                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4516


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

RUSSELL L. LEE,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:08-cr-00485-DKC-1)


Argued:   May 13, 2011                      Decided:   May 27, 2011


Before MOTZ, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Benjamin C. Wiles, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant.    Jonathan Biran,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: John J. Korzen, Director, Megan M. Curran,
Student, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Hollis Raphael Weisman, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                At     approximately       noon     on      March    3,    2008,    Sergeant

Daniel Chaale, a law enforcement officer stationed at Andrews

Air Force Base, and his partner responded to reports of a verbal

altercation inside the Base barber shop.                        They found Russell Lee

standing outside the barber shop in the common area of the Base

Exchange.        Lee, who matched the description of the man involved

in the altercation, was wearing a large black trench coat and

was standing with his hands behind his back.                          Lee approached the

officers    and        admitted    to     “arguing       with   an    individual      .    .    .

inside the barber shop.”

                Sgt.    Chaale     ordered      Lee    to    step    back    and    show   his

hands.      Lee, who was angry and belligerent, refused to comply

with these orders.           Because they were in a confined space inside

the Base Exchange, Sgt. Chaale took Lee’s arm and directed him

to   the    common       smoking     area       just     outside     the     Base    Exchange

complex.        Once outside, Sgt. Chaale ordered Lee to sit down.                             By

Lee’s own admission, he refused.                         During this encounter, Lee

cursed     at    the     officers    and     continued        to    refuse    to    show   his

hands.      Thereafter,           based    on    Lee’s      lack     of   cooperation      and

refusal     to       show   his    hands,       Sgt.     Chaale      forcibly       detained,

searched, and eventually arrested Lee.

                Lee was charged with two offenses:                          (1) “willfully

act[ing] in a disorderly manner that disturbs the public peace,”

                                                2
in violation of Md. Code Ann. Crim. Law § 10-201(c)(2); and (2)

“willfully fail[ing] to obey a reasonable and lawful order that

a law enforcement officer makes to prevent a disturbance to the

public    peace,”    in     violation       of     §    10-201(c)(3).         Because      the

events occurred on a military base within federal jurisdiction,

the offenses were adjudicated in federal court.

            On    October         6,    2008,       a    federal      magistrate      judge

conducted    Lee’s        bench    trial.          The    Government        presented      the

testimony of Sgt. Chaale.                 At the close of the Government’s

case, the magistrate judge acquitted Lee of the first offense,

finding    that     the    Government       failed        to   present      evidence       “to

suggest that anybody was disturbed” by Lee’s actions.                             As to the

second offense, the magistrate judge first found as fact that

Lee failed to obey “two if not three” police orders.                              The judge

then considered whether this confrontation “was a problem that

needed to be resolved so as not to lead to a breach of the

public peace,” and found that “it was reasonable to believe that

it would cause a disturbance,” and thus found Lee guilty of the

second    offense.          The    judge       sentenced        Lee    to    six    months’

probation with conditions that he attend anger management and

perform 20 hours of community service.

            The     magistrate         judge       advised     Lee    of    his    right    to

appeal the ruling to the district court.                        On October 17, 2008,

proceeding pro se, Lee timely appealed the magistrate judge’s

                                               3
order     to   the     district       court.       Lee    challenged      Sgt.    Chaale’s

testimony and questioned whether there was any “evidence that

the ‘Sit down’ command was meant to prevent him from inciting or

offending       others.”        On     November     4,    2008,    Lee    filed    another

notice of appeal, which the district court construed as a brief.

The Government did not respond until March 20, 2009 -- well

after the allotted 30-day period.

               On the same day the Government filed its response, the

district       court        entered    judgment,         affirming       the   magistrate

judge’s order in a memorandum opinion.                     The court concluded that

the magistrate judge was not clearly erroneous in finding that

the officer’s “orders to [Lee] were necessary and reasonable to

prevent a disturbance of the public peace.”                        The district court

did   not      enter    a    separate     formal     order    of     judgment. 1         More

significantly, the record does not reflect that the district

court informed Lee of his right to appeal the judgment to this

court     within       the    10-day    appeal      period    of     Federal      Rule    of

Appellate Procedure 4(b).               Apparently unaware that the district

court entered judgment, on March 24, 2009, Lee filed a reply

brief.      Thereafter, the district court neither entered a formal

      1
       Pursuant to the civil rules of procedure, “the result of
failure to enter judgment on a separate document is that the
time . . . to appeal under Appellate Rule 4(a) . . . does not
begin to run.”    Fed. R. Civ. P. 58 advisory committee’s note
(discussing 2002 amendments to rule).    This so-called “separate
document requirement” has no analogue in the criminal rules.


                                               4
order of judgment nor informed Lee of his right to appeal the

judgment.

            On May 19, 2009, Lee, still proceeding pro se, noted

an appeal outside the applicable 10-day window. 2         This court set

an informal briefing schedule, and on September 24, 2009, Lee

filed an informal merits brief.            The Government opted not to

file a response.      On August 31, 2010, we appointed Lee counsel

and ordered supplemental briefing on the question of whether

this court could sua sponte raise the Rule 4(b) time bar.                 On

November    10,   2010,   Lee,   through   appointed   counsel,   filed   a

formal merits brief.       On December 8, 2010 -- 99 days after we

ordered formal briefing and 18 months after Lee noted the appeal

-- the Government invoked the Rule 4(b) time bar in a motion to

dismiss Lee’s appeal.       Shortly thereafter, the Government filed

its formal appellate brief.



                                     I.

            The time bar in Rule 4(b) is not jurisdictional.          See

United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009).              We

note, moreover, that the district court never informed Lee, who

was proceeding pro se, of his right to appeal.              See Fed. R.

Crim. P. 32(j) (providing that district courts “must advise the

     2
       In 2009, after the commencement of this appeal, Fed. R.
App. P. 4(b) was amended to allow 14 days.


                                     5
defendant of the right to appeal the conviction . . . [and]

sentence”); Fed. R. Crim. P. 58(c)(4) (setting forth identical

duties in misdemeanor cases); see also Peguero v. United States,

526 U.S. 23, 27 (1999) (instructing that district courts “must

be meticulous and precise” in advising criminal defendants of

their appeal rights). 3             Because reaching the merits of Lee’s

appeal      would    not   waste    any     judicial     resources     beyond    those

already squandered by the Government’s lengthy delay, we see no

barrier     to     considering     the    substance      of   Lee’s   appeal.     Cf.

Kontrick v. Ryan, 540 U.S. 441, 456 (2004) (explaining that a

claim-processing rule can “be forfeited if the party asserting

the rule waits too long to raise the point”); Urutyan, 564 F.3d

at   684,    686    (reaching      the    merits    of   defendant’s    appeal   when

government waived the time bar).

              Lee      contends          that      the    Government       presented

insufficient evidence to support his conviction.                       “In assessing


      3
       Although the parties did not brief whether the district
court’s error in failing to advise Lee of his appeal rights was
harmless, at oral argument the Government suggested that because
Lee timely filed his appeal from the magistrate judge’s order,
he can be held to have known of his right to appeal.         See
Peguero, 526 U.S. at 28 (holding failure to advise was harmless
because defendant “had full knowledge of his right to appeal”).
Of course, the magistrate judge clearly instructed Lee of his
right to appeal to the district court.    Thus, contrary to the
Government’s suggestion, Lee’s timely appeal of the magistrate
judge’s order serves to “underscore the importance of the advice
which comes from the court itself,” id. at 27, not to diminish
it.


                                            6
the sufficiency of the evidence presented in a bench trial, we

must   uphold”       a    judgment       of    guilt    “if,     taking      the   view       most

favorable to the Government, there is substantial evidence to

support the verdict.”              United States v. Armel, 585 F.3d 182, 184

(4th    Cir.    2009)      (internal          quotation      omitted).        “‘Substantial

evidence’ means evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                                Id. (internal

quotation omitted).

               Lee relies primarily on the magistrate judge’s finding

that    the    Government         presented       “no       testimony   to    suggest         that

anybody   was     disturbed”        by    Lee’s        conduct.        According         to   Lee,

“because the public was not present during [his] interaction

with the police, the orders could not have been given to prevent

a disturbance of the public peace.”                         Appellant’s Br. at 28.             But

the    magistrate        judge’s     finding         involved     whether     Lee    actually

disturbed      the       public    peace,       not    whether     there     was     a    public

presence such that Lee’s conduct posed a threat to the public

peace.        Relevant to the latter inquiry, the magistrate judge

considered the evidence that Lee “was in a public area of the

Base Exchange” during lunchtime when he failed to comply with

Sgt.    Chaale’s         orders    and    exchanged          “heated    words”       with     the

officers.        From      this    evidence,          the    magistrate      judge       as   fact

finder could conclude that “it was reasonable to believe” that

                                                 7
Lee’s conduct “would cause a public disturbance.”                          Indeed, in

his informal brief to this court, Lee acknowledged that there

were “numerous customers . . . coming and going with the mix of

active duty personnel outside and inside the [Base Exchange]”

during the events in question.           Appellant’s Informal Br. at 2.

           Lee maintains, however, that there must be evidence of

a gathering crowd to satisfy the requirement that the lawful

order be made “to prevent a disturbance of the public peace.”

He relies on Lamb v. Maryland, 786 A.2d 783 (Md. Ct. Spec. App.

2001), in which Maryland’s intermediate appellate court reversed

a   conviction    under   Md.    Code    Ann.    Crim.   Law      §    10-201(c)(3)

because the defendant actually obeyed the police officer’s only

lawful order to step back.           The court went on to note that by

stepping back the defendant “withdrew from the public sidewalk

to his parent’s property and that there was no evidence of a

gathering crowd during the confrontation.”                  Id. at 800.           Thus,

the Lamb court concluded, “there could be neither a disturbance

of the public peace nor an obstruction of the free passage of

pedestrians      or   others    in   a   public     place    or       on    a    public

conveyance    pursuant    to    [Maryland       law].”      Id.        Rather      than

delineating the presence of a gathering crowd as an element of

the   offense,    the   Lamb    court    was    merely   noting       the       lack   of

evidence that the defendant, standing on his parent’s private

property and not attracting attention, was a threat either to an

                                         8
existing public peace or to the free passage of the public.

Here, of course, Lee stood in a public place in the middle of

the day where he himself has acknowledged “numerous” members of

the public were “coming and going.” 4



                                  II.

          For   the   foregoing   reasons,   the   judgment    of   the

district court is

                                                              AFFIRMED.




     4
        We very much appreciate the fine efforts of Lee’s
appointed counsel in assisting us in resolving this appeal.


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