SKOPIL, Circuit Judge.
OVERVIEW
Appellants appeal their misdemeanor convictions on charges of being present on federal property after normal work hours in violation of 41 C.F.R. §§ 101-20.302 and 101-20.315 (1981).
Appellants contend
that (1) the- information was vague and indefinite; (2) they were selectively prosecuted; (3) there was insufficient evidence to establish every element of the crime beyond a reasonable doubt; and (4) the regulation is unconstitutional. We reject these arguments. Appellant Michel contends that he was improperly arraigned and tried in his absence. We agree. Accordingly, the convictions are affirmed with the exception of Michel.
FACTS AND PROCEEDINGS BELOW
Appellants are members of an organization whose goal was the passage of the California Marijuana Initiative. Appellant Herer is founder and leader of the group.
On November 6, 1981 Herer and associates set up a table on the corner of federal building property in west Los Angeles. The group sought to collect petition signatures in support of the initiative, distribute information and register voters. The location was selected because of pedestrian traffic and proximity to a busy entertainment center, commercial area and the U.C. L.A. campus. The group announced its intention to occupy the area continuously for seventeen days. Along with the table appellants brought display signs, sleeping bags, blankets and various boxes.
On the first night of the group’s activities, a Federal Protective Service officer informed Herer that the property was closed. Herer was asked to leave the property. When he refused, Herer was cited for being on government property after normal working hours.
On November 10, 1981 at approximately 6:00 p.m. another Federal Protective Service officer approached the table and requested that all depart the area. The request was repeated an hour later. Most people complied. Those remaining at the table were cited.
Arraignment was scheduled immediately before trial. Defendant Michel was not present. The court questioned Michel’s attorney on his client’s whereabouts. When no one could account for Michel’s absence, the court suggested that it was appropriate to proceed under Fed.R.Crim.P. 43. Michel’s counsel did not object.
The trial proceeded on the limited factual issue of the meaning of the phrase “normal working hours”. The government called witnesses to establish the complex’s normal working hours. No witnesses were called by the defense.
ISSUES
1. Was the charging information vague and indefinite?
2. Were appellants selectively prosecuted?
3. Is the regulation unconstitutional?
4. Was there sufficient evidence to establish every element of the crime beyond a reasonable doubt?
5. As to appellant Michel, was there constitutionally inadequate assistance of counsel and did the district court err in proceeding through arraignment and trial in Michel’s absence?
DISCUSSION
1.
Insufficient Information
Appellants argue that the charging information was insufficient because it (1) failed to state one element of the criminal offense and (2) lacked factual particularity and was overly vague and indefinite. Our review is
de novo. United States v. Buckley,
689 F.2d 893, 897 (9th Cir.1982);
United States v. Bohonus,
628 F.2d 1167, 1173 (9th Cir.),
cert. denied,
447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980).
Appellants argue that while they are charged with “presence” at the federal property, the regulation forbids only “entry upon”.
Appellants reason that once a person has legally “entered” the property, remaining after hours is not impermissible under the terms of the regulation. The district court rejected this distinction. We agree.
The Supreme Court in
Russell v. United States,
369 U.S. 749, 763-64,82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962), held that a legally sufficient indictment must state the elements of an offense charged with sufficient clarity to apprise a defendant of what to defend against. An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied.
United States v. Anderson,
532 F.2d 1218, 1222 (9th Cir.1976).
An indictment may be insufficient if it fails to allege an essential element of the offense.
United States v. Keith,
605 F.2d 462, 464 (9th Cir.1979) (insufficient even though it tracked the language of the statute). Nonetheless, “[cjonvictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.”
Smith v. United States,
360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959). Appellants’ argument that a person may legally remain on federal property after hours as long as that person arrives beforehand is without merit.
Appellants contend that the information was fatally flawed because it lacked specificity and was vague and indefinite. The information failed to specify the exact times of the trespass or what times are included in the phrase “normal working hours”.
Fed.R.Crim.P. 7 mandates that an indictment be a “plain, concise and definitive written statement of the essential facts constituting the offense charged.” The instrument must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the elements of the specific offense.
Hamling v. United States,
418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974);
United States v. Cecil,
608 F.2d 1294, 1296 (9th Cir.1979). In construing the language of the indictment courts must be guided by common sense and practicality.
Anderson,
532 F.2d at 1222.
The information charged appellants with being present on federal property after normal working hours. Times were not specified in the information. Nor did the information specify the “normal working hours” of the federal facility. Nonetheless, such information is not necessary if the appellants were sufficiently informed of the charges against them.
Eg., United States
v.
Inryco, Inc.,
642 F.2d 290, 294 (9th Cir. 1981) (interpretation of the indictment cannot ignore the plain language and inferences drawn therefrom). There is no indication that appellants were not fully aware of the nature of the charges against them. Nothing suggests that “normal working hours” means anything so unusual that appellants would have to guess its meaning.
2.
Selective Prosecution
Herer argues that the government impermissibly cited him because he was a vocal leader of the organization. The remaining appellants argue that they were impermissibly selected because of their petitioning activities, while other trespassers were not cited. The district court’s denial of the motion to dismiss for selective prosecution is reviewed under the clearly erroneous standard.
United States v. Wilson,
639 F.2d 500, 503 (9th Cir.1981).
The promise of equal protection of the laws necessarily extends to their application.
Yick Wo v. Hopkins,
118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886);
Kuzinich v. County of Santa Clara,
689 F.2d 1345, 1349 (9th Cir.1982). A defendant cannot stand convicted if there is unconstitutional discrimination in the administration of the penal statute.
United States v. Steele,
461 F.2d 1148, 1151 (9th Cir.1972). Mere selectivity in prosecution, however, creates no constitutional problem.
E. g., Oyler v. Boles,
368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). The impermissible selection must be shown to be based on an unjustifiable standard such as the exercise of the first amendment right of free speech.
United States v. Choate,
619 F. 2d 21, 23 (9th Cir.1980);
United States v. Scott,
521 F.2d 1188, 1195 (9th Cir.1975),
cert. denied,
424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976).
The burden of proof falls on the defendants.
Choate,
619 F.2d at 23. They must show that (1) others were not prosecuted for the same conduct, and (2) the decision to prosecute was based upon impermissible grounds.
Wilson,
639 F.2d at 503.
Appellants’ burden requires them to overcome the presumption that the prosecution was undertaken in good faith and in a nondiscriminatory fashion.
United States v. Falk,
479 F.2d 616, 620 (7th Cir.1963)
(en bane).
The government advanced several reasons for the prosecution. While admitting that others were trespassing, the government distinguishes those individuals who were simply passing through the grounds and not camping there. Further, the government argued below that the group may have been responsible for human waste found on the grounds. Concern was expressed over noise and security on the grounds.
The district court found that appellants failed to meet their burden. Given the several plausible grounds for prosecution advanced by the government, we cannot say that the district court’s findings are clearly erroneous.
3.
Constitutionality
Appellants argue that (1) the regulation is unconstitutionally vague on its face; (2) the regulation, even if facially valid, is unconstitutional as applied to them; and (3) the imposition of a permit requirement is an impermissible prior restraint. The district court rejected each argument. Our review is
de novo. Taxpayers for Vincent v. Members of City Council,
682 F.2d 847, 849 (9th Cir.1982);
Rosen v. Port of Portland,
641 F.2d 1243 (9th Cir.1981).
a. Vagueness
The standard for vagueness is whether “citizens who desire to obey the [regulation] will have no difficulty in understanding it....”
Colten v. Kentucky,
407 U.S. 104,110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972);
Kannisto v. City and County of San Francisco,
541 F.2d 841, 845 (9th Cir.1976). The language must sufficiently convey the proscribed conduct, when measured by common understanding and practices.
Jordan v. De George,
341 U.S. 223, 231, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951) (non-criminal statute).
Appellants contend that the regulation does not contain clearly defined prohibitions or specify a standard of conduct. For example, appellants argue that the phrase “entry upon property” does not give explicit warning that an individual’s presence on the grassy area in the corner of the federal complex falls within the scope of
the regulation.
Appellants also attack the imprecise meaning of the phrase “normal working hours”.
In
Cox v. Louisiana,
379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the court was called upon to decide,
inter alia,
whether a statute that prohibited demonstrations “near” courthouses was unconstitutionally vague. While the Court found that there was some lack of specificity in the statute, that alone did not render the statute void.
Id.
at 568, 85 S.Ct. at 482. Similarly in
Grayned v. City of Rockford,
408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Court reviewed an anti-noise ordinance. The Court held that the ordinance was not vague for it prohibited a specific activity (noise making) at fixed times (during school hours) and at a sufficiently fixed location (adjacent to a school). While the Court did express concern over the imprecision of the phrase “tends to disturb,” the Court concluded that even that language gave fair notice to those who might violate it.
Id.
at 112, 92 S.Ct. at 2301.
See also Cameron v. Johnson,
390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) (ordinance prohibiting picketing “in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from” any courthouse upheld against vagueness challenge). Measured against the
Cox
and
Grayned
standards, the regulation here is not unconstitutionally vague.
b. Overbreadth
A clear and concise regulation may be overbroad if it prohibits constitutionally protected activity.
Grayned,
408 U.S. at 114, 92 S.Ct. at 2302. Distribution of literature is a form of protected communication.
Lovell v. City of Griffin,
303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938);
Rosen v. City of Portland,
641 F.2d 1243,1245 (9th Cir.1981). Similarly, gathering signatures on petitions is a protected activity.
E.g., Glines v. Wade,
586 F.2d 675 (9th Cir.1978) (regulation restricting signature gathering within military base was unconstitutionally overbroad).
Nevertheless, the first amendment does not prohibit all regulation of expressive activity. Restrictions on time, place and manner of exercise may be proper.
Heffron v. International Society for Krishna Consciousness, Inc.,
452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981);
Tacynec v. City of Philadelphia,
687 F.2d 793, 797 (3d Cir.1982). Such restrictions must bear a “substantial relation” to a “weighty governmental interest”. They must be no greater than necessary for the protection of the governmental interest.
Taxpayers for Vincent v. Member of City Council,
682 F.2d 847, 849 (9th Cir.1982) citing
Rosen,
641 F.2d at 1246.
The nature of a place and the pattern of its normal activities dictate the kind of regulations that are reasonable.
Grayned,
408 U.S. at 116, 92 S.Ct. at 2303. A vigil that does not unduly interfere with a public library,
Brown v. Louisiana,
383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), may be unlawful when conducted on the jailhouse door.
Adderley v. Florida,
385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”
Grayned,
408 U.S. at 116, 92 S.Ct. at 2303;
Knights'of KKK v. East Baton Rouge,
578 F.2d 1122, 1124 (5th Cir. 1978).
The government contends that the regulation validly restricts the time, place, and manner of use of the property. It offered several justifications for enforcement of the regulation. First, restriction of
unauthorized individuals is necessary for security. Second, the adjacent community is entitled to quiet enjoyment of its environs. Third, trespassers have no access to restroom facilities.
Regulations of time, place and manner of protected speech are upheld when necessary to further significant governmental interest.
Eg., Ellwest Stereo Theatres, Inv. v. Wenner,
681 F.2d 1243 (9th Cir.1982) (upholding ordinance regulating “video centers”);
Carlson v. Schlesinger,
511 F.2d 1327 (D.C.Cir.1975) (upholding prohibition on petitioning on military bases in Yiet Nam);
Callison v. United States,
413 F.2d 133 (9th Cir.1969) (upholding arrest for distributing petitions at military induction center). We agree with the district court that the asserted governmental interests are sufficient to support the restrictions created by the regulation.
c. Prior Restraint
Appellants argue that the imposition of a permit requirement is an unconstitutional prior restraint. Any law which imposes a prior restraint on the exercise of first amendment rights comes to court “with a heavy presumption against its constitutional validity.”
Rosen,
641 F.2d at 1246-47 (citing
Vance v. Universal Amusement Co., Inc.,
445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413 (1980)). The presumption is great because the prior restraint of protected activity is “the most serious and least tolerable infringement on First Amendment rights.”
Nebraska Press Ass’n v. Stuart,
427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1975).
Even where it has been generally recognized that speech may be regulated, permit regulations are often condemned because they improperly vest in an administrative official discretion to grant or withhold a permit based upon broad criteria unrelated to proper regulation.
Shuttlesworth v. Birmingham,
394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162;
Kunz v. New York,
340 U.S. 290, 293-94, 71 S.Ct. 312, 314-15, 95 L.Ed. 280 (1951). Thus, advance registration as a condition of peaceful pamphleteering at a public airport is unconstitutional.
Rosen,
641 F.2d at 1243. Similarly, the delegation of authority to a single person to determine who may use hospital grounds for free speech purposes violates the Constitution.
Dallas Ass’n Etc. v. Dallas County Hospital District,
670 F.2d 629 (5th Cir. 1982). Even a regulation allowing a park director to issue overnight camping permits was unconstitutional since the regulation contained no definite standards to guide the licensing authority.
United States v. Abney,
534 F.2d 984 (D.C.Cir.1976).
The government argues here that the licensing requirement is narrow, objective and contains definite standards. We agree. 41 C.F.R. § 101-20.703 (1981)
specifies
grounds for the disapproval of an application for a permit. The regulation is not deficient for inadequate safeguards or for allowing unfettered discretion to vest in one official. The permit regulations are drawn with adequate specificity.
4.
Insufficiency of the Evidence
Appellants argue that the government failed to prove that they were present on the property after “normal working hours”. We examine the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found this essential element of the crime beyond a reasonable doubt.
Jackson v. Virginia,
443 U.S. 307, 318-19, 99 5. Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979);
United States v. DeRosa,
670 F.2d 889, 892-93 (9th Cir.1982).
The trial focused exclusively on the meaning of the phrase “normal working hours”. The government, through its witnesses, a field office manager and an officer of the Federal Protective Service, established the normal working hours. Reviewing the evidence in a light most favorable to the government, this element was sufficiently proved.
Herer argues that the government failed to introduce evidence of the time of his trespass. He stipulated below, however, that he was present on the property at 10:00 p.m.
5.
Appellant Michel
Michel argues that he was (1) deprived of competent counsel and (2) improperly found to have waived his right to be present at arraignment and trial.
a. Incompetence of Counsel
The sixth amendment requires persons accused of crimes to be represented by reasonably competent and effective counsel.
McMann v. Richardson,
397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970);
United States v. Gibson,
690 F.2d 697, 703-04 (9th Cir.1982). We review the record to determine whether defense counsel’s alleged errors or omissions reflected a failure to exercise the skill, judgment or diligence of a reasonably competent criminal defense attorney.
United States v. Sanford,
673 F.2d 1070, 1073 (9th Cir.1982);
Cooper v. Fitzharris,
586 F.2d 1325, 1330 (9th Cir.1978)
(en banc), cert. denied,
440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Mere error is not enough. There must be a serious dereliction,
Cooper,
586 F.2d at 1330, and the defendant bears the burden of proving that he was prejudiced by it.
United States v. Winston,
613 F.2d 221, 223 (9th Cir.1980). Thus our analysis is two-pronged: (1) whether the claim of ineffective assistance is founded upon a specific act or omission of defense counsel at trial and (2) whether the accused can establish that counsel’s error prejudiced the defense.
Ewing v. Williams,
596 F.2d 391, 394 (9th Cir.1979). ,
Michel argues that defense counsel was ineffective because he failed to object to the district court’s decision to proceed with trial in Michel’s absence. While this may be a significant omission, Michel failed to show how his defense was prejudiced. The short trial addressed only one issue— the normal working hours at the federal building complex. Only two witnesses appeared for the government, and none appeared for the defense. We reject Michel’s claim since he failed to meet his burden of proof.
See Gibson,
690 F.2d at 704;
Hall v. Sumner,
682 F.2d 786, 789 (9th Cir.1982).
b. Waiver of Presence
A defendant is generally required to be present during all stages of the criminal process. Fed.R.Crim.P. 43.
The pro-
tection is broader than the sixth amendment right to confrontation and the fifth amendment due process rights.
United States v. Alessandrello,
637 F.2d 131, 138 (3d Cir.1980). Nevertheless, due process does not assure the right of presence if such presence “would be useless, or the benefit but a shadow”.
Polizzi v. United States,
550 F.2d 1133, 1138 (9th Cir.1976),
quoting Snyder v. Massachusetts,
54 S.Ct. 330, 333, 78 L.Ed. 674, 291 U.S. 97, 107 (1932).
The decision to arraign Michel in his absence cannot be squared with the language of Rule 43. The rule makes no provision for arraignment in the defendant’s absence except with the defendant’s written consent. No such consent was given. Further, the error is not harmless. “[N]o defendant can be tried until after he personally has entered a plea to the charge.”
United States v. Tortora,
464 F.2d 1202, 1209 (2d Cir.1972). Because waiver of the right to attend trial must be voluntary, a judge must find that the defendant had adequate notice of the charges and proceedings against him. “But not until the defendant answers the indictment by pleading in open court ... can a court know with certainty that the defendant has been apprised of the proceedings . .. against him.”
Id.
at 1209. Accordingly, Michel’s conviction is vacated.
CONCLUSION
Appellants challenge the sufficiency of the charging information. The information is not insufficient nor flawed by lack of specificity or vagueness.
Appellants contend that they were impermissibly selected for prosecution. The burden of proving such a defense is on the defendants. The district court’s finding that the burden was not met is not clearly erroneous.
The regulation is not vague and therefore not facially invalid. Proffered government interests are sufficient to uphold the regulation. The regulation is not void as a prior restraint of free speech because the permit process is specific and does not vest unfettered discretion in the decision maker.
There was sufficient evidence for a reasonable trier of fact to conclude that each element of the crime was proved beyond a reasonable doubt.
Finally, as to appellant Michel, the claim of incompetent counsel must fail. Arraignment
absente reo,
however, was improper.
AFFIRMED IN PART AND REVERSED IN PART.