United States v. Dale Parrel ( 2014 )

FILED
NOT FOR PUBLICATION MAY 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10310
Plaintiff - Appellee, D.C. No. 2:12-cr-00244-KJM-1
v.
MEMORANDUM*
DALE G. PARREL,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted May 13, 2014**
San Francisco, California
Before: RIPPLE,*** SILVERMAN, and GOULD, Circuit Judges.
Defendant-Appellant Dale G. Parrel appeals his conviction and sentence
under 38 C.F.R. § 1.218(a)(3) for the improper disposal of rubbish on property
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
controlled by the Department of Veterans Affairs (“VA”). On appeal, Parrel
challenges the constitutionality of the regulation as applied to him, arguing that it
is void for vagueness. We review such challenges de novo. See United States v.
Chhun, 744 F.3d 1110, 1116 (9th Cir. 2014); United States v. Albers, 226 F.3d
989, 993 (9th Cir. 2000). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
The regulation—which prohibits the “improper disposal of rubbish on
property,” 38 C.F.R. § 1.218(a)(3)—uses language sufficiently clear to alert a
person of “ordinary” intelligence that “improper disposal . . . is prohibited” and
that discarding a cigarette butt on the ground, rather than in a trash can or ashtray,
constitutes “improper disposal.” See Kolender v. Lawson, 461 U.S. 352, 357
(1983). Because the regulation’s language is clear, Parrel’s argument that his
conduct is excused by his reliance on environmental cues—including the presence
of cigarette butts on the ground nearby—is unavailing. Further, Parrel had actual
notice that his conduct was prohibited: Copies of the regulation were posted at
every entrance to the hospital. And the citing officer explicitly told Parrel, upon
seeing him flick his first cigarette butt to the ground, to use a trash receptacle in the
future. Parrel disregarded that advice and adopted a confrontational style that
provoked the officer to cite him.
2
Also, the regulation does not arm police with “unfettered discretion” to
arrest people for “no more than vindicating affronts to police authority,” as Parrel
argues. See Papachristou v. City of Jacksonville, 405 U.S. 156, 166-68 (1972).
Rather, it permits citations only for those who (1) improperly dispose (2) of
rubbish (3) on VA property. See 38 C.F.R. § 1.218(a)(3). The regulation does not
“impermissibly delegate[] basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-
09 (1972).
The challenged regulation “‘define[s] the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory enforcement.’”
Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013) (quoting Kolender, 461
U.S. at 357). It is not unconstitutionally vague as applied to Parrel.1
AFFIRMED.
1
We reject Parrel’s selective enforcement claim. Before writing Parrel’s
citation, the citing officer (1) told Parrel to use a proper trash receptacle, and (2)
saw Parrel improperly discard a second cigarette. The officer’s conduct was
consistent with prior enforcement efforts, which involved a verbal warning for the
first offense. The officer cited Parrel only after Parrel “offended twice in front of
[him]” whereas previous offenders generally “pick[ed] up their cigarette butts and
place[d] them in trash cans, and [did] not offend again.”
3