United States v. Irby , 269 F. App'x 246 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4122
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN L. IRBY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:06-cr-00087-sgw)
Argued: January 31, 2008 Decided: March 10, 2008
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney,
Jennie L. M. Waering, Assistant United States Attorney, Andrew
Fowler, Third Year Law Student, Mariam Tadros, Third Year Law
Student, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant John Irby (“Irby”) challenges his conviction for
creating a disturbance on Department of Veterans Affairs (“VA”)
property, in violation of 38 C.F.R. § 1.218(a)(5), on the grounds
that the government failed to prove an element of the offense--that
notice of the regulation was posted at the site. Because we find
that such posting is not an element of the offense, we affirm
Irby’s conviction.
I.
Irby is an elderly veteran of the Vietnam War who, at the time
of his arrest, was a participant in a VA program serving homeless
veterans. On June 11, 2006, Irby was sitting outside a building at
a VA hospital complex, talking with a group of friends. A VA nurse
noticed that Irby smelled of alcohol and called the VA police.
Officer Lisk responded to the call. Neither Officer Lisk nor the
nurse knew Irby, nor his business at the VA.
Officer Lisk approached the group and asked to speak with
Irby. Irby rose and approached Officer Lisk. Noticing that Irby
smelled of alcohol, Officer Lisk asked Irby if he had been
drinking, and Irby admitted that he had. To confirm, Officer Lisk
again asked him if he had been drinking. This time, Irby replied
in the negative. Officer Lisk continued to question Irby, who grew
angry, cursed, and walked away.
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Officer Lisk pursued him across several parking lots on the VA
property, asking for Irby’s name so he could complete his incident
report. Irby continued to curse and shout derogatory comments at
Officer Lisk, who then called for backup. Officer Fieschel caught
up with the pair, and attempted to engage Irby in conversation.
According to the Officer Fieschel, Irby began pushing him, and
adopted a boxing stance towards the two policemen. When Irby
allegedly moved to strike Officer Fieschel again, Officer Lisk
deployed his pepper spray, hitting Irby in the side and back of the
head. Officer Fieschel grabbed Irby, handcuffed and arrested him.
Irby was charged with, as relevant here, the misdemeanor of
creating a disturbance on VA property in violation of 38 C.F.R.
§ 1.218(a)(5).1 Irby moved for a judgment of acquittal before the
magistrate judge, arguing that the government had failed to offer
into evidence any proof that the regulations under which he had
been charged were posted at the property, as required by 38 U.S.C.
§ 901(d) and 38 C.F.R. § 1.218(a). The Magistrate Judge denied the
motion in a written order, then entered judgment against Irby.
Irby was sentenced to two days’ imprisonment, with credit for time
1
Irby was also charged with assaulting an officer in violation
of 18 U.S.C. § 111. The magistrate judge found, after trial,
however, that “the government failed to prove the assault was
forcible under the peculiar facts of this case,” J.A. 133, and
dismissed the charge.
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served, and a $35 fine. On appeal to the district court,2 Irby’s
conviction was affirmed. Irby timely appealed.
II.
As Irby’s appeal presents a pure question of law, we review de
novo the district court’s denial of Irby’s motion for judgment of
acquittal. United States v. Uzenski, 434 F.3d 690, 700 (4th Cir.
2006).
To understand Irby’s argument that the regulations and
authorizing statute make the posting of notice an element of his
offense, we must begin with the plain language of the statute.
Farmer v. Employment Sec. Comm’n of N.C., 4 F.3d 1274, 1279 (4th
Cir. 1993). Section 901(a)(1) of Title 38 requires the Secretary
of Veterans Affairs (the “Secretary”) to “prescribe regulations to
provide for the maintenance of law and order and the protection of
persons and property on [VA] property.” 38 U.S.C. § 901(a)(1).
The Secretary has done so, prohibiting a number of unseemly
activities, including “[e]ntering property under the influence of
any . . . alcoholic beverage,” 38 C.F.R. § 1.218(a)(7), and
creating a disturbance, which includes “[c]onduct on property which
creates loud or unusual noise” and “the use of loud, abusive, or
otherwise improper language,” id. § 1.218(a)(5). In this case,
2
A defendant may appeal to the district court a conviction for
any misdemeanor tried before a Magistrate Judge under Federal Rule
of Criminal Procedure 58(b)(3)(A). Fed. R. Crim. P. 58(g)(2)(B).
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Irby’s suspected alcohol use, in violation of § 1.218(a)(7),
initiated the police confrontation that led to his being charged
for creating a disturbance, § 1.218(a)(5).
Neither the authorizing statutory subsection, nor the
regulation subsection describing the offense of creating a
disturbance, includes a requirement that the regulations be posted
on VA property. Such requirement is found elsewhere in the statute
and regulation. Section 901(d) of the authorizing statute
provides:
The rules prescribed under subsection (a) [requiring the
Secretary to promulgate regulations], together with the
penalties for violations of such rules, shall be posted
conspicuously on property to which they apply.
38 U.S.C. § 901(d). The regulations mirror this requirement:
Authority and rules of conduct. Pursuant to 38 U.S.C.
§ 901, the following rules and regulations apply at all
property under the charge and control of VA . . . and to
all persons entering in or on such property. The head of
the facility is charged with the responsibility for the
enforcement of these rules and regulations and shall
cause these rules and regulations to be posted in a
conspicuous place on the property.
38 C.F.R. § 1.218(a).
Irby’s sole argument on appeal is that, according to the plain
meaning of § 901(d), “[t]he misdemeanor regulations ‘apply’ at only
those Department of Veterans Affairs facilities where they have
been posted.” Appellant’s Br. at 6. Because the posting of the
regulations is a condition precedent to their application, he
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argues, the government must prove that the regulations were posted
in order to convict him thereunder of creating a disturbance.
Irby’s reading of the statute is precisely backwards. Section
901(d) assumes first that the regulations will be promulgated and
will apply at certain VA properties, then, referring to those
defined properties, requires that “[t]he rules . . . shall be
posted conspicuously” there. The regulations only confirm this
straightforward reading of § 901(d), stating matter-of-factly that
“the following rules and regulations apply at all [VA] property,”
38 C.F.R. § 1.218(a), with no suggestion that the rules only apply
at properties where notice is first posted. Irby’s argument simply
does not comport, therefore, with a plain reading of the statute.
Undeterred, Irby proffers an analogy to the (now-revised)
statute governing the posting of notice on General Services
Administration properties:
The Administrator of General Services or officials of the
General Services Administration duly authorized by him
are authorized to make all needful rules and regulations
for the government of the property under their charge and
control, and to annex to such rules and regulations such
reasonable penalties, within the limits prescribed in
section 318c of this title, as will insure their
enforcement: Provided, That such rules and regulations
shall be posted and kept posted in a conspicuous place on
such property.
40 U.S.C. § 318a (2002) (revised and recodified at 40 U.S.C.
§ 1315(c)(1)). A number of federal courts interpreting then-
current § 318a read the “Provided” clause to render the authority
of the Administrator of General Services to make rules and impose
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penalties subject to the regulations first being “posted in a
conspicuous place on such property.” See, e.g., United States v.
Brice, 926 F.2d 925, 928 (9th Cir. 1991); United States v.
Strakoff, 719 F.2d 1307, 1309 (5th Cir. 1983); United States v.
Boyer, 935 F. Supp. 1138, 1142 (D. Colo. 1996). Irby argues that,
just as superceded § 318a made posting an element of offenses
detailed in the underlying regulation, so too does § 901(d) of
Title 38 require the government to prove that notice of the
regulations was posted.
Again, Irby’s argument ignores the plain language of § 901(d).
In unequivocal terms, the superceded § 318a, by using the word
“[p]rovided,” underlined for emphasis, made the application of the
section contingent on satisfaction of the notice-posting condition
described in the limiting clause. Rather than supporting Irby’s
argument, § 318a demonstrates, to the contrary, that when Congress
wishes to make posting an element of an offense, it is well aware
of how to do so. Under the VA statute before us, the Secretary’s
authority to promulgate regulations is found in the non-conditional
§ 901(a); the posting requirement is situated elsewhere, in the
unrelated § 901(d). Because the notice requirements in subsection
(d) are not married to, nor made an express proviso of, the
authority-granting provision in subsection (a), we find it clear
that Congress did not intend that the posting of notice should be
considered an element of any offense depicted in the regulations.
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This result is eminently reasonable. “The general rule that
ignorance of the law . . . is no defense to criminal prosecution is
deeply rooted in the American legal system.” Cheek v. United
States, 498 U.S. 192, 199 (1991). This ancient maxim is no less
potent simply because the conduct here is criminalized by “duly
promulgated and published regulation” and not directly by statute.
United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563
(1971). Indeed, it should come as no surprise that engaging in a
physical altercation with police officers is conduct likely to be
punishable under the criminal law in any setting. We therefore
hold that the posting of notice of the regulations promulgated
under § 901(a) is not properly considered an element of the offense
of creating a disturbance on VA property in violation of 38 C.F.R.
§ 1.218(a)(5).
III.
Accordingly, the judgment of the district court is
AFFIRMED.
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