U.S. v. Paternostro. ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-4677
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES J. PATERNOSTRO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(July 2, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Charles J. Paternostro appeals from his second conviction
for violating Corps of Engineers regulations by failing to abide
by the terms of his Shoreline Use permit. Finding no error, we
affirm.
I.
Paternostro's family bought property on Lake Texoma in 1965
and built a boathouse on the property. The boathouse was built
pursuant to a permit issued in 1968 by the Corps of Engineers. In
1988, Paternostro replaced an old diving platform next to the
boathouse with a three-tiered metal structure atop a platform. The
structure, which Paternostro refers to as a "wet and wild" facility
contains several diving boards and three water slides. It was not
part of the approved plan for the boathouse and Paternostro did not
obtain Corps of Engineers approval for constructing the new water
slide platform.
On November 2 and again on November 16, 1989, the Army Corps
of Engineers issued Paternostro Notices of Violation for failing to
obtain proper approval for building the water slide platform.
Paternostro was charged under 36 C.F.R. § 327.19(a) which makes it
a violation to refuse or fail to comply with the conditions of any
permit issued under Part 327. Paragraph 17 of Paternostro's
Lakeshore Use Permit issued under Part 327 provides that:
If an inspection . . . reveals conditions which . . .
deviate from the approved plans, such conditions will be
corrected immediately by the owner upon receipt of
notification. No deviation or change from approved plans
will be permitted without prior written approval of the
Resource Manager.
After a bench trial, the district court convicted Paternostro
for failing to receive approval for constructing the platform in
violation of 36 C.F.R. § 327.19(a). He was fined $400 under 36
C.F.R. § 327.25 and charged a $10 special assessment. Paternostro
did not appeal this conviction.
After his conviction, Paternostro applied for approval of the
water slide platform by submitting plans and a letter from an
engineer certifying that the platform was safe. The Corps of
Engineers rejected his application. Paternostro did not appeal the
rejection of his application. The water slide platform remained in
place beside the boathouse. Two weeks after the first conviction
became final, the Corps of Engineers issued another Notice of
2
Violation for failure to obtain approval for the water slide
platform. The district court conducted a bench trial and again
found Paternostro guilty. The court fined Paternostro $5,000 and
sentenced him to five years probation. Paternostro appeals from
this second conviction.
1. Double Jeopardy
The Double Jeopardy Clause protects against (1) a second
prosecution after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same
offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
Paternostro's principal argument is that he is being punished
multiple times for the single act of building these water slides in
violation of his permit. We disagree. His crime as defined by the
applicable regulations is the continuing offense of failure to
abide by the terms of his Shoreline Use permit by maintaining the
non-conforming water slide platform.
The Double Jeopardy Clause's protection against multiple
punishments is "limited to assuring that the court does not exceed
its legislative authorization." Brown v. Ohio, 432 U.S. 161, 165
(1977). Our inquiry then is whether the legislature has authorized
the multiple punishments. The government relies upon the fact that
the governing regulations provide that "[a]ny violation of any
section of this part 327 shall constitute a separate violation for
each calendar day in which it occurs." 36 C.F.R. § 327.1(g).
Therefore, unlike the Court in Blockburger v. United States, 284
U.S. 299 (1932), and Brown v. Ohio, 432 U.S. 161 (1977), we need
3
not struggle to discern the intent to impose multiple punishments:
the rulemaking body at issue here has explicitly stated its desire
to treat each day of the continuing violation as a separate
offense. The Brown court, which held that a defendant who was
convicted of joy riding could not be retried for auto theft, stated
that it "would have a different case if the Ohio Legislature had
provided that joy riding is a separate offense for each day in
which a motor vehicle is operated without the owner's consent."
432 U.S. at 169 n.8; see United States v. Holloway, 905 F.2d 895
(5th Cir. 1990) (where cumulative punishments are authorized for
"even the same offense, the Double Jeopardy Clause of the Fifth
Amendment is not offended.").
We agree that if Congress explicitly provided for these
multiple punishments this would be an easy case under Brown and its
progeny. However, this case is different from Brown in one
important way which makes it more difficult to resolve: the
explicit decision to create separate offenses on a daily basis was
made by a regulatory agency, not by Congress. We have found no
authority specifically answering the question whether regulatory
intent should be treated as the equivalent of legislative intent
for double jeopardy purposes. We note, however, that in another
context, the Supreme Court has held that congressional intent may
be found in federal regulations promulgated by an administrator in
the exercise of delegated congressional authority. Fidelity
Federal Savings & Loan Ass'n v. De La Cuesta, 102 S.Ct 3014, 3022-
4
23 (1982) (court looks to regulations in determining whether
Congress intended to pre-empt state law).
In determining whether the legislative intent was to provide
for cumulative punishments, we believe that it is consistent with
the purposes of the Double Jeopardy Clause to attribute to Congress
the intent embodied in these regulations. The double jeopardy
guarantee "serves principally as a restraint on courts and
prosecutors." Brown v. Ohio, 432 U.S. at 165. When the Corps of
Engineers enacts regulations it is not acting as either court or
prosecutor; its role is that of a quasi-legislative rulemaker. We
believe that the "legislative intent" referred to in the Supreme
Court's double jeopardy analysis in Brown and Grady includes
rulemaking pursuant to a valid grant of congressional authority.
Paternostro has not asserted that the Corps of Engineers acted
outside its authority as delegated by Congress in dividing this
continuing offense into daily offenses. See 16 U.S.C. § 460d. Our
task of statutory interpretation is at an end once we determine
that cumulative punishment is specifically authorized; we need not
determine whether these offenses are the same under the Blockburger
analysis. Missouri v. Hunter, 103 S. Ct. 673, 679 (1983). Because
we find that Congress has authorized cumulative punishments, there
is no double jeopardy violation in Paternostro's punishment.
Paternostro also asserts that his prosecution violates the
Double Jeopardy Clause because he has been subjected to the
harassment of multiple prosecutions. United States v. Houltin, 566
F.2d 1027, 1033 (5th Cir. 1978) (Double Jeopardy Clause protects
5
defendant from harassing multiple prosecutions). We need not
address whether repeated prosecutions for daily offenses may
impinge upon the Double Jeopardy Clause in some circumstances
because Paternostro has not been subjected to harassing multiple
prosecutions.
Where the defendant continues engaging in an offense after an
original conviction and sentence become final, he cannot rely upon
the Double Jeopardy Clause to prevent a later prosecution and
conviction. Unlike the defendant in Grady v. Corbin, 110 S. Ct.
2084 (1990), Paternostro is not being prosecuted for acts committed
in the past but for his conduct continuing after the first
prosecution. As the Supreme Court has said "one who insists that
the music stop and the piper be paid at a particular point must at
least have stopped dancing himself before he may seek such an
accounting." Garrett v. United States, 105 S. Ct. 2407, 2417
(1985); United States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir.
1990).
In this case, Paternostro has not stopped dancing. His
prosecution for his continuing refusal to abide by the terms of his
Shoreline Use permit is not barred by double jeopardy because the
government could not have brought this case in the earlier
prosecution. See Diaz v. United States, 223 U.S. 442 (1912)
(double jeopardy does not bar prosecution for murder after
conviction of assault where victim did not die until after first
trial). Paternostro was prosecuted once for his violations in
November 1989. The Corps did not take any further prosecutorial
6
action until that conviction became final and then relied only upon
violations occurring after that date. The Corps could not have
tried Paternostro for these separate violations at his first trial
because they had not yet occurred. Paying his $400 fine in the
first case does not immunize Paternostro from prosecution for his
continued willful violation of the Corps of Engineers regulations.
We conclude that Paternostro's prosecution did not violate the
Double Jeopardy Clause.
2. The Petite policy
Paternostro contends that the government failed to follow its
dual prosecution policy, known as the Petite policy, by prosecuting
him for a second time. Petite v. United States, 361 U.S. 531
(1960). First, we note that the Petite policy applies to federal
prosecutions following state prosecutions for the same offense, not
multiple prosecutions for a continuing federal offense. In any
event, "the Petite policy is an internal rule of the Justice
Department; criminal defendants may not invoke it to bar
prosecution by the federal government." United States v. Harrison,
918 F.2d 469, 475 (5th Cir. 1990). Paternostro cannot rely upon
this policy to assert an error in his prosecution.
3. Exhaustion of Administrative Remedies
Paternostro asserts that the government should not have
prosecuted him because the Corps had adequate administrative
remedies against him for violating his Lakeshore Use Permit.
Paternostro confuses the scope and purposes of the exhaustion of
administrative remedies doctrine. This doctrine is designed to
7
prevent judicial interference in administrative procedures before
the agency has been allowed to complete its own decision and review
processes. Patsy v. Florida Int'l University, 634 F.2d 900, 903
(5th Cir. 1981). Where the agency itself decides to pursue a
judicial remedy, the exhaustion of remedies doctrine is simply not
applicable. Although pursuing the revocation of Paternostro's
permit before criminally prosecuting him might have been the wiser
course, the Corps of Engineers is not required to do so.
4. Right to Counsel
Paternostro asserts that the district court violated his Sixth
Amendment right to counsel by rejecting his request for a
continuance in order to allow him to obtain legal counsel. The
Sixth Amendment requires only that a defendant be given a fair or
reasonable opportunity to obtain particular counsel; it does not
guarantee an absolute right to the counsel of one's choice. United
States v. Mitchell, 777 F.2d 248 (5th Cir. 1985).
Paternostro is an attorney and represented himself at his
first trial. He was planning to represent himself at the second
trial as well, but apparently changed his mind when the government
filed its "Brief in Support of Sentencing Alternatives" asserting
its view of the possible sentences available to the district court.
Paternostro asserts that the government's decision to argue for a
$5,000 fine and long-term probation made it necessary for him to
retain an attorney with experience in "the federal legal arena."
Assuming that Paternostro's need for an attorney increased as
he argues, he has failed to show that the district court's denial
8
of a continuance prevented him from obtaining one. The government
filed its brief twenty days before the trial date. Given the
simplicity of the trial in this case, Paternostro had sufficient
time to retain an attorney in time to prepare for trial. The fact
that the particular attorney he wished to hire was unavailable does
not constitute a violation of his Sixth Amendment rights where he
had sufficient opportunity to obtain other counsel. Mitchell, 777
F.2d at 256-57. Determining whether to grant a continuance
allowing the defendant to obtain the counsel of his choice
"requires a delicate balance between the defendant's due process
right to adequate representation by counsel of his choice and the
general interest in the prompt and efficient administration of
justice." Gandy v. State of Alabama, 569 F.2d 1318, 1323 (5th Cir.
1978). The district court did not abuse its discretion by denying
Paternostro's motion for a continuance under the circumstances of
this case.
5. Right to a jury trial
Paternostro next asserts that the district court's denial of
his request for a jury trial violated his Sixth Amendment rights.
The Sixth Amendment right to a jury trial is triggered only by
prosecution for "serious" crimes as opposed to "petty" crimes.
Blanton v. North Las Vegas, 109 S. Ct. 1289 (1989). The most
relevant criterion for determining the seriousness of a crime is
the maximum authorized penalty. Id. Paternostro concedes that the
maximum sentence for violation of 36 C.F.R. § 327.20 is six months
imprisonment and a $5,000 fine.
9
For Sixth Amendment purposes, we presume that offenses
carrying a maximum prison term of six months or less are petty
offenses. Blanton, 109 S. Ct. at 1293. A defendant in such
circumstances must demonstrate that "any additional statutory
penalties viewed in conjunction with the maximum authorized period
of incarceration are so severe that they clearly reflect a
legislative determination that the offense in question is a
'serious' one." Id. The additional penalties of a $5,000 fine and
extended probationary period imposed under 18 U.S.C. § 3571(b) are
not so severe as to lead us to conclude that Congress intended to
make failure to abide by the terms of a Shoreline Use permit a
serious offense.
Paternostro argues that because under the government's theory
he committed a violation for every day the water slide structure
remained intact, his potential punishment was many times the six
month maximum. In analyzing the seriousness of the offense under
Blanton, we look only at the penalty to which the defendant is
subject to for the crimes actually charged in that proceeding.
Blanton, 109 S. Ct. at 1294 (refusing to consider fact that DUI
offender would face more serious penalties for repeat offenses).
Regardless of what sentences Paternostro was exposed to in his
first trial and what he might be subject to in the future, the
offense he was being tried for had a maximum penalty of six months
and therefore he was not entitled to a jury trial.
6. Legal defenses and sufficiency of the evidence
10
Finally, Paternostro asserts that the district court erred in
failing to credit his defenses to the violation of the regulations
and that the evidence was insufficient to support his conviction.
The defenses not addressed elsewhere in the opinion are (1)
approval of the Corps of Engineers was unnecessary because the
plans on file with the Corps show a diving board on the boathouse;
(2) the Corps had actual notice that he had had a water slide
structure of some sort on the boathouse since 1976; (3) the Corps
is estopped by its letter renewing the boathouse permit in 1989 and
stating that there were "no deficiencies noted," (4) Paternostro
had submitted plans for approval prior to being charged with the
third violation; (5) the Corps had the authority to grant
Paternostro a permit for the water slide as a "private recreational
facility," (6) approval of the Corps was unnecessary because he
submitted the plans with a letter from an engineer certifying the
structure's safety; and (7) other structures on the lake are
allowed to have water slides and more elaborate boathouse
facilities. None of these arguments has merit. Whether the Corps
could or should have issued Paternostro a permit for his water
slide platform is irrelevant to the issue of whether he varied his
boathouse without approval. Paternostro could have challenged the
denial of his application but chose not to do so. As to the
sufficiency of the evidence, we find that the evidence in the
record fully supports the district court's verdict.
The judgment of the district court is AFFIRMED.
11