United States v. John O'Neal

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-4394
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UNITED STATES OF AMERICA
v.
JOHN A. O’NEAL
Appellant
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On Appeal from United States District Court
for the Eastern District of Pennsylvania
District Court No.: 04-mj-01060
Magistrate Judge: Honorable Charles B. Smith
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Submitted Under Third Circuit LAR 34.1(a)
June 20, 2011
Before: HARDIMAN and ALDISERT, Circuit Judges
and RESTANI * Judge.
(Filed: June 22, 2011)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
*
The Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
John O’Neal appeals his conviction for unauthorized posting of material on
Veterans Affairs (VA) property. We will reverse.
I
During the presidential election campaign of 2004, O’Neal submitted a request to
the administration of the VA Medical Center (VAMC) asking to hold a sign on VAMC
grounds stating that Senator John Kerry was unfit to serve as the Democratic candidate
for President. The VAMC administration denied O’Neal’s request, reasoning that the
Hatch Act forbade it from sanctioning any activity directed toward the success or failure
of a political candidate.
After the VAMC denied O’Neal’s request to protest on premises, he appeared
across the street from the VAMC facility holding a sign protesting Senator Kerry’s
presidential bid. O’Neal then was approached by VA Police Corporal Richard Sload,
who informed him that he could not protest on VA property. O’Neal refused to move,
however, contending that he was on State property. Corporal Sload then cited O’Neal for
unauthorized posting of material on VA property, in violation of 38 C.F.R. § 1.218(a)(9).
O’Neal contested the citation before a United States Magistrate Judge, arguing that
he was protesting on State grounds and that his prosecution violated the First
Amendment. The Magistrate Judge disagreed, finding that O’Neal protested on VA
property. The District Court affirmed and O’Neal filed this timely appeal.
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II
O’Neal’s violation of 38 C.F.R. § 1.218(a)(9) was premised upon his protest
occurring on “property under the charge and control” of the VA. On appeal, the United
States concedes that it failed to demonstrate that O’Neal’s protest occurred on VA
property. Our independent review of the record confirms that the Government failed to
carry its burden. This finding invalidates the premise upon which O’Neal’s conviction
was based and compels reversal of the judgment of the District Court and the entry of a
judgment of acquittal in favor of O’Neal. See United States v. McKee, 506 F.3d 225, 251
(3d Cir. 2007). An appropriate judgment follows.
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