                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,             No. 11-50003
                Plaintiff-Appellee,
                                         D.C. No.
                v.                    2:10-cr-00830-
                                          JFW-1
JOHN DENNIS APEL,
             Defendant-Appellant.



UNITED STATES OF AMERICA,             No. 11-50004
                Plaintiff-Appellee,
                                         D.C. No.
                v.                    2:10-cr-00869-
                                          JFW-1
JOHN DENNIS APEL,
             Defendant-Appellant.



UNITED STATES OF AMERICA,             No. 11-50005
                Plaintiff-Appellee,
                                         D.C. No.
                v.                    2:10-cr-00831-
                                          JFW-1
JOHN DENNIS APEL,
             Defendant-Appellant.     ORDER AND
                                       AMENDED
                                        OPINION
2                   UNITED STATES V. APEL

     On Remand From The United States Supreme Court

                   Filed August 14, 2014
                 Amended September 22, 2014

    Before: Barry G. Silverman and Johnnie B. Rawlinson,
     Circuit Judges, and John R. Tunheim, District Judge.*

                       Per Curiam Opinion


                           COUNSEL

Erwin Chemerinsky, Selwyn Chu (argued) and Matthew
Plunkett (argued), law students, University of California,
Irvine School of Law, for Defendant-Appellant.

André Birotte Jr., United States Attorney, Robert E. Dugdale
and Mark R. Yohalem (argued), Assistant United States
Attorneys, Los Angeles, California, for Plaintiff-Appellee.


                             ORDER

   Appellant John Apel’s Petition for Panel Rehearing is
GRANTED. The Per Curiam Opinion filed on August 14,
2014 is amended to conform to the attached Amended
Opinion.




 *
   The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
                     UNITED STATES V. APEL                             3

                             OPINION

PER CURIAM:

    On February 26, 2014, the United States Supreme Court
vacated our opinion at 676 F.3d 1202 and remanded the case
to us for further proceedings consistent with its opinion.
United States v. Apel, __ U.S. __, 134 S.Ct. 1144 (2014).
Appellant John Apel was barred from Vandenberg Air Force
Base, a “closed base,” after he twice trespassed beyond the
designated protest area, including one incident where he
threw blood on a sign for the base, and he has conceded that
he does not challenge the validity of the barment order.1 In
light of the Supreme Court’s decision, Apel’s challenge to the
applicability of 18 U.S.C. § 1382 to the facts of his case is
denied. As to Apel’s defense that his conviction violates the
First Amendment, we agree with the district court’s
conclusion that “whether or not the designated protest area at
Vandenberg Air Force Base is a public forum, the military
may properly exclude recipients of valid bar letters, such as
Mr. Apel, without violating the First Amendment.” See
United States v. Albertini, 472 U.S. 675, 687–89 (1985);
United States v. Walsh, 770 F.2d 1490, 1493 (9th Cir. 1985)
(“Albertini indicates that whether or not a base is a public
forum, the military may exclude recipients of bar letters
without violating the First Amendment.”).

    The judgment of the district court is AFFIRMED.




 1
   S. Ct. Oral Arg. at 36, available at http://www.supremecourt.gov/oral_
arguments/argument_transcripts/12-1038_d18f.pdf
