United States v. Wasylyshyn

18-1344
U.S. v. Wasylyshyn
In the
United States Court of Appeals
For the Second Circuit
______________
August Term, 2018
(Argued: May 20, 2019 Decided: November 3, 2020)
Docket No. 18-1344
______________
UNITED STATES OF AMERICA,
Appellee,
–v.–
MARINA WASYLYSHYN,
Defendant-Appellant.
______________
B e f o r e:
LIVINGSTON and CARNEY, Circuit Judges, and BERMAN, District Judge. *
______________
Defendant-Appellant Marina Wasylyshyn appeals her conviction following a
bench trial for creating a loud noise and nuisance at the Binghamton federal courthouse.
Wasylyshyn entered the lobby of the Binghamton courthouse to retrieve tax forms, but
was told by court security officers (“CSOs”) Alan Canfield and David Lawrence that
she was not allowed to go to the IRS office inside the building without an appointment.
Wasylyshyn engaged in a loud argument with Canfield, aggressive on both sides.
*Judge Richard M. Berman, of the United States District Court for the Southern District of New
York, sitting by designation.
Canfield arrested her. Federal Protective Service Inspector Joseph Chapman issued
Wasylyshyn a violation notice charging her with creating a “loud or unusual noise or a
nuisance” in the courthouse, in violation of 41 C.F.R. § 102-74.390(a) (the “Noise
Regulation”). Wasylyshyn was convicted of the violation at a bench trial before a
magistrate judge of the United States District Court for the Northern District of New
York (Dancks, M.J.), and her conviction was upheld on appeal to a district judge
(Suddaby, C.J.). See Fed. R. Crim. P. 58(g). On appeal before this Court, Wasylyshyn
argues that her conviction is invalid because the Noise Regulation was not
conspicuously posted in the courthouse and she was not otherwise on notice that her
conduct was illegal. Wasylyshyn also contends that the evidence presented at trial was
insufficient to establish that she acted with the requisite mental state to violate the
Noise Regulation. Finally, Wasylyshyn assails the Noise Regulation as
unconstitutionally vague as applied to her conduct in this case. We affirm. We conclude
that Wasylyshyn forfeited her challenge to the conspicuous posting of the Noise
Regulation by not raising the argument on appeal to the District Court. We further
conclude that, under United States v. Weintraub, 273 F.3d 139, 147 (2d Cir. 2001), the
Noise Regulation carries only a general intent requirement, and that the evidence
supports that Wasylyshyn acted with this mens rea. Finally, we determine that the Noise
Regulation is not unconstitutionally vague as applied to Wasylyshyn’s conduct.
AFFIRMED.
______________
MICHAEL F. PERRY, Assistant United States Attorney, for
Antoinette T. Bacon, Acting United States Attorney for
the Northern District of New York, Syracuse, NY, for
Appellee.
DONNA ALDEA, Barket Epstein & Kearon LLP, Garden City,
NY, for Defendant-Appellant.
______________
CARNEY, Circuit Judge:
Defendant-Appellant Marina Wasylyshyn appeals her conviction following a
bench trial for creating a loud noise and nuisance at the Binghamton federal courthouse.
2
Wasylyshyn entered the lobby of the Binghamton courthouse to retrieve tax forms, but
was told by court security officers (“CSOs”) Alan Canfield and David Lawrence that
she was not allowed to go to the IRS office inside the building without an appointment.
Wasylyshyn then engaged in a loud argument with Canfield, aggressive on both sides.
During the argument, Canfield arrested her. Federal Protective Service (“FPS”)
Inspector Joseph Chapman issued Wasylyshyn a violation notice charging Wasylyshyn
with creating a “loud or unusual noise or a nuisance” in the courthouse, in violation of
41 C.F.R. § 102-74.390(a) (the “Noise Regulation”). Wasylyshyn was convicted of the
violation at a bench trial before Magistrate Judge Thérèse Wiley Dancks of the United
States District Court for the Northern District of New York, 1 and her conviction was
upheld on an initial appeal to Chief District Judge Suddaby. 2
1With or without the defendant’s consent, a magistrate judge may try “petty offense[s] for
which no sentence of imprisonment will be imposed.” Fed. R. Crim. P. 58(a)(2), (b)(2)(E)(i),
(b)(2)(F).
2 Federal Rule of Criminal Procedure 58(g)(2)(B) provides, “A defendant may appeal a
magistrate judge’s judgment of conviction or sentence to a district judge within 14 days of its
entry.” See also 18 U.S.C. § 3402 (“In all cases of conviction by a United States magistrate judge
an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district
court of the district in which the offense was committed.”). The scope of such an appeal “is the
same as in an appeal to the court of appeals from a judgment by a district judge.” Fed. R. Crim.
P. 58(g)(2)(D). The district court’s determination on appeal may in turn be appealed as of right
to the Circuit Court of Appeals as a “final decision” under 28 U.S.C. § 1291. See, e.g., United
States v. Hollingsworth, 783 F.3d 556, 558 & n.2 (5th Cir. 2015) (affirming district court’s
judgment, which in turn affirmed sentence and conviction entered by magistrate judge, and
noting that appellant “was required to appeal first to the district court under 18 U.S.C. § 3402”);
United States v. Falciglia, No. 93 CR. 1016 (SEG), 1994 WL 698134, at *1 (S.D.N.Y. Dec. 13, 1994)
(affirming magistrate judge’s sentence on appeal), aff’d, 60 F.3d 810 (2d Cir. 1995). The Court of
Appeals then reviews the magistrate judge’s ruling applying the same standard of review as
used by the district court. See Hollingsworth, 783 F.3d at 558.
3
Wasylyshyn now challenges her conviction on three grounds. She argues first
that her conviction is invalid because (she asserts) the Noise Regulation was not
conspicuously posted in the courthouse and she was not otherwise on notice that her
conduct was illegal. Wasylyshyn contends next that the mens rea for the violation at
issue is “knowledge that the action is wrongful,” Appellant’s Br. 30, and that the
prosecution failed to make the necessary showing. Finally, Wasylyshyn urges that the
regulation is unconstitutionally vague as applied to her conduct.
We reject these arguments. First, by failing to raise the conspicuous-posting
argument in her initial appeal to the District Court, Wasylyshyn forfeited any challenge
to her conviction on this ground. Next, under United States v. Weintraub, 273 F.3d 139,
147 (2d Cir. 2001), a conviction for violating the Noise Regulation requires proof only of
a defendant’s general intent. The proof presented at trial was sufficient to meet this
standard as to Wasylyshyn. Finally, the Noise Regulation is not unconstitutionally
vague as applied to Wasylyshyn’s conduct.
We therefore AFFIRM the decision and order of the District Court.
BACKGROUND
I. The Courthouse Incident
The following account is drawn from the record made before Magistrate Judge
Dancks at the bench trial. In view of Wasylyshyn’s conviction, we summarize the facts
in the light most favorable to the government. See Garbutt v. Conway, 668 F.3d 79, 80 (2d
Cir. 2012). The evidence presented consisted primarily of testimony given by
Wasylyshyn, CSOs Canfield and Lawrence, and FPS Inspector Chapman; photographs
4
of the Binghamton courthouse lobby; and video footage of Wasylyshyn’s encounter
with the CSOs.
Near noon on February 14, 2017, Dr. Marina Wasylyshyn visited the Federal
Building and U.S. Courthouse in Binghamton, New York, to collect tax forms from a
self-service rack in a hallway off the building’s lobby, as she had done in previous
years. CSOs Canfield and Lawrence were behind the security desk in the courthouse
lobby, facing the revolving door through which the public entered the building. After
Wasylyshyn entered the building through the revolving door, Lawrence asked her
“where she wanted to go.” App’x 51. 3 A protest was assembling outside the building
and the CSOs did not know whether Wasylyshyn was a protester. Wasylyshyn replied
that she wanted to visit the office of the Internal Revenue Service. Lawrence informed
Wasylyshyn that, under a new policy, “she [needed] an appointment to get into the
I.R.S.,” and “[t]hey no longer [accepted] walk-ins.” Id. at 51-52. Wasylyshyn replied, “I
don’t need an appointment. I am just here to pick up some tax forms.” Id. at 109.
Lawrence turned to retrieve a flyer that provided a telephone number for scheduling an
appointment with the IRS. As he retrieved the flyer, Lawrence asked Wasylyshyn which
forms she needed and told her he “would get them for her.” Id. at 90.
According to both Canfield’s and Lawrence’s testimony, at this point in the
exchange Wasylyshyn had become “agitated.” Id. at 52, 90. She “slammed” her purse on
the counter, and then searched in her bag for a list of the forms she wanted. Id. at 52, 70,
90. Canfield stood up and joined Lawrence at the desk. Lawrence directed Wasylyshyn
3Unless otherwise noted, in text quoted from case law, this Opinion omits all alterations,
citations, footnotes, and internal quotation marks.
5
to “calm down.” Id. at 60, 105. Video surveillance footage shows Canfield extending his
right arm and pointing a finger close to Wasylyshyn’s face. 4 Lawrence testified that
Wasylyshyn told him in a “very loud” voice that she was a doctor. Id. at 90. Lawrence
responded that he did not care that she was a doctor and that “this is how it [is] done.”
Id. at 90-91. Wasylyshyn replied that she “pays [his] salary,” that he was “a public
servant,” and that he “ha[s] to do what she tells [him] to do.” Id. at 91. Next,
Wasylyshyn handed Lawrence her list of forms. Lawrence took the paper and walked
to the tax form rack in a hallway off the lobby, about 40 to 45 feet away. From there,
Lawrence could hear Wasylyshyn “yelling about how [Lawrence and Canfield were]
public servants” and how she “pays [their] salary,” but he could not see Wasylyshyn or
Canfield. Id. at 53, 91-92. The Magistrate Judge characterized Wasylyshyn as “shouting”
during the encounter. Id. at 153-54.
Back at the security desk, Canfield advised Wasylyshyn that his “function” was
not to help her; rather, he was “there for the security of the federal court only.” Id. at 61.
Wasylyshyn told Canfield that he was a federal employee, to which Canfield responded
he was not, because he worked for a private company that contracted with the federal
government. Canfield parried that “if she didn’t like the rules in the building [she
should] leave.” Id. at 54, 61. Canfield acknowledged in his testimony that, during this
argument, his “voice level” may have “exceeded hers.” Id. at 79.
4The video footage of the encounter was reviewed by the Magistrate Judge, the District Judge,
and was available on appeal to this Court. We noted no inconsistencies in interpretation or
characterization of what the video recorded. The video recording did not include an audio
component.
6
Canfield then walked out from behind the counter, approached Wasylyshyn, and
pointed at her face. She backed away from him, toward the door. The surveillance
footage shows (and no one disputes) that Canfield advanced several steps toward
Wasylyshyn, pointing and appearing to speak aggressively, while Wasylyshyn
continued to retreat. Eventually, Wasylyshyn stopped, stepped toward Canfield, and
thrust her face toward Canfield’s face. Magistrate Judge Dancks found based on the
video footage that Wasylyshyn “stepp[ed] toward the CSO[,] . . . getting extremely close
to him, if not touching him.” Id. at 154. Canfield testified that Wasylyshyn made contact
with him in “kind of a belly bump.” Id. at 54-55. Canfield then placed Wasylyshyn
under arrest, taking hold of her arm and directing her back to the security desk. Once at
the security desk, Canfield took Wasylyshyn’s purse from her hands, placed it on the
desk, and struggled to pull Wasylyshyn’s hands behind her back while he arrested her.
At the same time, Canfield called for Lawrence to return.
When Lawrence returned from the tax form rack, he saw Canfield standing
behind Wasylyshyn, with Canfield holding her arms behind her back. Canfield
instructed Lawrence to retrieve Wasylyshyn’s driver’s license from her purse.
Wasylyshyn “squirm[ed] around” and “yell[ed]” at Lawrence to tell Canfield to release
her. Id. at 62, 93. Lawrence directed her to stand still and told her that she was under
arrest. Wasylyshyn continued to move, and Lawrence stopped looking through her
purse and assisted Canfield in handcuffing Wasylyshyn. After Wasylyshyn had been
handcuffed, she asked why she was under arrest. Canfield answered that Wasylyshyn
was under arrest “for being a bitch.” Id. at 62-63, 93-94. Lawrence testified that he
“clarified” this statement by explaining to Wasylyshyn that she was under arrest for
“dis con or disorderly conduct.” Id. at 94.
7
 The CSOs detained Wasylyshyn for twenty to thirty minutes after handcuffing
her; they also called for assistance. When FPS Inspector Chapman arrived at the scene in
response to their call, he issued Wasylyshyn a violation notice for creating a “loud or
unusual noise or a nuisance” in breach of the Noise Regulation, 41 C.F.R. § 102-
74.390(a), 5 and released her. App’x 5, 33-34, 95. Wasylyshyn was then permitted to walk
into the hallway past the CSO security desk to retrieve the tax forms she had come for.
Wasylyshyn later filed a complaint with the U.S. Marshal about the incident and
Canfield received a formal reprimand for his verbal insult to Wasylyshyn.
II. Notice
During the bench trial, the government elicited testimony and introduced
photographs to establish the size and placement of a poster entitled “GSA Rules and
Regulations Governing Conduct on Federal Property” (the “Notice”). The Notice was
posted roughly seven-and-a-half feet behind the security desk, on a bulletin board
behind an x-ray machine and inside a glass frame. Although the Noise Regulation was
printed on the Notice, Lawrence testified that an individual standing in front of the
security desk could read only the bold-text title at the top of the document—the
substance of the rules and regulations was illegible from that distance. Lawrence
testified that he at no point saw Wasylyshyn reading the Notice and that he did not
inform Wasylyshyn of the regulations posted on the Notice before he arrested her.
5 The Noise Regulation provides, “All persons entering in or on Federal property are prohibited
from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that— (a)
creates loud or unusual noise or a nuisance . . . .” 41 C.F.R. § 102-74.390.
8
The District Court found, and no one disputed, that the regulations had been
posted in the courthouse in this fashion for many years, and that Wasylyshyn had
visited the courthouse on several prior occasions.
III. The Trial and Appeal to the District Court
The case was tried before Magistrate Judge Dancks on August 23, 2017. After the
government’s case-in-chief, Wasylyshyn (represented by counsel) testified in her own
defense. At the conclusion of the government’s case, and again after she testified,
Wasylyshyn moved for judgment of acquittal under Federal Rule of Criminal Procedure
29(a). In support, she argued, first, that the government had failed to prove that she had
knowingly violated a federal regulation. Second, Wasylyshyn submitted that the Noise
Regulation was unconstitutionally vague as applied in her case. Magistrate Judge
Dancks denied Wasylyshyn’s motion, found her guilty of the charged offense, and
sentenced her to pay a $50 fine and a $30 processing fee.
Wasylyshyn appealed to the District Court, asserting that the evidence presented
at trial was insufficient to establish that she had violated the Noise Regulation, that the
Magistrate Judge applied the wrong mens rea requirement, and that the Noise
Regulation was unconstitutionally vague as applied to her conduct. The District Court
affirmed the conviction. United States v. Wasylyshyn, No. 17-cr-234-GTS (N.D.N.Y. Apr.
24, 2018).
Wasylyshyn now appeals to our Court.
9
DISCUSSION
In conducting a sufficiency review of a guilty verdict, we review the evidence
presented at trial in the light most supportive of the verdict. United States v. Griffith, 284
F.3d 338, 348 (2d Cir. 2002). We will not disturb a conviction on grounds that the
evidence at trial was legally insufficient “if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v.
Wilkerson, 361 F.3d 717, 724 (2d Cir. 2004). We review de novo questions of law,
including the application of the law to undisputed facts and constitutional challenges to
a law. See Deegan v. City of Ithaca, 444 F.3d 135, 141 (2d Cir. 2006).
I. The Statutory Notice Requirement
Section 1315(c)(1) of title 40 in the U.S. Code (“section 1315” or the “statutory
notice requirement”) requires that certain regulations related to conduct on federal
property, including the Noise Regulation, “be posted . . . in a conspicuous place.” It
reads:
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).
Wasylyshyn now maintains that, because the Noise Regulation could not easily
be read by visitors to the Binghamton courthouse, the government failed to comply
with the statutory notice requirement. This failure makes her conviction invalid,
10
Wasylyshyn contends, arguing that before the CSOs arrested her she was not otherwise
put on notice that her conduct was illegal.
We do not reach this argument, however, because Wasylyshyn did not raise it in
the District Court. As a general rule, we will not consider arguments first raised on
appeal to this court. 6 Otal Investments Ltd. v. M/V CLARY, 673 F.3d 108, 120 (2d Cir.
2012); see Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005)
(“The law in this Circuit is clear that where a party has shifted his position on appeal
and advances arguments available but not pressed below, waiver will bar raising the
issue on appeal.”); see also United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010)
(holding that issues not raised on appeal to district court under 18 U.S.C. § 3402 are
waived or abandoned by defendant). We are particularly reluctant to do so when, as
here, the party appears to have previously disclaimed any intention of making the
argument now pressed on appeal.
Wasylyshyn did not raise the government’s failure to comply with the statutory
notice requirement in her appeal to the District Court. In that appeal, Wasylyshyn
pointed to the illegibility of the Noise Regulation only to advance her mens rea
argument that she couldn’t knowingly violate the Noise Regulation without being able
to read it as posted. In fact, in her brief on appeal to Chief Judge Suddaby, Wasylyshyn
6 We have not previously addressed this practice in the context of appeals to our court from
district court rulings made under 18 U.S.C. § 3402. The requirement that arguments raised on
appeal have been raised in the district court is motivated, however, by considerations that apply
with equal, if not greater, force when we are reviewing a district court’s exercise of appellate
jurisdiction. See, e.g., In re Anderson, 884 F.3d 382, 388 (2d Cir.) (declining to consider argument
not raised before bankruptcy court or on appeal to district court), cert. denied sub nom. Credit One
Bank, N.A. v. Anderson, 139 S. Ct. 144 (2018). We therefore comfortably apply the identical rule
here.
11
essentially disclaimed any intention to challenge the government’s compliance with
section 1315. She wrote:
The error of the magistrate judge in this case was that she conflated the
40 U.S.C. 1315(c) requirement that the GSA regulations be “posted in a
conspicuous place” with the totally separate requirement that a mens rea
element is implied in the regulation (41 CFR 102-74.390) itself. In this case
all the evidence is consistent that the GSA regulation was posted in a
glass case on a pillar behind the CSO’s station. . . . It is respectfully
submitted that when this court reviews, de novo, the magistrate’s
conclusions of law which did not require the government to prove a
culpable mental state, it should reverse the conviction because the
government failed to prove that Dr. Wasylyshyn knowingly and
willfully violated 41 CFR 102-74.390.
Brief for Defendant-Appellant at 22-23, United States v. Wasylyshyn, No. 17-cr-234-GTS
(N.D.N.Y. Apr. 24, 2018). In affirming the conviction, Chief Judge Suddaby
acknowledged Wasylyshyn’s position that she was not challenging the conspicuousness
of the Noise Regulation’s posting: he commented, “There is no dispute here that the
regulations were conspicuously posted at the entrance of the Binghamton Federal
Building.” App’x 173.
After disclaiming this argument in her appeal to Chief Judge Suddaby,
Wasylyshyn may not now contend that her conviction is invalidated by any failure of
the government to comply with the statutory notice requirement. 7 Because Wasylyshyn
7It is true that, on appeal to the District Court, Wasylyshyn cited United States v. Marotz, 75 F.
Supp. 3d 1167 (N.D. Cal. 2014). Marotz is a case in which a district court held that the
government did not prove a violation of the Noise Regulation because the regulation was not
posted in a “conspicuous place” and the defendant was not otherwise placed on notice that his
conduct was illegal. 75 F. Supp. 3d at 1171-72. Yet Wasylyshyn cited this case solely for the
proposition—not supported by Marotz—that the court should read a mens rea requirement into
the Noise Regulation. See Brief for Defendant-Appellant at 21-22, United States v. Wasylyshyn,
12
did not raise the government’s failure to comply with the statutory notice requirement
before the District Court, we treat the argument as waived and decline to consider it
here. 8
II. Mens Rea
The Noise Regulation is silent as to the mens rea required to commit the offense.
Wasylyshyn argues that she did not have the requisite mens rea for the violation because
she lacked “knowledge that the action is wrongful.” Appellant’s Br. 30. We disagree.
Neither the Noise Regulation nor section 1315 states the mens rea for
Wasylyshyn’s offense. Nonetheless, the “legal principle that criminal statutes are
presumed to contain a mens rea requirement” compels us to interpret the text of the
Noise Regulation to include at least a minimal mens rea expectation. United States v.
Bronx Reptiles, Inc., 217 F.3d 82, 87 (2d Cir. 2000). In doing so, we apply “a canon of
statutory interpretation to read criminal statutes that are silent or ambiguous as to the
required standard of mens rea[] to demand knowledge of enough facts to distinguish
conduct that is likely culpable from conduct that is entirely innocent.” United States v.
Weintraub, 273 F.3d 139, 147 (2d Cir. 2001). As Weintraub teaches, we presume that
No. 17-cr-234-GTS (N.D.N.Y. Apr. 24, 2018). Even if a mere citation were sufficient to preserve
an argument for appeal, this citation would not be sufficient here: Wasylyshyn’s citation of
Marotz did not support the argument she now tenders.
8We use the term “waived” here rather than “forfeited” because the decision not to raise the
argument earlier reflects a choice, rather than an unwitting fault. But our usage over time has
varied. Compare Katel Ltd. Liab. Co. v. AT & T Corp., 607 F.3d 60, 68 (2d Cir. 2010) (“An argument
raised for the first time on appeal is typically forfeited.”), with Wal-Mart Stores, 396 F.3d at 124
n.29 (“The law in this Circuit is clear that where a party has shifted his position on appeal and
advances arguments available but not pressed below, waiver will bar raising the issue on
appeal.”).
13
implicit scienter requirements “require no more knowledge than necessary to put a
defendant on notice that he is committing a non-innocent act.” Id. In our review here,
we therefore focus on “knowledge of wrongdoing,” which, we have explained,
“requires knowledge only of facts that in a reasonable person would create an
expectation that his conduct was likely subject to strict regulation.” Id. at 147-48.
We read into the Noise Regulation only a general intent requirement—i.e., “that
the defendant possessed knowledge with respect to the actus reus of the crime.” Carter v.
United States, 530 U.S. 255, 268 (2000). Courthouses are formal spaces where solemn
government business takes place; a reasonable person would understand that shouting
at security officers in a courthouse is a “non-innocent act,” likely subject to some form
of regulation. Weintraub, 273 F.3d at 147-48. Hence, a general intent requirement suffices
to distinguish “likely culpable” from “entirely innocent” conduct. Id. at 147. Cf. United
States v. Brice, 926 F.2d 925, 929-30 (9th Cir. 1991) (holding that predecessor regulation to
Noise Regulation outlined only general intent offense). To convict Wasylyshyn of
violating the Noise Regulation, the government had to prove that she had knowledge
she was creating a “loud or unusual noise or a nuisance” on federal property, 41 C.F.R.
§ 102-74.390(a), not that she knew of a specific regulation proscribing her conduct.
In this case, the Magistrate Judge credited the CSOs’ testimony that Wasylyshyn
was shouting at them, that her voice could be heard from 40 to 45 feet away, and that
she kept shouting after being told to calm down. Accordingly, the District Court did not
err in determining that the record contained evidence sufficient for a reasonable trier of
fact to conclude beyond a reasonable doubt that Wasylyshyn knowingly created a loud
noise or a nuisance.
14
III. Vagueness
Finally, Wasylyshyn asserts that the Noise Regulation is unconstitutionally
vague as applied to her conduct in this case. Because Wasylyshyn brings an as-applied
challenge only, we consider whether the Noise Regulation is unconstitutionally vague
in the context of Wasylyshyn’s conduct. Yet “all vagueness challenges—whether facial
or as-applied—require us to answer two separate questions: whether the statute gives
adequate notice, and whether it creates a threat of arbitrary enforcement.” Farrell v.
Burke, 449 F.3d 470, 485 (2d Cir. 2006). Wasylyshyn contends that the Noise Regulation
is unconstitutionally vague under both of these tests: first, Wasylyshyn submits that she
“could not have reasonably understood that her conduct was prohibited by the
regulation”; and second, she asserts that the language of the regulation is “sufficiently
indefinite to allow the CSOs to engage in arbitrary and discriminatory law enforcement,
motivated more by the content of [her] words than the volume of her voice.”
Appellant’s Br. 35. Neither argument persuades.
We review de novo challenges to the constitutionality of a statute. Deegan, 444
F.3d at 141. We begin by addressing Wasylyshyn’s first contention.
The “notice” prong of the vagueness inquiry “asks whether the statute, as
written, provides notice sufficient to alert ordinary people as to what conduct is
prohibited.” Arriaga v. Mukasey, 521 F.3d 219, 224 (2d Cir. 2008). Wasylyshyn asserts
that the use of the terms “loud” and “unusual” to modify the noise-making conduct
barred by the Noise Regulation failed to provide a “sufficiently definite warning . . .
that her conduct was prohibited.” Appellant’s Br. 35-36. In support, Wasylyshyn points
to non-binding state and federal court decisions holding certain municipal anti-noise
ordinances that bar “unusual” and “annoying” noises to be unconstitutionally vague.
15
See id. at 36 (citing Fratiello v. Mancuso, 653 F. Supp. 775 (D.R.I. 1987); Thelen v. State, 526
S.E.2d 60, 62 (Ga. 2000); Nichols v. City of Gulfport, 589 So. 2d 1280, 1282 (Miss. 1991)).
We see little similarity between a municipal noise ordinance of general
applicability and the Noise Regulation. While the ordinances in the cases cited by
Wasylyshyn applied to conduct occurring at any location in an entire municipality, the
Noise Regulation applies only to individuals who are on or who enter federal property
managed by the General Services Administration. 41 C.F.R. § 102-74.365. Moreover, in
Wasylyshyn’s case, the regulation was applied in the highly secured and regulated
space of a federal courthouse. In this particular setting, reasonable people can discern
with relative ease whether a noise is “loud” or “unusual” and whether conduct
constitutes a nuisance. We have little doubt that, inside a federal courthouse, a
reasonable person would discern that “yelling” at a CSO constitutes creating a “loud
noise.”
Wasylyshyn also argues that the Noise Regulation’s prohibition of conduct that
creates a “nuisance” is subjective to the point that “no standard of conduct is specified
at all.” Appellant’s Br. 37. In support, Wasylyshyn relies on the Supreme Court’s
decision in Coates v. City of Cincinnati, in which the Court struck down a municipal
ordinance that “ma[de] it a criminal offense for ‘three or more persons to assemble on
any of the sidewalks and there conduct themselves in a manner annoying to persons
passing by.’” 402 U.S. 611, 611 (1971) (quoting Code of Ordinances of the City of
Cincinnati § 901—L6 (1956)). The Court held that the ordinance was unconstitutionally
vague, explaining that because “[c]onduct that annoys some people does not annoy
others,” the ordinance failed to provide any meaningful “standard of conduct” to which
a person could conform. Id. at 614.
16
 Once again, the enforcement context is dispositive of the Noise Regulation’s
survival under Wasylyshyn’s vagueness attack. As explained above, enforcement of the
Noise Regulation is restricted to a narrow and special environment. The determination
of whether a person creates a “loud or unusual noise or a nuisance” on federal
property, 41 C.F.R. § 102-74.390(a), is considerably less subjective than the
determination of whether conduct on city streets may be “annoying to persons passing
by.” Coates, 402 U.S. at 611. This distinction is particularly stark when analyzed, as we
must do here, in the context of Wasylyshyn’s own offense. Reasonable people can
predict with a high degree of accuracy whether their conduct would create a “loud or
unusual noise or a nuisance” in a federal court building. 41 C.F.R. § 102-74.390(a). It is
much more difficult to foretell whether conduct on a city street would annoy any
member of the public who happened to be passing by.
Wasylyshyn’s second contention—that the purported vagueness of the Noise
Regulation allows arbitrary and discriminatory enforcement—also fails. “Courts
considering as-applied vagueness challenges may determine either (1) that a statute as a
general matter provides sufficiently clear standards to eliminate the risk of arbitrary
enforcement or (2) that, even in the absence of such standards, the conduct at issue falls
within the core of the statute’s prohibition, so that the enforcement before the court was
not the result of the unfettered latitude that law enforcement officers and factfinders
might have in other, hypothetical applications of the statute.” Farrell, 449 F.3d at 494. As
Magistrate Judge Dancks found following the trial, Wasylyshyn began “shouting” at
CSOs Lawrence and Canfield shortly after entering the Binghamton federal courthouse,
continued shouting after the CSOs directed her to calm down, and ultimately took a
step toward Canfield, “getting extremely close to him” during their argument. App’x
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153-54. Wasylyshyn’s conduct cannot reasonably be described as anything other than
conduct that creates a loud noise or nuisance in a courthouse lobby, however justified
she may have felt in making a ruckus. Because we conclude that Wasylyshyn’s conduct
“falls within the core” of the Noise Regulation’s prohibition, her challenge based on
arbitrary enforcement falls short. Farrell, 449 F.3d at 494.
Wasylyshyn’s contention that her “conduct was no different in kind or degree
than that exhibited by the CSOs themselves” has no bearing on this conclusion, or on
the outcome of her appeal in general. Appellant’s Br. 37. Wasylyshyn insists that when
Canfield began shouting at her and approached her in front of the security desk, it was
reasonable for her to conclude that she would not violate the law by shouting or
stepping toward him. Id. at 38. Even assuming this argument had firm support in the
factual record of the encounter, it would have no bearing on the arbitrary enforcement
inquiry discussed above. Because we find that, to sustain a conviction, Wasylyshyn’s
offense required a showing of no more than her general intent to engage in the subject
conduct, any inferences about the legality of her actions that she may mistakenly have
drawn from the CSOs’ conduct are not relevant to the mens rea determination either.
CONCLUSION
Wasylyshyn argues that she was unlawfully arrested and ultimately convicted of
a federal misdemeanor violation without the benefit of statutorily required notice,
without the requisite mens rea, and based on an unconstitutionally vague regulation.
Although we are troubled by Wasylyshyn’s aggressive treatment at the hands of the
CSOs in response to her behavior, Wasylyshyn presents no valid basis to disturb her
conviction. Wasylyshyn forfeited any challenge based on the statutory notice
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requirement when she failed to advance the argument before the District Court. The
record contains evidence sufficient to support that the applicable mens rea
requirement—which we decide is of general intent—was met. The Noise Regulation is
not unconstitutionally vague as applied to Wasylyshyn’s conduct. We therefore
AFFIRM the decision and order of the District Court.
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