United States v. Milton Hargraves Baxley, II ( 2007 )

[DO NOT PUBLISH]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.
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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
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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
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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.
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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
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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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