good morning me please the court case boils down to one of the basic facets of our criminal justice system is that the government needs to prove its case and it needs to prove not just certain elements of the case but all of the elements of the case now looking at the evidence in the best light towards the government we see here that there was an incident the incident occurred while the defendant was entering a location that one element was improved where are the element of that this occurred on a federal on federal land  now this happened in what is locally called the immigration court it's an administrative hearing body that is located within a private office building  the entrance to the private office building that's used by people attending court is the same entrance that's used by people who maintain offices in that same vein and if we find at the con the evidence shows some of the conduct occurred behind the metal detectors would that be sufficient to show that the contact occurred on t s a control property well our argument is that the statute says that you if you created a nuisance either on or entering into the land that's contained that's contained within federal property then that constitutes a nuisance under the statute but we don't believe that at the trial that aspect of it that aspect of whether or not there was actually federal land was proven there was no testimony by anybody that had any kind of personal knowledge that this was an area that was actually controlled a and were employed by them and then we controlled out and but she didn't have any kind of personal knowledge she wasn't the proper person to testify about that or was there any cases out there that would help you in your view of the proposition that federal administrative agency courts are not that are located within a private building are not federal could go ahead but argument not that well that that part of this plan is not at least controlled by the federal government it's clear if you walk into the courtroom oller the administrative hearing room that's controlled by federal lab so as a general proposition then it's ok from a federal jurisdiction standpoint to have the courts within a private facility that doesn't somehow convert them into private property no government property no that's not where we are of course but that's not your argument now if i mean the federal government what is your argument argument is that element was not shown is that there was no testimony that this was on federal land that even though there was plenty of testimony about the incident that happened in it what about inspector hill of the federal protective service indicating that the entrance to the immigration court is subject to t s a authority challenge than anyway it was a question and the expected hill was not privy to any kind of agreement he was an inspector he works as a security guard he called a security guard to testify to something that he didn't have personal knowledge of that's argument is is is that the elements that need to be met just weren't met to the sufficient degree that that is required in a criminal case the criminal case eight security guard can testify as to an agreement that the federal government may have with with the building with the security company that extraordinary work takes the proposition that the rises to the to something that's outside of their personal knowledge and to have that meet the high burden that's required in the criminal case as one of the elements of the case is we're saying that that's insufficient rest of her life is about to be decided where she's going to live for the rest of her life it's clearly a high pressure situation she walks into a what is a sensually or just a landing area where the elevators are there's four elevators in this in this small room she goes through security she follows instructions the first time that doesn't work out she comes back it the structures another time that doesn't work out eventually she's asked to take off her shoes or belt her purse they're going through her purse and she's then asked to take out a hair clip that is holding her hair and places all before she's going to a hearing that in that morning will most likely decide where she's going to live for the rest of her life and what country does she have to leave the united states or addition she stay clearly she is under a lot of stress at the moment  and her reaction may not be as bizarre based on the actions of the security guard may not be as bizarre may not constitute a nuisance to a person that i talk person that's watching the small thing there's also a path of least resistance i could have taken of the security guard security guards have wants that they can wave around and if there's a hair clip that's setting off a metal detector what was keeping the security guard from news in a very sympathetic argument a good reason why maybe she shouldn't have been prosecuted but that's  know whether casey should have been prosecuted is something that we can't do anything about what kind of a sentence if you like that she was given community service or restoring any kind of legal status on people but but just saying we're not going to put you in these proceedings anymore you're not no longer subject to removal by this court at this time and hopefully the law will a clearly not a crime of the century as as your question touched on and i think that had something to do with how this case was presented to the court and that's kind of where we are human entails is  entailed they needed to prove all the on to the case and they did they should have called somebody from from some government official that would've taken about twenty minutes of the court's time and said you know what this is  this is a government lease property the government has a lease here's a copy of the lease she violated this law while on federal land or wild land that is leased by the federal government and of end of story but they they relied on circum not circumstantial circumventing that direct testimony by having people that are not privy to the to the to the to the information people without personal knowledge  something that was an essential element of the case is it is it is the main element of the case no clearly her behavior is that is the main element of the case but nonetheless yet the stablish where it happened and that just wasn't done here but  isn't there almost a presumption that when you're entering the federal administrative court that that all of the conditions that you're talking about been most without any proof at all doesn't differ from coming into this court i mean it doesn't look like a federal courthouse it's a beautiful building as all of us who visit the prescience but doesn't say you are now federal facility i mean without going into this building in great detail if it's clear that when you're walking in that this is a federal court of appeal there's a conveyor belt where you put your briefcase  marshal standing here and i didn't notice i actually meant to notify my drive and i to take notice of that because i was anticipating that question i'm not sure if there's a big sign on the front that says this is the ninth circuit court of appeals the sign on the sign on the building where the immigration court is says city national bank and the security guards are private security that's clear now this is kind of an issue that has attorneys that go from court to court and kind of see a lot of there's different policies in different courts even district court some district courts will waive you in with a smile if you show him a bar card and others will make you take your belt and your shoes and your jacket in a criminal case where you have to prove all of the almost beyond a reasonable doubt that there needs to be something more than just a presumption that you are where you are the person that when  who are arguing that because it is hearsay evidence because the court failed to exclude the evidence to respond to that that evidence didn't rate rise to the level of proof that's required to prove an element of it please the court a lot of arson on behalf of the united states i'd like to address the two issues that defense counsel addressed first with respect to the sufficiency of evidence there was more than enough evidence to determine that this conduct occurred on federal property first of all there was sufficient evidence that g s a controlled the entire lobby leading to the checkpoint there were two signs posted in the lobby that listed the regulations under forty one c f r that govern conduct on federal property those were posted conspicuously in the lobby next to the elevator doors in addition next to those signs there was another sign  government introduced there is posted there are posted two signs one of those signs lists the regulations under forty one c f r they govern conduct on g s a property same regulations that are posted in this courthouse and the second was a sign in the lobby next to the elevator door you can see the city are two seventy eight and here are two eighty stating security checkpoint and stating that telephones in pagers are not permitted in the court rooms court court hallways or elevator lobbies will be reasonable to infer from both of those signs that in fact the entire lobby was under the control of t s a even if t s a didn't have control over the lobby the magistrate judge did not clearly aaron finding that there was control over the entrance to the seventeenth floor at the checkpoint where this conduct took place as was previously pointed out federal protective services officer officer hill testified that the federal protective service provides protection services to g s a controlled properties and that at the least the entrance to the seventeenth floor was controlled by g s a he couldn't testify to the possible is the entire seventeenth floor because he thought there might be some offices behind the elevator bay but certainly the entrance and the incident occurred at a checkpoint which has as the magistrate judge i think reasonably inferred is going to be entirely on federal property not just part of it because otherwise how to control security if you only control the back but not the front and finally even if you accept the defendant's claim that only the far side of the metal detector is on federal property the magistrate judge found that some of the conduct occurred on that far side and that was not a clearly erroneous finding there was  as to whether there's a vagueness problem well there are two vagueness approaches claims here that are both reviewed for plain error because they were raised for the first time after the magistrate judge stage with respect to the as applied claim that nuisance is vague it's well established that a defendant whose conduct clearly falls under the statute cannot raise an as applied challenge and that rule applies under the supreme court's humanitarian law project decision whether the conduct is in the form of speech or not in this case it can't seriously be disputed that her conduct clearly created a nuisance it caused the checkpoint to have to be shut down temporarily while the security guard called for backup what is a move well you know even has a sort of common understanding i think it's commonly understood to essentially comprise no conduct that unduly interferes with the exercise of other common rights or the interested stake such as the proper functioning of the federal facility and clearly her conduct interfered with the proper functioning of this checkpoint which is screening visitors to make sure that they don't have any prohibited or dangerous items and her conduct her entire course of conduct which consisted of a variety of acts beginning with shouting at you raising her voice shouting at the guard you know you don't know who i am you're going to remember me slamming her shoes down when asked to remove them and finally culminating in throwing an object at the security guard saying i'm going to kill you that entire course of conduct which caused the shutdown of the security check point it has a commonly understood meaning as this court held in to tell this when there was a big news challenge to park regulation that governs sort of similar conduct  you know there there i think the language in the statute was disorderly conduct that creates public alarm or a nuisance and the court found that there was no vagueness problem there because these were all common terms nuisance over the common you know it does have a settled legal meaning and an understanding and common usage at the very least disrupting the function of that security checkpoint is something that we be understood as a nuisance so certainly as a high to her conduct this was not dade and therefore the defendant can't raise an as applied challenge related to somebody else's conduct   we haven't really cited one because i think what the courts have said is that these are commonly understood words that you know don't  different issue i think bryce was looking at a first amendment challenge i was addressing the vagueness issue and under the did use that language about not unconstitutionally or overbroad right and that has to do with if there is a limiting construction then the courts have found neither vagueness nor over breath and in bryce and in another case stand cell which also interpreted the predecessor to this statute this court has said there is a limiting construction that can be put on this regulation because if you look at the entire sub part and all the regulations they relate to sort of conduct on federal property that preserves the normal functioning of that property and with that gloss there is neither is a guinness problem or a first amendment problem austin juror really was looking because that was a stalking statute it wasn't looking at the word nuisance i think it was looking at harass and i think substantial emotional distress which again the court said you know these are words that kind of have a common settled meaning  so for those reasons we don't think we as applied challenge works i also just want to point out that you know when looking at the vagueness inquiry the supreme court explained in williams that vagueness isn't about whether it's a close question as to whether the element was met that's what the beyond a reasonable doubt standard is for it's about whether the term itself is so standardless and subjective that it's just too indeterminate and you had a case in which the defense relies that's simply not our situation here this is not a statue the prohibited annoying conduct which the courts have said is so standard so subjective that it's just choosing this is a word that has some settled legal meaning that can be narrowed through a limiting construction and as in sand cell and as in price for that reason there is neither a facial problem nor as supply problems i would also point out that there is science a requirement of knowingly here as there was in hill v colorado where the supreme court found that knowingly that science or   finally with with respect to the first amendment issues i i just wanted to take a moment to raise a couple of additional points first of all it's not clear that this court even has to address the first amendment issue because this defendant was not charged with making threats she was only charged with creating a nuisance and even if you took out the statement i'm going to kill you i would submit that the conduct clearly created a nuisance if you look at the entire course of conduct common aiding and throwing an object at the security guard which he was asked to remove that created a nuisance so i would submit to the court doesn't even have to reach the first amendment issues  certainly doesn't have to decide whether this is a threat because we are talking about a nonpublic forum and in a nonpublic forum even protected speech can be regulated as long as the application of the regulation is reasonable in light of the purpose served by the form and the regulation as you point neutral clearly the application of of this regulation to defend its conduct furthers the the purpose of the for the purpose of that forum is to preserve the functioning of of federal facilities and her conduct clearly impeded that by causing the closure of the checkpoint and for that reason the as applied challenge fails even without having to reach the issue of a threat and regarding the facial challenge this is an issue that is reviewed for plane air because it's raised for the first time on appeal an answer to sarah pointed out in brice this co addressed the predecessor to this regulation which contains very similar language and determined that it can be narrowed and therefore it does not when you look at that narrowing class prohibit a substantial amount of protected speech in relation to the statutes limited suite so for all of these reasons as the government's admits the court has no further questions that the defense conviction should be affirm senses but when somebody is being charged with creating a loud or unusual noise what in the record says that anything was specifically allowed or i'm usual bout or nuisance but how's this again how was this nuisance created that's that's that's where that leaves up so it leaves too much up to interpretation and that's argument is is this a nuisance or was a nuisance created by the security guard or is the nuisance at all is this just somebody trying to walk into court and that's hard and with the whole thing about going through the the gate is a nuisance all right thank you very much a ver