United States v. Patz

584 F.2d 927
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 26, 1978
DocketNos. 77-3177, 77-3583, 77-3491 to 77-3498, 77-3616, 77-3617 and 77-3756
StatusPublished
Cited by11 cases

This text of 584 F.2d 927 (United States v. Patz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Patz, 584 F.2d 927 (9th Cir. 1978).

Opinion

SNEED, Circuit Judge:

Patz and the other twelve appellants challenge their convictions for violating 18 U.S.C. § 1382, which makes it unlawful to enter a military installation for any purpose prohibited by law or lawful regulation.1 They argue that the district court erred in refusing to find that their actions were mandated by the principles of the Nuremberg judgment and in failing to find that their actions were justified under principles of international law and the common lawr defense of justification. Appellants also argue that use of the Washington state trespass statute to supply the “purpose prohibited by law” was improper. Because we agree that the government failed to prove entry for a purpose prohibited by law, we reverse the convictions. Accordingly, we do not have to reach appellants’ other arguments based on principles of international law.

I.

Facts.

This action grew out of a protest against the Bangor Naval Submarine Base in Brem-erton, Washington. Appellants were among a group of people who climbed over a fence and entered the base on July 4, 1977. Their stated purpose was to have a picnic and discuss with base personnel their objections to construction of the Trident [929]*929nuclear submarine at the facility. The entry was peaceful, but the group was stopped by military police and asked not to proceed any farther. Several arrests were then made.

The information filed against the appellants charged that they “did willfully go upon the Naval Submarine Base, Bangor, a Naval installation, for a purpose prohibited by law, that is, trespass in violation of Chapter 9A.52, Revised Code of Washington.” All appellants went to trial on stipulated facts which admitted they had willfully gone on the base and that their act and intent satisfied each element of the crime of trespass contained in Wash.Rev. Code § 9A.52. The stipulations expressly reserved the right to raise issues of law and to present evidence in defense.2 Following a trial at which the defendants presented the theories that their actions were either mandated or justified by principles of international law, they moved for judgment of acquittal, alleging a failure to prove that they had entered for a purpose prohibited by law. The trial court rejected the argument that the Washington trespass statute was inapplicable as well as the arguments based on international law. Judgments of guilty were entered as to all defendants.

II.

Holding.

Appellants continue to argue that it was improper to incorporate Wash.Rev.Code § 9A.52 to establish that their entry upon the Base was for “a purpose prohibited by law.” We agree. State law that makes criminal, as we believe Wash.Rev.Code § 9A.52 does, any entry upon the premises of another without permission would, if incorporated into 18 U.S.C. § 1382, make the latter a general trespass statute. That is, within the limits of Washington, 18 U.S.C. § 1382 would read, in effect, “Whoever, within the jurisdiction of the United States and the State of Washington goes upon any military . . . installation without first obtaining permission to do so shall be fined not more than $500 or imprisoned not more than six months, or both.” We do not think Congress intended this result. Had it intended to make entry without permission a crime, it could have done so. It did not.

We do not hold that “a purpose prohibited by law” required by 18 U.S.C. § 1382 can never be established by reference to state law. We merely hold that to incorporate Wash.Rev.Code § 9A.52 is to alter impermissibly the scope and meaning of 18 U.S.C. § 1382.

III.

Wash.Rev.Code § 9A.52 as the Source of “A Purpose Prohibited By Law.”

The usual situation in which 18 U.S.C. § 1382 is applicable is that in which the entry is with knowledge that the facility has been closed to the public by properly promulgated regulations of the military commander. Such an entry is for a “purpose prohibited by regulation.” See United States v. Floyd, 477 F.2d 217, 222 (10th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 550, 38 L.Ed.2d 336 (1973); Holdridge v. United States, 282 F.2d 302, 309 (8th Cir. 1960). Military commanders have broad authority to promulgate such regulations. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The availability of this authority and the ease with which it can be exercised extinguishes any thought that incorporation of a statute like Wash. Rev.Code § 9A.52 into 18 U.S.C. § 1382 is necessary to protect the security of military installations.

Not only is incorporation without rational support on the grounds of security, it also would make a crime an entry without permission, a type of entry substantially less culpable than one made knowingly in violation of an explicit military regulation. [930]*930That such would be the result of permitting Wash.Rev.Code § 9A.52 to supply the prohibited purpose becomes clear when the scope of Washington’s statute is analyzed.

Wash.Rev.Code § 9A.52.070 & 9A.52.080 provide that a person is guilty of criminal trespass if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or in or upon premises of another.3 It does not appear to require a specific intent to violate the law, but rather applies to all who are in a place where they do not have a right to be. See Ahmed v. Rockefeller, 308 F.Supp. 935 (S.D.N.Y.1970) (interpreting a similar New York trespass statute).

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Bluebook (online)
584 F.2d 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-patz-ca9-1978.