                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APRIL 24, 2007
                             No. 06-15994                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 06-00012-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

MILTON HARGRAVES BAXLEY, II,


                                                     Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________


                             (April 24, 2007)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Milton Hargraves Baxley, II, appeals his convictions and sentences for two

counts of criminal contempt for violating a court order, each act in violation of 18

U.S.C. § 401(3). Baxley asserts five errors on appeal: (1) the criminal contempt

statute is unconstitutionally vague, (2) the district court erred by refusing to give

his proposed jury instructions, (3) the district court erred by not granting a new

trial due to prosecutorial misconduct, (4) the United States does not have

jurisdiction over him or the acts for which he was convicted, and (5) his sentence is

unreasonable. We address each argument in turn, and affirm Baxley’s convictions

and sentences.

                                  I. DISCUSSION

A. Constitutionality of 18 U.S.C. § 401(3)

      Baxley contends 18 U.S.C. § 401(3) is unconstitutionally void for vagueness

because the average person could not determine from the statute whether a

prohibited action is a civil infraction, a misdemeanor, or a felony, and the statute

does not define the terms “misbehavior,” “disobedience,” “resistance,” or “lawful.”

      “We review a district court’s conclusions as to the constitutionality of a

challenged statute de novo.” United States v. Eckhardt, 466 F.3d 938, 943 (11th

Cir. 2006), cert. denied, 127 S. Ct. 1305 (2007). A criminal statute may be

invalidated for vagueness “if it either (1) fails ‘to provide the kind of notice that



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will enable ordinary people to understand what conduct it prohibits’ or

(2) authorizes or encourages ‘arbitrary and discriminatory enforcement.’” Id. at

944 (quoting City of Chicago v. Morales, 119 S. Ct. 1849, 1859 (1999)). The

challenged statute provides “[a] court of the United States shall have power to

punish by fine or imprisonment, or both, at its discretion, such contempt of its

authority . . . as [d]isobedience or resistance to its lawful writ, process, order, rule,

decree, or command.” 18 U.S.C. § 401(3). The words in the statute derive their

meanings from “judicial decisions, common law, dictionaries, and the words

themselves because they possess a common and generally accepted meaning.”

Eckhardt, 466 F.3d at 944 (quotations omitted).

       The criminal contempt statute, 18 U.S.C. § 401(3), is not void for

vagueness.1 We find unpersuasive Baxley’s argument that § 401(3) is vague

because the statute does not clarify what conduct constitutes civil disobedience and

what conduct is punishable criminally. As the Eighth Circuit has noted, the statute

is listed amongst “Crimes and Criminal Procedure” in Title 18 of the United States

Code, and case law has established that it provides the authority for punishing


       1
          In addition to his vagueness argument, Baxley alleges for the first time on appeal that
§ 401(3) is overly broad because it allows the court to punish him for constitutionally protected free
speech. It is within our discretion not to address a constitutional issue raised for the first time on
appeal. United States v. Wright, 392 F.3d 1269, 1280 (11th Cir. 2004). Baxley only mentions his
overbreadth argument in passing and does not explain how the statute is overbroad, nor cite any
authority supporting his argument, therefore, we use our discretion not to address this issue.

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criminal contempt. United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d

998, 1000 (8th Cir. 1970). That court also concluded a plain reading of the statute

puts an ordinary individual on notice that Section 401(3) authorizes a court to

“punish” an individual who disobeys a court order. Id. Moreover, the Eighth

Circuit was “not persuaded that 401 is rendered unconstitutionally vague solely

because violators of its prohibitions may be subject to civil contempt in addition or

as an alternative to criminal contempt,” because “[i]t is not . . . necessary that the

actor, at the time he contemplates the act, be certain as to which of the appropriate

sanctions will be invoked.” Id. at 1000-01. We agree, and hold an ordinary person

would comprehend the proscribed conduct may be criminally punished.

      Equally unpersuasive is Baxley’s argument the statute does not define the

terms it uses. Baxley argues the statute does not define “disobedience” or

“resistance,” however, the common and generally accepted meanings of these

terms provide sufficient notice to an ordinary person that non-compliance with a

“lawful” court order is subject to contempt. Baxley invokes the First Amendment

to challenge the district court’s preliminary injunction was not “lawful.” We have

construed “the terms ‘lawful writ, process, order, rule, decree, or command’ to be

instruments entered by a court or pursuant to its authorization.” United States v.

Bernardine, 237 F.3d 1279, 1282 (11th Cir. 2001). Under this definition, the



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preliminary injunction entered by the district court was a “lawful” order entered

pursuant to its authority. This definition is consistent with our holding in In re

Timmons that “[t]he validity of a criminal contempt conviction resulting from

violation of a court order . . . does not turn on the validity of that order, even if that

order is later found to have infringed constitutional rights.” In re Timmons, 607

F.2d 120, 124-25 (5th Cir. 1979) (citations omitted).2 Thus, an ordinary person

would have understood with reasonable specificity that he could not violate the

injunction, even if he believed it was unconstitutional.

B. Jury Instructions

       Baxley contends by not granting his proposed jury instructions, the district

court provided the jury with no guidance “on the law that an injunction cannot be

used to prohibit the exercise of the fundamental right of freedom of speech

guaranteed by the Constitutions.”

       We review a district court’s refusal to grant requested jury instructions for

abuse of discretion. United States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006).

In order to establish reversible error, “a defendant must show that the instruction:

(1) was a correct statement of the law; (2) was not adequately covered in the



       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.

                                                5
instruction given to the jury; (3) concerned an issue so substantive that its omission

impaired the accused’s ability to present a defense; and (4) dealt with an issue

properly before the jury.” Id. (quotations omitted).

      Baxley’s requested instructions dealt with an issue that would not have

properly been before the jury. As stated above, “[t]he validity of a criminal

contempt conviction resulting from violation of a court order . . . does not turn on

the validity of that order, even if that order is later found to have infringed

constitutional rights.” In re Timmons, 607 F.2d at 124-25 (citations omitted).

Whether an underlying injunction is invalid does “not justify the contempt” that

results from actions taken in disregard of the court order. Id. at 125. Thus, it

would have been improper for the jury to consider whether the injunction violated

Baxley’s protected speech and the district court’s refusal to grant Baxley’s

instructions was not an abuse of discretion.

C. Prosecutorial Misconduct

        Baxley asserts the prosecutor engaged in misconduct demanding a new

trial when he asked Baxley on cross-examination whether it was true that he had

not filed a federal tax return since 1994 nor paid taxes since 1995, and whether he

had been sanctioned by courts for filing frivolous pleadings. Baxley alleges the




                                            6
prosecutor compounded the error by mentioning his failure to file a tax return or

pay income tax during closing arguments.

      We review a claim of prosecutorial misconduct de novo because it is a

mixed question of law and fact. Eckhardt, 466 F.3d at 947. A conviction is

reversible for prosecutorial misconduct if the remarks were improper and

prejudicially affected the substantial rights of the defendant. Id. We will consider

a defendant’s substantial rights to have been affected only when “the outcome of

the trial would have been different.” Id. “[R]eversal is only warranted if the entire

trial is so replete with errors that [the defendant] was denied a fair trial,” and

“[w]hen the record contains sufficient independent evidence of guilt, any error is

harmless.” Id.

      Even were we to deem the questions and remarks of the prosecutor to be

inappropriate, Baxley would not be entitled to a new trial because his substantial

rights were not affected by the statements. To convict Baxley of criminal

contempt, the Government had the burden to prove “(1) that the court entered a

lawful order of reasonable specificity; (2) the order was violated; and (3) the

violation was willful.” Bernardine, 237 F.3d at 1282 (quotations omitted). The

Government introduced the preliminary injunction forbidding Baxley from filing

any communication with the IRS and evidence that Baxley thereafter helped two



                                            7
individuals prepare letters for the IRS. Baxley testified he did not willfully violate

the injunction, however, a testifying defendant “runs the risk that if disbelieved the

jury might conclude the opposite of his testimony is true.” United States v.

Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (quotations omitted). The record

contained sufficient evidence to convict Baxley, and his substantial rights were not

affected by any alleged prosecutorial misconduct.

D. Jurisdiction

      Baxley contends the Constitution does not authorize Congress to enact

§ 401(3), nor allow the Government to charge him with violating that statute.

According to Baxley, the United States may only prosecute criminal cases on lands

owned by the United States and not within the territorial boundaries of the states,

except where states have ceded jurisdiction to the federal government.

      Baxley relies on an interpretation of federal jurisdiction identical in all

relevant respects to one that we have previously described as “utterly without

merit,” which is that the federal government has jurisdiction only over Washington

D.C., federal land expressly ceded to the federal government by the states, and

territories and possessions of the United States. United States v. Ward, 833 F.2d

1538, 1539 (11th Cir. 1987). As stated in Ward, Baxley’s argument is utterly

without merit.



                                           8
E. Sentencing

      Baxley asserts the district court applied an unreasonable sentence, at

variance with other individuals convicted of criminal contempt, “in order to send a

message to the so-called ‘tax protest community’ across the country.”

      We review for reasonableness a defendant’s ultimate sentence, imposed after

the district court has consulted the Guidelines and considered the factors set forth

at 18 U.S.C. § 3553(a). United States v. Pope, 461 F.3d 1331, 1333 (11th Cir.

2006). We are deferential to the district court and note that Baxley bears the

burden of establishing his sentence is unreasonable in light of the record and the

§ 3553(a) sentencing factors. Id.. The sentencing factors to be considered include

“the nature and circumstances of the offense and the history and characteristics of

the defendant,” “the need for the sentence imposed . . . to afford adequate

deterrence to criminal conduct,” the applicable Guideline range, and “the need to

avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C. § 3553(a).

      Baxley’s sentences are reasonable. The court correctly calculated Baxley’s

applicable Guidelines range as 15-21 months’ imprisonment. The Government

argued for sentences at the upper end of the range (1) because Baxley was an

attorney, and (2) to deter the tax protestor community following Baxley’s case on



                                          9
the Internet and “show that the court takes violations of court orders very seriously

and that there are serious consequences for people who violate a court order.” The

deterrent effect of a sentence is an appropriate consideration for the district court.

The court noted it took that argument into consideration, in addition to the other

factors, and arrived at sentences in the middle of the Guidelines range. Baxley has

not met his burden to show his 18-month sentences are unreasonable.

                                 II. CONCLUSION

      The criminal contempt statute is not unconstitutionally vague. Additionally,

the district court did not err by refusing to give Baxley’s proposed jury instructions

or by not granting a new trial due to prosecutorial misconduct. Finally, Baxley’s

jurisdiction argument is utterly without merit and his sentences are reasonable.

Accordingly, we affirm Baxley’s convictions and sentences for criminal contempt.

      AFFIRMED.




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