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


11-19-2002

USA v. Goldin
Precedential or Non-Precedential: Precedential

Docket No. 01-1440




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Recommended Citation
"USA v. Goldin" (2002). 2002 Decisions. Paper 754.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/754


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PRECEDENTIAL

       Filed July 24, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-1440, 01-1442, 01-1443, 01-1445 and 01-1446

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 No. 01-1445
(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
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
_________________________________________________________________

* Honorable J. Clifford Wallace, United States Circuit Judge for the Ninth
Circuit, sitting by designation.

                                  2


       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

                                  3


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. S 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. S 3401(a), the district court had appellate
jurisdiction under 18 U.S.C. S 3742(g), and we have
jurisdiction over this timely filed appeal under 28 U.S.C.
S 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

                                  4


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. S 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. S 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

                                5


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. S
2.32(a)(2).

II.

Protesters next argue that 36 C.F.R. S 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" 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

                                6


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. S 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. S 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. S 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

                                7


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 to 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
                                8


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. S 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.S 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. S 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).

                                9


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 they
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. S] 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. S 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. S 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

                                10


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. S 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.
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                11
