75 F. Supp. 3d 1167
N.D. Cal.2014Background
- William Marotz was charged with one misdemeanor violation of 41 C.F.R. § 102-74.390 (disorderly conduct) for loud, profane, and allegedly threatening conduct at the San Francisco Federal Building on Sept. 10, 2013.
- Trial was to the court; the government presented a single witness, Court Security Officer (CSO) Walter Wilson, who testified about Marotz’s loud yelling, profane language, and refusal to leave when directed.
- The government’s theory was that Marotz violated § 102-74.390(a) (creating loud or unusual noise or a nuisance) and the general “disorderly conduct” prohibition, not the subpart that requires interference with government employees’ official duties.
- There was no evidence the relevant GSA regulations were posted "in a conspicuous place" at the facility as required by 40 U.S.C. § 1315(c) and 41 C.F.R. § 102-74.365.
- Marotz moved for judgment of acquittal under Fed. R. Crim. P. 29 at the close of the government’s case (and renewed the motion); the district court convicted him, and he appealed.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Marotz) | Held |
|---|---|---|---|
| Whether the gov't had to prove CSO Wilson was a "government employee" | Not necessary because charged under (a) disorderly conduct/noise | Conviction invalid absent proof Wilson was a government employee | Held for Gov't: proof of employment not required because charge based on § 102-74.390(a) |
| Whether the government complied with the posting requirement for federal property rules | Argued actual notice satisfied posting requirement because CSO told Marotz to stop | Argued no actual notice and no conspicuous posting, so arrest unlawful | Held for Marotz: conviction reversed for failure to prove conspicuous posting or adequate actual notice |
| What constitutes adequate "actual notice" in lieu of posting | Pointed to CSO’s verbal direction to stop and surveillance | Argued verbal admonition did not convey illegality or threat of arrest | Held: actual notice requires officers to inform the person his conduct is illegal or that arrest will follow; mere admonition to stop was insufficient |
| Scope of evidence review on Rule 29 reservation | Gov't relied on whole record at trial | Marotz argued review limited to evidence up to the initial Rule 29 motion | Held: appellate review when Rule 29 is reserved is limited to evidence introduced prior to the defendant’s initial Rule 29 motion |
Key Cases Cited
- United States v. Nevils, 598 F.3d 1158 (9th Cir.) (standard for reviewing sufficiency of the evidence in criminal appeal)
- Jackson v. Virginia, 443 U.S. 307 (Supreme Court) (standard for conviction reversed only if no rational trier of fact could find guilt beyond a reasonable doubt)
- United States v. Bichsel, 395 F.3d 1053 (9th Cir.) (actual notice can substitute for required conspicuous posting when the defendant is clearly apprised his conduct is illegal)
- United States v. Baldwin, 745 F.3d 1027 (10th Cir.) (discusses notice issues where defendant failed to raise notice defense at trial)
- United States v. Davis, 339 F.3d 1223 (10th Cir.) (actual notice found where authorities informed defendant his conduct was illegal)
- United States v. Cassiagnol, 420 F.2d 868 (4th Cir.) (warnings of possible arrest can suffice as notice because they impart the illegality of actions)
- United States v. Strakoff, 719 F.2d 1307 (5th Cir.) (purpose of posting requirement is to "impart the prohibitions" of the regulations)