Monday, August 22, 2011

U.S. v. Parker, No. 10-50248 (8-22-11) (Per curiam with B. Fletcher, Wardlaw and Kavanaugh, D.J.).

Why did the defendant cross the road? To protest, of course. The military on Vandenburg Air Force Base issued a "barment" letter when the defendant refused to relocate his protests from Ocean Avenue, a public road that crosses the base, to an area outside the base's main gate. This did not stop the defendant, who continued his protests. These 18 USC 1382 misdemeanors followed. On appeal, the 9th reversed, holding that 18 USC 1382, prohibiting entry onto a base, requires that the government have absolute ownership or exclusive possession of the property. The road here, Ocean Avenue, is a public one, with the county and the military each having concurrent jurisdiction. The government argues that such exclusive ownership is not required, but the circuit precedent bars such a position. Since the defendant was always on the public road's easement, his protest activities cannot violate 1328.

Congratulations to AFPD Jim Locklin of the FPD Central District of Calif. (Los Angeles).

U.S. v. Clements, No. 09-10034 (8-22-11) (Per curiam with O'Scannlain, Rawlinson, and Bea; dissent by O'Scannlain).

The defendant was convicted of a SORNA violation for failing to register as a sex offender on February 15, 2008. The 9th reverses and remands for dismissal of the indictment because of U.S. v. Valverde, 628 F.3d 1159 (9th Cir. 2010). In Valverde, the 9th held that SORNA's registration requirements did not become effective until August 1, 2008, because the AG's interim regulations failed to comply with the APA. O'Scannlain acknowledges the precedent, but points out that the Supreme Court had taken cert in Reynolds v. U.S., 131 S. Ct 1043 (2011), to resolve this circuit split as to retroactivity. The government moved to stay this appeal until the decision, but its motion was denied. O'Scannlain therefore dissents from the denial, arguing that the Court will settle the issue.


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