UNITED STATES of America, Plaintiff-Appellee, v. Charles A. BALDWIN, Defendant-Appellant.
No. 13-1198.
United States Court of Appeals, Tenth Circuit.
Feb. 18, 2014.
1027
Kontrabecki argues for the first time on appeal that the integrity of judicial proceedings is a compelling reason to seal the record because the parties would not have entered into the settlement agreement had they known that the record of the district court proceedings would not be sealed. However, the express terms of the settlement agreement, which are well known to the parties, belie this assertion.
Kontrabecki has not pointed to any compelling reasons that overcome the strong presumption in favor of maintaining public access to court records. The district court did not abuse its discretion in denying the request to seal.
AFFIRMED.
Charles A. Baldwin, pro se.
J. Bishop Grewell, Assistant United States Attorney, and John F. Walsh, United States Attorney, District of Colorado, Denver, CO, for Plaintiff-Appellee.
Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.
GORSUCH, Circuit Judge.
Deep in the Code of Federal Regulations, in the part titled “Public Contracts and Property Management,” lie two small provisions that would be easy to overlook were it not for disputes like this one. The first says “[p]ersons in and on [Federal] property must at all times comply... with the lawful direction of Federal police officers and other authorized individuals.”
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The trouble began when Mr. Baldwin drove out of the Denver Federal Center at his workday‘s end. While still on the Federal Center grounds, Commander Kevin Lundy of the Federal Protective Service stopped Mr. Baldwin‘s truck. Commander Lundy did this because he‘d seen Mr. Baldwin speeding and swerving to avoid a bicyclist, and he wanted to issue a warning. But before Commander Lundy could finish the warning Mr. Baldwin drove off, ignoring shouted commands to stop. In response, Commander Lundy took to his police car and followed Mr. Baldwin off the Federal Center‘s grounds, stopped him again, and asked for his driver‘s license, registration, and proof of insurance. According to Commander Lundy, Mr. Baldwin refused to comply and had to be forced from his vehicle and restrained with handcuffs. At the end of it all, Commander Lundy issued various tickets and allowed Mr. Baldwin to go on his way.
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In challenging his convictions under the federal regulations, Mr. Baldwin begins by disputing the idea the regulations purport to articulate crimes at all. Looking at the regulations, he points out that their section headings pose these questions: “What is the policy concerning conformity with official signs and directions?” and “What is the policy concerning disturbances?”
The regulations certainly do delineate policy, but that isn‘t all they do. Another section of the same regulatory “subpart” expressly provides that the very sections Mr. Baldwin violated can be enforced through criminal sanctions: “A person found guilty of violating any rule or regulation in this subpart ... shall be imprisoned for not more than 30 days,” subject to fines as prescribed by “title 18 of the United States Code,” or both.
By what authority is the Executive permitted to criminalize conduct and impose jail terms in administrative regulations buried deep within the Code of Federal Regulations? Normally we don‘t think of regulatory agencies as entitled to announce new crimes by fiat. But with some scratching around we see that Congress did expressly authorize first the General Services Administration and then the Department of Homeland Security to establish regulations “for the protection and administration of property owned or occupied by the Federal Government” and to prescribe “reasonable” penalties of “not more than 30 days” in prison and fines in the amounts allowed by title 18. See
Still there‘s no question the arrangement bears its curiosities. Can Congress so freely delegate the core legislative business of writing criminal offenses to unelected property managers at GSA? Might this arrangement, though arrived at with Congress‘s assent, still blur the line between the Legislative and Executive functions assigned to separate departments by our Constitution? Cf. Touby v. United States, 500 U.S. 160, 165-66, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) (admitting “[o]ur cases are not entirely clear as to whether more specific guidance is in fact required” when Congress is delegating authority “to promulgate regulations that contemplate criminal sanctions“);
In the end, these curiosities turn out to be no more than side shows in our case. Mr. Baldwin doesn‘t argue that the arrangement before us represents a constitutionally excessive delegation of legislative authority. He doesn‘t argue that the regulations or the penalties they impose are themselves “unreasonable” or otherwise invalid. So it is that in this case all these questions float by the board, left for others to encounter and resolve in the future. In this appeal, Mr. Baldwin begins by challenging only whether the regulations themselves purport to impose criminal penalties. As we‘ve seen, at least that much they clearly do.
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Even if the regulations before us do purport to impose criminal penalties, Mr. Baldwin does suggest that their terms are so vague they must violate the Constitution‘s due process guarantee. In one sense, Mr. Baldwin touches on an important point here too. Criminal offenses must be defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” United States v. Orona, 724 F.3d 1297, 1310 (10th Cir.2013). And some of the questions he raises are not without their worries. If, on the one hand, it‘s a crime for anyone on federal property to “impede or disrupt” a government employee‘s “performance of official duties,” what public servant among us couldn‘t be brought up on charges on a prosecutorial whim? Pressing a prosaic conversation with a co-worker about ski conditions in the high country might seem enough to make criminals of us all. If, on the other hand, the regulations don‘t proscribe so much, then what exactly do they proscribe?
But whatever the answers to these questions, at the end of the day Mr. Baldwin doesn‘t help his own cause by asking them. He doesn‘t because, under governing precedent, a defendant won‘t be heard to complain about the vagueness of a criminal law as it applies to other defendants in other cases. He may complain only about the vagueness of the law as it applies in his own case. The Supreme Court has told us (repeatedly) that the relevant question in void for vagueness challenges is merely whether the defendant before us “had fair notice from the language” of the law “that the particular conduct which he engaged in was punishable.” Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974);
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Retreating, Mr. Baldwin says the criminal enforcement of the regulations before us violates the Constitution‘s due process guarantee in a separate and distinct way because the regulations themselves lack any mens rea requirement. Neither
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child‘s familiar exculpatory “But I didn‘t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.
Morissette v. United States, 342 U.S. 246, 250-51, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (footnotes omitted); see also Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States v. U.S. Gypsum Co., 438 U.S. 422, 436-38, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978).
The difficulty is, a law‘s silence about mens rea doesn‘t necessarily mean violating it isn‘t a crime, as Mr. Baldwin would have us conclude. In fact, a law‘s silence on the question of mens rea doesn‘t even mean the law lacks a mens rea requirement. To the contrary, as Justice Jackson proceeded to explain in Morissette, the courts of the United States have long said they will read criminal statutes as implicitly requiring proof of mens rea even when they don‘t require such proof explicitly. See Morissette, 342 U.S. at 263; see also Staples, 511 U.S. at 605-06; U.S. Gypsum, 438 U.S. at 437. We have defended this practice on at least two grounds—first, the presumption that Congress generally wishes us to interpret its laws in light of the long common law tradition linking criminal punishment and mens rea, a presumption Congress is well on notice of; second, the general injunction that ambiguity about the scope of criminal statutes should be resolved in favor of lenity. See, e.g., U.S. Gypsum, 438 U.S. at 437. For these reasons, the trial court in this case expressly required the government to prove that Mr. Baldwin knowingly failed to comply with the lawful direction of a federal police officer and knowingly impeded and disrupted the performance of a government employee‘s official duties. Neither does Mr. Baldwin
Instead and shifting gears once again, Mr. Baldwin claims there wasn‘t enough evidence presented at trial to support the court‘s finding that he acted with the knowledge he was charged with. Mr. Baldwin insists and insisted at trial he didn‘t hear Commander Lundy‘s orders to stop because he suffers from hearing trouble. The trial court considered that testimony, however, and found otherwise. In support of its finding, it pointed out that Commander Lundy said he was shouting. It noted that another federal officer, farther away from Commander Lundy than Mr. Baldwin, testified he could clearly hear Commander Lundy‘s shouts. The court emphasized, as well, that video footage seemed to show Mr. Baldwin responding to the shout by speeding away, as if in an attempt to flee. In light of this evidence, the court rejected Mr. Baldwin‘s account and found as a matter of fact that he did hear Commander Lundy‘s call to stop. As a court of appeals, we may overturn a trial court‘s factual finding only if it is clearly wrong—“the error must be pellucid to any objective observer.” Watson v. United States, 485 F.3d 1100, 1108 (10th Cir.2007). Given the conflicting accounts before us, and the considerable evidence weighing in favor of the court‘s factual finding, we are in no position to say the trial court here fell afoul that low threshold.
Likewise, we see no way to accept Mr. Baldwin‘s contention that, even if he did hear and ignore Commander Lundy‘s command, there was insufficient evidence presented at trial that any regulatory violation took place on federal property—as opposed to later, after he left the Federal Center and Commander Lundy stopped him a second time. Mr. Baldwin admits his initial stop on the Federal Center grounds was lawful. The evidence shows that Mr. Baldwin drove away while Commander Lundy was in the middle of issuing his warning and that Mr. Baldwin disregarded the order to halt. To finish issuing the warning, Commander Lundy had to leave his post and follow Mr. Baldwin away from the Federal Center. From all this, and even without considering the more contentious interaction between Mr. Baldwin and Commander Lundy off federal grounds, the evidence surrounding the initial stop easily supports the conclusion that Mr. Baldwin knew his conduct amounted to a disregard of a police officer‘s lawful order and disrupted or impeded the officer‘s duty on federal grounds.
Mr. Baldwin replies that, in truth, Commander Lundy wasn‘t a “police officer” or attempting to perform his “official duties” within the meaning of federal law. But he points us to no federal statute or regulation suggesting otherwise, only the facts in this case. And viewing those facts in the light most favorable to the government, as we must given that it prevailed at trial, we cannot agree with Mr. Baldwin here either. Commander Lundy‘s testimony and his “POLICE” uniform suggest that much, and his position description tends to confirm the point: among his official duties are preserving the peace, preventing crime, and arresting offenders.
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Neither can Mr. Baldwin himself get far by faulting the government for failing to prove that it had posted physical notice of the two federal regulations in question at the Denver Federal Center. He is surely right that the statute autho-
Of course, we may still take notice of a forfeited error and reverse if it qualifies as “plain error.” See id.;
It‘s the second step where we begin to stumble in this case. Neither this court nor the Supreme Court has decided whether posting the notice required by
To be sure, some circuits have treated proof of posted (or actual) notice as a required element of regulatory crimes like the ones found in this case. See, e.g., United States v. Strakoff, 719 F.2d 1307, 1309 (5th Cir.1983) (interpreting
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Finally, Mr. Baldwin challenges the sufficiency of the evidence supporting his third conviction, under Colorado law and the Assimilative Crimes Act. Here, Mr. Baldwin was accused of knowingly using “an obstacle” in a “substantial step toward” obstructing or hindering “the preservation of the peace by a peace officer, acting under color of his or her official authority,” while on federal property. See
The judgment is affirmed.
GORSUCH
CIRCUIT JUDGE