                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2002

USA v. Goldin
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1440




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Recommended Citation
"USA v. Goldin" (2002). 2002 Decisions. Paper 433.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/433


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                                                      NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                 NOS. 01-1440, 01-1442, 01-1443,
                   01-1445, 01-1446 and 01-4247


                    UNITED STATES OF AMERICA
                               v.
             FRANCES GOLDIN, Appellant No. 01-1440
                     (D.C. No. 00-m-00139)


                     UNITED STATES OF AMERICA
                                v.
               JANE JACKSON, Appellant No. 01-1442
                      (D.C. No. 00-m-00250)


                     UNITED STATES OF AMERICA
                                v.
               MARCEY GAYER, Appellant No. 01-1443
                      (D.C. No. 00-m-00251)


                    UNITED STATES OF AMERICA
                               v.
      CHARLES KISSINGER, Appellant Nos. 01-1445 & 01-4247
                     (D.C. No. 00-m-00253)


                    UNITED STATES OF AMERICA
                               v.
             MITCHEL COHEN, Appellant No. 01-1446
                     (D.C. No. 00-m-00361)



         On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
(D.C. Nos. 00-m-00139, 00-m-00250, 00-m-00251, 00-m-00253 & 00-m-00361)
          District Judge: Honorable Bruce W. Kauffman


                       Argued May 23, 2002

      BEFORE: MCKEE, STAPLETON and WALLACE, Circuit Judges


                      (Filed July 24, 2002)



                         Andrew F. Erba
                         Williams, Cuker & Berezofsky
                         One Penn Center at Suburban Station
                          1617 J.F.K. Boulevard, Suite 800
                          Philadelphia, PA 19103-2030

                                   Attorneys for Appellant, Jane Jackson

                          Aaron Frishberg
                          116 West 111th Street
                          New York, NY 10032

                                   Attorney for Appellant, Marcey Gayer

                          Peter Goldberger (Argued)
                          50 Rittenhouse Place
                          Ardmore, PA 19003-2276

                                   Attorney for Appellant, Mitchel Cohen and
                                   Lead Appellate Counsel for Consolidated
                                   Defendants-Appellants


                          Ronald L. Kuby
                          740 Broadway, 5th Floor
                          New York, NY 10003

                                   Attorney for Appellant, Charles Kissinger

                          Jordan B. Yeager
                          Boockvar & Yeager
                          714 Main Street
                          Bethlehem, PA 18018

                                            Attorneys for Appellant, Frances Goldin

                          Stefan Presser
                          American Civil Liberties Union
                          125 South Ninth Street, Suite 701
                          Philadelphia, PA 18018

                                Attorneys for Amicus-appellant,
                                ACLU PA

                          Patrick L. Meehan
                          United States Attorney
                          Richard W. Goldberg (Argued)
                          Asst. United States Attorney
                          615 Chestnut Street, Suite 1250
                          Philadelphia, PA 19106-1250

                                            Attorneys for Appellee,
                                            United States of America



                       OPINION OF THE COURT

WALLACE, Circuit Judge:

         Goldin, Jackson, Gayer, Kissinger and Cohen (Protesters) participated in a
protest at the Liberty Bell Pavillion (Pavillion) in Independence National Historic Park on
July 3, 1999, one of the busiest days of the year at the park. The protest got out of control
and Park Rangers moved in to restore order. Protesters were arrested for refusing to obey
the lawful order of a Park Ranger in violation of 36 C.F.R. 2.32(a)(2). Protesters were
found guilty in a proceeding before a United States Magistrate Judge. Each protestor
received the same sentence: one year probation with travel restricted to the federal district
in which he or she resided, a $250.00 fine, and a $25 assessment.
          Protesters appealed their convictions and sentences to the district court and,
after affirmance, appealed to this court. The Magistrate Judge had jurisdiction under 18
U.S.C. 3401(a), the district court had appellate jurisdiction under 18 U.S.C. 3742(g),
and we have jurisdiction over this timely filed appeal under 28 U.S.C. 1291. We
affirm.
                                I.
          Protesters first contend that the evidence was insufficient to prove that they
committed the offense charged. We "review[] the sufficiency of the evidence in the light
most favorable to the government and must credit all available inferences in favor of the
government." United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998) (citation
omitted). "We do not weigh evidence or determine the credibility of witnesses in making
this determination." United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000) (citation
omitted).
          Protesters’ first insufficiency argument is that they were either not given an
order or were not given an opportunity to comply. Kissinger, Goldin, and Cohen were
arrested after they blocked a police van. All three were told to move, all three were given
between twenty and thirty seconds to move, and all three refused.
          Jackson was arrested after she rolled her motorized wheelchair past a police
barricade. She was told to leave, refused to do so, and then demanded to be arrested.
When viewed in the light most favorable to the government, the evidence was sufficient
to show that Kissinger, Goldin, Cohen, and Jackson were given both an order to move
and an opportunity to comply.
          Gayer does not argue that she was not given an order or opportunity to
move. Rather, she argues that the order she was given was not lawful because it was
arbitrary. An order given under 36 C.F.R. 2.32(a)(2) must be "lawful." For an order to
be lawful under the regulation, it must be 1) given in one of the circumstances outlined in
section 2.32(a)(2) and 2) constitutional. The order Gayer received was given in a
circumstance outlined in section 2.32(a)(2). Because the order was given after Gayer had
interrupted a park service presentation and while she was preventing new tourists from
accessing the Pavillion, it was given during another "activit[y] where the control of public
movement and activities [was] necessary to maintain order and public safety." Id. Since
the order Gayer received was given in one of the circumstances outlined in section
2.32(a)(2) and, as we conclude later, was constitutional, it was lawful.
          Kissinger, Goldin, and Cohen also argue that the evidence at trial was
insufficient to show that they were among those that blocked the police van. Viewed in
the light most favorable to the government, the evidence especially the eye-witness
testimony was sufficient to show that Kissinger, Goldin, and Cohen were amongst those
that blocked the police van.
          Protesters argue further that the evidence was insufficient to support their
convictions because it did not show that there was an emergency at the time they were
arrested. One of the provisions of 36 C.F.R. 2.32(a)(2) requires an order to be given
during "emergency operations." Protesters suggest that the emergency had abated by
12:30 or 1:00 p.m. The videotape introduced at trial, though, showed that the Pavillion
was blocked at 12:28 p.m. and that the last protesters were not removed from the
Pavillion roof until 2:23 p.m. This was sufficient to show that an emergency existed
during this period. Cohen, Goldin, and Kissinger were arrested at 1:31 p.m. Although
Jackson was never arrested (only cited), she was told to leave the blockaded area and
refused at approximately 1:08 p.m. Viewed in the light most favorable to the
government, the evidence was sufficient to show that Cohen, Goldin, Kissinger and
Jackson disobeyed a Park Ranger’s order during "emergency operations." We have no
need to decide whether Gayer’s arrest occurred during emergency operations because, as
we have already discussed, her arrest was authorized by another provision in 36 C.F.R.
2.32(a)(2).
                               II.
          Protesters next argue that 36 C.F.R. 2.32(a)(2) is unconstitutional.
                                A.
         Their first argument is that it violates the Due Process Clause of the Fifth
Amendment because it is too vague.
                  [T]he void-for-vagueness doctrine requires that a penal statute
         define the criminal offense with sufficient definiteness that
         ordinary people can understand what conduct is prohibited
         and in a manner that does not encourage arbitrary and
         discriminatory enforcement.

Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations omitted).
         Protesters assert that the Regulation, unless confined to operations that are
the equivalent of "firefighting or wild animal control operations" [Blue 34 n.24] is so
unclear that it "encourages arbitrary and discriminatory enforcement" by the Park
Rangers. Id. at 357. City of Chicago v. Morales, 527 U.S. 41 (1999), is the closest, most
recent case from the Supreme Court on this subject. Morales involved an ordinance
designed to prevent gang loitering on Chicago’s streets. The ordinance empowered the
Chicago Police to order groups of loiterers to disperse if an officer "reasonably believed"
that one of the loiterers was a gang member. The ordinance did not prohibit the actual
loitering; rather, it prohibited a loiterer’s refusal to obey the dispersal order.
         The Court struck down the ordinance because its definition of
loitering "remaining in any one place with no apparent purpose" was so vague that it
gave Chicago police "absolute discretion . . . to determine what activities constitute[d]
loitering." Id.
         36 C.F.R. 2.32(a)(2) is unlike the ordinance in Morales because it
carefully confines a Park Ranger’s authority to issue an order. For 36 C.F.R. 2.32(a)(2)
to apply, the Ranger’s order must be given
                  during firefighting operations, search and rescue operations,
         wildlife management operations involving animals that pose a
         threat to public safety, law enforcement actions, and
         emergency operations that involve a threat to public safety or
         park resources, or other activities where the control of public
         movement and activities is necessary to maintain order and
         public safety.

Unlike the Chicago ordinance, where the police were empowered to order almost anyone
standing in place anywhere in the city to disperse, a Park Ranger, under the regulation,
may only give an order in a limited, rather narrow, set of circumstances. Two of those
circumstances are relevant here: 1) "emergency operations that involve a threat to public
safety or park resources" and 2) "other activities where the control of public movement
and activities is necessary to maintain order and public safety." Id.
         Unlike the Chicago ordinance’s definition of loitering, 36 C.F.R.
2.32(a)(2) is not so unclear that it vests unbridled discretion in Park Rangers. An order
given under the "emergency operations" provision, for example, must be given not only
in "emergency operations," but in "emergency operations that involve a threat to public
safety or park resources." What is more, an order given under the "public movement"
provision may only be given if "necessary to maintain order and public safety." Id.
Recognizing that "we can never expect mathematical certainty from our language," Hill
v. Colorado, 530 U.S. 703, 733 (2000) (citation and quotation marks omitted), we hold
that the Regulation is sufficiently clear and narrow that it "does not encourage arbitrary
and discriminatory enforcement," Kolender, 461 U.S. at 357 (citation omitted), and
therefore "establish[es] [the kind of] minimal guidelines" that Due Process requires.
Morales, 527 U.S. at 60 (citation omitted).
                                B.
         Both Gayer and the American Civil Liberties Union as amicus argue that
Gayer’s arrest also implicated Gayer’s First Amendment right to speak freely.   Whether
the government may restrict a person’s ability speak on its property depends upon
whether the property is "public or nonpublic." Kreimer v. Bur. of Police for Morristown,
958 F.2d 1242, 1255 (3d Cir. 1992) (citation and quotation marks omitted).
         All parties in this case agree that the Pavillion is a limited public forum. A
limited public forum is a public forum only to the extent that it has been "intentionally
opened [by the government] . . . to the public for expressive activity." Kreimer, 958 F.2d
at 1259 (quotation marks omitted, emphasis in original). Thus, the constitutionality of a
restriction on expressive activity that is consistent with a limited public forum’s purpose
is determined using the more rigorous public forum standard and, conversely, the
constitutionality of a restriction on expressive activity that is inconsistent with the
forum’s purpose is determined using the nonpublic forum reasonableness standard. Id. at
1262.

         Our first inquiry is whether the government had opened the Pavillion to
expressive activity like Gayer’s. The evidence taken in a light most favorable to the
government, demonstrates that the government had opened the Pavillion to the public to
see the Liberty Bell, to take part in a short presentation, and then to leave. The
government did not intend to open the Pavillion to speeches made by members of the
general public. Indeed, the fact that the government had designated areas outside of the
Pavillion for public speech suggests that the Pavillion had not been so designated.
         Consequently, we will apply the nonpublic forum reasonableness standard
to determine whether Gayer’s arrest under 36 C.F.R. 2.32(a)(2) was constitutional.
Under that standard, we ask whether Gayer’s arrest was "reasonable and not an effort to
suppress expression merely because public officials oppose the speaker’s view." Perry
Educ. Ass’n, 460 U.S. at 46. As we have said, the regulation permits a Park Ranger to
arrest a person who disobeys an order given "during . . . other activities where the control
of public movement and activities is necessary to maintain order and public safety." 36
C.F.R. 2.32(a)(2). The record demonstrates that Gayer interrupted the park service
presentation inside the Pavillion and halted the flow of tourists through the Pavillion
while thousands of tourists were waiting in line outside. It was reasonable for the
government to ask her to stop and then to arrest her when she refused. Further, there is no
indication that she was asked to stop speaking because she was expressing a particular
point of view. The Ranger that told her to stop merely said, "that [is] not allowed." 36
C.F.R. 2.32(a)(2) is therefore constitutional as-applied to Gayer.
                              III.
         Protesters also argue that the district court should not have admitted a 15
minute video tape of the demonstration because it was not properly authenticated. They
argue that the tape, since it was an edited version of the complete two-hour tape, should
have been authenticated by the editor instead of Officer Murphy, the camera operator.
We review a trial court’s decision to admit evidence for an abuse of discretion. United
States v. Sriyuth, 98 F.3d 739, 745 n.9 (3d Cir. 1996). Evidence may be properly
authenticated if a witness with knowledge testifies that it "is what [it] claim[s] to be."
F.R.E. 901(b). Because the tape was authenticated at trial by a person with
knowledge the camera operator the trial court did not abuse its discretion when it
admitted the tape. See United States v. McNair, 439 F. Supp. 103, 105 (E.D. Pa. 1977),
aff’d, 571 F.2d 573 (3d Cir.) (photographs authenticated by witness to the event).
         Protesters also argue that the trial judge should have let them question
Officer Murphy about his membership in the Philadelphia Fraternal Order of Police
(F.O.P.). They wanted to ask Murphy about his membership because they might have
shown, given the F.O.P.’s supposed criticism of Jamal supporters in the past, that Murphy
recorded the event in a biased way. Since the tape showed scenes of what actually
happened during the emergency at the Pavillion, any bias attributable to Murphy because
of his membership in the F.O.P. would have been marginally relevant at best. The trial
court did not abuse its discretion when it held that the F.O.P. line of questioning was
irrelevant. Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 781 (3d Cir. 1990)
(relevancy determinations reviewed for an abuse of discretion).
                              IV.
         Protesters also challenge several aspects of their sentences. They first argue
that the trial judge should not have limited their travel to the federal district in which the
resided.
                  A court may impose a special condition of probation to the
         extent that any such condition is reasonably related to factors
         set forth in [18 U.S.C. ] 3553(a)(1) and (2), and to the extent
         that such conditions involve only such deprivations of liberty
         and property as are reasonably necessary to fulfill the
         purposes of probation.   18 U.S.C.   3563(b).

United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999) (footnote omitted).
         Travel restrictions are a standard probation condition. Id. There was no
abuse of discretion in the trial judge’s imposition of the travel restrictions because those
restrictions "reflect the seriousness of the offense, . . . promote respect for the law, . . .
and prove [a] just punishment for the offense." 18 U.S.C. 3553.
         Protesters also argue that they were punished for exercising their right to go
to trial because their sentences were more severe than the sentences received by those
demonstrators who chose not to go to trial. We agree with the district court that
protesters’ punishment reflects both their lack of remorse and their unwillingness to
accept responsibility for their illegal acts.
         Further, protesters suggest that it was error for the trial judge to sentence
them in a "fixed and mechanical" manner. See United States v. Thompson, 483 F.2d 527
(3d Cir. 1973). However, the trial judge considered each protester separately at
sentencing. That protesters received the same sentence merely indicates that their
differences were not so significant as to warrant varied sentences. There was no abuse of
discretion.
         Finally, it appears that each protester was ordered to pay a $25 assessment
instead of the $10 special assessment authorized by 18 U.S.C. 3013(a)(1)(A)(ii). The
government properly conceded error. We vacate the special assessment and remand to
the district court with instructions to decrease the assessment to $10 as to each protester.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
________________________________

TO THE CLERK:


         Please file the foregoing Not Precedential opinion.



                               /s/ J. Clifford Wallace
                               Circuit Judge
