United States v. Strong

United States Court of Appeals
For the First Circuit
No. 12-1842
UNITED STATES,
Appellee,
v.
RONALD J. STRONG,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Katherine C. Essington for appellant.
Craig M. Wolff, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
July 19, 2013
LYNCH, Chief Judge. This is an appeal from a criminal
misdemeanor conviction of a defendant convicted of badly soiling a
courthouse bathroom. Following a bench trial, a United States
magistrate judge found the defendant, Ronald Strong, guilty of
willfully damaging federal property, 41 C.F.R. § 102-74.380(b),
creating a hazard on federal property, id. § 102-74.380(d), and
creating a nuisance on federal property, id. § 102-74.390(a). He
was sentenced to seven days in jail. The defendant appealed to the
district court, which, in a comprehensive oral decision, affirmed
the conviction.
Strong argues on appeal that his conviction must be
reversed because the regulations he was charged with violating had
not been posted outside the courthouse entrance but, rather, inside
at the clerk's office. He argues the outside posting was required
by statute, 40 U.S.C. § 1315(c)(1), and by a General Services
Administration (GSA) regulation, 41 C.F.R. § 102-74.365. He then
links non-compliance with the regulation to the criminal
prohibitions, arguing that no crime is committed absent outside
posting. He also challenges the sufficiency of the evidence as to
the mental state required for his conviction. We affirm.
Strong is wrong on all points. The statute merely
requires posting of the regulations he violated in a conspicuous
place on the property. They were so posted: they were
conspicuously located on the wall next to the clerk's office door.
-2-
Strong had passed by those regulations a number of times and so
notice was plainly posted as to him. While it is true that a GSA
regulation both directed occupant agencies to post notice about the
rules governing the building and then specified that the notice
should be at each public entrance, nothing in the regulation says
that imperfect compliance with the exterior posting requirement
nullifies a conviction for violating the prohibition. The
Secretary certainly has not said that those who violate the
criminal regulations get a free pass because of a bureaucratic mix-
up. The record is also more than sufficient to establish that
Strong had the intent needed for conviction.
I.
In evaluating a claim that the evidence was insufficient
to support a conviction, we consider "the facts in the light most
favorable to the verdict." United States v. Poulin, 631 F.3d 17,
18 (1st Cir. 2011).
The events in this case took place at the Edward T.
Gignoux U.S. Courthouse in Portland, Maine on May 24, 2011. The
substantive criminal regulations Strong was charged with violating
were posted on a wall immediately to the right of the entrance to
the clerk's office, although they were not posted at the
courthouse's front entrance. The plaque containing the notice was
framed and in bold letters was entitled "Rules and Regulations
Governing Conduct on Federal Property." Moreover, at the bottom of
-3-
the plaque the word "WARNING" in bold, all-capital letters and
large font appeared. Anyone entering the clerk's office would
necessarily pass within inches of the posted regulations. Strong
had passed by the regulations on many occasions when he had come to
the clerk's office to file documents in a civil case. He had hand-
filed numerous documents with the district court between October
2010 and April 2011. Strong stipulated to the fact of these visits
to the clerk's office before April 2011.
On May 24, 2011, Strong arrived at the courthouse around
11:30 a.m. As he was about to pass through the metal detector near
the entrance, Strong told the court security officer (CSO),
Franklin Holcomb, that he needed to use the bathroom. Holcomb
responded that Strong could do so as soon as he was screened. As
Strong passed through the metal detector, Strong told Holcomb that
he was defecating in his pants. Holcomb then escorted Strong to
the first floor men's room, which was about seventy-five feet away.
Holcomb remained outside the restroom door until two Deputy U.S.
Marshals arrived. They arrived under a previously established
protocol as to Strong, implemented because there was an ongoing
improper communication case involving Strong and a court employee.
When Strong left the bathroom five or ten minutes later, the
deputies escorted him to the clerk's office. Strong said nothing
about the condition of the restroom to the deputies. Walking again
past the notice of the regulations outside the clerk's office,
-4-
Strong left the courthouse five or ten minutes after that without
any further incident.
No one used that men's restroom for approximately fifteen
minutes after Strong left the courthouse. At that point, a male
law enforcement officer went to use it, but could not because of
its condition. The officer told one of the CSOs that someone had
soiled the first floor men's room and asked for the CSOs to summon
a cleaning person, which the CSOs did.
The supervisor of the courthouse's cleaning company,
Christina Mason, arrived to clean the restroom after receiving a
call requesting that it be cleaned. She smelled feces from the
hallway, and when she opened the door she could not enter the
restroom because feces were on the floor where one would need to
step to get inside. The restroom was unusable because it was so
soiled. She saw that seventy-five percent of the floor was covered
in feces, in chunks. She also saw feces smeared in spots on
several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on
the paper towel and toilet paper dispensers, on the toilet paper
itself, and on part of the toilet seat and the left side of the
toilet bowl. There was also urine in the toilet, which had not
been flushed; no feces were inside the liquid in the bowl. Mason
testified that the feces were not only all over the bathroom but
were "smear[ed] in spots," and not splattered. Strong's plaid blue
-5-
boxers, which were covered in feces, were found by Mason draped
over the wastebasket where Strong admits he placed them because
they were "destroyed."
The state of the bathroom was so bad that Mason, who had
fourteen years' experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to
clean the restroom. She devised a plan and first used paper towels
and disinfectant to remove the feces from the floor. She then
cleaned the restroom three times with a bleach and water solution,
and discarded the soiled underpants, the potentially soiled rug
that had been outside the restroom, and the clothes she had been
wearing using a biohazard bag.
On May 27, 2011, the government charged Strong in a
three-count misdemeanor information with willfully damaging federal
property, in violation of 41 C.F.R. § 102-74.380(b), creating a
hazard on federal property, in violation of 41 C.F.R. § 102-
74.380(d), and creating a nuisance on federal property, in
violation of 41 C.F.R. § 102-74.390(a). Strong pled not guilty.
On September 7, 2011, Strong's counsel filed a motion to dismiss,
arguing that compliance with 41 C.F.R. § 102-74.365, which requires
posting of notice of the regulations Strong was convicted under at
the building entrance, was a prerequisite to prosecution and that
the government had failed to meet that requirement. We detail the
-6-
argument below. Suffice it to say the magistrate judge (from New
Hampshire) denied Strong's motion.
At trial, CSO Holcomb, Deputy U.S. Marshal Sean Joyce,
and cleaning supervisor Christina Mason testified as to the facts
previously described.1 The defendant offered his own testimony and
that of Deputy Clerk Robert Allen. Strong's testimony was
essentially that he had an accident and he had done nothing more
than try to clean himself up in the restroom. He also testified
that he did not notice the feces on the wall or the extent to which
feces covered the floor. As to Mason's contrary description,
Strong accused Mason of lying in her testimony about the condition
of the restroom. The magistrate judge found Mason to be credible
and made no determination about Strong's credibility.
The magistrate judge found Strong guilty on all three
counts. The court stated:
I find that Miss Mason is sufficiently
credible to establish guilt beyond a
reasonable doubt with respect to each of the
three counts.
The defendant may very well have
accidentally put some on the floor or on the
walls as he tried to clean up, but it was
smeared over 75 percent of the floor, on two
walls at several different locations, and that
indicates to me that in fact it was a willful
act. He also did not report it to anybody,
1
The defendant moved for a judgment of acquittal after the
close of the government's case on the ground that the government
failed to show any intent. The court denied the motion, with one
exception not relevant here. The defendant did not make a renewed
motion for judgment of acquittal after the close of his own case.
-7-
which you would think one who had an accident
might say I've had an accident. So I find him
guilty on each of the three counts.
The defendant appealed his conviction to the district
court,2 Fed. R. Crim. P. 58(g)(2)(B), which affirmed.
II.
Notice
We first treat the issue of notice. Strong has admitted,
as he must, that he knew that it would be wrong to spread feces
around a bathroom, especially a public bathroom. He did not need
notice posted on a wall to tell him that. His defense is that he
did not do so, or at least did not do so intentionally, and even if
he did, his conviction must fall because there was a violation of
legal notice requirements. Strong argues that posting at the
entrance of the building is a prerequisite for prosecution and that
even if he had notice from an indoor posting of the plaque, that
was not sufficient.
We review statutory and regulatory interpretations de
novo. United States v. McFarland, 445 F.3d 29, 31 (1st Cir. 2006).
Strong's argument is that the language of 40 U.S.C. § 1315(c)(1)
and 41 C.F.R. § 102-74.365 supports his claim that posting at the
entrance was a prerequisite for his prosecution. Neither the
2
Strong claimed, inter alia, that the magistrate judge erred
in denying his motion to dismiss for inadequate notice. He did not
make a sufficiency of the evidence claim, as he does in this
appeal.
-8-
enabling statute nor the regulation conditioned Strong's conviction
on there being a posting of the substantive criminal regulations at
the building entrance.
A. The Statute's Conspicuous Posting Requirement Was Met
We begin with the statute, which states:
The Secretary, in consultation with the
Administrator of General Services, may
prescribe regulations necessary for the
protection and administration of property
owned or occupied by the Federal Government
and persons on the property. The regulations
may include reasonable penalties, within the
limits prescribed in paragraph (2), for
violations of the regulations. The
regulations shall be posted and remain posted
in a conspicuous place on the property.
40 U.S.C. § 1315(c)(1) (emphasis added). The statute both
authorizes the Secretary to come up with substantive rules needed
for the protection and administration of the property and to post
them. The statute only requires conspicuous posting, not posting
at the entrance. It also does not require actual notice. For
Strong, and for people going to the clerk's office, as Strong
repeatedly did, notice was clearly posted conspicuously in full
compliance with the statute. The framed posting was right at the
entrance to the clerk's office at eye level and contained the word
"WARNING" in large font and bold, all-capital letters at the
bottom. All members of the public entering the building to go the
clerk's office have to pass directly in front of the notice
-9-
immediately upon leaving the entrance vestibule after going through
security.
Nonetheless, Strong claims United States v. Bichsel, 395
F.3d 1053 (9th Cir. 2005), supports his argument. It does not.
Bichsel, a Jesuit priest, chained himself to courthouse doors to
protest a war. The regulations were posted inside the building and
so were not within his view, raising the issue of whether the
notice was conspicuous. Id. at 1054. Nonetheless, the Ninth
Circuit affirmed his conviction because he received actual notice
of the regulations. Bichsel did not decide whether conspicuous
notice is a required element for a conviction pursuant to a
regulation promulgated under § 1315. It only held that actual
notice was sufficient. Bichsel, 395 F.3d at 1056-57; see also
United States v. Irby, 269 F. App'x 246, 249 (4th Cir. 2008) (per
curiam) ("[W]hen Congress wishes to make posting an element of an
offense, it is well aware of how to do so."). The notice here was
in fact "conspicuously" posted for anyone going to the clerk's
office, as this defendant had done many times.3
3
Strong argues that we must interpret the applicable
statutory language in light of an older version of the statute.
The older statutory language enabled the agency to promulgate rules
and regulations with reasonable penalties "Provided, [t]hat" the
regulations were posted and kept posted in a conspicuous place on
the property. 40 U.S.C. § 318a (2002). The "provided that"
language has been dropped in the version at issue. That language
is relevant, Strong claims, because the legislative history says
that the amending legislation "makes no substantive change in
existing law and may not be construed as making a substantive
change in existing law." Pub. L. No. 107-217, subtit. V,
-10-
Contrary to the dissent's claim, our conclusion that the
posting was conspicuous for someone in Strong's position is not at
odds with Bichsel or United States v. Strakoff, 719 F.2d 1307 (5th
Cir. 1983). The dissent adopts as a definition of "conspicuous
place," "one which is reasonably calculated to impart the
information in question," Strakoff, 719 F.2d at 1309 (quoting
Black's Law Dictionary 382 (rev. 5th ed. 1979)). It then concludes
that this requires posting outside the building entrance, but the
statute says no such thing and provides no basis for adoption of a
per se rule. Here, the posting was conspicuous. This case differs
from Strakoff and Bichsel because in those cases the posting could
not have reasonably imparted the information to those specific
defendants concerning their violations on the facts of those cases.
Here, it could have.
In Strakoff, where the older version of the statute was
at issue, the defendant was charged with bringing a firearm into
the courthouse in violation of a GSA regulation. 719 F.2d at 1308.
The court held that an individual could not be prosecuted for
entering a federal courthouse with a firearm where the regulations
§ 5(b)(1), 116 Stat. 1062, 1303 (2002). That does not tell us, of
course, what Congress understood the existing law to be. Strong
argues that we must adhere to a rule that proper posting is an
element of the substantive offense. United States v. Strakoff, 719
F.2d 1307, 1309-10 (5th Cir. 1983). He says proper posting can
only be outside posting. The dissent also claims posting must be
at the entrance to be sufficiently conspicuous to constitute proper
posting. As discussed in the text, that is not true and Strakoff
is distinguishable from this case.
-11-
were not posted at the entrance before the security screening, but
rather at other places inside the courthouse. Id. at 1309-10. The
Fifth Circuit reasoned that any person carrying a firearm would
necessarily violate the regulation before being able to obtain the
relevant information. Id. at 1310 (emphasizing that "just entering
the Courthouse with a gun is illegal"). That certainly was not the
case here4 because Strong had many opportunities to see the posting
before he violated the regulations. And, contrary to the dissent's
implication, Strakoff did not create a bright line rule that for
all offenses and for any prosecution posting must be provided at
the entrance to be conspicuous.5 Indeed, the Fifth Circuit
specifically stated that the notice was "not posted in places
reasonably calculated to impart the prohibitions of that section,"
referring to the gun prohibition. Id. (emphasis added).
Likewise Bichsel does not create a rule that under the
statute conspicuous posting must be outside the entrance of the
building. To the contrary, in its analysis of the conspicuous
posting question the Ninth Circuit focused on whether the posting
was reasonably calculated to impart information to Father Bichsel
4
In addition, possessing a gun properly registered in one's
name on entrance to a federal building is unlike the situation
here, where everyone knows smearing feces in a bathroom used by
others is wrong.
5
The court also stated that the notice "could arguably be
conspicuous . . . to those visitors leaving the Courthouse,"
because one posting was at an exit. Strakoff, 719 F.2d at 1310.
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himself. For example, the court stated "Father Bichsel . . . had
no way of seeing the posted notice," and that the posting was not
"reasonably calculated to impart notice to Father Bichsel or a
similarly situated individual." Bichsel, 395 F.3d at 1056. As we
have discussed, with respect to Strong or similarly situated
individuals going to the clerk's office, the posting here was
conspicuous.
B. The Regulation Does Not Make Posting a Prerequisite for
Prosecution
That means Strong's argument must rest on the regulation.
We turn to the language of the posting regulation, United States v.
Tobin, 480 F.3d 53, 56 (1st Cir. 2007), on which Strong bases his
argument:
The rules in this subpart apply to all
property under the authority of GSA and to all
persons entering in or on such property. Each
occupant agency shall be responsible for the
observance of these rules and regulations.
Federal agencies must post the notice in the
Appendix to this part at each public entrance
to each Federal facility.
41 C.F.R. § 102-74.365.
Strong reads into the substantive regulations a non-
existent limitation on enforcement of the substantive crimes from
this separate regulation in 41 C.F.R. § 102-74.365.
The regulation first says that the "rules in this subpart
apply to all property under the authority of GSA and to all persons
entering in or on such property." Id. This works against Strong
-13-
and makes clear that the prohibitions did apply to Strong. Second,
the regulation says the occupant agencies are responsible for
observance of the regulations. Third, it directs the agencies to
post the notice at each public entrance. Id. The regulation does
not state that the regulations will not apply if they are not
posted at each entrance and it contains no other limiting language
on the applicability of the substantive regulations. Strong's
reading finds no support in the language or structure of the
regulation.
It is also contrary to judicial construction of parallel
regulations and statutes. For example, 38 C.F.R. § 1.218(a)6
contains a clause mandating the posting of applicable regulations
at VA facilities. The Fourth Circuit interpreted it and 38 U.S.C.
§ 901(d)7 in United States v. Irby, 269 F. App'x 246. In Irby, the
Fourth Circuit held that a defendant making an argument almost
6
The language of that Veterans Affairs (VA) posting
regulation reads:
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).
7
The statute reads: "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).
-14-
identical to Strong's was reading the language "precisely
backwards," because the language states that the rules do apply to
all persons on the property and then requires posting. Id. at 248.
The application of the rules was not preconditioned on conspicuous
posting, just as the regulatory language here did not precondition
application of the rules on posting at an entrance.
As the Irby court noted, the posting requirement was
found both in a different subsection of the regulation than that
which described the substantive offense and a different subsection
of the statute than that which gave the Secretary authority to
promulgate regulations. Id. The posting requirement relevant in
this case is found in an entirely different section of the
regulations, § 102-74.365, than the offenses for which Strong was
charged and convicted, §§ 102-74.380(b) & (d), 102-74.390(a).
Moreover, it would be strange if the reading Strong
advances was intended. Under Strong's reading, if a building had
multiple entrances and at all but one the posting was placed, an
individual could avoid prosecution for committing a substantive
offense even if he passed through one of the entrances with the
posting. That could not have been intended. The same is true
here, where the regulation was imperfectly followed, but in a
manner with no material, adverse impact on the defendant, since
notice was posted in compliance with the statute and the defendant
passed by the notice on a number of occasions. We see no reason to
-15-
craft and use the extreme device of precluding conviction in order
to better police the Secretary's instructions to building managers.
That would be contrary to the intent of both Congress and the
Secretary.8
III.
Sufficiency of the Evidence
Strong also argues that there is insufficient evidence to
convict him of the three substantive offenses because he did not
have the requisite intent; rather, he accidentally damaged the
restroom, created a hazard, and created a nuisance. The magistrate
judge required the government to show that Strong knowingly created
a hazard and nuisance and willfully damaged the restroom. Although
Strong's appeal was initially framed as a challenge to the intent
required, his reply brief clarifies that the district court
"correctly found that . . . Mr. Strong's conduct ha[d] to be
voluntary." Strong argues not that the legal standard was
incorrect, but that the evidence did not suffice to show that the
conduct was voluntary or intentional. At its core, his argument is
that to support his convictions his conduct in damaging the
restroom and "in creating the hazard or nuisance cannot have been
8
We decline to engage in an "implied actual notice" analysis,
as in the decisions below, at least in part because we do not know
what it means or is intended to mean. Here, the notice was
sufficiently conspicuous, there are no due process concerns, and
the statute itself does not require "actual" knowledge, though
actual knowledge is plainly an adequate substitute.
-16-
accidental." The magistrate judge, however, found as a factual
matter that Strong's actions were willful.9
His claim of error regarding the sufficiency of the
evidence is unpreserved. As a consequence, we review the evidence
to determine if there is a "clear and gross injustice." United
States v. Hicks, 575 F.3d 130, 139 (1st Cir. 2009) (quoting United
States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006)) (internal
quotation mark omitted); see also United States v. Concemi, 957
F.2d 942, 950 (1st Cir. 1992). For the following reasons, we find
no such injustice here.
9
The dissent argues, sua sponte, that the magistrate judge
erred in initially using a "knowingly" mens rea for the two
offenses of creating a hazard and creating a nuisance, neither of
which contains an explicit mens rea requirement in the regulatory
text. The third offense, damaging federal property, explicitly
contains a willful mental state. The record shows, however, that
after trial the magistrate used "willfulness" and made findings
that Strong's actions were "willful" -- which is the standard
Strong adopts -- making the argument over the proper standard
irrelevant.
Additionally, Strong does not argue, on appeal, that there was
legal error as to the standard used, but solely that the evidence
was insufficient. In his opening brief, he argued that the
evidence was insufficient to prove that he acted willfully. And,
in his reply brief Strong states: "The magistrate correctly found
that in order to be convicted, Mr. Strong's conduct had to be
voluntary. Black's law dictionary [sic] defines 'willful' as
'voluntary' or 'intentional'" (emphasis added). The reply brief
goes on to concede that the government's showing was satisfied if
"his conduct in creating the hazard or nuisance [was not]
accidental." Strong's argument is different than the dissent's.
The evidence is sufficient for a rational trier of fact to conclude
that Strong did not accidentally smear feces in the bathroom.
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Mason testified that Strong's feces covered over seventy-
five percent of the floor,10 was on at least two walls, was on the
left side of the toilet seat and bowl, and was near the paper towel
and toilet paper dispensers, and that Strong's feces-covered boxers
were draped over the waste basket. Importantly, Mason (the
supervisor of the cleaning service) testified that in her opinion
the feces were smeared and not splattered as they might have been
had they been accidentally distributed.
Strong took the stand and testified on his own behalf.
He accused Mason of lying about the condition of the bathroom. He
argued that he had created the mess, accidentally, while merely
trying to clean himself up in the bathroom.
After observing and listening to these two crucial
witnesses, the magistrate judge found Mason to be credible and
credited her testimony over Strong's. Even when a challenge to
such a determination is preserved, a factfinder's determination of
credibility is subject to clear error review. See Mitchell v.
United States, 141 F.3d 8, 17 (1st Cir. 1998). We find none here.
10
The dissent argues this fact is not material because the
bathroom is small and not one meant for multiple users. Exhibit 10
is a photo of the clean bathroom, and supports the finding that the
bathroom was large enough for someone to move around in without
smearing to that extent; the extent of the smearing meant it could
not have been accidental. Importantly, the magistrate judge that
found the extent of the feces coverage to be highly relevant was in
fact able to view the restroom.
-18-
It is also relevant that the defendant did not report the
state of the bathroom to anyone. It would have been easy for him
to inform the two deputies waiting for him outside of the bathroom
or the person with whom he spoke in the clerk's office. And, at
the time, Strong had twice lost on a social security case in the
district court; the case had been dismissed, and his motion for
reconsideration had been denied.
The dissent finds that the evidence supports Strong's
defense that the only reasonable inference is that "leftover feces
were the result of an accident." In so doing, the dissent views
the facts anew in a favorable light to the defendant, whose
testimony it repeats, rather than in the light most favorable to
the verdict, as required on appeal. An appellate court is
forbidden to do that. See United States v. Rodríguez-Reyes, 714
F.3d 1, 7 (1st Cir. 2013) (on sufficiency of the evidence challenge
we ask "whether any rational factfinder could have found that the
evidence presented at trial, together with all reasonable
inferences, viewed in the light most favorable to the government,"
established guilt (quoting United States v. Medina-Martinez, 396
F.3d 1, 5 (1st Cir. 2005) (internal quotation mark omitted)));
United States v. Burgos, 703 F.3d 1, 4 n.1 (1st Cir. 2012) ("[W]e
view the evidence, and all reasonable inferences therefrom, in the
light most favorable to the Government."). This is a cardinal rule
of appellate review.
-19-
The dissent begins with the red herring argument that
Strong accidentally lost control of his bowels, but that is
immaterial to the pertinent question. The relevant question is not
whether he purposefully defecated his pants, but whether he
willfully spread his feces all over the bathroom resulting in a
nuisance, hazard, and damage. Moreover, the refusal of the CSO to
let Strong use the restroom before passing through security may
have given Strong motive to soil the restroom.
Moreover, the dissent misstates the extent of the area
covered by feces. It also attempts to argue that feces were found
in those places where one would be touching to clean up after an
accident. Contrary to the dissent's view, seventy-five percent of
the floor would not be covered in feces if Strong had only placed
his jeans on the ground. And, the dissent claims it was
"understandabl[e]" that feces were found on the walls "near the
floor" because Strong was frantically cleaning himself and his
clothes. But Mason, whose testimony the court found credible, said
the feces were more than two feet up the wall in some places; not
just "near the floor."
Finally, the dissent finds it persuasive that feces were
not found in "difficult-to-clean places" such as the drywall, the
sink, or the mirror, which it hypothesizes is what someone would do
to willfully cause damage. Strong need not have contaminated 100%
-20-
of all surfaces to support the conviction for what he did willfully
do.
The defendant has not met the heavy burden he faces on
appeal and the evidence is sufficient to support the magistrate
judge's verdict.
IV.
For the reasons stated, Strong's convictions are
affirmed.
-Dissenting Opinion Follows-
-21-
TORRUELLA, Circuit Judge (Dissenting). The momentous
importance of this case surely forecasts its deserved place in the
annals of federal prosecutorial history. Before us is an appeal
from a conviction of a citizen who was prosecuted for soiling
federal property after he had the misfortune of involuntarily
losing control of his bowels while on the premises of the United
States District Court for the District of Maine. This incident was
followed by the filing of multiple criminal charges.
Following a bench trial, a magistrate judge found
defendant Ronald Strong guilty of willfully damaging federal
property, 41 C.F.R. § 102-74.380(b), creating a hazard on federal
property, id. § 102-74.380(d), and creating a nuisance on federal
property, id. § 102-74.390(a). Thereafter, Strong was sentenced to
seven days in jail for each count, to run concurrently. He
appealed his convictions to the district court, wherein the
convictions were affirmed.
On appeal, Strong argues that his convictions must be
reversed for two independent reasons: First, that a prerequisite
to a prosecution under the above regulations was not satisfied --
namely, that notice of those regulations was not properly posted.
Second, that the evidence was insufficient to establish the mental
state required for the convictions. Neither argument persuades the
majority. Because I find both arguments persuasive, I respectfully
dissent.
-22-
I. Background
On May 24, 2011, Strong arrived at the Edward T. Gignoux
U.S. Courthouse in Portland, Maine to conduct business at the
clerk's office. While waiting in the security line at the
entrance, Strong told security officer Franklin Holcomb that he
needed to use the restroom right away. Holcomb responded that
Strong could do so after being screened. As Strong approached the
metal detector, he involuntarily lost control of his bowels11 and
told Holcomb that he had defecated in his pants. Holcomb then
escorted Strong to a restroom, with Strong intermittently trailing
feces on the floor leading from the security post to the restroom.
Strong's testimony as to what took place upon being left
alone in the bathroom is as follows:
Q. What was the nature of the excrement that
erupted when you lost control of your bowels?
A. It was liquid and there was pieces in it.
Q. Okay. And what did you do after it
happened?
A. The Security personnel walked me to the
bathroom. I walked into the bathroom, I
removed my jacket, I put it in the far corner,
same jacket I wore today. I put it in the
corner.
Q. What did you do next?
A. Then I removed my trousers, I removed my
socks.
Q. What were the condition of your trousers
and socks?
11
Strong testified that he defecated in his pants as a result
of an "uncontrollable urge." At the trial Holcomb testified that
"after I noticed the odor . . . [I] realized he probably did have
some type of an accident."
-23-
A. My jeans were just completely covered in
feces on the inside. My socks were covered
with feces, my legs, you know, had feces all
right down -- down my legs and on to my
ankles. I took a paper towel --
Q. Was it dripping down your legs and ankles?
A. All the way to my ankles.
Q. And what did you do with the clothing when
you took it off?
A. I put the jeans on the floor, I mean this
is so prescribed I just don't -- I just put it
right at my feet there. And then the boxers I
took off and I put in the trash.
Q. And why did you throw the boxers in the
trash?
A. They were destroyed, there was no -- I
mean, how could I carry them home? What was I
going to put them in? I mean, it was covered
in feces, there was -- I mean, what was -- I
mean, I had my briefcase, I mean, what was I
supposed to do with them? I threw them in the
trash.
Q. Okay. Did you at any -- did you at any
time reach for paper towels?
A. Many times.
Q. What were you doing with the paper towels?
A. Cleaning my legs, my back side, it was on
my sides, I mean, because it was -- it was a
mess, it was just a mess.
Q. Did you attempt to clean your jeans?
A. A little bit, I mean, I took paper towel,
you know, through, you know, through them but
I just -- it was futile, it was just --
Q. At any time did you sit on the toilet?
A. A couple times.
Q. Would you explain what happened with you
sitting on the toilet, please?
A. Well, I cleaned myself up, I started to
urinate, and I stood up again and I kept
wiping myself and then I sat down to put my
socks back on. I didn't have any boxers at
that time, so I put my socks back on. I put
my jeans back on, you know, I've been -- I
don't know if you've ever had an incident in
the kitchen where you have something spill or
something, you're grabbing everything and
anything trying to mop up milk or -- I don't
know if you've ever spilled spaghetti sauce
-24-
and there's meat, you're trying to get it up
as quick as you can. And that's -- basically
it was just like this frenetic pace, but it
was repulsive, I mean, the smell was -- and I
was embarrassed, I mean, here I had used the
bathroom in my pants, a 50-year-old man and I
was in a federal courthouse. It was very,
very embarrassing. So, I mean, so it was a
frenetic pace just to clean myself up. So I
did the best I could with what I --
Q. And what did you do with your jeans once
you had attempted to clean yourself off?
A. I put them back on.
Q. What condition were they in when you put
them back on?
A. I mean, there were wearable, I mean, you
could notice even when I had them on the back
of them were wet, the back of them were wet,
you know, they were just wet in the back. But
I had my jacket with me, the jacket I have
worn today. And then I cleaned up, I mean, I
went to the sink, I washed up as best as I
could, I wiped the sink down, and I just
exited the -- the bathroom and then I went to
the clerk's office.
Q. Was there any equipment in the bathroom
such as mops or bleach or biohazard bags or
anything that you would have had access to?
A. No, I never seen anything like that. I
never seen anything like that.
Q. So what did you use in an attempt to clean
yourself up?
A. Just the paper towels that were there and
the -- and the toilet -- the toilet paper. I
mean, it was -- I mean, it would take the
toilet paper, I mean, you would wipe yourself,
I'm not just talking about your backside, I'm
talking about the back of your legs, the side
of your legs, I mean, it was everything, it
was on my hands, I mean, it was everywhere, I
mean, it wasn't like just -- you know, I mean,
it was everywhere and it was unbelievable. I
mean, it was humiliating.
Q. I see. And did you feel ill when you had
this attack?
A. Yeah, my stomach was upset, but I have a
heart condition, I take 13 different types of
heart medicines, you know, I take a lot of
-25-
medicines. I've had kidney surgery twice in
the last year. I have a lot of issues. I
mean, this incident has happened once before
but it was years ago at a Kmart but not to
this -- and I was appalled that they charged
me. I was just -- the -- I got the paper, I
was like, are they out of their minds? I
still can't believe I'm sitting here today,
I'm still embarrassed, I'm angry.
Q. Did you try to deliberately put excrement
on any property in the federal court or any
equipment?
A. Unequivocally no. That's repulsive, I'm a
very clean person, everybody knows that. I
would never do that; that is so nasty. I just
-- I mean, I was just -- trying to touching
myself trying to clean myself up I was -- I
was grossed out, it was like just cleaning
myself. I can't imagine any human being that
would deliberately smear anything of that --
that -- I mean, you don't understand how
repulsive this was, it was -- it was -- the
smell was bad. It was very embarrassing.
Q. And it was dripping off you and your
clothing on to the floor in the bathroom?
A. Well, I didn't know anything about that.
I wasn't privy to that; my intentions were my
persons. I wasn't thinking anything about the
bathroom floor or any of that, I didn't think
anything of the bathroom floor, I didn't
notice it, I mean, but that wasn't -- I mean,
I was trying to clean my person up, you know,
I had it on my legs, on the outside, the
inside. I just -- I mean, I didn't pay any
attention to the condition of the bathroom
floor or anything of that matter.
Holcomb remained outside the restroom until two deputy
marshals arrived. They arrived under a protocol previously
implemented as part of an ongoing improper-communication case
between Strong and a court employee. When Strong left the
restroom, the marshals escorted him to the clerk's office. Strong
entered the clerk's office smelling strongly of feces, but did not
-26-
appear angry and acted in a normal manner. Strong then left the
courthouse without further incident.
No one used that restroom for approximately fifteen
minutes after Strong left the building. At that point, a law
enforcement officer went to use it, but did not, because he found
it in a soiled condition. The officer informed security that the
restroom was soiled, and security called for a cleaning person.
Cleaning supervisor Christina Mason arrived to clean the
restroom. When she opened the door she saw feces on the floor,
walls, toilet, toilet paper roll, toilet paper dispenser, and paper
towel dispenser.12 Notably, the feces on the walls did not reach
the top of the tile, so the feces did not touch the drywall. In
addition, there were no feces under the sink, on the sink, on the
mirror, or on the plastic door shade. Mason saw Strong's soiled
underwear draped over the trash can.
Three days after the incident, Strong was charged in a
three-count misdemeanor information with willfully damaging federal
property in violation of 41 C.F.R. § 102-74.380(b), creating a
12
Appendix A of this opinion is a photograph of the bathroom
in question, which was Government Exhibit 10 at the trial. It
depicts the physical layout, with the paper towel dispenser on the
left, immediately above the trash can, followed by the sink with a
mirror above it, and lastly the toilet bowl with its seat and next
to it the toilet paper dispenser. The door to this facility is
open and the handle is seen on the far right. Tile partially
covers the walls on three sides of the room.
Appendix B is a photograph which depicts the door to the
bathroom and shows the shade that prevents intruding on the user's
privacy. It was introduced at trial as Government's Exhibit 4.
-27-
hazard on federal property in violation of 41 C.F.R.
§ 102-74.380(d), and creating a nuisance on federal property in
violation of 41 C.F.R. § 102-74.390(a).
On September 7, 2011, Strong filed a motion to dismiss
for lack of adequate notice of the regulations under which he was
charged. 41 C.F.R. § 102-74.365 provides that "[f]ederal agencies
must post the notice in the Appendix to this part at each public
entrance to each Federal facility" (emphasis added). The notice in
the Appendix to part 102-74 lists the prohibitions that Strong was
charged with violating. On the day of the incident, that notice
was not posted at the public entrance to the courthouse. Nor was
it posted in the rotunda where the security area is located and
through which, as previously indicated, Strong was required to pass
in entering the courthouse. Instead, it was posted on a narrow
wall, several steps up from the security area, next to the
stairwell leading to the second floor courtroom and the entrance to
the clerk's office.13 The notice was approximately twelve inches
13
See Appendix C, a photograph introduced at trial as
Government's Exhibit 12, which depicts the entrance to the
Courthouse with the security post, through which Strong had to
pass, on the right, and the notice that is the subject of this
appeal on the wall on the left. The stairway leading to the
courtroom on the second floor comes after the security post but
before the wall with the notice.
Appendix D -- a photograph showing the entrance to the Clerk's
Office, entered into evidence as Government's Exhibit 13 -- is the
continuation of Appendix C and depicts the notice in question in
this appeal.
-28-
by nine inches in eight-point font. Persons going to the clerk's
office would pass by the notice, as would persons going from
security to the restroom. Persons proceeding directly from
security to the courtrooms, however, would not pass by the notice.
Strong had passed by the notice when he had come to the clerk's
office to conduct business on previous occasions, however he had
not read the notice and was unaware of its contents. The
magistrate judge denied Strong's motion.
At his bench trial in front of the magistrate judge,
Strong renewed his motion to dismiss; it was again denied. At the
close of the Government's case, Strong moved for a judgment of
acquittal on the ground that the Government's evidence was
insufficient to establish the mental state necessary for a
conviction. This motion was denied, with one exception not
relevant here.14 The magistrate judge found Strong guilty on all
three counts and sentenced him to seven days in jail. Strong
appealed his convictions to the district court, which affirmed.
This appeal followed.
II. Discussion
Strong argues that his convictions must be reversed for
two independent reasons. First, he claims that a prerequisite to
a prosecution under the regulations was not satisfied -- namely,
14
The magistrate judge dismissed those portions of each count
that dealt with willful tracking of feces outside the restroom, as
opposed to smearing of feces inside the restroom.
-29-
that notice of those regulations was not properly posted. Second,
he alleges that there was insufficient evidence to establish beyond
a reasonable doubt the mental state necessary to sustain the
convictions. The majority does not agree with either point. I
agree with both points and discuss them in turn.
A. Posting
Although the Government exacts compliance from Strong
with regulations of which he never had actual knowledge, the
majority grants the Government an exemption from meeting the very
requirements of those regulations designed to give the actual
notice that Strong would have received but for the Government's
noncompliance with their own regulations.
The regulatory scheme under which Strong was convicted,
and the statutory scheme pursuant to which that regulatory scheme
was promulgated, both include posting requirements. Federal
agencies are required to post notice of the regulations that govern
conduct on federal property and that create criminal penalties for
misconduct. See 40 U.S.C. § 1315(c)(1), 41 C.F.R. § 102-74.365.
Nevertheless, the magistrate judge held that compliance with these
posting requirements is not a prerequisite to bringing a
prosecution under the regulations, a decision affirmed by the
district court. Considering that this holding is a matter of
regulatory and statutory interpretation, it is reviewed de novo.
United States v. McFarland, 445 F.3d 29, 31 (1st Cir. 2006). For
-30-
the reasons discussed below, I would hold that compliance with both
the regulatory and statutory posting requirements is a prerequisite
to a prosecution under the regulations.
I commence with the finding of the magistrate judge and
district court that the regulatory posting requirement was not
satisfied -- a point that the Government concedes. Also evident is
the fact that neither the magistrate judge nor the district court
explicitly found that the statutory posting requirement was
satisfied, as they relied instead on finding that Strong had
"implied actual notice" of the regulatory prohibitions. For the
reasons stated below -- based on the record -- I would conclude
that the statutory posting requirement was also not satisfied, and,
furthermore, that "implied actual notice" cannot substitute for
compliance with the posting requirements. Moreover, even if it
could, in my view the record does not support a finding that Strong
had any such notice.
1. The Regulatory Posting Requirement
41 C.F.R. § 102-74.365 provides:
The rules in this subpart apply to all
property under the authority of GSA and to all
persons entering in or on such property. Each
occupant agency shall be responsible for the
observance of these rules and regulations.
Federal agencies must post the notice in the
-31-
Appendix to this part at each public entrance
to each Federal facility.
(emphasis added). The notice at issue here was not posted at the
public entrance to the federal courthouse.
I would hold that proper posting of the notice is a
prerequisite to prosecuting individuals for violating the
prohibitions contained in that notice. The posting requirement is
just that -- a requirement: The posting provision uses the
mandatory term "must." Id. The posting provision is found in the
very first section of the subpart of the C.F.R. that regulates
"Conduct on Federal Property." Id. § 102-74, Subpart C. This
section is indexed under "Applicability," and is titled, "To whom
does this subpart [meaning the subpart regulating conduct on
federal property] apply?" The language and location of this
introductory section unequivocally indicate that its provisions are
prerequisites to all subsequent sections in the subpart. Such
subsequent sections include the prohibitions that Strong was
convicted of violating: id. §§ 102-74.380, .390.15
15
The majority latches onto the first sentence of the
regulation -- "The rules in this subpart apply . . . to all persons
entering in or on [federal] property." -- and argues that it makes
clear that the ensuing prohibitions applied to Strong (as he is a
person who entered federal property). The majority then separately
reads the third sentence of the regulation -- which contains the
posting requirement -- and claims that "[t]he regulation does not
state that the regulations will not apply if they are not posted at
each entrance" (emphasis added). But such an explicit statement
seems necessary only because the majority reads these sentences in
isolation and thus overlooks the internal logic of the regulation:
-32-
The text and structure of the regulations are not the
sole indicators that proper posting is a prerequisite to a
prosecution under the regulations. A Ninth Circuit case supports
this proposition as well. United States v. Bichsel, 395 F.3d 1053(9th Cir. 2005), dealt with a regulatory command found in another
section of the subpart of the C.F.R. governing conduct on federal
property. That section, 41 C.F.R. § 102-74.385, states: "Persons
in and on property must at all times comply with official signs of
a prohibitory, regulatory or directory nature and with the lawful
direction of Federal police officers and other authorized
individuals." With respect to this provision, the Ninth Circuit
wrote, "To enforce this regulation, federal agencies must post
notice of it 'at each public entrance to each Federal facility.'"
Bichsel, 395 F.3d at 1055 (emphasis added) (quoting 41 C.F.R.
§ 102-74.365).
Because the regulatory posting requirement was not
satisfied, I would reverse Strong's convictions.
2. The Statutory Posting Requirement
Even if compliance with the regulatory posting
requirement were not a prerequisite to prosecution, I would hold
that compliance with the underlying statutory posting requirement
is such a prerequisite. The statute pursuant to which the GSA
Posting is required at each public entrance precisely because the
rules apply to persons entering the property.
-33-
promulgated the regulations governing conduct on federal property
provides:
The Secretary, in consultation with the
Administrator of General Services, may
prescribe regulations necessary for the
protection and administration of property
owned or occupied by the Federal Government
and persons on the property. The regulations
may include reasonable penalties, within the
limits prescribed in paragraph (2), for
violations of the regulations. The
regulations shall be posted and remain posted
in a conspicuous place on the property.
40 U.S.C. § 1315(c)(1) (emphasis added). Notably, the posting
provision, which uses the mandatory "shall," is the only mandatory
provision in this section; the other two provisions use the
discretionary "may." Cf. Jama v. Immigration & Customs
Enforcement, 543 U.S. 335, 346 (2005) (noting that discretionary
nature of "may" and mandatory nature of "shall" are particularly
contraposed when both terms used in same section). This choice of
language conditions the validity of regulations discretionarily
promulgated by the GSA on the posting of those regulations.
-34-
The legislative history further indicates that proper
posting is a prerequisite to prosecution. A previous version of
the statute read as follows:
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 (2000). This version explicitly conditioned the
power to penalize on proper posting. The preamble to the
legislation that changed the section to its current formulation
reads, "An Act To revise, codify, and enact without substantive
change certain general and permanent laws, related to public
buildings, property, and works, as title 40, United States Code,
'Public Buildings, Property and Works.'" Pub. L. No. 107-217, 116
Stat. 1062 (2002) (emphasis added). According to the House Report
-35-
for this legislation, "Although changes [were] made in language, no
substantive changes in the law [were] made." H.R. Rep. No.
107-479, at 2 (2002), reprinted in 2002 U.S.C.C.A.N. 827, 828
(emphasis added). During this editing process, provisos were
removed, and "exception[s] or limitation[s] [were] introduced by
the words 'except that' or 'but' or by placing the excepting or
limiting provision in a separate sentence." Id. at 3 (emphasis
added). Thus, while the limiting language was moved to a separate
sentence in § 1315, that language was not intended to become any
less limiting than it was in § 318a. The House Report continues,
"In ordinary amendatory legislation, intent to change substance can
be inferred from a change in language. In a codification law,
however, the courts uphold the contrary presumption: the law is
intended to remain substantively unchanged." Id. (citing, inter
alia, Finley v. United States, 490 U.S. 545 (1989)).
Case law also demonstrates that proper posting under the
statute is a prerequisite to prosecution. In United States v.
Strakoff, 719 F.2d 1307, 1309-10 (5th Cir. 1983), the Fifth Circuit
interpreted the prior version of the statute to require posting as
a prerequisite to a prosecution. See id. at 1309 ("But for
Strakoff to have violated § 101-20.313, the regulation must have
been 'promulgated pursuant to section 318a' -- posted and kept
posted 'in a conspicuous place' in the Courthouse." (citations
omitted)). Decades later, in Bichsel, the Ninth Circuit, working
-36-
under the current version of the statute, reached the same
conclusion (though it held that actual notice could substitute for
proper posting). See Bichsel, 395 F.3d at 1056.
Neither the magistrate judge nor the district court made
an explicit finding as to whether the statutory posting requirement
was satisfied in this case. They instead relied on the finding
that Strong had "actual implied notice" of the regulatory
prohibitions. For the reasons stated below, on the record before
me, I am forced to conclude that the statutory posting requirement
-- that the notice be posted in a "conspicuous place" -- was not
satisfied, and, as will be further explained, that this failure
overrides any "actual implied notice" theory.
This Court has not yet addressed what constitutes a
"conspicuous place" under § 1315(c)(1). In Strakoff, the Fifth
Circuit, noting that there were no federal decisions interpreting
"conspicuous place," adopted Black's Law Dictionary's definition --
"one which is reasonably calculated to impart the information in
question." Strakoff, 719 F.2d at 1309 (quoting Black's Law
Dictionary, 382 (rev. 5th ed. 1979)). The defendant in Strakoff
was convicted of violating a regulation that criminalized carrying
or possessing a firearm on federal property. Id. at 1307. The
Fifth Circuit found that the notice in that case was not posted in
a "conspicuous place" because "one entering the Courthouse through
either public entrance, going directly to and through the metal
-37-
detector, and boarding an elevator to get to the courts or other
federal offices would never see [the] posted notice." Id. at 1309.
This, of course, is exactly what would happen with the
posting in the courthouse in question, for, as shown in the
photograph depicted in Appendix C and as found by the magistrate
judge, anyone going directly from the security checkpoint to the
stairway and up to the courtroom on the second floor would not pass
in front of or see the notice that was posted at the entrance to
the clerk's office. This would result in a double standard for
enforcing the regulations: one for those going to the clerk's
office, to whom "implied actual notice" would be applied, and
another for those proceeding directly to the second floor
courtroom, who would be exempt from the regulations.
In Bichsel, the Ninth Circuit explicitly followed
Strakoff in adopting the Black's Law Dictionary definition. 395
F.3d at 1055. The defendant in that case was convicted of
violating a regulation that criminalized failure to comply with
orders of federal police officers. Id. The Ninth Circuit found
that the notice in question was not posted in a "conspicuous
place." Id. at 1056. The Bichsel court wrote that "a place not
accessible, let alone within reading distance, to an outside
courthouse visitor cannot be conspicuous enough to impart notice of
the regulation." Id. That court found that "the indoor posting of
the regulation was not in a 'conspicuous place' reasonably
-38-
calculated to impart notice to . . . [an] individual outside of the
courthouse." Id.Here again is another reason why government compliance
with the notice requirements of its regulations should be exacted
before someone can be charged with their violation: One must know
before one enters the building what is expected in the building
I would adopt the same definition. A "conspicuous place"
is one which is reasonably calculated to impart the information in
question. As in Strakoff and Bichsel, the information in question
here pertains to how one must comport oneself upon entering federal
property, and the consequences for failing to do so. And, as in
Strakoff and Bichsel, I would find that any place other than the
entrance to the federal property is not a place reasonably
calculated to impart that information. Whether the information
pertains to the items one may possess on the property (as in
Strakoff, 719 F.2d at 1307-08), the persons from whom one must take
orders while on the property (as in Bischel, 395 F.3d at 1054), or
the limitations on one's behavior upon entering the property (as in
this case), the entrance to the property is the only place
reasonably calculated to impart that information. This is so
because the entrance is the only place where each visitor is
guaranteed to walk past the posting. As a matter of due process,
if a visitor is to be held to a federal regulation regarding
conduct on federal premises, it is only logical, fair, and
-39-
constitutional that the visitor be clearly and unambiguously
forewarned of what is expected of him or her before becoming
subjected to the regulation.
In finding that the posting here was conspicuous, the
majority attempts -- unsuccessfully, in my view -- to distinguish
Strakoff. As in this case, in Strakoff the notice was posted, but
not at the entrance or in the security area. 719 F.2d at 1309. As
in this case, in Strakoff persons proceeding directly from security
to the courtrooms would not pass the notice. Id. The majority is
willing to accept that the posting in Strakoff was not conspicuous,
but apparently only because the regulation at issue there governed
the items that one may possess on federal property. On that view,
the entrance to property is the only place reasonably calculated to
impart information about the items prohibited on that property, but
other areas of the property are reasonably calculated to impart
information about the conduct prohibited on that property.
Respectfully, I do not see how this distinction makes a difference
or can convincingly support Strong's convictions. Though in this
particular case, the relevant conduct occurred well past the
entrance to the property, to be effective, restrictions on behavior
just as much as restrictions on possession should be announced at
the point at which they begin to apply -- the entrance to the
courthouse, as required by the regulation -- not later.
-40-
The majority attempts to further distinguish Strakoff by
noting that "possessing a gun properly registered in one's name on
entrance to a federal building is unlike the situation here,
[because] everyone knows [that] smearing feces in a bathroom used
by others is wrong." On that view, conspicuous posting is
apparently a prerequisite to prosecution for certain crimes, but
not others. But the statute does not discriminate -- it mandates
conspicuous posting for all regulations -- and this Court should
not substitute its own vision of the law for that which was enacted
by Congress.
Because the statutory notice requirement was not
satisfied, I would reverse Strong's convictions.
3. "Implied Actual Notice"
To evade the fact that neither the regulatory nor the
statutory posting requirement was satisfied, the magistrate judge
and district court decided that noncompliance with such
requirements is irrelevant where the defendant has notice of the
regulations. They then found that Strong had "implied actual
notice" of the applicable regulations. "Implied actual notice"
(whatever that may be) cannot substitute for a statutorily mandated
proper posting, but, even if it could, Strong did not have such
diluted notice.
The conclusion that "implied actual notice" can
substitute for proper posting is a legal determination subject to
-41-
de novo review. See United States v. Bucci, 582 F.3d 108, 115 (1st
Cir. 2009).
Cases similar to the one at hand have established an
actual-notice exception to the posting requirements: In other
words, noncompliance with the posting requirements will not bar
prosecution where the defendant had actual notice of the regulatory
prohibitions. See Bichsel, 395 F.3d at 1056-57 ("The actual notice
exception fulfills the rationale behind the conspicuous posting
requirement because actual notice is the best notice."); United
States v. Davis, 339 F.3d 1223, 1228 (10th Cir. 2003) ("We . . .
hold that actual knowledge of a regulation satisfies a potential
posting requirement.").
In the proper case, it may be appropriate to recognize
this actual-notice exception, but this is not that case.
Furthermore, the concept of "implied actual notice" is
unprecedented in this context; in fact, this Court has never held
-- nor have the parties pointed to an opinion in which another
court has explicitly held -- that anything other than actual notice
can substitute for proper posting.16 This is undoubtedly because
16
The Government contends that United States v. Roper, No.
03-M-361 (CLP), 2003 WL 24017061 (E.D.N.Y. Nov. 24, 2003), an
unpublished district court case, establishes that "implied actual
notice" can substitute for proper posting. But Roper is not
persuasive. In that case, the court primarily held that proper
posting was not a prerequisite to prosecution. Id. at *16. In the
alternative, the court found that the posting was proper, as it was
conspicuous. Id. at *17. Then, again in the alternative, the
court found that the defendant had actual notice of the relevant
-42-
invoking some lesser form of notice in the criminal context could
raise due process concerns. See United States v. Washabaugh,
No. 3:07-PO-253, 2008 WL 203012, at *1 (S.D. Ohio Jan. 22, 2008)
(stating that "it would be unconstitutional to punish Defendant for
violating the . . . regulation" where posting requirement was not
satisfied (citing Grayned v. City of Rockford, 408 U.S. 104, 108
(1972) for the proposition that "[i]f vague laws are
unconstitutional, a fortiori secret laws violate very basic
considerations of due process")). At a minimum, under the
statutory and regulatory constraints as well as the facts of this
case, I would decline to hold that "implied actual notice" can
substitute for proper posting.
But even if "implied actual notice" could substitute for
proper posting, it was clearly erroneous for the magistrate judge,
and the district court, to find that Strong had such notice. See
United States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001)
(reviewing factual findings under the deferential clearly-erroneous
standard). Forms of notice inferior to actual notice are implied
where an individual comes under a duty to investigate, such that
the knowledge that would have been gained from the investigation
prohibition via a verbal warning. Id. at *18. Finally, the court
stated that the defendant "should have seen and received actual
notice that disorderly conduct of the type charged here was
prohibited" because he passed by the posted regulations. Id. at
*16-18 (emphasis added). This fourth of the alternative arguments
-- and one on which the court did not elaborate -- does not provide
the support that the Government's position needs to succeed.
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can be imputed to the individual. See, e.g., Smith v. F.D.I.C., 61
F.3d 1552, 1558 (11th Cir. 1995); Shacket v. Philko Aviation, Inc.,
841 F.2d 166, 171 (7th Cir. 1988) (Posner, J.). In the present
case, neither the magistrate judge nor the district court explained
why Strong would have come under a duty to investigate the
inconspicuous posting. Although Strong had walked by the posting
on previous occasions, the posting was not so blatant as to make a
reasonable person examine it more closely. See Exxon Corp. v.
Raetzer, 533 S.W.2d 842, 846 (Tex. Civ. App. 1976) ("[T]he fact
which is claimed to put a person on notice must be of a nature that
would normally excite investigation; . . . circumstances that are
dubious or equivocal and do no more than arouse suspicion or create
speculation, are not sufficient . . . ."). From the facts found by
the magistrate judge as to the location of the posting as well as
the description of the notice itself (twelve inches by nine inches
in eight-point font), the conclusion that such posting would be
conspicuous to an occasional visitor is at best dubious and
equivocal. Furthermore, the conclusion that -- under the stressing
and humiliating circumstances in which Strong found himself on the
day of the incident (escorted by a security officer from the
security area to the restroom, and then escorted by marshals to the
clerk’s office and out of the building) -- Strong obtained notice
of the inconspicuous posting is beyond the pale. It goes without
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saying that a person under these circumstances would not pause to
read an inconspicuous posting.
In my view, the foregoing reasons necessitate the
reversal of Strong's convictions.
B. Sufficiency of the Evidence
Even if the noncompliance with the posting requirements
did not necessitate the reversal of Strong's convictions, I would
hold that reversal is required for another reason: The magistrate
judge clearly erred in finding that there was sufficient evidence
-- establishing Strong's mental state -- to sustain the
convictions.
Strong's sufficiency-of-the-evidence claim is
unpreserved, so he must establish plain error, and the evidence is
reviewed to determine if there was "clear and gross injustice."
United States v. Hicks, 575 F.3d 130, 139 (1st Cir. 2009) (quoting
United States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006))
(internal quotation mark omitted); see also United States v.
Concemi, 957 F.2d 942, 950 (1st Cir. 1992). To establish plain
error, Strong must show: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected his substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of the judicial proceedings. United States v.
Meadows, 571 F.3d 131, 144 (1st Cir. 2009). I would find that the
magistrate judge committed plain error in two ways: First, by
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implying the wrong mental state requirement, and, second, by
finding beyond a reasonable doubt that the requirement was
satisfied.
1. Implying a Mental State Requirement
The regulation making it a crime to damage federal
property explicitly includes a "willfully" mental state
requirement. 41 C.F.R. § 102-74.380(b). The other two regulations
under which Strong was convicted however -- the one making it a
crime to create a hazard on federal property and the one making it
a crime to create a nuisance on federal property -- do not
explicitly include mental state requirements. Id.§§ 102-74.380(d), .390(a). The magistrate judge required the
Government to prove that Strong knowingly created a hazard and
nuisance, and willfully damaged the restroom. The magistrate judge
found that the Government proved these elements beyond a reasonable
doubt.
I would find that the magistrate judge committed error by
implying a "knowingly" mental state requirement into the two
regulations that lack an explicit mental state requirement. The
magistrate judge should have implied a "willfully" mental state
requirement. At first, the magistrate judge did seem to imply a
mental state requirement of "willfully." He wrote, "Presuming that
conviction on these offenses requires, at a minimum, proof of a
voluntary act, the court finds that the [regulation] accurately
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warns that voluntarily tracking or smearing feces in such a manner
that a hazard, nuisance or damage ensues, is conduct proscribed by
the regulations" (emphases added). The first entry in Black's Law
Dictionary for "voluntary" is, "Done by design or intention." (9th
ed. 2009). Doing something by design or intention means to do that
thing willfully, and not merely knowingly. But the magistrate
judge went on to say that mere knowledge, as opposed to
willfulness, would suffice.
In my view, this was error, because when a crime lacks an
explicit mental state requirement, "general intent" is required.
See 21 Am. Jur. 2d Criminal Law § 118 (2013). And
[a] general-intent crime is one in which an
act was done voluntarily and intentionally,
and not because of mistake or accident. The
term refers to whether a defendant intended
deliberate, conscious, or purposeful action,
as opposed to causing a prohibited result
through accident, mistake, carelessness, or
absent-mindedness. . . . [I]f [the act is]
done voluntarily, the inference thereupon
arises that the defendant intended that which
resulted.
Id. In other words, the magistrate judge should have implied a
mental state requirement of "willfully."
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2. Finding the Mental State Requirement Satisfied
In my view the magistrate judge also committed error by
finding -- as to the one regulation that explicitly includes a
"willfully" mental state requirement -- that the Government proved
beyond a reasonable doubt that Strong willfully smeared feces in
the restroom. And, had the magistrate judge properly implied a
"willfully" mental state requirement into the other two
regulations, I would find that the evidence was legally
insufficient to sustain the convictions under these regulations as
well.
The majority accuses me of viewing the facts anew and
points out that on a sufficiency-of-the-evidence challenge, we ask
whether any rational factfinder could have found that the evidence
presented at trial -- together with all reasonable inferences --
established guilt beyond a reasonable doubt. I am not viewing the
evidence anew: We are required to view all the evidence in the
light most favorable to the Government, and then to draw therefrom
inferences that are "reasonable" or "legitimate." See, e.g.,
United States v. Savarese, 686 F.3d 1, 8 (1st Cir. 2012); United
States v. Medina-Garcia, 918 F.2d 4, 6-7 (1st Cir. 1990). In my
opinion, inferring willfulness from the evidence presented, even
viewed in the light most favorable to the Government, is neither
reasonable nor legitimate.
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Contrary to the majority's view, the fact that seventy-
five percent of the floor was covered with feces does not support
an inference of willfulness. As the picture in Appendix A
illustrates, the bathroom in question is small: It has one toilet,
one sink, and is meant to be occupied by only one person at a time.
If feces covered seventy-five percent of the floor in a large
bathroom -- one containing multiple stalls and meant for multiple
users -- an inference of willful smearing might reasonably be
drawn. But it is unreasonable to infer willfulness when seventy-
five percent of the floor could have come into contact with feces
simply by virtue of Strong having undressed, cleaned, and dressed
himself in the confined space.17
Viewing the evidence in the light most favorable to the
Government, the only reasonable inference to draw is that Strong
tried to clean himself, and that the leftover feces were the result
of accident. The evidence is uncontradicted that Strong
involuntarily lost control of his bowels, most likely because of
his physical impairments and in reaction to the numerous
medications he was taking. Furthermore, the feces were
predominately in areas of the restroom that one would touch in
attempting to clean up. Feces were understandably found on the
17
In the alternative, because it is biologically impossible for
one person to produce enough feces to cover seventy-five percent of
the floor and more than two feet of the wall in some places, that
finding -- which provided much of the support for the inference of
willfulness -- is, in my view, incredible as a matter of law.
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floor, for that is where Strong placed his soiled jeans. Feces
were understandably found on the toilet paper roll, toilet paper
dispenser, and paper towel dispenser, for Strong used toilet paper
and paper towels to clean himself. Feces were understandably found
on the toilet, for Strong sat on the toilet to clean himself and to
put his clothes back on. And feces were understandably found on
the lower parts of the walls, near the floor, for Strong was
attempting at a frantic pace to clean himself and his clothing,
which was on the floor, and would have leaned against the wall as
he did so.
One might reasonably infer willfulness if feces were
found in difficult-to-clean places, but no feces were found on the
drywall above the tiled parts of the walls, under the sink, on the
sink, on the mirror, or on the plastic door shade. Furthermore,
had Strong willed to cause damage, one would have expected him to
abandon his soiled underwear in a manner other than draping it over
the trash can.
As appears in the record reproduced earlier in this
opinion, Strong categorically denied purposely spreading feces in
any part of the bathroom. Nevertheless, the magistrate judge
inferred willfulness not only from the location of the feces but
also from the fact that the feces appeared to have been "smeared."
This inference was unreasonable. Upon using the word "smears" in
her testimony, Mason, the cleaning supervisor, was asked to specify
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what she meant. She answered, "When I say smear, I mean, well,
like a smear, but not necessarily like finger smears but just
chunks -- chunks and smears, pretty much, kind of like chunky
peanut butter." When asked about the pattern in which the feces
were deposited, she answered, "Well, it wasn't splattered, it was
smeared, that is for sure. It was -- it was smeared, and it was
very chunky. But it wasn't splattered, meaning liquid. It didn't
depict liquid. It may have been at one time, I don't know, but it
was more smeared and kind of chunked on there than a liquid
splatter." In other words, Mason used the word "smeared" to refer
to the consistency of the feces rather than the way in which they
were deposited. She even distinguished the type of smear to which
she was referring from what she called "finger smears." No
rational factfinder could infer willfulness from the consistency of
feces.
Finally, it was unreasonable to infer willfulness from
the fact that Strong did not report the incident. The reasonable
inference to draw from this fact is that Strong was embarrassed of
what had transpired.
3. Plain Error
I would find that these errors were clear and obvious in
the sense that they were errors under the legal regime prevailing
at the time of the proceedings. This is not a "special case where
the error was unclear at the time of trial but becomes clear on
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appeal because the applicable law has been clarified." United
States v. Olano, 507 U.S. 725, 734 (1993); see also United States
v. Bennett, 469 F.3d 46, 50 (1st Cir. 2006) (refusing to deem an
error clear "[i]n light of conflicting case law").
Moreover, I would find that these errors affected
Strong's substantial rights. To affect one's substantial rights,
"'the error must have been prejudicial: It must have affected the
outcome of the [lower] court proceedings.'" United States v.
Padilla, 415 F.3d 211, 220 (1st Cir. 2005) (en banc) (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)). The distinction
between willfulness and knowledge was crucial to the outcome here.
While the evidence could have plausibly supported the contention
that Strong knew his actions led to feces covering the restroom,
the evidence was insufficient to support -- beyond a reasonable
doubt -- the contention that Strong intended his actions to do so.
Absent the errors in implying a mental state requirement of
"knowingly" and in finding the evidence as to mental state
sufficient beyond a reasonable doubt, Strong would not have been
convicted.
Finally, I would find that these errors seriously
impaired the fairness of the judicial proceedings. The fairness of
the judicial proceedings is impaired when "leaving the error
uncorrected would cause a miscarriage of justice." United States
v. McCoy, 508 F.3d 74, 80 (1st Cir. 2007). This Court has
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previously held that a "misstatement of the scienter standard"
combined with the fact that the "evidence of scienter was thin"
substantially affects the fairness and integrity of the judicial
proceedings. See United States v. Gandia-Maysonet, 227 F.3d 1, 6
(1st Cir. 2000).
Because the magistrate judge committed plain error in
finding that the Government had proved the proper mental state
elements beyond a reasonable doubt, I would reverse Strong's
convictions.
III. Conclusion
For the foregoing reasons, I respectfully dissent from
the affirmance of Strong's convictions.
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Appendix A
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Appendix B
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Appendix C
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Appendix D
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