine?
2)
Whether 41 C.F.R. § 102-74.38 and 41 C.F.R. § 102-74.390 are
unconstitutionally vague?
i
TABLE OF CONTENTS
Page:
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iii
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
INTRODUCTION .......................................................................................................... 1
OPINIONS BELOW ...................................................................................................... 3
JURISDICTION............................................................................................................. 3
REGULATORY PROVISIONS INVOLVED................................................................. 3
STATEMENT OF THE CASE....................................................................................... 4
A.
Factual Background ................................................................................. 4
B.
Proceedings Below .................................................................................... 7
REASONS FOR GRANTING THE PETITION ............................................................ 8
I.
II.
The Court should grant Moriello’s petition and strike the challenged
regulations as a violation of the separation of powers. They are
inconsistent with the non-delegation doctrine, and lack an intelligible
principle ............................................................................................................... 8
A.
This delegation of criminal rule-making authority to the G.S.A.
violates the Constitution ........................................................................ 11
B.
Moriello’s non-delegation argument merits consideration by this
Court ....................................................................................................... 13
The regulations are unconstitutionally vague where they invite
arbitrary enforcement and fail to provide notice that specific conduct is
unlawful............................................................................................................. 15
A.
The impeding or disrupting official duties’ count fails to provide
fair notice and provides for arbitrary enforcement ............................... 18
ii
B.
The ‘failure to comply with authorized individuals’ count is
unconstitutionally vague because it does not provide notice of who
we are required to obey under threat of prosecution ............................ 19
CONCLUSION............................................................................................................. 20
APPENDIX:
Opinion
United States Court of Appeals for the Fourth Circuit
entered November 18, 2020 ............................................................................. 1a
Judgment
United States Court of Appeals for the Fourth Circuit
entered November 18, 2020. ........................................................................... 21a
Order
United States District Court for the
Western District of North Carolina - Asheville Division
entered June 7, 2019 ....................................................................................... 22a
Judgment in a Criminal Case
United States District Court for the
Western District of North Carolina - Asheville Division
entered June 7, 2019 ....................................................................................... 54a
Federal Management Regulations 102-74.385 and 102-74.390............................... 55a
Bill of Information
United States District Court for the
Western District of North Carolina - Charlotte Division
entered December 5, 2017 .............................................................................. 56a
United States District Court Violation Notices ....................................................... 58a
iii
TABLE OF AUTHORITIES
Cases
Page(s)
Barenblatt v. United States,
360 U.S. 109 (1959) .......................................................................................... 10
Bilski v. Kappos,
561 U.S. 593 (2010) .......................................................................................... 10
Bowen v. Georgetown University Hosp.,
488 U.S. 204 (1988) ........................................................................................... 14
Carter v. Welles-Bowen Realty,
736 F.3d 722 (6th Cir., 2013) ........................................................................... 14
City of Chicago v. Morales
527 U.S. 41 (1999) ............................................................................................. 16
Coates v. Cincinatti,
402 U.S. 611 (1971) ........................................................................................... 17
Fahey v. Mallonee,
332 U.S 245 (1947) ............................................................................................ 13
Grayned v. City of Rockford,
408 U.S. 104 (1972) ........................................................................................... 16
Gundy v. United States,
139 S. Ct. 2116 (2019) ................................................................................passim
Index Newspapers LLC v. United States Marshals Service,
977 F.3d 817 (9th Cir., 2019) ............................................................................ 12
International Harvester Co. of America v. Kentucky,
234 U.S. 216 (1914) ........................................................................................... 17
Johnson v. United States,
576 U.S. 591 (2015) ............................................................................... 16, 17, 18
Lanzetta v. New Jersey,
306 U.S. 451 (1939) ........................................................................................... 16
Leone v. United States,
910 F.2d 46 (2nd Cir., 1990) ............................................................................. 20
iv
Mistretta v. United States,
488 U.S. 361 (1989) ............................................................................................. 9
Novak v. City of Parma,
932 F.3d 421 (6th Cir., 2019) ............................................................................ 18
Paul v. United States,
140 S.Ct. 342 (2019) .......................................................................................... 14
Stevens v. Osuna,
877 F.3d 1293 (11th Cir., 2017) ........................................................................ 19
Touby v. United States,
500 U.S. 160 (1991) ........................................................................... 9, 12, 13, 14
Trump v. Hawaii,
138 S. Ct. 2392 (2019) ...................................................................................... 10
United States v. Baldwin,
745 F.3d 1027 (10th Cir, 2014) ......................................................................... 18
United States v. Grimaud,
220 U.S. 506 (1911) ........................................................................................... 13
United States v. L. Cohen Grocery Co.,
225 U.S. 81 (1921) ............................................................................................. 17
United States v. Lopez-Alvarado,
812 Fed. Appx. 873 (11th Cir., 2020)................................................................ 14
United States v. Mumford,
2017 WL 652449 (D. Oregon, 2019).................................................................. 12
United States v. Nichols,
784 F.3d 666 ...................................................................................................... 14
United States v. Robel,
389 U.S. 258 (1967) ............................................................................................ 9
United States v. Williams,
553 U.S. 285 (2008) ........................................................................................... 16
Whitman v. American Trucking Assns., Inc.,
531 U.S. 457 (2001) ........................................................................................... 10
Yakus v. United States,
321 U.S. 414 (1944) ....................................................................................... 9, 13
v
Statutes
18 U.S.C. § 1361 ............................................................................................................. 9
18 U.S.C. § 3231 ............................................................................................................. 3
28 U.S.C. § 1254(1) ........................................................................................................ 3
28 U.S.C. § 1291 ............................................................................................................. 3
40 U.S.C. § 1315(c)(1) ........................................................................................ 4, 10, 12
54 U.S.C. § 320301 ........................................................................................................ 9
Regulations
8 C.F.R. § 1003.10 ........................................................................................................ 19
41 C.F.R. § 101-19.304 ................................................................................................. 10
41 C.F.R. § 102-74.385 ..........................................................................................passim
41 C.F.R. § 102-74.390 ........................................................................................... 1, 3, 7
41 C.F.R. § 102-74.390(c) ............................................................................................. 18
Additional Authorities
Criminal Law, Hearing before the Subcomm. On Crime, Terrorism, and
Homeland Security of the Comm. On the Judiciary,
H.R. Serial No. 111-67, 111th Cong., 1st Sess. 6 (July 22, 2009) ................... 15
Glenn Reynolds, Ham Sandwich Nation: Due Process When Everything is a Crime,
113 Colum. L. Rev. Sidebar (2013) ........................................................................ 12
vi
PETITION FOR A WRIT OF CERTIORARI
Rebecca Moriello respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fourth Circuit.
INTRODUCTION
The Fourth Circuit Court of Appeals erred when it concluded that the
prosecution of Ms. Moriello, based on violations of two obscure General Service
Administration regulations, was consistent with the U.S. Constitution.
Both
regulations violate the non-delegation doctrine.
Ms. Moriello, a licensed immigration attorney, now carries a federal criminal
record based on violations of 41 C.F.R. § 102-74.385 and 41 C.F.R. § 102-74.390. The
convictions are premised upon a petty dispute between Ms. Moriello and a private
security guard at the Charlotte Immigration Court stemming from her use of the
smartphone features of her cellular phone within a courtroom at the Charlotte
Immigration Court. Moriello testified that she was using her phone for business
purposes, as permitted by courtroom regulations.
She did not obey the private
security guard because she believed her actions were consistent with phone usage
policies and that she was the victim of arbitrary enforcement based on prior disputes
with court personnel.
The challenged regulations violate the non-delegation doctrine because
Congress did not authorize the G.S.A. to create regulations that criminalize the
1
failure to obey every command of a G.S.A. tenant or subcontractor, nor did they
suggest the imposition of criminal sanctions in response to petty arguments.
Here, the challenged criminal regulations are buried deep within the “Public
Contracts and Property Management” section of the Code of Federal Regulations.
They are not consistent with the intelligible principle doctrine because they are not
supported by substantial guidance from Congress.
They are based on policy
judgments by the executive branch, and are arbitrarily exercised as such, particularly
where the regulations are quietly becoming a Department of Justice workhorse for
punishing unpopular conduct that would not otherwise violate the law.
The ill-defined regulations are unconstitutionally vague because they provide
no guidance with respect to interpretation of essential terms. Instead, they provide
law enforcement with the discretion to criminalize broad swaths of seemingly legal
conduct. For example, the Fourth Circuit found that “relatively minor disturbances,”
including conduct that is “disruptive visually,” was sufficient to sustain a conviction.
(Moriello at 936).
Similarly, they criminalize the failure to obey orders from
“authorized individuals,” without providing guidance on which government (or nongovernment) personnel must be obeyed.
This Court should take up Moriello’s petition because it provides an
opportunity to address the constitutionality of provisions this Court has not
previously evaluated. The petition also provides the opportunity to build on Justice
Gorsuch’s thoughtful opinion in Gundy v. United States, 139 S. Ct. 2116 (2019), and
2
reinforce the principle that Congress must speak distinctly when it delegates
authority to the executive branch to define criminal conduct.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fourth Circuit (App.
p. 1a) is reported at 980 F.3d 924 (2020). District Court Judge Martin Reidinger issued
his written order on June 7, 2019. (App. p. 22a). That order affirmed the judgment
entered by Magistrate Judge David Keesler on June 12, 2018. (App. p. 54a).
JURISDICTION
The judgment of the United States Court of Appeals for the Fourth Circuit was
entered on December 10, 2020. (App. p. 1a).
This Court has jurisdiction under
28 U.S.C. § 1254(1).
The district court possessed jurisdiction based on 18 U.S.C. § 3231. The Fourth
Circuit had jurisdiction to review Moriello’s appeal based on 28 U.S.C. § 1291.
REGULATORY PROVISIONS INVOLVED
41 C.F.R. § 102-74.385 provides:
What is the policy concerning conformity with official signs and
directions?
Persons in and on property must at all times comply with official signs
of a prohibitory, regulatory or directory nature and with the lawful
direction of Federal police officers and other authorized individuals.
41 C.F.R. § 102-74.390 provides:
What is the policy concerning disturbances?
All persons entering in or on Federal property are prohibited from
loitering, exhibiting disorderly conduct or exhibiting other conduct on
property that—
3
(a) Creates loud or unusual noise or a nuisance;
(b) Unreasonably obstructs the usual use of entrances, foyers, lobbies,
corridors, offices, elevators, stairways, or parking lots;
(c) Otherwise impedes or disrupts the performance of official duties by
Government employees; or
(d) Prevents the general public from obtaining the administrative
services provided on the property in a timely manner.
The provision authorizing delegation to the executive branch is found at
40 U.S.C. § 1315(c)(1). It provides:
The Secretary, in consultation with the Administrator of General
Services, may prescribe regulations necessary for the protection and
administration of property owned or occupied by the Federal
Government and persons on the property. The regulations may include
reasonable penalties, within the limits prescribed in paragraph (2), for
violations of the regulations. The regulations shall be posted and remain
posted in a conspicuous place on the property.
STATEMENT OF THE CASE
A.
Factual Background
On June 29, 2017, immigration attorney Rebecca Moriello appeared for a hearing
at the immigration court located in Charlotte, North Carolina. (J.A. pp. 253-55). That
facility is subject to regulation and control by the Federal Protective Services, as the
agency responsible for security in properties managed by the Government Services
Administration (“G.S.A.”). (J.A. pp. 165-77).
Once her hearing concluded, Moriello attempted to observe an asylum trial to
improve her trial skills. Id. Moriello received permission from the attorney for the
asylum-seeker, who had no objection to her presence. Id. Moriello entered the courtroom
and sat in the back of the courtroom, farthest away from Immigration Judge Barry
Pettinato. (J.A. p. 254). Pettinato questioned Moriello’s presence in the courtroom, but
eventually permitted it because the asylum-seeker consented. (J.A. p. 255).
4
Moriello testified that while observing the hearing, she was managing office
issues using the smartphone functions of her phone. Id. This is when conflict began.
The courtroom was staffed by private security. (J.A. p. 200). The guard on duty,
Pinar Bridges, testified that she was employed by a company named Paragon. Id.
Paragon was either contracted by the G.S.A., or by a subcontractor of a company
contracted by the G.S.A. Bridges stated that she observed Moriello using her phone
and instructed her to turn it off. (J.A. p. 202). She testified that attorneys can only use
their phone for business purposes, and since Ms. Moriello “wasn’t representing
anybody… it wasn’t business purposes, in my opinion.” (J.A. p. 195) (emphasis added).
Moriello did not obey Ms. Bridges.
She informed Bridges that courtroom
policies permitted her to use her phone for business purposes. (J.A. p. 255). Based
on that policy, attorneys are permitted to use their phones in the courtrooms. (J.A.
p. 264). Moriello stated that the sign posted outside the courtroom was consistent
with that understanding.
(J.A. p. 255). The physical sign was introduced into
evidence. It stated, “For clear and immediate business purposes only, attorneys and
other representatives are exempt from this rule and may use electronic devices in
EOIR space.” (J.A. pp. 171, 256, 327).
Moriello resumed the silent use of her phone following her disagreement with
Bridges. (J.A. pp. 196, 257). Bridges then testified that Pettinato called her up to
the bench to ask her to tell Ms. Moriello to shut her phone off. (J.A. p. 196). Pettinato
testified that he “could see her fingers going up and down” on her phone, and he had
“found it to be very distracting.” (J.A. pp. 216-17). He stated that the conversation
5
did not appear on the transcript of the asylum hearing because he went off the record
when he instructed Ms. Bridges. He stated going off the record is not a significant
ordeal, “it’s just a little click on my mouse on the computer to turn the digital
recording equipment on and off.” (J.A. p. 216).
Bridges testified that she then again asked Moriello to get off the phone, but
Moriello did not comply. (J.A. p. 197). She stated Moriello told her that, as an
attorney, she was allowed to use the phone for business purposes. Id.
Bridges then spoke to her supervisor, and subsequently called local police, who
arrived shortly.
Id.
Moriello spoke to them outside of the courtroom, and
subsequently left the courthouse. Id. Bridges testified that multiple private security
officers were disrupted by the entire encounter by having to shift posts. Id. The
attorney for the asylum seeker testified that he was not disturbed by Moriello’s cell
phone usage, nor was he aware of its usage. (J.A. p. 251).
Moriello called witnesses at her trial who testified to knowing Moriello as an
immigration attorney and as a volunteer attorney for immigrants.
They
characterized her as both “extremely honest,” and “exhaustingly honest” (J.A. pp.
273, 277). Both also described attorney cell phone and other electronic device usage
as both permitted and frequent. (J.A. pp. 274, 278).
Moriello testified that she believed she had been singled out for abuse as she
is not popular within the courthouse. (J.A. pp. 272-265). She testified that her phone
usage was consistent with policy. (J.A. p. 257). She stated that the immigration
judge was frequently hostile to her in court, and that he allowed other attorneys to
6
use their phones silently. Id. Her concerns were not meritless. Judge Pettinato
testified to general annoyance at Ms. Moriello.] He testified, “she’s so zealous about
trying to represent her clients that she gets disrespectful.”
(J.A. p. 231).
He
continued, “I think it’s the general consensus within our court that Ms. Moriello is a
difficult attorney to have to appear in front of any of the court—any of the judges.”
Id. Character witness Joanna Gaughan also testified that immediately following the
to-do involving Ms. Moriello, she overheard a discussion among the private security
guards where they expressed their dislike for Ms. Moriello. (J.A. p. 279). Pettinato
testified that he encouraged the United States Attorney’s Office to proceed with
criminal charges. (J.A. p. 245).
B.
Proceedings Below
Moriello was initially charged by citation with a violation of 41 C.F.R. § 10274.385 for failure to comply with instructions from a private security guard. The
Government superseded with a 2-count criminal information.
Count 1 alleged that she violated 41 C.F.R. § 102-74.385 by failing to comply
with “the lawful direction of an authorized individual, that is, an immigration judge”
by “continuing to use a cellular phone in an immigration courtroom despite the
command of the presiding immigration judge, transmitted through a private security
officer, that Defendant cease such use within the courtroom.”
Count 2 alleged
violation of 41 C.F.R. § 102-74.390 by “impeding and disrupting the performance of
official duties by government employees” by “refusing commands from an
7
immigration judge and a private security officer to cease the use of a cellular phone
within that judge’s courtroom during a sealed asylum proceeding.”
As a petty offense, the case was tried before a United States magistrate judge.
Moriello filed a motion to dismiss based on vagueness and separation of powers. That
motion was orally denied. The case proceeded to trial before the magistrate judge.
Moriello was found guilty on July 17, 2018, following the bench trial. She was
sentenced to a $2,500 fine. She appealed to the district court on July 26, 2018.
On June 7, 2019, following briefing by the Defense and the Government, the
Honorable District Court Judge Martin Reidinger issued a written decision affirming
the magistrate judge’s finding of guilt. (App. p. 22a).
Moriello timely appealed to the Fourth Circuit on June 19, 2019. That court,
in a unanimous published decision issued on November 18, 2020, affirmed the district
court’s order.
The Fourth Circuit found that the regulations were not
unconstitutionally vague, that they did not violate the Separation of Powers doctrine,
and that the evidence was sufficient to support a guilty verdict. The court’s judgment
took effect on December 10, 2020.
REASONS FOR GRANTING THE PETITION
I.
The Court should grant Moriello’s petition and strike the challenged
regulations as a violation of the separation of powers. They are
inconsistent with the non-delegation doctrine, and lack an intelligible
principle.
The challenged delegation violates the constitution because Congress did not
create or authorize regulations requiring citizens to obey unspecified and assorted
8
government employees under threat of prosecution. And Congress has incentive not
to create such regulations—such legislation would have the potential for inciting ire
with legislative constituents, particularly given that large segments of the population
take seriously any infringement upon their individual rights. 1
While our system of Government is “rooted in the principles of separation of
powers,” a certain degree of flexibility is required for government functioning. See
Mistretta v. United States, 488 U.S. 361, 371 (1989). Congress may seek legislative
assistance from the executive branch “within proper limits.” Touby v. United States, 500
U.S. 160, 165 (1991). That discretion may be “substantial.” Gundy v. United States,
139 S. Ct. 2116, 2123 (2019) (plurality opinion).
Such assistance may include “filling
up details and finding facts.” Id. at 2148 (2019) (J. Gorsuch, dissenting). Courts must
be able to see “in an appropriate proceeding” that there is a “substantial basis” for the
executive action and that the “will of Congress has been obeyed.” Yakus v. United States,
321 U.S. 414, 423, 425 (1944). In other words, Congress must have “supplied an
intelligible principle to guide the delegee’s use of discretion.” Gundy at 2123.
Particular scrutiny of delegation is required when criminal sanctions are
involved. In those cases, Congress must provide sufficiently clear directives to show
that it deliberated and made the required “legislative judgment.” United States v.
Robel, 389 U.S. 258, 275 (1967) (Brennan, J., concurring) (“The area of permissible
1 Not to say that Congress does not make these political decision.
Congress has
expressly legislated in regard to conduct on federal properties. See, e.g., 18 U.S.C. §
1361, et. seq. (governing destructive or malicious conduct on or against federal
properties); 54 U.S.C. § 320301 (Antiquities Act).
9
indefiniteness [of a delegation] narrows, however, when the regulation invokes
criminal sanctions and potentially affects fundamental rights”). 2 Moreover, when
delegating in important areas, Congress must provide “substantial guidance.”
Whitman, 531 U.S. 457, 475. Congress may not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it does not, one might say,
hide elephants in mouseholes. Id. at 468.
Here, both the delegation and the regulations violate the Constitution. As a
result, an obscure provision of the Code of Federal Regulations governing building
contracts and maintenance, permits seemingly-arbitrary prosecutions of dissidents
at the whim of the executive. The delegation violates the separation of powers. See
e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2448 (2019) (J. Sotomayor dissenting) (“Our
Constitution demands, and our country deserves, a Judiciary willing to hold the
coordinate branches to account when they defy our most sacred legal commitments.”).
These regulations exceed what is necessary for the “protection and
administration” of property. 40 U.S.C. § 1315(c)(1). Property can be both safeguarded
and administered without criminalizing general non-compliance with “authorized
individuals.” 3 Similarly, criminalizing nuisances and slight disruptions is unnecessary.
2 See also Bilski v. Kappos, 561 U.S. 593, 649 (2010) (Stevens, J., concurring) (“[A]t
the ‘fringes of congressional power,’ ‘more is required of legislatures than a vague
delegation to be filled in later[.]’”) (quoting Barenblatt v. United States, 360 U.S. 109,
139-40 (1959) (Black, J., dissenting)).
3 A predecessor version of the conduct regulation did not convey the same authority
to the executive. It outlawed a number of specific instances of misconduct and
provided context to the term disorderly conduct. That regulation, 41 C.F.R. § 10119.304 read as follows: The use of loud, abusive, or otherwise improper language,
10
Instead, what these regulations have done is permit the executive to criminalize
behavior when it sees fit.
A.
This delegation of criminal rule-making authority to the G.S.A.
violates the Constitution.
Even if the regulations were consistent with the proposed delegation, the
regulations go too far in criminalizing conduct. Decisions appropriating criminal
penalties to “relatively minor disruptions” 4 should be made by our legislature, not the
G.S.A.
The General Service Administration was conferred authority to “make all
needful rules and regulations for the government of the Federal property under their
charge and control.” Based on this sentence, the G.S.A. has created its own mini-code
of criminal regulations requiring obeisance to a slew of federal actors and permitting
prosecutions at the whim of the executive. Individuals can be compelled, under threat
of criminal prosecution, to obey authorized individuals at the post office, social
security, or the VA. Even minor transgressions or disagreements constitute criminal
offenses should the winds of justice favor prosecution.
The creation of regulations criminalizing disruptions or distractions of any
magnitude, and imposing unconstitutional duties on citizens to obey ‘authorized’
individuals, exceeds delegated authority and is inconsistent with the intelligible
unwarranted loitering, sleeping or assembly, the creation of any hazard to persons or
things, improper disposal of rubbish, spitting, prurient prying, the commission of any
obscene or indecent act, or any other unseemly or disorderly conduct on property,
throwing articles of any kind from a building and climbing upon any part of a
building, is prohibited.’
4 See Moriello at 936.
11
principle doctrine. This is not a case where the executive engaged in fact-finding to
determine whether dangerous drugs needed immediate regulation, it is a case of
legislating by the wrong branch. See Touby at 165.
The history of the regulation’s usage is also troubling. Searches related to §
102-74.385 trend toward prosecutions of protesters, lawyers, and journalists. In
Index Newspapers LLC v. United States Marshals Service, 977 F.3d 817 (9th Cir.,
2019), the court described authority to issue dispersal orders to reporters under that
section as “dubious.” In United States v. Mumford, 2017 WL 652449 (D. Oregon,
2019), an attorney was charged with violating the regulation based on a verbal
confrontation with the U.S. Marshals following the acquittal of Ammon Bundy.
Mumford had challenged the Marshals because he believed they no longer had
authority to detain Mumford and was criminally charged. Id.
And Moriello’s challenge is timely. Consistent with continued criminalization
of regulatory violations, the executive has leaned on the regulation more and more in
recent years. 5 Defendants are now responding with constitutional challenges. In
total, 24 of the approximate 40 decisions appearing in Westlaw searches relating to §
102-74.385 were written within the past six years.
If prosecutions such as Moriello’s are consistent with Congressional intent, it
is not apparent from the delegating legislation. 40 U.S.C. § 1315(c)(1) does not
provide guidance on when disruption becomes a criminal offense, nor does it suggest
See generally, Glenn Reynolds, Ham Sandwich Nation: Due Process When
Everything is a Crime, 113 Colum. L. Rev. Sidebar 102 (2013).
5
12
that failure to obey G.S.A. tenants and subcontractors is unlawful. Instead, both
Moriello’s prosecution, and the regulation’s past usage, suggest that the executive
branch saw an opportunity and seized it.
B.
Moriello’s non-delegation argument merits consideration by this
Court.
Moriello’s case provides a vehicle for the Court to provide lower courts with
guidance in evaluating criminal rulemaking by executive agencies in the absence of
explicit legislative authorization.
Her case raises arguments that were not decided by Gundy. It would provide
the Court the opportunity to build on Justice Gorsuch’s thoughtful opinion in Gundy,
and to reinforce the principle that Congress must speak “distinctly” if it wants to
assign the executive branch discretion to define criminal conduct. United States v.
Grimaud, 220 U.S. 506, 519 (1911).
More specifically, it would provide the Court the opportunity to answer the
question of whether the Constitution requires something more than an intelligible
principle, and to articulate a meaningful-constraint standard. In Touby, 500 U.S. at
166, the Court suggested that the Constitution may require more than an “intelligible
principle,” and that greater congressional specificity is required, “when Congress
authorizes another Branch to promulgate regulations that contemplate criminal
sanctions.” Touby at 155-56. (comparing Fahey v. Mallonee, 332 U.S 245, 249-50
(1947), with Yakus v. United States, 321 U.S. at 423-27, and United States v.
Grimaud, 220 U.S. at 518, 521.).
13
At least one circuit has noted the ambiguity characterized in Touby. See, Carter
v. Welles-Bowen Realty, 736 F.3d 722, 733 (6th Cir., 2013) (J. Sutton, concurring)
(“Under the government’s approach, an agency could fill a gap in a criminal statute
even where Congress provides no specific guidance about how to fill it.”).
Because Gundy was decided during a temporary vacancy, similar nondelegation arguments are likely to reoccur. See, e.g., Paul v. United States, 140 S.Ct.
342 (2019) (J. Kavanaugh concurring in the denial of certiorari) (Justice Gorsuch’s
opinion “may warrant further consideration in future cases.”; United States v. LopezAlvarado, 812 Fed. Appx. 873, 879 (11th Cir., 2020) (noting support for new
consideration of the non-delegation doctrine).
Here, the Court should consider taking up the question and clarifying a
standard. Prior to joining this Court, Justice Gorsuch suggested three elements for
a “meaningful” constraint: “(1) Congress must set forth a clear and generally
applicable rule *** that (2) hinges on a factual determination by the Executive ***
and (3) the statute provides criteria the Executive must employ when making its
finding.” United States v. Nichols, 784 F.3d 666, 673 (J. Gorsuch, dissenting from
denial of rehearing en banc). Alternatively the Court could consider a standard
similar to the requirements for retroactive rulemaking by administrative agencies,
including “that power [be] conveyed by express terms.” See Bowen v. Georgetown
University Hosp., 488 U.S. 204, 208 (1988).
Now is the time for the Court to take up the challenge. More and more
frequently (as here), the executive branch draws up new, and frequently poorly
14
defined, criminal regulations that cover an ever-widening range of conduct. See, e.g.,
Over-Criminalization of Conduct/Over-Federalization of Criminal Law, Hearing
before the Subcomm. On Crime, Terrorism, and Homeland Security of the Comm. On
the Judiciary, H.R. Serial No. 111-67, 111th Cong., 1st Sess. 6 (July 22, 2009)
(testimony of Hon. Richard Thornburgh, former Attorney General) (“The unfortunate
reality is that the Congress has effectively delegated some of its most important
authority to regulate crime in this country to Federal prosecutors who are given an
immense amount of latitude and discretion to construe Federal crimes and not always
with the clearest motives or intentions.”).
Ms. Moriello’s case presents a perfect example of an unconstitutional
delegation. Her challenge merits review.
II.
The regulations are unconstitutionally vague where they invite
arbitrary enforcement and fail to provide notice that specific conduct
is unlawful.
The Court should also consider granting certiorari because the regulations are
unconstitutionally vague. Moriello’s case provides an excellent vehicle because the
challenged regulations provide little in the way of guidance, and plenty in the way of
unconstrained discretion. The vagueness problem, which might not be sufficient to
justify certiorari on its own, is magnified because the regulations are prime examples
of ill-defined regulations drawn up by the executive branch that sweep up too broad
a range of conduct. The net they cast risks criminalizing mundane encounters with
federal employees or subcontractors. The Fourth Circuit said so itself, specifically
noting that both conduct that is “disruptive visually,” and “relatively minor
15
disturbances,” 6 are sufficient to violate the regulations, to turn a remonstrating
attorney into a criminal, and to put her at risk of disbarment.
The prohibition on vagueness in criminal statutes “is a well-recognized
requirement, consonant alike with ordinary notions of fair play and the settled rules
of law, and a statute that flouts it violates the first essential of due process.” Johnson
v. United States, 576 U.S. 591, 595 (2015) (internal quotation omitted). See also,
Gundy at 2141 (“we have explained that our doctrine prohibiting vague laws is an
outgrowth and corollary of the separation of powers.”) (J. Gorsuch dissenting)
(internal citation omitted).
The greatest degree of certainty is required in criminal statutes because “[n]o
one may be required at peril of life, liberty or property to speculate as to the meaning
of penal statutes.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). A “vague law
impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108–09
(1972); See also, United States v. Williams, 553 U.S. 285, 306 (2008) (this Court
strikes down statutes tying criminal culpability to “wholly subjective judgments
without statutory definitions.”); City of Chicago v. Morales ("the broad sweep of the
ordinance" must not cause it to "reach a substantial amount of innocent conduct.”
527 U.S. 41, 60 (1999)).
6 Moriello at 936.
16
In this case, the Fourth Circuit wrongly failed to analyze vagueness claims by
simply asserting that persons of ordinary intelligence would know not to engage in
similar conduct. Even if an individual were to estimate the wrongfulness of their
conduct, that estimation would very well be limited to anticipation of incurring the
ire of a private security guard or immigration judge. That is a separate analysis than
whether the conduct would constitute a criminal act. One anticipates the likelihood
of criminal charges if they engage in drug dealing or insider trading; they anticipate
a potential tongue-lashing if they squabble with a private security guard.
Moreover, the Court ignored Johnson’s precedent by requiring Moriello to
prevail under an “as applied” analysis. See Moriello at 931. Johnson, consistent with
prior precedent, made clear that a statute can be unconstitutionally vague even if
there are cases that could be easily resolved under the statutory language. See
Johnson at 602-03, citing United States v. L. Cohen Grocery Co., 225 U.S. 81 (1921)
and Coates v. Cincinatti, 402 U.S. 611 (1971).
The Court noted, “our holdings
squarely contradict the theory that a vague provision is constitutional merely because
there is some conduct that clearly falls within the provision’s grasp.” Id.
Here, both regulations “are uncertain both in nature and degree” and the Court
should strike them down. Johnson at 604 (citing International Harvester Co. of
America v. Kentucky, 234 U.S. 216 (1914)). 7
7 These vagueness concerns further contribute to difficulty in “ascertain[ing] whether
Congress’s guidance has been followed.” Gundy at 2136 (J. Gorsuch dissenting)
(internal citation omitted).
17
A.
The ‘impeding or disrupting official duties’ count fails to provide
fair notice and provides for arbitrary enforcement.
41 C.F.R. § 102-74.390(c), which criminalizes conduct that “otherwise impedes
or disrupts the performance of official duties by Government employees,” runs afoul
of both requirements.
It provides no threshold level of disturbance, not even a
requirement that the disturbance be substantial. Thus, it leaves the decision to law
enforcement of whether to bring a criminal charge or give a pass on a particular
occasion.
Circuits have raised similar questions regarding the term “disrupt”. In Novak
v. City of Parma, 932 F.3d 421 (6th Cir., 2019), the circuit addressed a law
criminalizing any action through the use of a computer that would “disrupt, interrupt,
impair the functions of any police operation.” The law was sufficiently vague that the
court noted, “[t]his broad reach gives the police cover to retaliate against all kinds of
speech under the banner of probable cause.” “Critical online comments, mail-in or
phone bank campaigns, or even informational websites that incite others to “disrupt”
or “interrupt” police operations violate the law.
And, as was noted in United States v. Baldwin, 745 F.3d 1027, 1031 (10th Cir,
2014), the specific challenged provision opens the door to prosecution based on “a
prosecutorial whim.” “Pressing a prosaic conversation with a co-worker about ski
conditions in the high country might seem enough to make criminals of us all.” Id.
The Court should grant Moriello’s petition because the regulation “both denies
fair notice to defendants and invites arbitrary enforcement.” Johnson at 597. Even
under an “as applied” standard, the regulations are not constitutional. Vagueness
18
problems are readily apparent when the Fourth Circuit finds the Government can
meet its burden based on “relatively minor disturbances,” and conduct that is
“disruptive visually.”
B.
The ‘failure to comply with authorized individuals’ count is
unconstitutionally vague because it does not provide notice of
who we are required to obey under threat of prosecution.
41 C.F.R. § 102-74.385 states, “Persons in and on property must at all times
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
question left open by the regulation is, who are the authorized individuals, and how
does one know they are authorized. Criminal regulations should not leave such
questions open.
The Fourth Circuit cited to immigration regulations contained in 8 C.F.R. §
1003.10, as well as Eleventh Circuit caselaw on “an immigration judge’s role in
immigration proceedings,” to reach the conclusion that immigration judges are
authorized under the regulation. See Moriello at 935 (citing Stevens v. Osuna, 877
F.3d 1293, 1302 (11th Cir., 2017). The court also found that immigration judge
affiliation with the Department of Justice was relevant.
Id.
The testifying
immigration judge was questioned regarding his authority to give orders, and
responded, “I think there is some policy matters from our headquarters.” (J.A. p.
232).
The Fourth Circuit’s criteria for concluding that private security officers were
authorized individuals was similarly lacking in grounding. The court noted a number
of factors as salient, including that they “look like an actual police officer,” and are
19
required “to be in uniform.” The district court’s analysis went a different direction.
That court decided private security officers are authorized based on the “strict control
test” and “principles of agency” (App. p. 40a) (citing Leone v. United States, 910 F.2d
46, 49 (2nd Cir., 1990)).
Both the Fourth Circuit and the district court grounded their decisions in
sound logic. Their conclusions constitute a fair-ish assessment of who might be
authorized to give orders in the G.S.A. context. But that is the problem. Guesswork
and Monday morning quarterbacking are not a substitute for fair notice.
Rough estimates, particularly when they need to be performed after the fact,
are not consistent with due process. A criminal regulation should provide some
clarity regarding who we are legally required to obey.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted, this March, 2021.
s/Rob Heroy
W. Rob Heroy
Attorney for Defendant
Supreme Court Bar No. 307792
Goodman Carr, PLLC
301 S. McDowell St., #602
Charlotte, NC 28204
RHeroy@GoodmanCarr.net
Ph: (704)372-2770
20
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.