              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT




                             No. 91-4677



UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,

                               versus

CHARLES J. PATERNOSTRO,
                                             Defendant-Appellant.




          Appeal from the United States District Court
                for the Eastern District of Texas

                            (July 2, 1992)


Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Charles J. Paternostro appeals from his second conviction

for violating Corps of Engineers regulations by failing to abide

by the terms of his Shoreline Use permit. Finding no error, we

affirm.

                                 I.

     Paternostro's family bought property on Lake Texoma in 1965

and built a boathouse on the property.        The boathouse was built

pursuant to a permit issued in 1968 by the Corps of Engineers.      In

1988, Paternostro replaced an old diving platform next to the

boathouse with a three-tiered metal structure atop a platform. The

structure, which Paternostro refers to as a "wet and wild" facility
contains several diving boards and three water slides.    It was not

part of the approved plan for the boathouse and Paternostro did not

obtain Corps of Engineers approval for constructing the new water

slide platform.

     On November 2 and again on November 16, 1989, the Army Corps

of Engineers issued Paternostro Notices of Violation for failing to

obtain proper approval for building the water slide platform.

Paternostro was charged under 36 C.F.R. § 327.19(a) which makes it

a violation to refuse or fail to comply with the conditions of any

permit issued under Part 327.         Paragraph 17 of Paternostro's

Lakeshore Use Permit issued under Part 327 provides that:

     If an inspection . . . reveals conditions which . . .
     deviate from the approved plans, such conditions will be
     corrected immediately by the owner upon receipt of
     notification. No deviation or change from approved plans
     will be permitted without prior written approval of the
     Resource Manager.

     After a bench trial, the district court convicted Paternostro

for failing to receive approval for constructing the platform in

violation of 36 C.F.R. § 327.19(a).      He was fined $400 under 36

C.F.R. § 327.25 and charged a $10 special assessment.    Paternostro

did not appeal this conviction.

     After his conviction, Paternostro applied for approval of the

water slide platform by submitting plans and a letter from an

engineer certifying that the platform was safe.         The Corps of

Engineers rejected his application. Paternostro did not appeal the

rejection of his application. The water slide platform remained in

place beside the boathouse.   Two weeks after the first conviction

became final, the Corps of Engineers issued another Notice of

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Violation for failure to obtain approval for the water slide

platform.    The district court conducted a bench trial and again

found Paternostro guilty.       The court fined Paternostro $5,000 and

sentenced him to five years probation.          Paternostro appeals from

this second conviction.

     1.    Double Jeopardy

     The Double Jeopardy Clause protects against (1) a second

prosecution after acquittal, (2) a second prosecution for the same

offense after conviction, and (3) multiple punishments for the same

offense.     North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

Paternostro's principal argument is that he is being punished

multiple times for the single act of building these water slides in

violation of his permit.     We disagree.     His crime as defined by the

applicable regulations is the continuing offense of failure to

abide by the terms of his Shoreline Use permit by maintaining the

non-conforming water slide platform.

     The    Double   Jeopardy   Clause's    protection   against   multiple

punishments is "limited to assuring that the court does not exceed

its legislative authorization."          Brown v. Ohio, 432 U.S. 161, 165

(1977). Our inquiry then is whether the legislature has authorized

the multiple punishments. The government relies upon the fact that

the governing regulations provide that "[a]ny violation of any

section of this part 327 shall constitute a separate violation for

each calendar day in which it occurs."            36 C.F.R. § 327.1(g).

Therefore, unlike the Court in Blockburger v. United States, 284

U.S. 299 (1932), and Brown v. Ohio, 432 U.S. 161 (1977), we need


                                     3
not struggle to discern the intent to impose multiple punishments:

the rulemaking body at issue here has explicitly stated its desire

to treat each day of the continuing violation as a separate

offense.   The Brown court, which held that a defendant who was

convicted of joy riding could not be retried for auto theft, stated

that it "would have a different case if the Ohio Legislature had

provided that joy riding is a separate offense for each day in

which a motor vehicle is operated without the owner's consent."

432 U.S. at 169 n.8; see United States v. Holloway, 905 F.2d 895

(5th Cir. 1990) (where cumulative punishments are authorized for

"even the same offense, the Double Jeopardy Clause of the Fifth

Amendment is not offended.").

      We agree that if Congress explicitly provided for these

multiple punishments this would be an easy case under Brown and its

progeny.    However, this case is different from Brown in one

important way which makes it more difficult to resolve:             the

explicit decision to create separate offenses on a daily basis was

made by a regulatory agency, not by Congress.          We have found no

authority specifically answering the question whether regulatory

intent should be treated as the equivalent of legislative intent

for double jeopardy purposes.       We note, however, that in another

context, the Supreme Court has held that congressional intent may

be found in federal regulations promulgated by an administrator in

the   exercise   of   delegated   congressional   authority.   Fidelity

Federal Savings & Loan Ass'n v. De La Cuesta, 102 S.Ct 3014, 3022-




                                     4
23 (1982) (court looks to regulations in determining whether

Congress intended to pre-empt state law).

     In determining whether the legislative intent was to provide

for cumulative punishments, we believe that it is consistent with

the purposes of the Double Jeopardy Clause to attribute to Congress

the intent embodied in these regulations.              The double jeopardy

guarantee   "serves   principally    as       a   restraint   on   courts   and

prosecutors."   Brown v. Ohio, 432 U.S. at 165.            When the Corps of

Engineers enacts regulations it is not acting as either court or

prosecutor; its role is that of a quasi-legislative rulemaker.               We

believe that the "legislative intent" referred to in the Supreme

Court's double jeopardy analysis in Brown and Grady includes

rulemaking pursuant to a valid grant of congressional authority.

Paternostro has not asserted that the Corps of Engineers acted

outside its authority as delegated by Congress in dividing this

continuing offense into daily offenses.           See 16 U.S.C. § 460d.     Our

task of statutory interpretation is at an end once we determine

that cumulative punishment is specifically authorized; we need not

determine whether these offenses are the same under the Blockburger

analysis.   Missouri v. Hunter, 103 S.Ct. 673, 679 (1983).             Because

we find that Congress has authorized cumulative punishments, there

is no double jeopardy violation in Paternostro's punishment.

     Paternostro also asserts that his prosecution violates the

Double Jeopardy   Clause   because       he   has   been   subjected   to   the

harassment of multiple prosecutions. United States v. Houltin, 566

F.2d 1027, 1033 (5th Cir. 1978) (Double Jeopardy Clause protects


                                     5
defendant from harassing multiple prosecutions).                     We need not

address    whether      repeated      prosecutions   for    daily    offenses   may

impinge upon the Double Jeopardy Clause in some circumstances

because Paternostro has not been subjected to harassing multiple

prosecutions.

      Where the defendant continues engaging in an offense after an

original conviction and sentence become final, he cannot rely upon

the Double Jeopardy Clause to prevent a later prosecution and

conviction.       Unlike the defendant in Grady v. Corbin, 110 S.Ct.

2084 (1990), Paternostro is not being prosecuted for acts committed

in   the   past   but    for    his    conduct   continuing    after    the   first

prosecution.      As the Supreme Court has said "one who insists that

the music stop and the piper be paid at a particular point must at

least have stopped dancing himself before he may seek such an

accounting."       Garrett v. United States, 105 S.Ct. 2407, 2417

(1985); United States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir.

1990).

      In this case, Paternostro has not stopped dancing.                        His

prosecution for his continuing refusal to abide by the terms of his

Shoreline Use permit is not barred by double jeopardy because the

government    could      not    have   brought   this   case    in    the   earlier

prosecution.       See Diaz v. United States, 223 U.S. 442 (1912)

(double    jeopardy      does    not    bar   prosecution     for    murder   after

conviction of assault where victim did not die until after first

trial).     Paternostro was prosecuted once for his violations in

November 1989.       The Corps did not take any further prosecutorial


                                          6
action until that conviction became final and then relied only upon

violations occurring after that date.               The Corps could not have

tried Paternostro for these separate violations at his first trial

because they had not yet occurred.            Paying his $400 fine in the

first case does not immunize Paternostro from prosecution for his

continued willful violation of the Corps of Engineers regulations.

We conclude that Paternostro's prosecution did not violate the

Double Jeopardy Clause.

     2.   The Petite policy

     Paternostro contends that the government failed to follow its

dual prosecution policy, known as the Petite policy, by prosecuting

him for a second time.         Petite v. United States, 361 U.S. 531

(1960).   First, we note that the Petite policy applies to federal

prosecutions following state prosecutions for the same offense, not

multiple prosecutions for a continuing federal offense.                   In any

event, "the Petite policy is an internal rule of the Justice

Department;    criminal   defendants         may    not   invoke   it    to   bar

prosecution by the federal government." United States v. Harrison,

918 F.2d 469, 475 (5th Cir. 1990).            Paternostro cannot rely upon

this policy to assert an error in his prosecution.

     3.    Exhaustion of Administrative Remedies

     Paternostro     asserts    that   the    government     should     not   have

prosecuted    him   because    the   Corps    had    adequate   administrative

remedies against him for violating his Lakeshore Use Permit.

Paternostro confuses the scope and purposes of the exhaustion of

administrative remedies doctrine.            This doctrine is designed to


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prevent judicial interference in administrative procedures before

the agency has been allowed to complete its own decision and review

processes.     Patsy v. Florida Int'l University, 634 F.2d 900, 903

(5th Cir. 1981).      Where the agency itself decides to pursue a

judicial remedy, the exhaustion of remedies doctrine is simply not

applicable.     Although pursuing the revocation of Paternostro's

permit before criminally prosecuting him might have been the wiser

course, the Corps of Engineers is not required to do so.

     4.   Right to Counsel

     Paternostro asserts that the district court violated his Sixth

Amendment    right   to   counsel   by   rejecting   his   request   for   a

continuance in order to allow him to obtain legal counsel.             The

Sixth Amendment requires only that a defendant be given a fair or

reasonable opportunity to obtain particular counsel; it does not

guarantee an absolute right to the counsel of one's choice. United

States v. Mitchell, 777 F.2d 248 (5th Cir. 1985).

     Paternostro is an attorney and represented himself at his

first trial.    He was planning to represent himself at the second

trial as well, but apparently changed his mind when the government

filed its "Brief in Support of Sentencing Alternatives" asserting

its view of the possible sentences available to the district court.

Paternostro asserts that the government's decision to argue for a

$5,000 fine and long-term probation made it necessary for him to

retain an attorney with experience in "the federal legal arena."

     Assuming that Paternostro's need for an attorney increased as

he argues, he has failed to show that the district court's denial


                                     8
of a continuance prevented him from obtaining one.             The government

filed its brief twenty days before the trial date.                   Given the

simplicity of the trial in this case, Paternostro had sufficient

time to retain an attorney in time to prepare for trial.               The fact

that the particular attorney he wished to hire was unavailable does

not constitute a violation of his Sixth Amendment rights where he

had sufficient opportunity to obtain other counsel.             Mitchell, 777

F.2d at     256-57.    Determining    whether     to   grant   a    continuance

allowing    the   defendant   to   obtain   the   counsel      of   his   choice

"requires a delicate balance between the defendant's due process

right to adequate representation by counsel of his choice and the

general interest in the prompt and efficient administration of

justice."    Gandy v. State of Alabama, 569 F.2d 1318, 1323 (5th Cir.

1978).    The district court did not abuse its discretion by denying

Paternostro's motion for a continuance under the circumstances of

this case.

     5.    Right to a jury trial

     Paternostro next asserts that the district court's denial of

his request for a jury trial violated his Sixth Amendment rights.

The Sixth Amendment right to a jury trial is triggered only by

prosecution for "serious" crimes as opposed to "petty" crimes.

Blanton v. North Las Vegas, 109 S.Ct. 1289 (1989).                    The most

relevant criterion for determining the seriousness of a crime is

the maximum authorized penalty. Id. Paternostro concedes that the

maximum sentence for violation of 36 C.F.R. § 327.20 is six months

imprisonment and a $5,000 fine.


                                     9
      For   Sixth   Amendment    purposes,      we    presume    that    offenses

carrying a maximum prison term of six months or less are petty

offenses.     Blanton, 109 S.Ct. at 1293.               A defendant in such

circumstances    must     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."     Id.   The additional penalties of a $5,000 fine and

extended probationary period imposed under 18 U.S.C. § 3571(b) are

not so severe as to lead us to conclude that Congress intended to

make failure to abide by the terms of a Shoreline Use permit a

serious offense.

      Paternostro argues that because under the government's theory

he committed a violation for every day the water slide structure

remained intact, his potential punishment was many times the six

month maximum.      In analyzing the seriousness of the offense under

Blanton, we look only at the penalty to which the defendant is

subject to for the crimes actually charged in that proceeding.

Blanton, 109 S.Ct. at 1294 (refusing to consider fact that DUI

offender would face more serious penalties for repeat offenses).

Regardless of what sentences Paternostro was exposed to in his

first trial and what he might be subject to in the future, the

offense he was being tried for had a maximum penalty of six months

and therefore he was not entitled to a jury trial.

      6.    Legal defenses and sufficiency of the evidence




                                        10
     Finally, Paternostro asserts that the district court erred in

failing to credit his defenses to the violation of the regulations

and that the evidence was insufficient to support his conviction.

The defenses    not   addressed    elsewhere      in    the   opinion    are   (1)

approval of the Corps of Engineers was unnecessary because the

plans on file with the Corps show a diving board on the boathouse;

(2) the Corps had actual notice that he had had a water slide

structure of some sort on the boathouse since 1976; (3) the Corps

is estopped by its letter renewing the boathouse permit in 1989 and

stating that there were "no deficiencies noted," (4) Paternostro

had submitted plans for approval prior to being charged with the

third   violation;    (5)   the   Corps    had    the    authority      to   grant

Paternostro a permit for the water slide as a "private recreational

facility," (6) approval of the Corps was unnecessary because he

submitted the plans with a letter from an engineer certifying the

structure's safety; and (7) other structures on the lake are

allowed   to   have   water   slides      and    more    elaborate      boathouse

facilities.    None of these arguments has merit.             Whether the Corps

could or should have issued Paternostro a permit for his water

slide platform is irrelevant to the issue of whether he varied his

boathouse without approval.       Paternostro could have challenged the

denial of his application but chose not to do so.                    As to the

sufficiency of the evidence, we find that the evidence in the

record fully supports the district court's verdict.

     The judgment of the district court is AFFIRMED.




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