                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-4122



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JOHN L. IRBY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:06-cr-00087-sgw)


Argued:   January 31, 2008                 Decided:   March 10, 2008


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.   ON BRIEF: John L. Brownlee, United States Attorney,
Jennie L. M. Waering, Assistant United States Attorney, Andrew
Fowler, Third Year Law Student, Mariam Tadros, Third Year Law
Student, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Appellant John Irby (“Irby”) challenges his conviction for

creating a disturbance on Department of Veterans Affairs (“VA”)

property, in violation of 38 C.F.R. § 1.218(a)(5), on the grounds

that the government failed to prove an element of the offense--that

notice of the regulation was posted at the site.             Because we find

that such posting is not an element of the offense, we affirm

Irby’s conviction.



                                     I.

     Irby is an elderly veteran of the Vietnam War who, at the time

of his arrest, was a participant in a VA program serving homeless

veterans.    On June 11, 2006, Irby was sitting outside a building at

a VA hospital complex, talking with a group of friends.               A VA nurse

noticed that Irby smelled of alcohol and called the VA police.

Officer Lisk responded to the call.         Neither Officer Lisk nor the

nurse knew Irby, nor his business at the VA.

     Officer Lisk approached the group and asked to speak with

Irby.    Irby rose and approached Officer Lisk.         Noticing that Irby

smelled    of   alcohol,   Officer   Lisk   asked    Irby   if   he    had   been

drinking, and Irby admitted that he had.        To confirm, Officer Lisk

again asked him if he had been drinking.            This time, Irby replied

in the negative. Officer Lisk continued to question Irby, who grew

angry, cursed, and walked away.


                                      2
     Officer Lisk pursued him across several parking lots on the VA

property, asking for Irby’s name so he could complete his incident

report.    Irby continued to curse and shout derogatory comments at

Officer Lisk, who then called for backup.    Officer Fieschel caught

up with the pair, and attempted to engage Irby in conversation.

According to the Officer Fieschel, Irby began pushing him, and

adopted a boxing stance towards the two policemen.         When Irby

allegedly moved to strike Officer Fieschel again, Officer Lisk

deployed his pepper spray, hitting Irby in the side and back of the

head.    Officer Fieschel grabbed Irby, handcuffed and arrested him.

     Irby was charged with, as relevant here, the misdemeanor of

creating a disturbance on VA property in violation of 38 C.F.R.

§ 1.218(a)(5).1   Irby moved for a judgment of acquittal before the

magistrate judge, arguing that the government had failed to offer

into evidence any proof that the regulations under which he had

been charged were posted at the property, as required by 38 U.S.C.

§ 901(d) and 38 C.F.R. § 1.218(a).    The Magistrate Judge denied the

motion in a written order, then entered judgment against Irby.

Irby was sentenced to two days’ imprisonment, with credit for time




     1
      Irby was also charged with assaulting an officer in violation
of 18 U.S.C. § 111.     The magistrate judge found, after trial,
however, that “the government failed to prove the assault was
forcible under the peculiar facts of this case,” J.A. 133, and
dismissed the charge.

                                  3
served, and a $35 fine.        On appeal to the district court,2 Irby’s

conviction was affirmed.       Irby timely appealed.



                                     II.

      As Irby’s appeal presents a pure question of law, we review de

novo the district court’s denial of Irby’s motion for judgment of

acquittal.    United States v. Uzenski, 434 F.3d 690, 700 (4th Cir.

2006).

      To   understand   Irby’s    argument   that       the   regulations   and

authorizing statute make the posting of notice an element of his

offense, we must begin with the plain language of the statute.

Farmer v. Employment Sec. Comm’n of N.C., 4 F.3d 1274, 1279 (4th

Cir. 1993).    Section 901(a)(1) of Title 38 requires the Secretary

of Veterans Affairs (the “Secretary”) to “prescribe regulations to

provide for the maintenance of law and order and the protection of

persons and property on [VA] property.”            38 U.S.C. § 901(a)(1).

The   Secretary   has   done   so,   prohibiting    a    number   of   unseemly

activities, including “[e]ntering property under the influence of

any . . . alcoholic beverage,” 38 C.F.R. § 1.218(a)(7), and

creating a disturbance, which includes “[c]onduct on property which

creates loud or unusual noise” and “the use of loud, abusive, or

otherwise improper language,” id. § 1.218(a)(5).                In this case,


      2
      A defendant may appeal to the district court a conviction for
any misdemeanor tried before a Magistrate Judge under Federal Rule
of Criminal Procedure 58(b)(3)(A). Fed. R. Crim. P. 58(g)(2)(B).

                                      4
Irby’s suspected alcohol use, in violation of § 1.218(a)(7),

initiated the police confrontation that led to his being charged

for creating a disturbance, § 1.218(a)(5).

      Neither     the   authorizing   statutory        subsection,    nor    the

regulation      subsection   describing    the    offense    of   creating    a

disturbance, includes a requirement that the regulations be posted

on VA property. Such requirement is found elsewhere in the statute

and   regulation.       Section   901(d)   of    the    authorizing    statute

provides:

      The rules prescribed under subsection (a) [requiring the
      Secretary to promulgate regulations], together with the
      penalties for violations of such rules, shall be posted
      conspicuously on property to which they apply.

38 U.S.C. § 901(d).      The regulations mirror this requirement:

      Authority and rules of conduct. Pursuant to 38 U.S.C.
      § 901, the following rules and regulations apply at all
      property under the charge and control of VA . . . and to
      all persons entering in or on such property. The head of
      the facility is charged with the responsibility for the
      enforcement of these rules and regulations and shall
      cause these rules and regulations to be posted in a
      conspicuous place on the property.

38 C.F.R. § 1.218(a).

      Irby’s sole argument on appeal is that, according to the plain

meaning of § 901(d), “[t]he misdemeanor regulations ‘apply’ at only

those Department of Veterans Affairs facilities where they have

been posted.”      Appellant’s Br. at 6.        Because the posting of the

regulations is a condition precedent to their application, he




                                      5
argues, the government must prove that the regulations were posted

in order to convict him thereunder of creating a disturbance.

     Irby’s reading of the statute is precisely backwards. Section

901(d) assumes first that the regulations will be promulgated and

will apply at certain VA properties, then, referring to those

defined properties, requires that “[t]he rules . . . shall be

posted conspicuously” there.      The regulations only confirm this

straightforward reading of § 901(d), stating matter-of-factly that

“the following rules and regulations apply at all [VA] property,”

38 C.F.R. § 1.218(a), with no suggestion that the rules only apply

at properties where notice is first posted. Irby’s argument simply

does not comport, therefore, with a plain reading of the statute.

     Undeterred, Irby proffers an analogy to the (now-revised)

statute   governing   the   posting   of   notice   on   General   Services

Administration properties:

     The Administrator of General Services or officials of the
     General Services Administration duly authorized by him
     are authorized to make all needful rules and regulations
     for the government of the property under their charge and
     control, and to annex to such rules and regulations such
     reasonable penalties, within the limits prescribed in
     section 318c of this title, as will insure their
     enforcement: Provided, That such rules and regulations
     shall be posted and kept posted in a conspicuous place on
     such property.

40 U.S.C. § 318a (2002) (revised and recodified at 40 U.S.C.

§ 1315(c)(1)).   A number of federal courts interpreting then-

current § 318a read the “Provided” clause to render the authority

of the Administrator of General Services to make rules and impose

                                      6
penalties subject to the regulations first being “posted in a

conspicuous place on such property.”         See, e.g., United States v.

Brice,   926   F.2d   925,   928   (9th   Cir.   1991);   United   States   v.

Strakoff, 719 F.2d 1307, 1309 (5th Cir. 1983); United States v.

Boyer, 935 F. Supp. 1138, 1142 (D. Colo. 1996).           Irby argues that,

just as superceded § 318a made posting an element of offenses

detailed in the underlying regulation, so too does § 901(d) of

Title 38 require the government to prove that notice of the

regulations was posted.

     Again, Irby’s argument ignores the plain language of § 901(d).

In unequivocal terms, the superceded § 318a, by using the word

“[p]rovided,” underlined for emphasis, made the application of the

section contingent on satisfaction of the notice-posting condition

described in the limiting clause.          Rather than supporting Irby’s

argument, § 318a demonstrates, to the contrary, that when Congress

wishes to make posting an element of an offense, it is well aware

of how to do so.      Under the VA statute before us, the Secretary’s

authority to promulgate regulations is found in the non-conditional

§ 901(a); the posting requirement is situated elsewhere, in the

unrelated § 901(d).     Because the notice requirements in subsection

(d) are not married to, nor made an express proviso of, the

authority-granting provision in subsection (a), we find it clear

that Congress did not intend that the posting of notice should be

considered an element of any offense depicted in the regulations.


                                      7
     This result is eminently reasonable.    “The general rule that

ignorance of the law . . . is no defense to criminal prosecution is

deeply rooted in the American legal system.”       Cheek v. United

States, 498 U.S. 192, 199 (1991).     This ancient maxim is no less

potent simply because the conduct here is criminalized by “duly

promulgated and published regulation” and not directly by statute.

United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558,    563

(1971).   Indeed, it should come as no surprise that engaging in a

physical altercation with police officers is conduct likely to be

punishable under the criminal law in any setting.     We therefore

hold that the posting of notice of the regulations promulgated

under § 901(a) is not properly considered an element of the offense

of creating a disturbance on VA property in violation of 38 C.F.R.

§ 1.218(a)(5).



                               III.

     Accordingly, the judgment of the district court is

                                                          AFFIRMED.




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