United States v. Bichsel ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30126
Plaintiff-Appellee,
v.  D.C. No.
CR-03-05372-RBL
WILLIAM JAMES BICHSEL,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
December 6, 2004—Seattle, Washington
Filed January 13, 2005
Before: Michael Daly Hawkins, Sidney R. Thomas, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Hawkins
563
UNITED STATES v. BICHSEL 565
COUNSEL
Colin Fieman (briefed and argued), Federal Public Defender’s
Office, Tacoma, Washington, for the defendant-appellant.
Jeffrey B. Coopersmith (argued) and Barbara J. Sievers
(briefed), United States Attorney’s Office, Seattle, Washing-
ton, for the plaintiff-appellee.
OPINION
HAWKINS, Circuit Judge:
Because the indoor posting of applicable federal regula-
tions was inconspicuous to visitors outside the United States
courthouse in Tacoma (“the courthouse”), we must reach an
566 UNITED STATES v. BICHSEL
issue of first impression: whether actual notice is sufficient to
meet the conspicuous posting requirement of 40 U.S.C.
§ 1315 for the enforcement of 41 C.F.R. § 102-74.385, failure
to comply with the lawful order of a federal police officer.1
We hold that actual notice is fair and adequate notice, and
affirm Father William Bichsel’s (“Father Bichsel”) conviction
under the regulation.
I. BACKGROUND
Father Bichsel, a Jesuit priest, chained himself to the doors
of the courthouse on March 19, 2003, in protest of the
impending Iraq war. Father Bichsel came to the courthouse
with nineteen members of the Catholic community, who
engaged in a prayer vigil and represented Iraqi women hold-
ing children. Father Bichsel felt that he and his fellow protest-
ers “were doing a citizens’ arrest of the United States
government.”
Federal Protective Service (“FPS”) officer Richard Reilley
(“Officer Reilley”), dressed in full uniform with a badge and
the insignia of the FPS, approached Father Bichsel at approxi-
mately 6:30 a.m. that morning. Officer Reilley ascertained
that Father Bichsel was blocking an emergency exit, which
created a safety hazard for employees within the courthouse.
Furthermore, Officer Reilley was concerned that Father Bich-
sel could be injured and the courthouse doors could be dam-
aged.
Officer Reilley told Father Bichsel that he “had to take the
chains off” so that the courthouse doors could be opened.
Father Bichsel refused. Officer Reilley informed Father Bich-
sel that he had five minutes to unchain himself — otherwise,
he would be arrested. Officer Reilley went inside the court-
1
In United States v. Crow, 824 F.2d 761, 762 n.2 (9th Cir. 1987), this
Court refused to address the posting requirement under the former version
of 40 U.S.C. § 1315, concluding that the issue was not properly raised.
UNITED STATES v. BICHSEL 567
house to retrieve a set of bolt cutters. After four or five min-
utes he returned, and once more ordered Father Bichsel to
unchain himself. Father Bichsel once again refused. Upon this
second refusal, Officer Reilley cut Father Bichsel’s chains
and arrested him for failure to comply with his order, pursuant
to 41 C.F.R. § 102-74.385.
The doors of the courthouse usually open by 7:00 a.m., at
which time a security guard places a “sandwich board” sign
listing some of the building’s rules and regulations. The sign
is intended to notify visitors that they are entering federal
property and that C.F.R. regulations apply outside the main
entrance. However, the sandwich board sign was not yet
posted on the day of Father Bichsel’s arrest. Although there
are permanent signs of the building’s full rules and regula-
tions posted on the inside of the facility entryway, these were
not visible to Father Bichsel standing outside.
Before the arrest, Officer Reilley never notified Father
Bichsel that he was on federal property, or that federal regula-
tions were in force. However, it is undisputed that Father
Bichsel was aware that the building was a federal courthouse
and that Officer Reilley was a law enforcement officer. Father
Bichsel also understood that he would be arrested if he did not
unchain himself.
Father Bichsel was tried before U.S. Magistrate Judge
Karen Strombom, who found him guilty under 41 C.F.R.
§ 102-74.385 for failing to comply with the lawful direction
of a federal police officer. The district court affirmed the con-
viction, holding that (1) the required rules and regulations
were posted in a conspicuous location at the entrance to the
building, and (2) there was sufficient evidence to find that
Father Bichsel failed to comply with a lawful order of a fed-
eral police officer. The district court also noted that Officer
Reilley’s warnings to Father Bichsel provided adequate notice
of the regulation. Father Bichsel was sentenced to five days
in jail.
568 UNITED STATES v. BICHSEL
II. DISCUSSION
[1] The United States courthouse in Tacoma is under the
control and authority of the General Services Administration
(“GSA”), and FPS officers are authorized to enforce GSA
regulations, including 41 C.F.R. § 102-74.385, which states:
Persons in and on property must at all times com-
ply with official signs of a prohibitory, regulatory or
directory nature and with the lawful direction of Fed-
eral police officers and other authorized individuals.
To enforce this regulation, federal agencies must post notice
of it “at each public entrance to each Federal facility.” 41
C.F.R. § 102-74.365. Furthermore, 41 C.F.R. § 102-74.385 is
promulgated under 40 U.S.C. § 1315, which states that “regu-
lations necessary for the protection and administration of
property owned or occupied by the Federal Government and
persons on the property . . . shall be posted and remain posted
in a conspicuous place on the property.” § 1315(c)(1). Section
1315 was enacted in August 2002, and is derived from former
40 U.S.C. § 318.
At issue here is whether Father Bichsel received notice of
41 C.F.R. § 102-74.385 in a “conspicuous place.” If not, we
must decide whether “actual notice” of the regulation suffices,
and whether Father Bichsel had such actual notice. We review
statutory construction de novo. United States v. Cabaccang,
332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).
A. Conspicuous Place
[2] This Court has not yet interpreted the meaning of “con-
spicuous place” in § 1315(c)(1).2 The district court adopted
2
The decision in United States v. Lunstedt, 997 F.2d 665 (9th Cir.
1993), is not on point. There, we upheld a jury’s finding that a sign was
“conspicuously” posted pursuant to 18 U.S.C. § 930(g) (firearm posses-
UNITED STATES v. BICHSEL 569
the Black’s Law Dictionary definition of “conspicuous place,”
as quoted in United States v. Strakoff, 719 F.2d 1307, 1309
(5th Cir. 1983):
Within the meaning of a statute relating to the post-
ing of notices, a “conspicuous place” means one
which is reasonably calculated to impart the infor-
mation in question.
We also adopt this helpful definition of “conspicuous place.”
[3] As in Strakoff, the regulation here was not posted in a
conspicuous place “reasonably calculated to impart” notice. In
Strakoff, the Fifth Circuit held that notices posted on two bul-
letin boards on the first floor (one in a mail box lobby and one
on an inside wall of the courthouse lobby) and on the second,
third and fourth floors next to the elevator buttons, were not
conspicuous under this definition. 719 F.2d at 1309-10. There,
a person “entering the Courthouse through either public
entrance, going directly to and through the metal detector, and
boarding an elevator . . . would never see a posted notice.” Id.
at 1309. Further, Strakoff gave “uncontradicted testimony that
he had not seen any notice.” Id.
[4] Father Bichsel, much like Strakoff, had no way of see-
ing the posted notice inside the courthouse, and testified that
he had not seen any notice. While the district court held that
the rules posted inside the courthouse, outside of Father Bich-
sel’s view, were in a “conspicuous place,” a place not accessi-
sion in federal court), where the warning sign was posted on the bulletin
board in the foyer, just inside the only public entrance to the courthouse.
Lunstedt, 997 F.2d at 668. A person entering the courthouse, as Lunstedt
did, would have to walk past the sign to reach the metal detector. Id. Here,
Father Bichsel did not have to walk past any sign posting the building’s
rules and regulations to chain himself to the outside doors, so Lunstedt’s
affirmance of a jury verdict without interpreting the term “conspicuous”
does not directly apply.
570 UNITED STATES v. BICHSEL
ble, let alone within reading distance, to an outside courthouse
visitor cannot be conspicuous enough to impart notice of the
regulation.
Most likely knowing this, the courthouse staff places a
“sandwich board” sign outside the building during business
hours to reasonably impart notice. Officer Christine Brannan
testified that the sign is “to notify people that they’re entering
Federal property and CFR regulations apply outside the main
entrance.” This sign, however, was not yet posted before
Father Bichsel’s arrest that day. Therefore, we hold that the
indoor posting of the regulation was not in a “conspicuous
place” reasonably calculated to impart notice to Father Bich-
sel or a similarly situated individual outside of the courthouse.
B. Actual Notice
[5] This circuit has yet to decide whether conspicuous
notice is a required element of a conviction pursuant to a reg-
ulation promulgated under § 1315, or whether actual notice suf-
fices.3 However, several of our sister circuits have found that
an actual notice exception may be read into the statute. We
find their reasoning persuasive. The actual notice exception
fulfills the rationale behind the conspicuous posting require-
ment because actual notice is the best notice.
This holding is consistent with United States v. Davis, 339
3
In United States v. True, 946 F.2d 682, 683 (9th Cir. 1991), we
reversed a conviction for entering a closed area because the National For-
est Service closure order was invalid for inadequately describing its scope
under applicable notice regulations. Because the forest officers had no
authority to close the area, it made no difference that the defendants had
“actual notice” of the invalid order. Id. at 687 (“If a law enforcement offi-
cer is not authorized to close public areas, then notice to citizens of an
attempted order by such an officer cannot transform that attempt into an
effective closure order.”). The case at hand presents a different circum-
stance because the officer provided actual notice of a valid federal regula-
tion and was authorized to enforce it.
UNITED STATES v. BICHSEL 571
F.3d 1223 (10th Cir. 2003), which adopts the actual notice
exception.4 The statute at issue in Davis, 33 U.S.C. § 1,
required posting in “conspicuous and appropriate places.” Id.
at 1226. While no such posting existed, the Tenth Circuit held
that “actual knowledge of a regulation satisfies a potential
posting requirement.” Id. at 1228. Because Davis received
verbal and written warnings that his business practices and
mooring of boats was illegal, and because Davis admitted to
receiving such, the court held it was clear that Davis had “ac-
tual knowledge of the regulations” and affirmed the convic-
tion. Id.
[6] Like Davis, Father Bichsel received warnings from
Officer Reilley, and admitted to receiving such. Officer Reil-
ley told Father Bichsel the exact conduct that was prohibited
and the consequences for disobeying. Father Bichsel under-
stood that he was in a federal courthouse, that Officer Reilley
was a police officer with a federal badge and insignia, and
that he would be arrested if he did not unchain himself. Thus,
Father Bichsel had actual notice of 41 C.F.R. § 102-74.385
and was lawfully arrested under the regulation.
4
Two District of Colorado opinions conflict on the issue of actual notice
— compare United States v. Holdsworth, 990 F. Supp. 1274 (D. Colo.
1998), with United States v. Boyer, 935 F. Supp. 1138 (D. Colo. 1996).
Davis adopts the reasoning of Holdworth. Davis, 339 F.3d at 1228. Holds-
worth focuses on the rationale of Boyer: posting is a vehicle for notice.
Holdsworth, 990 F. Supp. at 1278. In Holdsworth, there was no evidence
of any posting at the courthouse, but the defendant’s conduct occurred off-
sight. Id. at 1277. The court reasoned that even if the regulation had been
posted in a conspicuous public place, the defendant would not have seen
it, thus making the posting requirement of § 318a “arguably a formality
with no substance.” Id. at 1278. Because written notice was provided that
the defendant’s conduct could result in being charged with a specific sec-
tion of the Code of Federal Regulations (albeit the wrong one), the court
held the defendant had actual notice sufficient to meet the posting require-
ment. Id.
In Boyer, although the court deemed the posting requirement an “essen-
tial element of the charge,” 935 F. Supp. at 1142, the issue of actual notice
was not raised.
572 UNITED STATES v. BICHSEL
The Fourth and Fifth Circuits also support the actual notice
exception. In Strakoff, the Fifth Circuit suggested that actual
notice is sufficient. The court held that because notice was not
posted in a conspicuous place, and “absent any showing that
Strakoff did in fact have notice of the proscriptions of § 101-
20.313, [the] conviction [could not] stand.” 719 F.2d at 1310
(emphasis added).
Although the Fourth Circuit did not have to reach the issue
of actual notice, its reasoning in United States v. Cassiagnol,
420 F.2d 868 (4th Cir. 1970), is germane to the importance of
direct warnings in upholding criminal convictions. The dis-
trict court noted Cassiagnol’s reply to the argument that the
protesters did not know that what they were doing was illegal:
[T]he record is clear and uncontroverted that numer-
ous warnings were given to the effect that remaining
on the premises would subject the demonstrators to
arrest and detention. We find no merit in this claim
that they were not apprised that their actions would
be illegal.
420 F.2d at 874. Here, too, Officer Reilley gave Father Bich-
sel several warnings that he would be arrested if he did not
unchain himself, and thus apprised Father Bichsel that refus-
ing his order would be illegal.
Finally, the district court’s appeal to common sense makes
good sense. As Judge Leighton stated, “Father Bichsel could
not have reasonably believed it was lawful to chain himself to
the courthouse doors;” “[a]t some point, common sense must
prevail.” An actual notice exception to the conspicuous post-
ing requirement is in lock step with fair notice and common
sense.
III. CONCLUSION
[7] For the foregoing reasons, we hold that actual notice
meets the § 1315 posting requirement and affirm Father Bich-
UNITED STATES v. BICHSEL 573
sel’s conviction for failure to comply with the lawful order of
a federal police officer.
AFFIRMED.