                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-4394
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                                   JOHN A. O’NEAL

                                                     Appellant
                                     ____________

                     On Appeal from United States District Court
                       for the Eastern District of Pennsylvania
                           District Court No.: 04-mj-01060
                     Magistrate Judge: Honorable Charles B. Smith
                                     __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 20, 2011

                 Before: HARDIMAN and ALDISERT, Circuit Judges
                             and RESTANI * Judge.

                                 (Filed: June 22, 2011)

                                     ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.


      *
        The Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
       John O’Neal appeals his conviction for unauthorized posting of material on

Veterans Affairs (VA) property. We will reverse.

                                             I

       During the presidential election campaign of 2004, O’Neal submitted a request to

the administration of the VA Medical Center (VAMC) asking to hold a sign on VAMC

grounds stating that Senator John Kerry was unfit to serve as the Democratic candidate

for President. The VAMC administration denied O’Neal’s request, reasoning that the

Hatch Act forbade it from sanctioning any activity directed toward the success or failure

of a political candidate.

       After the VAMC denied O’Neal’s request to protest on premises, he appeared

across the street from the VAMC facility holding a sign protesting Senator Kerry’s

presidential bid. O’Neal then was approached by VA Police Corporal Richard Sload,

who informed him that he could not protest on VA property. O’Neal refused to move,

however, contending that he was on State property. Corporal Sload then cited O’Neal for

unauthorized posting of material on VA property, in violation of 38 C.F.R. § 1.218(a)(9).

       O’Neal contested the citation before a United States Magistrate Judge, arguing that

he was protesting on State grounds and that his prosecution violated the First

Amendment. The Magistrate Judge disagreed, finding that O’Neal protested on VA

property. The District Court affirmed and O’Neal filed this timely appeal.




                                             2
                                            II

      O’Neal’s violation of 38 C.F.R. § 1.218(a)(9) was premised upon his protest

occurring on “property under the charge and control” of the VA. On appeal, the United

States concedes that it failed to demonstrate that O’Neal’s protest occurred on VA

property. Our independent review of the record confirms that the Government failed to

carry its burden. This finding invalidates the premise upon which O’Neal’s conviction

was based and compels reversal of the judgment of the District Court and the entry of a

judgment of acquittal in favor of O’Neal. See United States v. McKee, 506 F.3d 225, 251

(3d Cir. 2007). An appropriate judgment follows.




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