U.S. v. Paternostro.U.S. v. Paternostro.
Charles J. Paternostro appeals from his second conviction for violating Corps of Engineers regulations by failing to abide by the terms of his Shoreline Use permit. Finding no error, we affirm.
I.
Paternostro‘s family bought property on Lake Texoma in 1965 and built a boathouse on the property. The boathouse was built pursuant to a permit issued in 1968 by the Corps of Engineers. In 1988, Paternostro replaced an old diving platform next to the boathouse with a three-tiered metal structure atop a platform. The structure, which Paternostro refers to as a “wet and wild” facility
On November 2 and again on November 16, 1989, the Army Corps of Engineers issued Paternostro Notices of Violation for failing to obtain proper approval for building the water slide platform. Paternostro was charged under
If an inspection . . . reveals conditions which . . . deviate from the approved plans, such conditions will be corrected immediately by the owner upon receipt of notification. No deviation or change from approved plans will be permitted without prior written approval of the Resource Manager.
After a bench trial, the district court convicted Paternostro for failing to receive approval for constructing the platform in violation of
After his conviction, Paternostro applied for approval of the water slide platform by submitting plans and a letter from an engineer certifying that the platform was safe. The Corps of Engineers rejected his application. Paternostro did not appeal the rejection of his application. The water slide platform remained in place beside the boathouse. Two weeks after the first conviction became final, the Corps of Engineers issued another Notice of
1. Double Jeopardy
The Double Jeopardy Clause protects against (1) a second prosecution after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Paternostro‘s principal argument is that he is being punished multiple times for the single act of building these water slides in violation of his permit. We disagree. His crime as defined by the applicable regulations is the continuing offense of failure to abide by the terms of his Shoreline Use permit by maintaining the non-conforming water slide platform.
The Double Jeopardy Clause‘s protection against multiple punishments is “limited to assuring that the court does not exceed its legislative authorization.” Brown v. Ohio, 432 U.S. 161, 165 (1977). Our inquiry then is whether the legislature has authorized the multiple punishments. The government relies upon the fact that the governing regulations provide that “[a]ny violation of any section of this part 327 shall constitute a separate violation for each calendar day in which it occurs.”
We agree that if Congress explicitly provided for these multiple punishments this would be an easy case under Brown and its progeny. However, this case is different from Brown in one important way which makes it more difficult to resolve: the explicit decision to create separate offenses on a daily basis was made by a regulatory agency, not by Congress. We have found no authority specifically answering the question whether regulatory intent should be treated as the equivalent of legislative intent for double jeopardy purposes. We note, however, that in another context, the Supreme Court has held that congressional intent may be found in federal regulations promulgated by an administrator in the exercise of delegated congressional authority. Fidelity Federal Savings & Loan Ass‘n v. De La Cuesta, 102 S.Ct 3014, 3022-23 (1982) (court looks to regulations in determining whether Congress intended to pre-empt state law).
In determining whether the legislative intent was to provide for cumulative punishments, we believe that it is consistent with the purposes of the Double Jeopardy Clause to attribute to Congress the intent embodied in these regulations. The double jeopardy guarantee “serves principally as a restraint on courts and prosecutors.” Brown v. Ohio, 432 U.S. at 165. When the Corps of Engineers enacts regulations it is not acting as either court or prosecutor; its role is that of a quasi-legislative rulemaker. We believe that the “legislative intent” referred to in the Supreme Court‘s double jeopardy analysis in Brown and Grady includes rulemaking pursuant to a valid grant of congressional authority. Paternostro has not asserted that the Corps of Engineers acted outside its authority as delegated by Congress in dividing this continuing offense into daily offenses. See
Paternostro also asserts that his prosecution violates the Double Jeopardy Clause because he has been subjected to the harassment of multiple prosecutions. United States v. Houltin, 566 F.2d 1027, 1033 (5th Cir. 1978) (Double Jeopardy Clause protects
Where the defendant continues engaging in an offense after an original conviction and sentence become final, he cannot rely upon the Double Jeopardy Clause to prevent a later prosecution and conviction. Unlike the defendant in Grady v. Corbin, 110 S.Ct. 2084 (1990), Paternostro is not being prosecuted for acts committed in the past but for his conduct continuing after the first prosecution. As the Supreme Court has said “one who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting.” Garrett v. United States, 105 S.Ct. 2407, 2417 (1985); United States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir. 1990).
In this case, Paternostro has not stopped dancing. His prosecution for his continuing refusal to abide by the terms of his Shoreline Use permit is not barred by double jeopardy because the government could not have brought this case in the earlier prosecution. See Diaz v. United States, 223 U.S. 442 (1912) (double jeopardy does not bar prosecution for murder after conviction of assault where victim did not die until after first trial). Paternostro was prosecuted once for his violations in November 1989. The Corps did not take any further prosecutorial
2. The Petite policy
Paternostro contends that the government failed to follow its dual prosecution policy, known as the Petite policy, by prosecuting him for a second time. Petite v. United States, 361 U.S. 531 (1960). First, we note that the Petite policy applies to federal prosecutions following state prosecutions for the same offense, not multiple prosecutions for a continuing federal offense. In any event, “the Petite policy is an internal rule of the Justice Department; criminal defendants may not invoke it to bar prosecution by the federal government.” United States v. Harrison, 918 F.2d 469, 475 (5th Cir. 1990). Paternostro cannot rely upon this policy to assert an error in his prosecution.
3. Exhaustion of Administrative Remedies
Paternostro asserts that the government should not have prosecuted him because the Corps had adequate administrative remedies against him for violating his Lakeshore Use Permit. Paternostro confuses the scope and purposes of the exhaustion of administrative remedies doctrine. This doctrine is designed to
4. Right to Counsel
Paternostro asserts that the district court violated his Sixth Amendment right to counsel by rejecting his request for a continuance in order to allow him to obtain legal counsel. The Sixth Amendment requires only that a defendant be given a fair or reasonable opportunity to obtain particular counsel; it does not guarantee an absolute right to the counsel of one‘s choice. United States v. Mitchell, 777 F.2d 248 (5th Cir. 1985).
Paternostro is an attorney and represented himself at his first trial. He was planning to represent himself at the second trial as well, but apparently changed his mind when the government filed its “Brief in Support of Sentencing Alternatives” asserting its view of the possible sentences available to the district court. Paternostro asserts that the government‘s decision to argue for a $5,000 fine and long-term probation made it necessary for him to retain an attorney with experience in “the federal legal arena.”
Assuming that Paternostro‘s need for an attorney increased as he argues, he has failed to show that the district court‘s denial
5. Right to a jury trial
Paternostro next asserts that the district court‘s denial of his request for a jury trial violated his Sixth Amendment rights. The Sixth Amendment right to a jury trial is triggered only by prosecution for “serious” crimes as opposed to “petty” crimes. Blanton v. North Las Vegas, 109 S.Ct. 1289 (1989). The most relevant criterion for determining the seriousness of a crime is the maximum authorized penalty. Id. Paternostro concedes that the maximum sentence for violation of
Paternostro argues that because under the government‘s theory he committed a violation for every day the water slide structure remained intact, his potential punishment was many times the six month maximum. In analyzing the seriousness of the offense under Blanton, we look only at the penalty to which the defendant is subject to for the crimes actually charged in that proceeding. Blanton, 109 S.Ct. at 1294 (refusing to consider fact that DUI offender would face more serious penalties for repeat offenses). Regardless of what sentences Paternostro was exposed to in his first trial and what he might be subject to in the future, the offense he was being tried for had a maximum penalty of six months and therefore he was not entitled to a jury trial.
6. Legal defenses and sufficiency of the evidence
The judgment of the district court is AFFIRMED.