Wednesday, December 16th, 2020

Pity the poor taxpayer: Appellant goes to a federal building to get tax forms and has an argument with “aggressive” “court security officers (‘CSOs’),” resulting in a misdemeanor conviction that is affirmed in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. Nov. 3, 2020) (Chief Judge Livingston; Circuit Judge Carney; District Judge Richard M. Berman).

The Appellant in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. 2020) was convicted of creating a loud noise and nuisance at the Binghamton federal courthouse, in violation of  41 C.F.R. § 102-74.390(a), after getting into an argument with two court security officers (“CSOs”). Id.  at 168. Although the Circuit was “troubled by [the] aggressive treatment” that Appellant received “at the hands of the CSOs[,]” it nevertheless affirms the conviction. 979 F.3d at 177.


a. The trip to the federal courthouse

“Near noon on February 14,  2017, Dr. Marina Wasylyshyn” — a “surgical oncologist” specializing in the treatment of breast cancer and melanoma — went to the U.S. Courthouse in Binghamton, New York, “to collect tax forms” from a “self-service rack” in a hallway off the building’s lobby. This is what “she had done in previous years.” 979 F.3d at 169; see 2018 WL 4191137 at *8 (the Appellant brief).

A protest was assembling outside the courthouse that day, “and the CSOs did not know whether Wasylyshyn was a protester.” 979 F.3d at 179.  “[B]ehind the security desk” in the lobby, “facing the revolving door through which the public entered the building[,]” were “CSOs Canfield and Lawrence.” Id. at 169-70. They weren’t federal employees — as one would retort to Wasylyshyn (when she asserted he was a “public servant”) — but “worked for a private company that contracted with the federal government.” Id. at 170.

CSO Lawrence asked Wasylyshyn where she was going and told her “she [needed] an appointment to get into the I.R.S.” Id. at 170. Wasylyshyn explained she was just “pick[ing] up some tax forms,” so she didn’t need an appointment. Id.

But rather than allow her to go through the metal detectors, into the building to the “self-service rack,” Lawrence handed her a flyer with “a telephone number for making an appointment with the IRS.” Id. at 170. He then directed her to tell him the tax forms she needed, and he’d get them. Id.

According to the CSO’s, Wasylyshyn “‘slammed’” her bag on the counter and became “‘agitated.’” She “then searched in her bag for a list of the forms she wanted.” 979 F.3d at 170..

Lawrence “directed Wasylyshyn to ‘calm down’.” Id. And “Canfield stood up,” “extend[ed] his right arm,” and “point[ed] a finger close to Wasylyshyn’s face.” 979 F.3d at 170.

Lawrence said that Wasylyshyn told him “in a ‘very loud’ voice” that she was a doctor. But she “handed Lawrence her list of forms” once she found it. Lawrence then went to the self-service rack “about 40 to 45 feet away,” and he “could hear Wasylyshyn ‘yelling about how  [Lawrence and Canfield were] public servants’ and how she ‘pays [their] salary[.]’” Id. (brackets in original).

“Back at the security desk,” Canfield and Wasylyshyn were arguing, although Canfield acknowledged that “his ‘voice level’ may have ‘exceeded hers.’Id. (emphasis added).

Ultimately Canfield “walked out from behind the counter” and “approached Wasylyshyn.” And again, he “pointed at her face.” Id.  “She backed away from him, toward the door.” Id.

But Canfield kept coming. A video shows “Canfield advanc[ing] several steps toward Wasylyshyn, pointing and appearing to speak aggressively[.]” Id. “Wasylyshyn continued to retreat.” Id.

“Eventually, Wasylyshyn stopped” and “stepped toward Canfield, and thrust her face toward Canfield’s face.” Id. at 170-71. Canfield said she “made contact with him in ‘kind of a belly bump.’” Id. at 171. He took “hold of her arm” and “took [her] purse from her hands.” Canfield then “struggled” to “pull Wasylyshyn’s hands behind her back while he arrested her.” Id.  “At the same time, Canfield called for Lawrence to return.” Id. 171.

Lawrence came back to find “Canfield standing behind Wasylyshyn … holding her arms behind her back.” Id. at 171. “Wasylyshyn ‘squirm[ed] around’ and ‘yell[ed]’ at Lawrence to tell Canfield to release her.” Id. Lawrence instead helped Canfield to put handcuffs on her.

“After Wasylyshyn had been handcuffed, she asked why she was under arrest.” Id. at 171. “Canfield answered that Wasylyshyn was under arrest ‘for being a bitch.’” Id.

b. The misdemeanor charge and the appeal to a district judge

Wasylyshyn was charged with the misdemeanor crime of creating a “loud or unusual noise or a nuisance” in breach of the Noise Regulation, 41 C.F.R. § 102-74.390(a). Id. at 171. She was convicted  at a bench trial before a Magistrate Judge. A district judge affirmed the conviction. See 18 U.S.C. § 3402 (“In all cases of conviction by a United States Magistrate Judge an appeal of right shall lie … to a judge of the district court … in which the offense was committed”).

In the Circuit, she argued that her conviction is invalid because (1) the Noise Regulation wasn’t  conspicuously posted in the courthouse, so she was unaware she was doing anything illegal; (2) the evidence didn’t establish the requisite mens rea; and (3) the Noise regulation is unconstitutionally vague as applied to her conduct.  Id. at 169.

I. Appellant’s argument that the Noise Regulation wasn’t conspicuously posted was waived, the Circuit finds, because her lawyer “disclaimed” that argument in the appeal to the District Judge.

Wasylyshyn argued that, because the Noise Regulation couldn’t easily be read by visitors to the Binghamton courthouse, the government failed to comply with the notice requirement of 40 U.S.C. § 1315(c)(1), which requires that “certain regulations related to conduct on federal property, including the Noise Regulation, ‘be posted and remain posted in a conspicuous place.’” 979 F.3d at 172 (quoting  40 U.S.C. § 1315(c)(1)) (emphasis added).

The Circuit did “not reach this argument, however, because Wasylyshyn did not raise it in the District Court.” 979 F.3d at 172. See  Fed. R. Crim. P. 58(a)(2), (b)(2)(E)(i), (b)(2)(F) (on “petty offences for which no sentence of imprisonment will be imposed” there’s no right to a jury trial or a trial by a district judge); 18 U.S.C. § 3402 (the magistrate’s judgment of conviction is appealable to a district judge); Wasylyshyn, id. at 169 n.2 (the district judge’s decision “may in turn be appealed as of right to the Circuit Court of Appeals as a ‘final decision’ under 28 U.S.C. § 1291″).

The Circuit found that Wasylyshyn’s lawyer did not simply fail to challenge the conspicuousness of the notice concerning the Noise Regulation, but in the brief to the District Judge “essentially disclaimed any intention to challenge the government’s compliance with section 1315.” 979 F.3d at 173-74. The Circuit thus found that the claim was “waived” (rather than forfeited) because “the decision not to raise the argument earlier reflects a choice.” Id. at 174 n.8.

II. The evidence was sufficient to establish the requisite mens rea, which the Circuit “decide[s] is of general intent.”

“Wasylyshyn argue[d] that she did not have the requisite mens rea for the violation because she lacked ‘knowledge that the action is wrongful.’” 979 F.3d at 174.

The Noise Regulation is silent about the required mens rea. The Circuit, however, “read into the Noise Regulation only a general intent requirement” —i.e., that the defendant “had knowledge she was creating a ‘loud or unusual noise or a nuisance’ on federal property, 41 C.F.R. § 102-74.390(a), not that she knew of a specific regulation proscribing her conduct.” 979 F.3d at 174.

And the Circuit held that the evidence was sufficient to prove a general intent mens rea because “the Magistrate Judge credited the CSOs’ testimony that Wasylyshyn was shouting at them, that her voice could be heard from 40 to 45 feet away, and that she kept shouting after being told to calm down.” Id. at 174-75.

III. The Noise Regulation isn’t unconstitutionally vague “as applied” to Appellant’s conduct.

The Court stated: “Because Wasylyshyn brings an as-applied challenge only, we consider whether the Noise Regulation is unconstitutionally vague in the context of Wasylyshyn’s conduct.” Id. at 175.

Yet, “all vagueness challenges—whether facial or as-applied—require us to answer two separate questions: [1] whether the statute gives adequate notice, and [2] whether it creates a threat  of arbitrary enforcement.” Id. (citation omitted).  Here, Appellant argued that the Noise Regulation is unconstitutionally vague under both tests, arguing: first, “that she could not have reasonably understood that her conduct was prohibited by the regulation; and second, … the language of the regulation is sufficiently indefinite to allow the CSOs to engage in arbitrary and discriminatory law enforcement, motivated more by the content of [her] words than the volume of her voice.” Id. (citations omitted).

On the notice prong, the Circuit held: “We have little doubt that, inside a federal courthouse, a reasonable person would discern that ‘yelling’ at a CSO constitutes creating a ‘loud noise.’” Id. at 175.

The Circuit also rejected Appellant’s second contention—that the vagueness of the Noise Regulation allows arbitrary and discriminatory enforcement — relying on the principle of Farrell   v. Burke, 449  F.3d 470, 494 (2d Cir. 2006), that if “‘the conduct at issue falls within the core of the statute’s prohibition,” then “the enforcement before the court was not the result of the unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.” 979 F.3d  at 176. Here, the Circuit stated that Appellant’s conduct fell within the Noise Regulation’s core prohibition based on her “shouting at CSOs Lawrence and Canfield” and her “continued shouting after the CSOs directed her to calm down, and ultimately t[aking] a step toward Canfield, ‘getting extremely close to him’ during their argument.” Id.

Wasylyshyn also argued that her “conduct was no different in kind or degree than that exhibited by the CSOs themselves.” So “when Canfield began shouting at her and approached her in front of the security desk, it was reasonable for her to conclude that she would not violate the law by shouting or stepping toward him.” Id.

The Circuit said those circumstances could “have no bearing on the arbitrary enforcement inquiry” because of the Circuit’s conclusion that her conduct fell within the core of the Noise Regulation’s prohibitions. Also, it added: “Because we find that, to sustain a conviction, Wasylyshyn’s offense required a showing of no more than her general intent to engage in the subject conduct, any inferences about the legality of her actions that she may mistakenly have drawn from the CSOs’ conduct are not relevant to the mens rea determination either.” Id. at 176-77.

Practice Note

Be mindful that a person convicted of a misdemeanor offense by a Magistrate Judge gets two appeals as of right: first to a single District Judge, then to a three-judge Circuit Panel.

Prior to Wasylyshyn, however, the Circuit “ha[d] not previously addressed … in the context of appeals to [the Circuit] from district court rulings made under 18 U.S.C. § 3402[,]” the application of its general rule that “we will not consider arguments first raised on appeal to this court.” Wasylyshyn, id. at 172 n.6. But it now makes clear that its general preservation rules also apply to appeals from district court rulings under § 3402, stating: “We … comfortably apply the identical rule here.” Id.

So, from now on, on an appeal to a District Judge (of a misdemeanor conviction), be sure to raise all viable issues to preserve them for the appeal to the Circuit.

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Categories: mens rea, vagueness
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