# Petition for Writ of Certiorari — Bassett v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 972

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1087%3A1. Public record. Not legal advice.