United States v. Johnny Lawrence

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 2019
• Docket: 18-10071
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 04 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10071

Plaintiff-Appellee, D.C. No. 3:17-cv-00097-MMD-1

v. MEMORANDUM* JOHNNY M. LAWRENCE,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Argued and Submitted February 11, 2019 San Francisco, California

Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.

On June 28, 2016, Johnny Lawrence received a citation for disorderly

conduct in violation of 41 C.F.R. § 102-74.390 after threatening a Social Security

Administration employee. Magistrate Judge William G. Cobb found Lawrence

guilty after a two day bench trial. As authorized by 18 U.S.C. § 3402, Lawrence

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appealed to the district court, which affirmed the conviction. On appeal before this

court, Lawrence argues that 41 C.F.R. § 102-74.390 is void for vagueness and that

he did not receive adequate notice of the charge against him. We have jurisdiction

under 28 U.S.C. § 1291.

We review de novo the constitutionality of an agency’s regulation, United

States v. Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017), including whether a

regulation is void for vagueness, United States v. Szabo, 760 F.3d 997, 1001 (9th

Cir. 2014). We “review de novo the district court’s interpretations of statutes and

regulations.” Santiago v. Rumsfeld, 425 F.3d 549, 556 n.5 (9th Cir. 2005). We

review de novo the denial of a motion to dismiss a charging instrument. See

United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir. 2012).

Lawrence argues that 41 C.F.R. § 102-74.390 is void for vagueness both

facially and as applied. That regulation, which is entitled “What is the policy

concerning disturbances?,” states:

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; (b) Unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; (c) Otherwise impedes or disrupts the performance of official duties by Government employees; or (d) Prevents the general public from obtaining the administrative services provided on the property in a timely manner.

2 Id. Lawrence’s vagueness challenges presuppose that the regulation criminalizes

“disorderly conduct” as an undefined offense and that subsections (a) through (d)

define only the action of “exhibiting other conduct.” In contrast, the government

argues that subsections (a) through (d) of the regulation also define the term

“disorderly conduct.”

Under the doctrine of constitutional avoidance, we may adopt the

government’s interpretation if Lawrence’s interpretation may render 41 C.F.R.

§ 102-74.390 unconstitutionally vague and we determine the government’s

interpretation to be reasonable. United States v. Rumely, 345 U.S. 41, 45 (1953)

(“[T]he principle of constitutional adjudication [] makes it decisive in the choice of

fair alternatives that one construction may raise serious constitutional questions

avoided by another.”). We hold that Lawrence’s interpretation raises serious

vagueness concerns, and that the government’s interpretation is reasonable.

“When several words are followed by a clause which is applicable as much to the

first and other words as to the last, the natural construction of the language

demands that the clause be read as applicable to all.” Paroline v. United States, 572

U.S. 434, 447 (2014) (citing Porto Rico Railway, Light & Power Co. v. Mor, 253

U.S. 345, 348 (1920)). Here, the disjunctive list of modifiers enumerated in

subsections (a) through (d) are applicable to the three enumerated offenses of

3 “loitering,” “disorderly conduct,” and “other conduct.” Thus, under the doctrine of

constitutional avoidance, we decline to embrace Lawrence’s interpretation of

41 C.F.R. § 102-74.390.

Lawrence argues that he received constitutionally inadequate notice of the

crime charged. Because Lawrence was charged with a petty offense, his citation

notice was a sufficient charging document under Fed. R. Crim. P. 58(b)(1) (“The

trial of a petty offense may [] proceed on a citation or violation notice.”).

However, Lawrence argues that the citation did not contain enough information to

provide him with adequate notice of the charge against him. In United States v.

Rojo, 727 F.2d 1415 (9th Cir. 1983), we held that a citation “fail[ed] to provide

sufficient notice of the elements and facts of the pending charges.” Id. at 1418.

However, the citation in Rojo listed only the statute violated without specifying a

relevant subsection and without including “any other facts, such as date, time or

location.” Id. Here, the citation included the phrase “disorderly conduct” as well as

the date, time, and location of the incident, and Lawrence received a “Statement of

Probable Cause” prior to trial detailing the factual basis of the charge. In the

context of a petty offense, this information suffices for constitutionally adequate

notice.

AFFIRMED. 4