Petition for Writ of Certiorari — Bassett v. United States

92-224

NO. 92-

UNITED S'TATES SUPREME COURT

October Term, 1992

In the Matter Of:

LUELLA BASSETT and ELIZABETH LaFOREST,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JEFFREY J. ELLISON, ESQ.

Counsel of Record

Gregory, Moore, Jeakle,

Heinen, Ellison & Brooks

3727 Cadillac Tower

Detroit, MI 48226

(313) 964-5600

QUESTION PRESENTED FOR REVIEW

WHERE THE SUPREME COURT HAS HELD THAT

A MILITARY BASE IS NOT A PUBLIC FORUM AND

THAT THE BASE COMMANDER HAS THE DISCRETION

TO EXCLUDE FROM THE BASE AND PROSECUTE FOR

REEENTRY TO THAT BASE PERSONS WHOM HE HAS

BARRED, DOES THE BASE COMMANDER HAVE THE

AUTHORITY UNDER 18 U.S.C. 1382 UNILATERALLY

TO EXTEND THE BOUNDARIES OF THE BASE SO AS

TO ENCROACH UPON AN EASEMENT PREVIOUSLY

GRANTED TO THE PUBLIC FOR HIGHWAY PURPOSES,

AND THEREBY PROSECUTE FOR REENTRY TO THE

BASE PROTESTORS OF U.S. NUCLEAR WEAPONS

POLICY WHO HAVE CROSSED THE NEWLY EXTENDED

"BOUNDARY" TO THE BASE?

Statement of Jurisdiction l

Statement of the Case 3

Arguments for Granting the Writ

The Court of Appeals’ holding

that Petitioners’ lawful use of

the easement outside Wurtsmith

AFB to exercise their free speech

rights nonetheless amounted to

reentry of that base in violation

of 18 U.S.C. 1382 ignores the

decisions of the Supreme Court,

is in conflict with the decisions

of other Circuit Courts of Appeal

and ignores well-settled property

law as interpreted by the

Michigan Supreme Court. 12

Conclusion and Relief Requested 27

Appendix

1S eI

TABLE OF AUTHORITIES

Cases

Bolender v. So. Michigan Telephone

Co., 182 Mich. 646 (1914) 23

Cantieny v. Friebe, 341 Mich.

143 (1954) 24

Carr v. Bartell, 305 Mich. 317 (1943) 25

Flower v. United States, 407

U.S. 197, 92 S.Ct. 1842,

32 L.Ed.2d 653 (1972) 15, 16, 17

Greer v. Spock, 424 U.S. 828,

36 S.Ct. i211, 47 L.Bda.2d

505 (1978) 17

Harr v. Coolbaugh, 337 Mich.

158 (1958) 24

Hasselbring v. Koepke, 262

Mich. 466 (1933) 24

Missouri v. Jenkins, 496 U.S. 33,

110 §.Ct. 1651, 109 L.8d.2da 31

(1990) 2

Neal v. Gilmore, 141 Mich.

519 (1905) ; 25

Pontiac & Lapeer Plank-Road Co.

v. Hilton, 69 Mich. 114 (1888) a5

Stewart v. Hunt, 303 Mich.

161 (1942) 24

iv

United States v. Albertini, 472

U.6. 675, 105 &.Ct. 2897, -86

L.Ed.2d 536 (1985) he Pe ee | ee

United States v. Parrilla Bonilla,

648 F.2d 1373 (lst Cir.

1981) 14, 18, 23-25

United States v. Vasarajs, 908 F.2d

443 (9th Cir. 1990) 14, 18-21

Statutes

18 U.§.C. 1362 passim

M.C.L. 247.189 26

Statute Involved

Title 18 UNITED STATES CODE Section 1382

Entering military, naval, or Coast Guard

property

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 reservation, post, fort, arsenal,

yard, station, or installation, after

having been removed therefrom or ordered

not to reenter by any officer or person in

command or charge thereof--

Shall be fined not more than $500 or

imprisoned not more than six months, or

both.

vi

Statement of Jurisdiction.

The United States Court of Appeals for

the Sixth Circuit issued its judgment in

this case on February 24, 1992, sub nonm.,

United States v. LaValley, 957 F.2d 1309

(6th Cir. 1992). Petitioners filed a

timely suggestion for rehearing en banc on

March 6, 1992. The suggestion was

circulated among the judges of the Circuit

Court and no vote on rehearing en banc was

requested. Thereafter, pursuant to Sixth

Circuit Rule 14(a)*, the suggestion was

submitted to the original panel and treated

‘The rule provides in relevant part the

following:

Rule 14 En Banc -- Required

Statement for Rehearing En Banc

(a) Suggestion for Rehearing En

Banc.

x * «*

A suggestion for rehearing en banc

will-also be treated as a petition for

rehearing before the original panel.

as a petition for rehearing. The petition

was denied on May 1, 1992.

Since the Court of Appeals treated the

suggestion for rehearing en banc as a

petition for rehearing in accordance with

Sixth Circuit Rule 14(a), this petition for

certiorari is timely presented. Pursuant

to Supreme Court Rule 13.4, the time in

which one may file a petition for

certiorari is tolled until the date on

‘which the rehearing request is denied by

the Court of Appeals. Missouri v. Jenkins,

496 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31

(1990)

This Co.rt has jurisdiction to review

the decision of the Court of Appeals

affirming Petitioners’ convictions pursuant

to 28 U.S.C. 1254(1).

e Statement of the Case

On September 4, 1990, Petitioners

Luella Bassett and Elizabeth lLaForest,

among others, were charged with violating

the second paragraph of 18 U.S.C. Section

1382 by reentering Wurtsmith Air Force Base

on August 4, 1990. This charge was issued

even though Petitioners never passed the

chain link fence marking the base boundary

and were, at the time of their arres\,

lawfully using a pedestrian easement just

outside that fence to protest government

possession of nuclear weapons. These facts

were supported by the trial record as

follows.

1. The base boundary and the highway

easement.

Wurtsmith’s boundaries are established

by a permanent chain link fence which

surrounds its perimeter. The Air Force

witnesses testifying at trial freely

3

admitted that Wurtsmith extended only so

far as its permanent fence line. They also

cited Air Force regulations substantiating

the fact that Wurtsmith Air Force Base is

contained within the permanent fence.

Immediately east of the perimeter

fence line marking the base boundary is the

easement for Iosco County highway F-41l.

This highway runs north of Oscoda, passes

Wurtsmith and continues another 20 or 30

miles. The highway is not repaired or

maintained by Air Force crews. These

responsibilities lie solely with the Iosco

County highway department. County workers

plow the highway in winter months, and

Oscoda Township police patrol it.

Although the paved portion of the

roadway is only about 30 feet wide, the

highway easement extends a full 75 feet in

either direction from the center of the

road. Wurtsmith’s chain link perimeter

4

fence stands on the western boundary of the

easement where the road passes the base.

A grassy strip occupying the portion of the

easement between the paved roadway and the

fence is frequently used by pedestrians,

joggers, and recreational snowmobilers.

Facts established at trial showed the

easement was _created when the federal

government conveyed to the State -of

Michigan a right of entry for the purpose

of constructing and maintaining the highway

in front of the base. The easement

document described the nature of the

conveyance to the State in the following

terms:

Paragraph 6. The United States

reserves the right to make such

connections between the road herein

authorized and the roads and streets

on said military reservation as the

chief of engineers may from time to

time consider necessary, and also

reserve to it rights of way for all

purposes across, over and/or under the

right of way hereby granted; provided,

however, that such rights shall. be

5

used in a manner that will not create

unnecessary interference with the use

and enjoyment by the grantee of said

rights of way or for highway purposes.

2. The blocking of the highway easement.

In complete disregard for the base’s

contractual obligation not to interfere

with the highway easement, Wurtsmith’s base

commander ordered a temporary barrier of

day-glo orange, vinyl snow fencing to be

erected outside the base’s chain link fence

line. This temporary fencing was erected

on August 4, 1990 and ran directly from the

permanent fence to the edge of the paved

portion of Highway F-41. It completely

blocked the pedestrian easement on the west

side of the highway at a point several

hundred feet north of the driveway that

leads to the base’s main gate. On that

same date, Petitioners walked two miles

southbound on the grassy easement between

the fence line and the paved portion of

6

highway F-41. When they attempted to

proceed past the temporary fencing which

blocked the pedestrian easement, they were

warned by base security police officers

that the temporary vinyl fence marked a new

"boundary" of the base; and that they had

entered the base at the time they crossed

over that piece of vinyl. Petitioners were

then arrested, questioned, photographed,

held for several hours, and released. The

arrests were made within the pedestrian

easement on the grassy strip adjacent to

the highway; and at no time did Petitioners

pass the base’s actual boundary marked by

the chain link fence. Notwithstanding

these facts, Petitioners were prosecuted

for reentry to a base from which they

previously had been barred.

3 The criminal prosecution.

Petitioners were arraigned before U.S.

District Judge Robert Cleland on October 3,

1990. Each Petitioner entered a plea of

not guilty to the charge.

A bench trial was conducted on

December 4, 10 and 11, 1990. At trial’s

end, Petitioners were convicted as charged.

In convicting Petitioners under Section

1382, the district judge specifically found

that the base commander had the right to

extend the base boundary and encroach on

the easement regardless of the limited

nature of the conveyance set forth in the

easement documents.

On January 011, 1991, Petitioner

Bassett was sentenced to a term of

imprisonment of 60 days and a fine of

$1,000.00. Petitioner LaForest was ordered

to serve 21 days in jail and to pay a fine

of $1,000.00.

8

4. The appeal.

On January 24, 1991, each Petitioner

filed a claim of appeal to the United

States Court of Appeals for the Sixth

Circuit. After receiving briefs on all

questions presented, the court heard oral

argument on November 5, 1991. Thereafter,

on February 24, 1992, the court, with one

judge dissenting, issued its opinion and

order affirming the findings of the trial

court. United States v. LaValley, 957 F.2d

1309 (6th Cir. 1992).

In addressing the easement issue, the

majority wrote:

The mere fact that an easement had

been granted to the state for the

construction, maintenance and use of

highway F-4l1 did not give’ the

protestors the right, in bold defiance

of military authority, to enter the

base, after being previously barred.

Id. at 1313.

Dissenting Judge James Ryan maintained

that Petitioners did not violate section

9

1382 for the simple reason that "they did

not reenter Wurtsmith." Id. at 1318.

Judge Ryan took strong issue with the

majority:

In reaching its conclusion, the

majority opinion ignores both the

documentary evidence adduced at trial

and controlling property law as

established in the state of Michigan.

* * * The base commander’s order to

erect a fence, preventing pedestrians

from traversing the grassy strip that

was long ago set aside for public use

and forcing them to walk on the paved

portion of F-41l, interfered with the

use of the public easement.

= «2

When the base commander ordered the

temporary fence erected, he

unilaterally reclaimed a portion of

the easement which he was not free to

occupy absent permission from the

easement holder, the state of

Michigan, or, conceivably, exigent

circumstances not claimed to exist.

Id. at 1317-18.

A timely suggestion for rehearing en

banc was filed on March 6, 1992; it was

treated by the court as both a suggestion

10

for en banc rehearing and as a petition for

rehearing. It was denied on May 1, 1992.

This petition follows.

11

ARGUMENTS FOR

GRANTING THE WRIT

The Court of Appeals’ holding that

Petitioners’ lawful use of the easement

outside Wurtsmith AFB to exercise their

free speech rights nonetheless amounted to

reentry of that base in violation of 18

U.S.C. 1382 ignores the decisions of the

Supreme Court, is in conflict with the

decisions of other Circuit Courts of Appeal

and ignores well-settled property law as

interpreted by the Michigan Supreme Court.

Introduction

On August 4, 1990, Petitioners did not

pass the permanent chain link fence that

marks the base boundary of Wurtsmith Air

Force Base. Instead, they remained on the

easement adjacent to the base, using it for

one of the limited purposes for which it

had been granted.

The government’s prosecution depended

almost entirely on its bizarre claim that

Petitioners had actually reentered the base

by crossing a brand new, completely

temporary, snow fence erected outside the

12

base’s boundary. Clearly, the base

commander had absolutely no authority to

encroach on the easement, erect the vinyl

snow fence, and thereby keep Petitioners

and others from walking along this small

stretch of public land.

In finding that the base commander had

the unilateral authority to impinge upon

Petitioners’ lawful exercise of First

Amendment rights by temporarily enlarging

the base, the Court of Appeals ignored the

Supreme Court’s decision in Flower v.

United States, 407 U.S. 197, 92 S.Ct. 1842,

32 L.Ed.2d 653, and wrongly decided a

question left open by this Court in United

States v. Albertini, 472 U.S. 675, 105

S.Ct. 2897, 86 L.Ed.2d 536 {1985).

In addition, the decision of the Court

cf Appeals in this case conflicts directly

with the decisions of two other circuit

courts of appeal. Cf., United States v.

13

Vasarajs, 908 F.2d 443 (9th Cir. 1990);

United States v. Parrilla Bonilla, 648 F.2d

1373 (lst Cir. 1981).

Finally, the Court of Appeals decided

the federal question presented ("What

constitutes ‘reentry’ on a military base?")

in a manner which blindly ignored state

property law established by the Michigan

Supreme Court.

Under the circumstances, review by

this Court is imperative.

1. The Court of Appeals decided the

federal question of “reentry” contrary

to established Supreme Court

precedents.

In the instant case, the Court of

Appeals held that the base commander had

the authority to reoccupy aé highway

easement so as to deprive Petitioners of

their rights not only to use that highway

for transportation purposes but also to use

the easement as a public forum. In doing

14

so, the court ignored this Court’s decision

in Flower v. United States, 407 U.S. 197,

92 S.Ct. 1842, 32 L.Ed.2d 653 (1972). In

that case, an individual who had been

barred from Fort Sam Houston in San

Antonio, Texas, reentered the same military

reservation. At the time of his arrest for

reentry, he was "quietly distributing

leaflets on New Braunfels Avenue at a point

within the limits" of the fort. Id., op

cit. The street at that location was open

to unrestricted civilian traffic at all

hours. Commenting on this case in

Albertini, the Supreme Court determined

"that New Braunfels Avenue was a public

thoroughfare no different than other

streets in the city, and that the military

had abandoned not only the right to exclude

civilian traffic from the avenue, but also

any right to exclude leafleteers." 472

U.S. at 685, 105 S.Ct. 2897, 86 L.Ed.2d at

15

546. This Court, in Albertini, went on to

define the narrow holding of Flower:

Flower establishes that where a

portion of a military base constitutes

a public forum because the military

has abandoned any right to exclude

Civilian traffic and any claim of

special interest in regulating

expression, a person may not be

excluded from that area on the basis

of activity that is itself protected

by the First Amendment.

472 U.S. at 685, 686; 105 S.Ct. 2897;

86 L.Ed.2d at 546.

-In the instant case, the military at

Wurtsmith went a step further than did the

authorities at Fort Sam Houston. Not only

did the military at Wurtsmith abandon the

right to exclude civilian traffic from the

full width of highway F-4l, it did so

formally, through the express grant of an

easement to the State of Michigan and its

citizens. By granting this easement the

federal government removed the highway and

its adjacent property from the base itself,

thus protecting from prosecution under

16

Section 1382 any activity which might occur

there.

Although this Court has held that

there is "no generalized constitutional

right to make political speeches. or

distribute leaflets" on military bases,

Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct.

1211, 47 L.Ed.2d 505; Albertini, 424 U.S.

at 685, 105 S.Ct. 2897, 86 L.Ed.2d at 685,

those expressive activities may freely

occur in any place appropriately considered

to be a public street. As this Court held

in Flower, those activities are entitled to

the full protection of the First Amendment.

Petitioners in this case were

expressing their disagreement with the

nuclear weapons policy of the federal

government. They were doing so on a public

street, outside a military reservation when

they were arrested for reentry of a

military base. In affirming Petitioners’

17

convictions, the Court of Appeals

legitimized the base commander’s unlawful

action and impinged upon Petitioners’

freedom of expression. This holding cries

out for correction by this Court.

2. The Court of Appeals’ decision holding

that Petitioners had reentered Wurtsmith is

in direct conflict with decisions of other

Gircuit Courts of Appeal on the same issue.

The Court of Appeals held that

Petitioners had reentered Wurtsmith when

they crossed the temporary snow fence, even

though they never approached the base’s

actual boundary.

This decision is in direct conflict

with the Ninth Circuit’s holding in United

States v. Vasarajs, 908 F.2d 443 (9th Cir.

1990), and the First Circuit’s holding in

United States v. Parrilla Bonilla, 648 F.2d

1373 (lst Cir. 1981).

In Vasarajs, the defendant was

prosecuted under 18 U.S.C. 1382 for reentry

18

of a military installation. In her

defense, she claimed that because the

public was allowed to travel that portion

of road between the highway exit ramp and

the fort’s guard shack, the government had

relinquished its control over the road

despite its legal title to the land under

it. In analyzing this argument, the court

acknowledged the cases stating that "the

fact that the United States has title to

land contained within a reservation is

insufficient to prove that the land is part

of the reservation." But the court stated:

-.. these cases merely stand for the

uncontroversial proposition that

record title does not unfailingly

denote the title holder’s "absolute

ownership, or an exclusive right to

the possession" of the property in

question.

Id. at 446.

The court explained this "uncontroversial

proposition" as follows:

19

A servitude may exist on the land.

See [United States v.] Watson, 80

F.Supp. [649] at 651 [(E.D.Va. 1948) ]

(easement residing in the public).

Alternatively, title itself may have

been taken away from an initial owner

by adverse possession. Barring these

relatively rare situations which can

only arise pursuant to application of

exacting statutory or common-law rules

requiring at a minimum abandonment for

a specified period of time, whoever

owns a given parcel of land should

have the right of exclusive control.

There is no generalized notion of

abandonment in property law apart from

these highly particularized rights.

Id. (citations and footnotes omitted;

emphasis supplied).

The Ninth Circuit affirmed the defendant’s

conviction, finding that the fort had not

granted an easement which would permit her

to be on that land.

In contrast to the fort in Vasarajs,

the federal government in the instant case

expressly granted an easement 150 feet wide

immediately east of the chain link fence

line of Wurtsmith Air Force Base. In doing

so, the government completely relinquished

20

its right of exclusive control over that

strip of land. Petitioners were peaceably

using the easement for its intended purpose

and the government had no right whatsoever

to interfere with them -- much less to

arrest and charge them with reentry. The

decision of the Sixth Circuit Court of

Appeals affirming Petitioners’ convictions

therefore conflicts with the Ninth

Circuit’s holding in Vasarajs and warrants

review by this Court.

The Court of Appeals’ decision in the

instant case also conflicts with the First

Circuit’s findings in United States v.

Parrilla Bonilla, supra. There, civilians

were prosecuted under 18 U.S.C. 1382 for

entry onto an island the Navy used for

amphibious’ landings. The government

Originally asserted that defendants had

stepped onto the island base when they

passed the "brim line," the ordinary high

7 2i

tide line of the island. When it was

unable to prove that the defendants had

walked onto the island that far, the

government changed its theory of the case

and argued that the entire beach was part

of the base.

In considering the government’s claim

the First Circuit noted that "the most

obvious and basic element of a section 1382

prosecution is a demonstration that the

defendant entered a ‘military

reservation.’" Id., at 1383. It then held

that "the government is bound for purposes

of these prosecutions by the border line it

established at trial." JId., at 1385. As

the defendants in that case had not crossed

the border line defined at trial, the

government was not permitted to modify the

border in order to obtain convictions under

the statute.

22

The uncontroverted evidence in the

instant case established that the chain

link fence marked the boundary of

Wurtsmith. It was this boundary, and no

other, which Petitioners were required to

pass in order to "reenter" the base. The .

Court of Appeals erroneously held that the

base commander was allowed to move the base

boundary onto land he had expressly given

to the State of Michigan in order to

restrict Petitioners’ rights to demonstrate

on that land. This decision was directly

in conflict Parrilla Bonilla and warrants

further examination by this Court.

3. The Court of Appeals’ holding that the

base commander had the authority to

reoccupy the easement has blatantly ignored

the law of easements as established in

Michigan.

It is settled law in Michigan that the

public acquires a right of way on a highway

with the full rights incident thereto.

Bolender v. So. Michigan Telephone Co., 182

23

Mich. 646 (1914). As a general rule, the

fee owner can use his land for any purpose

not inconsistent with the rights of the

owner of the easement. Cantieny v. Friebe,

341 Mich. 143 (1954); Harr v. Coolbaugh,

337 Mich. 158 (1958); Hasselbring v.

Koepke, 262 Mich. 466 (1933). Stated

another way, the owner of the servient

estate cannot use his property in such a

way as to obstruct the easement. Stewart

v. Hunt, 303 Mich. 161 (1942). Indeed,

insofar as they relate to the grant of the

easement, the rights of the owner of the

easement are paramount to those of the

owner of the _ fee. Cantieny, supra;

Hasselbring, supra.

It is also settled law in Michigan

that an unauthorized obstruction of or

encroachment upon a highway is unlawful and

constitutes a nuisance. Thus, an

unauthorized obstruction across a public

24

street is a public nuisance which any

citizen desiring to travel along the street

may abate, provided he can do so without a

breach of the peace. Pontiac & Lapeer

Plank-Road Co. v. Hilton, 69 Mich. 114

(1888); Neal v. Gilmore, 141 Mich. 519

(1905). Anything which wrongfully

interferes with the privilege to which the

owner of the easement is entitled, by

making its use less convenient and less

beneficial than before, constitutes a

wrongful obstruction subject to abatement.

Carr v. Bartell, 305 Mich.317 (1943).

The Michigan legislature has codified

these principles as they relate to public

highways in the following terms:

All public highways for which the

right of way has at any time been

dedicated, given or purchased, shall

be and remain a highway of the width

so dedicated, given, or purchased, and

no encroachments by fences, buildings

or otherwise which may have been made

since the purchase, dedication or gift

shall give the party ... s0

25

encroaching, any title or right to the

land so encroached upon.

M.C.L. 247.189

Petitioners’ action in crossing the

temporary snow fence had the legal effect

of abating the nuisance wrongfully erected

by the Air Force. Petitioners were

privileged to abate this nuisance because

their rights to use the easement for its

intended purpose of transportation were

paramount to all other uses and because

they were able to do so without breaching

the peace. In exercising this right to

abate, Petitioners as a matter of law did

not become trespassers.

In deciding the federal question of

what constitutes "reentry" under 18 U.S.C.

1382, the Court of Appeals has ignored the

well-settled law of easements in the State

of Michigan. Its holding that the base

commander had the right to erect a fence

26

blocking the easement is directly contrary

to the holdings of the Michigan Supreme

Court on this point. As such, the decision

warrants review by this Court.

Conclusion and Relief Requested

For all the reasons set forth herein,

Petitioners’ pray that this Court issue a

writ of certiorari to the Court of Appeals

for the Sixth Circuit in order to set right

that court’s meritless decision.

Respectfully submitted,

JEFFREY J. ELLISON, ESQ.

Counsel of Record

Gregory, Moore, Jeakle,

Heinen, Ellison & Brooks

3727 Cadillac Tower

Detroit, MI 48226

(313) 964-5600

Dated: July 30, 1992

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

Nos. 91-1119/1120/1123/

1124/1125/1126/1127

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

v. ON APPEAL from the

United States District

HELEN M. LAVALLEY; Court for the Eastern

JACQUELINE HUDSON; District of Michigan

JOHN S. ECCLESTONE, II;

PETER C. DOUGHERTY;

LUELLA C. BASSETT;

ELIZABETH LAFOREST;

and KIM LEITH,

Appellants. |

Decided and Filed February 24, 1992

Before: KEITH, RYAN, and TIMBERS,” Circuit

Judges.

“The Honorable William H. Timbers, Senior Circuit Judge of the

United States Court of Appeals for the Second Circuit, sitting by

desigmation.

Nos. 91-1119/1120/1123/1124/

2 United States v. LaValley, et al. 1125/1126/1127

TIMBERS, Circuit Judge, delivered the opinion of the

court, in which KEITH, Circuit Judge, joined. RYAN,

Circuit Judge ©P. 12- 18), delivered a separate dissenting

opinion.

TIMBERS, Circuit Judge. Appellants John Ecclestone

II, Luella Bassett, Kim Leith, Helen LaValley, Jacqueline

Hudson, Peter Dougherty, and Elizabeth LaForest appeal

from a judgment entered December 11, 1990, after a

bench trial, in the Eastern District of Michigan, Robert H.

Cleland, District Judge, upon a verdict of guilty on the

charge of wrongfully entering a military base in violation

of 18 U.S.C. § 1382 (1988).

On January 17, 1991, Judge Cleland sentenced

Ecclestone to 12 months probation and a $2,000 fine;

Bassett to 60 days imprisonment and a $1,000 fine;

LaForest to 21 days imprisonment and a $1,000 fine;

Leith to 12 months probation and a $2,000 fine; LaValley

to 12 months probation and a $2,000 fine; Hudson to 60

days imprisonment and a $1,000 fine; and Dougherty to

60 days imprisonment and a $1,000 fine.

Appellants have appealed their convictions. Execution

of their sentences has been stayed pending appeal.

Appellants assert several claims of error, including,

among others, the following: (1) LaValley, Hudson and

Ecclestone contend that they were improperly denied a

jury trial; (2) Dougherty contends that he was barred

improperly from entering the base; (3) Ecclestone,

Bassett, LaForest and Leith contend that they did not re-

enter the base as alleged by the government; (4)

Ecclestone, Bassett, LaForest, and Leith contend that the

district court erred in allowing the government to

introduce certain evidence in violation of the hearsay rule;

and (5) that his first amendment rights were violated by

the military's “selectively targeting political or protest

demonstrations” in an area open to the public.

Nos. 91-1119/1120/1123/1124/ “at

1125/1126/1127 United States v. LaValley, et al. 3

Furthermore, Ecclestone, Bassett, LaForest and Leith

contend that they were denied fundamental fairness and

due process because they were told by the military that

$500 was the maximum fine and the actual fines imposed

exceeded tha* amount.

Moreover, Dougherty contends that, since he received a

bar letter in 1983 and was convicted in 1987 of unlawfui

re-entry onto Wurtsmith Air Force Base (WAFB), the

double jeopardy clause bars his prosecution; and that his

Fourth, Fifth and Sixth Amendment rights were violated

when he was detained for four hours, fingerprinted, and

questioned regarding his date of birth, driver's license and

address.

For the reasons that follow, we affirm the convictions

of all appellants.

I.

We shall summarize only those facts and pror

proceedings believed necessary to an understanding of the

issues raised on appeal.

WAFSB is a federal military installation located in Iosco

County, Michigan. The federal government has granted

losco County a one hundred fifty foot easement for the

construction, maintenance and use of county highway

F-41 which runs adjacent to WAFB. In addition to

covering the roadway, the easement extends to cover

approximately sixty feet on each side of F-41. On the

base side of the highway, the easement includes a grass

strip located between the “white line” marking the edge of

the roadway, and a permanent chain link fence.

Appellants assert that this strip is used frequently by

pedestrians, joggers, and snowmobilers in the winter

months.

On August 4, 1990, an orange snow fence,

approximately three to four feet high, was placed along

the white line marking the entrance to the base. The

Nos. 91-1119/1120/1123/1124/

+ United States v. LaValley, et al. 1125/1126/1127

fence extended along the white line adjacent to F-41 for

some distance until it ended running perpendicular to the

road, across the grassy strip, and joining the permanent

steel chain link fence. Pedestrian traffic was blocked on

the grassy strip adjacent to WAFB at the point where the

snow fence intersected the permanent steel fence. Senior

Master Sergeant Brian Clever testified that appellants,

along with a group of approximately four hundred other

protestors, marched down the grassy strip toward the base

entrance until they encountered the orange snow fence.

Warning signs were mounted on the snow fence roughly

every twenty feet, stating: “It is unlawful to enter this

area without permission of the installation commander."

On August 4, 1990, protestors pushed down the snow

fence and about one third of them entered the restricted

portion of WAFB. At this time, Sergeant Clever read the

following prepared statement to appellants, ordering them

to leave the base:

"You are on a United States military reservation at

Wurtsmith Air Force Base, Michigan.

Specific permission of the installation commander

is required for entry onto Wurtsmith Air Force

Base and that permission has not been granted.

The installation commander has determined that

any political or protest demonstration taking place

within the boundaries of Wurtsmith Air Force Base

could interfere with the mission of the 379th

Bombardment Wing.

By order of the installation commander, Wurtsmith

Air Force Base, you are hereby ordered to leave

Wurtsmith Air Force Base.

Your continued presence in Wurtsmith Air Force

Base will place you in violation of the lawful order

to leave and you will also be in violation of lawful

regulations prohibiting your entry onto Wurtsmith

Air Force Base.

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 United States v. LaValley, et al. 5

Your continued presence on Wurtsmith Air Force

Base may render you criminally liable for violation

of federal law.

You are again ordered to depart Wurtsmith Air

Force Base immediately."

Since appellants failed to leave after receiving these

warnings, they were detained for wrongful entry onto a

military base in violation of § 1382. Air Force personnel

recorded these events on video tape and presented the

tapes as evidence at appellants’ trial.

The district court found that appellants previously had

entered WAFB and had received letters from the base

commander barring them from future entry. These

findings were based on testimeny by Sergeant William

Stern, a noncommissioned officer in charge of the

Security Police Reports and Analysis Section, that letters

barring from the base all appellants were prepared and

maintained in the ordinary course of business. The court

found that these letters established that appellants

previously had wrongfully entered the base and had been

barred from future entry by the base commander. These

documents were admitted pursuant to the business records

exception to the hearsay rule. Fed. R. Evid. 803(6).

In rendering his decision, Judge Cleland made two

additional pertinent findings. He found that “the area in

question in this case had not been converted into any form

of a public forum for the dissertation of political or

religious or any other kind of protected speech", and that

the First Amendment is not "implicated in any way in this

case."

IT.

We turn first to the contentions of LaValley, Hudson

and Ecclestone that they were entitled to a trial by jury

because a violation of § 1382 is a “serious” rather than

“petty” offense. The Sixth Amendment provides that

eee

Nos. 91-1119/1120/1123/1124/

6 United States v. LaValley, et al. 1125/1126/1127

"[iJn all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed...." U.S. Const. amend. VI. The Supreme

Court, however, has not pursued a literal interpretation of

this language, carving out an exception to the rule for

“petty offenses". Eg., Blanton v. North Las Vegas, 489

U.S. 538, 541 (1989). A “petty offense” is one in which

the defendant would be subject to no more than a six

month period of incarceration. Jd. at 542-53. In cases

where the maximum sentence cannot exceed six months,

“[a] defendant is entitled to a jury tmal in such

circumstances only if he can demonstrate that any

additional statutory penalties, viewed in conjunction with

the maximum authorized period of incarceration, are so

severe that they clearly reflect a legislative determination

that the offense in question is a 'serious' one." Jd. at 543

(emphasis added). Such situations, however, are rare.

Id. Since the maximum statutory punishment for

violations of § 1382 is only a six month period of

incarceration, a fine of $5, and a five year term of

supervised release, the offense is "petty" within the

meaning of Blanton. Appellants accordingly are not

entitled to trial by jury. United States v. Floyd, 477 F.2d

217, 222 (10th Cir.), cert. denied, 414 U.S. 1044 (1973)

("The violation of [sJection 1382 ... constitutes a petty

offense not requiring a trial by jury.").

Ecclestone asserts an additional challenge to the district

court's denial of a jury trial. [Ecclestone is licensed to

practice law in the State of Michigan. His license may be

revoked by the Michigan Supreme Court for violations of

the laws of the Umited States. Cf United States v.

Craner, 652 F.2d 23, 26 (9th Cir. 1981) (“the threat of

loss of a license as important as a driver's license ... is

another sign that the DUI defendant's community does not

view DUI as a petty offense"). We reject Ecclestone's

contention that this additional factor made his violation of

§ 1382 a “serious” offense. His contention is without

merit because the revocation of his bar license is not

statutory and because the revocation of his license would

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 United States v. LaValiey, et al. 7

not directly follow a conviction under § 1382. Michigan

Court Rules §9.110-12 (providing for a full hearing

before a review board prior to the revocation of an

attomey's license). Moreover, Ecclestone's assertion,

pursued to its logical conclusion, would mean that lawyers

have a special right to jury trials because their licenses

arguably may be revoked for any infraction of the law.

We decline the invitation to create such an exception to

Blanton.

il.

This brings us to the merits of appellants’ contentions

that their conduct was not prohibited by § 1382.

Ecclestone, Bassett, LaForest, Leith and Dougherty

contend that the prosecution of them was wrongful

because the evidence is insufficient to support a conviction

under § 1382 which provides in relevant part:

“Whoever reenters or is found within any such

reservation, post, fort, arsenal, yard, station, or

installation, after having been removed therefrom

or ordered not to reenter by any officer or person

in command or charge thereof ... [s]hall be fined

not more than $500 or imprisoned not more than

six months, or both.”

The Alternative Fine Act, 18 U.S.C. § 3571 (1988),

raises the ceiling on the maximum fine for infractions of

§ 1382 from $500 to $5,000. Appellants contend that two

of the prerequisites of § 1382 have not been satisfied.

Ecclestone, Bassett, LaForest and Leith argued that they

did not wrongfully re-enter the base. Dougherty, on the

other hand, contends that he was not barred previously

from WAEFB by the base commander.

(A)

We first turn to the contention of Ecclestone, Bassett,

LaForest and Leith that there was insufficient evidence to

support their convictions because the federal government

Nos. 91-1119/1120/1123/1124/

8 United States v. LaValley, et al. 1125/1126/1127

had granted Michigan an easement to use the land adjacent

to highway F-41, and appellants therefore were lawfully

on the grassy strip at the time they were taken into

custody. We disagree.

In United States v. McCoy, 866 F.2d 826 (6th Cir.

1989), we held that the grassy strip in question is part of

WAFB. In McCoy, we addressed the issue as to whether

the driveway at the main entrance to WAFB is part of the

base for purposes of § 1382. In resolving that issue, we

cited the district court's finding that “there isn't any

question that the entire area up to at least the center of the

road, if not beyond, is a part of the military base...." /d.

at 831. The grassy strip on which the protestors were

apprehended in the instant case was within the boundary

that we already have determined to be part of the base.

The mere fact that an easement had been granted to the

State for the construction, maintenance and use of

highway F-41 did not give the protestors the right, in bold

defiance of military authority, to enter the base, after

being previously barred.

A different question would be presented if appellants’

only intrusion into the base was driving an automobile on

F-41. Id. In United States v. Albertini, 472 U.S. 675

(1985) (Stevens, J., dissenting), a case where a defendant

was convicted under § 1382 for re-entering Hickam Air

Force Base, Hawaii, Justice Stevens stated that “highways

or other public easements often bisect military

reservations,” and that:

"If an individual who has been removed from

Hickam is liable under § 1382 whenever he is

thereafter ‘found within' its boundaries, he risks

criminal punishment every time he departs on an

airline flight that may use the runway traversing

the base. The use of these military lands for the

limited public purposes for which they have been

set aside does not involve the bold defiance of

authority that is foreseen by the structure of the

statute and reflected in its legislative history.”

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 United States v. LaValley, et al. 9

Id. at 698-99.

Unlike Justice Stevens’ hypothetical person innocently

traversing a highway or crossing a military runway,

appellants in the instant case boldly defied military orders.

They crossed over a snow fence on which warming signs

were posted. They remained on the base even after they

were ordered to leave by the base authorities.

For these reasons we hold that the district court's

conclusion that appellants had re-entered WAFB

unlawfully was not erroneous.

(B)

We turn next to Dougherty's contention that there was

insufficient evidence to support his conviction because the

bar orders were improperly issued. Specifically,

Dougherty contends that the orders were invalid because

a were not prepared by the base commander and he

not been barred previously from the base within the

meaning of § 1382. In making this contention, Dougherty

points to the "fill-in-the-blanks” nature of the bar letters.

We are not persuaded.

The district court held that, although the bar letters

were pre-signed by the base commander, they were issued

only after the commander had given his authorization on a

case-by-case basis. Contrary to Dougherty's contention,

there is no requirement that the base commander perform

the administrative task of “filling-in-the-blanks” in the bar

letters. There is no basis for concluding that the district

court's holding that the bar letters were properly issued

was erroneous.

IV.

We now turn to the contention of Ecclestone, Bassett,

LaForest, and Leith that the district court improperly

admitted the bar letters pursuant to the business records

exception to the hearsay rule because the letters were

Nos. 91-1119/1120/1123/1124/

10 United States v. LaValley, et al. 1125/1126/1127

prepared for the purpose of litigation. We find no ment

in this contention.

The district court stated: "The testimony, the Court is

satisfied, does establish that the records were kept in a

regular fashion, that they were part of a regular activity of

the enterprise and the provisions of 803(6), I think are

sufficient." Although “conclusions of law, such as

whether proffered evidence constitutes hearsay ‘within the

meaning of Federal Rules of Evidence, are reviewed de

novo," United States v. Levy, 904 F.2d 1026, 1029 (6th

Cir. 1990), cert. denied, 111 S. Ct. 974 (1991), the issues

to be resolved in the instant case do not involve either

questions of law or the application of the law to factual

determinations. Rather, the district court simply made

factual findings that the bar letters were not prepared for

purposes of litigation. Since we will not set aside a

district court's findings of fact unless clearly erroneous,

Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir. 1989),

and since we hold that the court's factual findings were

not erroneous, we reject appellants’ contention that the

bar letters were improperly admitted.

V.

Finally, we consider the contention of appellant

Dougherty that his First Amendment rights were violated

by the government's “selectively targeting political or

protest demonstrations" in an area open to the public.

This argument is without merit. Military bases are not

public forums. Greer v. Spock, 424 U.S. 828, 838

(1975) ("The notion that federal military reservations, like

municipal streets and parks, have traditionally served as a

place for free public assembly and communication of

thoughts by private citizens is thus historically and

constitutionally false."); McCoy, supra, 866 F.2d at 832-

34. Because we have already held that the grassy strip

where appellants were apprehended was part of WAFB,

Dougherty's claim must necessarily fail. Furthermore,

even if the area in question is a public forum, appellant's

Claim still fails. In Albertini, supra, 472 U.S. at 688, the

CE ESSSS'''= rr rc

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 United States v. LaValley, et al. 11

Court found that § 1382 is content-neutral, and "[t]he

First Amendment does not bar application of a neutral

regulation that incidentally burdens speech merely because

4 party contends that allowing an exception in the

icular case will not threaten important government

interests." We find that appellant's speech was at most

only incidentally burdened. The bar letters only forbid

his entrance onto the WAFB, appellant was still free to

protest outside of the base.

VI.

To summarize:

We hold that appellants’ convictions should be

affirmed. First, since we hold that a violation of § 1382

is not a “serious” offense for Sixth Amendment purposes,

the district court did not err in denying appellants a jury

trial. Second, there is no basis for concluding that there

was insufficient evidence to Support appellants’

convictions. Despite the lawful issuance of letters barring

appellants from WAFB, appellants boldly defied military

authorities. Third, there is no support for appellants’

Claim that the district court was Clearly erroneous in

admitting the bar letters Pursuant to the business records

exception to the hearsay rule. Finally, the military's

prohibition on appellants entering WAFB did not violate

the First Amendment. We find nO merit in any of

appellants’ claims of error.

Affirmed.

Nos. 91-1119/1120/1123/1124/

12 United States v. LaValiey, et al. 1125/1126/1127

RYAN, Circuit Judge, dissenting. In my judgment, the

government failed to prove that the defendants violated 18

U.S.C. § 1382 because they were not shown to have

reentered the Wurtsmith Air Force Base. The evidence in

this case demonstrated that the grassy strip on which the

defendants were walking is not part of the air base but is

within an easement for public use which has been granted

to the state of Michigan in connection with the use of

Highway F-41.

Part of a proper analysis to determine whether the

defendants had reentered the Wurtsmith Air Force Base is

to identify what is not involved in this case. What is not

involved is any question whether the defendants

improperly inte with the lawful order of military

authorities in connection with any national or public

emergency, or the lawful exercise of the police powers of

the federal government. The only issue relating to the

sufficiency of the evidence is whether the defendants

violated section 1382 by reentering the Wurtsmith Air

Force Base.

I.

In part III.(A), the majority opinion considers whether

the federal government granted Michigan an easement to

use the land adjacent to Highway F-41 for highway

purposes and, if so, whether that land is, nevertheless,

part of Wurtsmith Air Force Base. Acknowledging that

such an easement exists, the opinion concludes: "The

mere fact that an easement had been. granted to the state

for the construction, maintenance and use of Highway F-

41 did not give the protestors the right, in bold defiance

of military authority, to enter the base, after being

previously barred.* Respectfully, it seems to me that that

conclusion merely begs the question whether the easement

is part of the air base. Rather than analyzing that

question, the majority opinion merely declares that the

issue has been decided: “In United States v. McCoy, 866

F.2d 826 (6th Cir. 1989), we held that the grassy strip in

question is part of WAFB."

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 Urited States v. LaValley, et al. 13

The majority opinion then quotes a portion of McCoy in

which this court merely quoted a statement by the district

court in that case that “the entire area up to at least the

center of the road" is part of Wurtsmith Air Force Base.

In my view, the majority's reliance upon McCoy is

misplaced and, as a result, its conclusion that McCoy

decides this case is mistaken.

McCoy did not address the nature of the Air Force's

property interest in the land between the permanent chain

link fence and the paved portion of F-41. Rather, McCoy

focused only upon the driveway leading from F-41 into

the base, and this court affirmed the district court on two

points: (1) The McCoy court agreed with the district

court's-conclusion that the driveway was part of the base,

holding that “we are certainly in no position to quarrel

with Judge Churchill's findings that the driveway area

was ‘within control of the military’ and that '[a]nybod

has to have their head in the sand not to see it... .'" /d.

at 832 (emphasis added). (2) The McCoy court held that

the defendant in that case, Joan McCoy, was not using the

driveway area for its proper public purpose. In explaining

its decision, the McCoy court noted:

But the authorities at Wurtsmith Air Force

Base made no attempt to prevent Mrs. McCoy

from using the southbound traffic lane of Highway

F-41 for the limited public purpose for which it

had been set aside... . The driveway area to the

west of the boundary line had not been set aside as

a public forum, and Mrs. McCoy's insistence on

crossing the line to use the driveway for that

purpose involved precisely the sort of “bold

defiance of authority” that was missing in Justice

Stevens’ hypothetical airline passenger case.

McCoy, 866 F.2d at 831 (quoting United States y.

Albertini, 472 U.S. 675, 699 (Stevens, J., dissenting)

(1985)) (emphasis added). Nowhere in McCoy did the

Nos. 91-1119/1120/1123/1124/

14 United States v. LaValley, et al. 1125/1126/1127

court hold “that the grassy strip in question is part of

Wurtsmith Air Force Base."

IT.

The decisive issue im this case is whether the

defendants, when they were arrested on August 4, 1990,

had "reenter{ed] or [were] found within the limits of the

United States military reservation at Wurtsmith Air Force

Base, Michigan" as prohibited by the bar letters

previously issued to them. When arrested, the defendants

were not on the driveway leading into Wurtsmith, as in

McCoy, but rather were on the grassy strip of land

between the permanent chain link fence that marks off the

boundary of the base and the edge of the pavement of F-

41. It appears to me, based upon the documents in

evidence in this case, the finding of the trial court, and the

applicable Michigan statute, that, as a matter of law, the

grassy strip in question is not a part of Wurtsmith.

A.

It is indisputable that the federal government has a

property interest of some sort in the land on which F-41

sits. The nature and extent of that interest are somewhat

unclear. Nevertheless, the documents admitted into

evidence in the tral below demonstrated that the state

possesses an easement 150 «feet wide for highway

purposes.

Exhibit 22, referred to during trial as Document D,

establishes that the federal government granted the state of

Michigan an easement for highway purposes. Exhibit 22

is a Permit for Extension of Road Across Military

Reservation from the Secretary of War to the State of

Michigan, dated June 21, 1946. It grants to the state

"permission to extend a road across the Oscoda Army Air

Field, Oscoda, Michigan, which road is designated as

Michigan State Highway M-171, said road being, in

general, along the Northeasterly boundary of the Oscoda

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 United Stases v. LaValley, et al. 15

Army Air Field ...." Paragraph 6 of this document

reads:

The United States reserves the right to make such

connections between the road herein authorized

and the roads and streets on said military

reservation as the chief of engineers may from

time to time consider necessary, and also reserve

to its nights of way for all purposes across, over

and/or under the right of way hereby sranted;

provided, however, that such nghts shal. be used

in a manner that will not create unnecessary

interference with the use and enjoyment by the

grantee of said rights of way or for highway

purposes.

Although this document establishes the fact of the right of

way, it does not specify its width.

An earlier document described the width of the

easement. Exhibit 21, referred to as Document C, is a

Highway Easement Release from _ the Michigan

Department of Conservation w the State of Michigan

dated February 12, 1943. It conveyed to the state “an

easement for highway purposes {] in . . . [a] strip of land

150 feet in width lying 75 feet each side of and adjacent

to the center line of M-171 as now surveyed over and

across the [described land tracts in] (Oscoda Township,

losco County), Michigan." The Air Force's property

record witness, Captain Reed, testified that M-171 is

essentially the present day F-41. Based on this document,

the parties .ntered into, and the district court accepted, a

stipulation that the easement was 150 feet wide. 1

'The following exchange occurred at trial regarding the width of

the easement:

THE COURT: Is there any doubt that the military —

either the Army or the Air Force — at one time or another

granted easements for the purpose of construction and

maintaining this highway?

Nos. 91-1119/1120/1123/1124/

16 United States v. LaValley, at al. 1125/1126/1127

Evidence adduced at trial demonstrated that the public

has continuously used the right of way. Testimony from

Air Force personnel indicated that joggers and disabled

cars regularly use the shoulder of F-41 at will.

Despite the legal existence of the easement and its

continuous use by the public, the base commander

unilaterally occupied the easement on August 4, 1990 by

erecting a temporary snow fence extending from the chain

link fence to the edge of the pavement of F-41. In doing

so, the base commander undertook to extend the limits of

the base beyond the permanent boun as established by

the chain link fence and in disregard of the long-standing

use of the land as part of the public way. The district

court held that the base commander's action was

appropriate, noting: “I find that the Air Force Base

Commander has a right to control all of the property to

the edge of the roadway." The majority opinion affirms

this holding.

In reaching its conclusion, the majority opinion ignores

both the documentary evidence adduced at trial and

controlling property law as established in the state of

Michigan. The permit granting Michigan the night to

build and maintain F-41 stated that the nghts retained by

the United States “shall be used in a manner that will not

MR. ELLISON: I believe the government has just

stipulated to it with my proposed stipulation of the facts from

the McCoy case.

MR. BRUNSON: No, there's aot a significant problem

with that.

THE COURT: What's the need for the document then?

MR. ELLISON: I just want to show the easement is 150

feet wide, your Honor.

THE COURT: Do you have amy doubt about that, Mr.

Brunson?

MR. BRUNSON: That's what the document says.

THE COURT: Why don't you take that as proven, let's

move along here. .

(Emphasis added.)

Nos. 91-1119/1120/1123/1124/

1125/1126/1127 United States v. LaValley, et al. 17

create unnecessary interference with the use and

enjoyment by the grantee of said rights of way or for

highway purposes.” The base commander's order to erect

a fence, preventing pedestrians from traversing the grassy

strip that was long ago set aside for public use and forcing

them t walk on the paved portion of F-41, interfered

with the use of the public easement.

Further, the base commander lacked the right to

reoccupy the grassy strip. Michigan statutes establish that

once given, a right of way for highway purposes may not

be encroached:

All public highways for which the right of way has

at any time been dedicated, given or purchased,

shall be and remain a highway of the width so

dedicated, given, or purchased, and no

encroachments by fences, buildings or otherwise

which may have been made since the purchase,

dedication or gift ... shall give the party or

parties, firm or corporation so encroaching, any

title or right to the land so encroached upon.

Mich. Comp. Laws Ann. § 247.189 (West 1990).

Michigan courts have held that the state retains the entire

easement even if it only uses a portion of it for the actual

paved portion of the highway:

[I]t is mot necessary that every portion of a

highway be traveled upon in order to show the

intention of the public authorities t accept the

entire highway dedication.

[T]he state's use and acceptance of the dedication

prevented acquisition of the unused portion by

subsequent encroachments of the parties.

Miller v. State Highway Dept., 30 Mich. App. 64, 70-71,

186 N.W.2d 67 (1971).

Nos. 91-1119/1120/1123/1124/

18 United States v. LaValley, et al. 1125/1126/1127

The land records in evidence in this case relating to F-

41, specifically Exhibits 21 and 22, the findings of the

trial court, see supra n.1, and M.C.L. 247.189, establish

that a 150-foot easement existed for pudlic use in

connection with F-41. Specifically applied to the facts of

this case, the easement thus extends 75 feet west from the

center line of F-41. This 75-foot easement includes all of

the paved portion of F-41 and its shoulder, and also

includes much if not all of the grassy strip between the

road and the chain link fence enclosing the air base.

When the base commander ordered the temporary fence

erected, he unilaterally reclaimed a portion of the

easement which he was not free to occupy absent

permission from the easement holder, the state of

Michigan, or, conceiveably, exigent circumstances not

claimed to exist.

Il.

The defendants did not violate 18 U.S.C. § 1382

because they did not reenter Wurtsmith.

Once an easement is given, the grantor of the easement

may not, as a general rule, interfere with the use of that

easement. The permanent chain link fence running

parallel to F-41 is the demarcation of the limits of

Wurtsmith, and the base commander did not have the

right to attempt to expand the limits of the base by

unilaterally erecting the temporary fence upon the public

easement. The defendants did not violate the bar letter

when walking in the grassy strip between F-4] and the

chain link fence because the grassy strip where they were

arrested is a public way and not part of the air base within

the meaning of the bar letter.

For these reasons, I respectfully dissent.

United States District Court

East-crn District of Michigan

Northern Division

United States of America,

Plaintiff,

Vv. Case 90-20056

Luella Bassett and

Elizabeth LaForest,

Defendants.

/

Oral Findings of Fact

and Conclusions of Law

Delivered December ll, 1991

by Robert Cleland, J.

THE COURT: There are certain facts the

Court will find in connection with the

proofs that have been presented in this

case.

I find from the evidence that each of

these defendants was in receipt of a bar

letter. I have reviewed the administrative

packets, 5A, I think it was, through 13A

that were received into evidence. In each

case there was a document that purported to

19

be such a copy of such a bar letter and

purported to be countersigned, I think in

all but one instance by the individual

defendants.

At issue, I think, in one of those cases

was a notation: Refused to sign.

But in any event, from the balance of all

the evidence, I do find that each defendant

was in receipt of such a letter which has

come to be known in this proceeding as a

bar letter.

From those facts as well, primarily, from

the evidence contained within these

packets, I find that the government has

shown that there was an earlier entry. The

precise purposes or outlines of those

earlier entries have not been demonstrated,

and I find it’s not necessary to fully

illuminate those earlier purposes in order

to carry the burden of proof that’s

required.

20

Secondly, I find that each defendant was,

by one form of evidence or another,

properly identified as having been in and

around the area and beyond the snow fence,

temporarily erected barrier on the 4th of

August of 1990. This was done either by

Stipulation or by other evidence, including

the videotape and other items that were

admitted into evidence.

The administrative packets, once again,

there’s substantial evidence in those other

cases as well.

Moving beyond those issues, the more hotly

contested items in this case surrounded the

boundary. What is the boundary of this

particular installation for the purposes of

this section of the criminal code? From

all of the evidence, and I have read all of

the documents here, listened to arguments

of counsel, as well as to the testimony

that’s been presented mostly Air Force

21

personnel on this point, I find that the

Air Force Base Commander has a right to

control all of the property to the edge of

the roadway.

I find further that there may be some

exigencies that would allow the base

commander to control even the entire

roadway, those exigencies are not present

in this case, but at least in so far as the

nontraveled portion of that so called

easement area is concerned, I find the Air

Force has the right to control that area,

should the base commander choose in his

judgment to do so.

From time to time, it appears to this

Court from the evidence, such control has

been exerted; at other times that control

has not been exerted, the wisdom of those

decisions in either controlling or not

controlling the area where these defendants

were found is not for this Court to decide.

22

Mr. Ferency argued, need I say, eloquently

argued, that it would have been a less

intrusive decision for the base commander

to have made to have come out and had a 15

minute conversation with the assembled

group that relates to the condition he

spoke of. It seems to me the wisdom of the

base commander’s decision here is not for

the Court to decide or to second guess.

It is sufficient, I think, that this Court

determine that the base commander had the

authority, the legal authority, to

determine the control and the degree of

control of that property over which his

base extended.

I find that the control that was from time

to time not exerted did not translate into

an abandonment of the right of the Air

Force to, in fact, exert that control if

and when the base commander felt it was

appropriate.

23

In other words, I find that the area in

question in this case _ had not been

converted into any form of a public forum

for the dissertation of political_ or

religious or any other kind of protected

speech.

I find that the boundary on this

particular day as it was established by the

temporary snow fence was clearly marked, it

is inconceivable that there could be any

clearer method of marking a boundary than

by what I see in Exhibit 16 with the red

letters spelling the word Warning, three or

four inches high, on a sign that’s a couple

of feet long. The boundary was absolutely

clearly marked. There was a four or five

foot high plastic fence salted with these

warning signs at intervals.

And it is most clear whatever legal

implications that may be argued from the

right of way, the easement, the fee simple

24

and the land or any other kind of argument

that may be presented on the ownership of

this property, whatever implications may be

along those lines, it is most clear that

each defendant assembled in the group that

I saw on the videotape, at least, thought

that he or she was crossing over onto

military property at the moment that snow

fence was crossed.

The videotape to this Court very clearly

showed a large gathering, and a peaceful

one, I may add, in which the great majority

of people stayed behind the line that was

established by the snow fence.

I saw the snow fence periodically trod

down to ground level, or near it, by people

placing their feet on the top of the fence

and stepping on it essentially and it would

slide down the support holes and remain on

the ground. Periodically an Air Force

person would come over and hoist the fence

25

back up to its original position, it would

be then be stepped on and trod down again.

There was no particular confrontation that

occurred in this back and forth, but it

appeared to happen at least a couple

different times as shown in the video. The

point is, though, that a large group of

people stayed behind that line, which I

find was the de facto boundary of the base

in this instance on the 4th of August.

Small groups of three and four and five

would poise themselves at the line. They,

to me, appeared to be, each of then,

engaging in some form of ritual before

moving on, perhaps praying. Some of them

clearly in the videotape were singing,

making swell speeches, one woman beating a

drum at the boundary line, some form of

demonstration. There was hugging, there

was hand shaking, there was clapping on the

26

back received by the members of these group

before they crossed that line.

It was eminently clear to this Court that

as each group crossed that line leaving

several hundred people behind, that the

group that crossed beyond that line was

Saying what could appear to the world as

being their final farewell, and moving on

into foreign territory.

Only when the fence was crossed by the

group in question did the applause and

cheering and whistling break out from the

larger group that remained behind.

From this I conclude that each person who

crossed that line under those circumstances

as illustrated by the videotape evidence,

each individual knew what was going on,

what was happening.

Each individual in this circumstance

exhibited knowledge that was, in fact, the

dividing line which demonstrated the Air

27

Force authority, and each defendant, by

those actions and under those circumstances

on this particular day, demonstrated to

this Court’s satisfaction the kind of bold

defiance of authority, as a phrase from a

case I may relate to the defendants, a bold

defiance of authority that is spoken of in

the McCoy decision from the 6th Circuit;

and which was earlier related by Justice

Stephens in trying to determine what degree

of defiance or intentionality might be

required in order to prove such a

violation. For example, a commercial

airliner that accidentally crosses a

military landing area at a shared air base.

I find beyond a reasonable doubt that

everyone of these defendants knew what was

going on, and acted quite intelligently and

quite intentionally in crossing that

demarcation.

28

The fact that the Air Force decided to set

up that snow fence at that precise location

on the 4th of August or shortly before, is

of no particular moment. It may have been

set up ten feet to the north or ten feet to

the south, or a hundred feet to the north

or a hundred feet to the south, and still

have been within the general authority that

the commander of that base possessed.

Is the First Amendment implicated in any

way in this case? I find it is not, and I

find that consistent with decisions that I

have read, every decision that I have been

able to read, and I find I avail myself of,

that deals with violations under similar

circumstances.

It is the finding of this Court that it

simply does not matter what the subject

matter may have been of the intended speech

or activity that the defendants or any of

them may have been interested in engaging

29

————————

in that day. It may well be that many

members of society would have agreed with

the aims in whole or in part of the group,

you may take private polls of judges of

various Courts, for example, and find

private agreement with their political or

religious or other aims. You may find

government attorneys in partial or whole

agreement with some or all of those aims.

I make no prediction cr judgment on those

issues, the point is that it does not

matter. The First Amendment is not

implicated and it is not, as Mr. Ferency

said, for praying or for speaking or for

exercising any of those rights that the

defendants were arrested.

It was for being in a particular place,

physically being present, without regard to

the nature of the intent of the individual

defendants for being present.

30

7

I’m satisfied that each defendant was

intentionally present at the place where

the warnings were read, where the

Opportunity was afforded to change his or

her mind to turn around and to leave.

I’m confident, although Defendant Frances

Bond testified she was uncertain, I’m

confident that had a person in her position

chosen to turn around and to say all right,

I’m going to leave at the point that the

Sergeant finished reading that final

wording, that she would not have been

detained and would not find herself in

Court today. And I suspect that if she

were to examine her heart, she may find

agreement there as well.

The point is that the individuals who

crossed that line had no intention of

returning, and they knew that full well

before they stepped over the orange snow

fence.

31

Having received those claps on the backs,

those’ hugs, those shouted words of

encouragement, that applause, there was

certainly no way that any individual short

of suffering some form of severe physical

ailment on their way upon the grassy knoll

could have, with any degree of saving face,

it seems to me, have turned around and

heeded those warnings. It seems to me

clear that every defendant was intent upon

that course and intended to see it through

to the end, and ultimately needs be to

Court.

The reserved and renewed motions are each

denied, that is to say that Rule 29 motion,

counsel’s motions to dismiss that have been

referred to in closing argument.

Based upon the facts found by this Court,

each defendant is determined beyond a

reasonable doubt, to have violated the

section of 18 United States Code, Section

32

1382, as charged in the Information filed

against him or her.

33

Nos. 91-1119/20/23/24/25/26/27

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

ORDER

HELEN M. LaVALLEY, ET AL.,

ee ee ee ee ee ee ee eee eee”

Defendants-Appellants.

BEFORE: KEITH and RYAN, Circuit Judges;

and TIMBERS, Senior United States

Circuit Judge

The court having received a petition

for rehearing en banc, and the petition

having been circulated not only to the

original panel members but also to all

other active judges of this court, and no

judge of this court having requested a vote

on the suggestion for rehearing en banc,

the petition for rehearing has_ been

referred to the original hearing panel.

The panel has further reviewed the

petition for rehearing and concludes that

34

eee

the issues raised in the petition were

fully considered upon the original

Submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

Filed May 1, 1992

35