2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-19-2002

USA v. Goldin

Precedential or Non-Precedential: Precedential

Docket No. 01-1440

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Recommended Citation

"USA v. Goldin" (2002). 2002 Decisions. Paper 754.

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PRECEDENTIAL 

 Filed July 24, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 01-1440, 01-1442, 01-1443, 01-1445 and 01-1446 

UNITED STATES OF AMERICA 

v. 

FRANCES GOLDIN, Appellant No. 01-1440 

(D.C. No. 00-m-00139) 

UNITED STATES OF AMERICA 

v. 

JANE JACKSON, Appellant No. 01-1442 

(D.C. No. 00-m-00250) 

UNITED STATES OF AMERICA 

v. 

MARCEY GAYER, Appellant No. 01-1443 

(D.C. No. 00-m-00251) 

UNITED STATES OF AMERICA 

v. 

CHARLES KISSINGER, Appellant No. 01-1445 

(D.C. No. 00-m-00253) 

 

UNITED STATES OF AMERICA 

v. 

MITCHEL COHEN, Appellant No. 01-1446 

(D.C. No. 00-m-00361) 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

District Judge: Honorable Bruce W. Kauffman 

Argued May 23, 2002 

BEFORE: MCKEE, STAPLETON and WALLACE,* 

Circuit Judges 

(Filed July 24, 2002) 

 Andrew F. Erba 

 Williams, Cuker & Berezofsky 
 One Penn Center at Suburban 

 Station 

 1617 J.F.K. Boulevard, Suite 800 

 Philadelphia, PA 19103-2030 

 Attorneys for Appellant, 

 Jane Jackson 

 Aaron Frishberg 

 116 West 111th Street 

 New York, NY 10032 

 Attorney for Appellant, 

 Marcey Gayer 

_________________________________________________________________ 

* Honorable J. Clifford Wallace, United States Circuit Judge for the Ninth 

Circuit, sitting by designation. 

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 Peter Goldberger (Argued) 

 50 Rittenhouse Place 

 Ardmore, PA 19003-2276 

 Attorney for Appellant, 

 Mitchel Cohen and Lead Appellate 

 Counsel for Consolidated 

 Defendants-Appellants 

 Ronald L. Kuby 

 740 Broadway, 5th Floor 

 New York, NY 10003 

 Attorney for Appellant, 

 Charles Kissinger 

 Jordan B. Yeager 

 Boockvar & Yeager 

 714 Main Street 

 Bethlehem, PA 18018 

 Attorneys for Appellant, 

 Frances Goldin 

 Stefan Presser 

 American Civil Liberties Union 

 125 South Ninth Street, Suite 701 

 Philadelphia, PA 18018 

 Attorneys for Amicus-appellant, 

 ACLU PA 

 Patrick L. Meehan 

 United States Attorney 

 Richard W. Goldberg (Argued) 

 Asst. United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106-1250 
 Attorneys for Appellee, 

 United States of America 

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OPINION OF THE COURT 

WALLACE, Circuit Judge: 

Goldin, Jackson, Gayer, Kissinger and Cohen (Protesters) 

participated in a protest at the Liberty Bell Pavillion 

(Pavillion) in Independence National Historic Park on July 

3, 1999, one of the busiest days of the year at the park. 

The protest got out of control and Park Rangers moved in 

to restore order. Protesters were arrested for refusing to 

obey the lawful order of a Park Ranger in violation of 36 

C.F.R. S 2.32(a)(2). Protesters were found guilty in a 

proceeding before a United States Magistrate Judge. Each 

protestor received the same sentence: one year probation 

with travel restricted to the federal district in which he or 

she resided, a $250.00 fine, and a $25 assessment. 

Protesters appealed their convictions and sentences to 

the district court and, after affirmance, appealed to this 

court. The Magistrate Judge had jurisdiction under 18 

U.S.C. S 3401(a), the district court had appellate 

jurisdiction under 18 U.S.C. S 3742(g), and we have 

jurisdiction over this timely filed appeal under 28 U.S.C. 

S 1291. We affirm. 

I. 

Protesters first contend that the evidence was insufficient 

to prove that they committed the offense charged. We 

"review[ ] the sufficiency of the evidence in the light most 

favorable to the government and must credit all available 

inferences in favor of the government." United States v. 

Riddick, 156 F.3d 505, 509 (3d Cir. 1998) (citation omitted). 

"We do not weigh evidence or determine the credibility of 

witnesses in making this determination." United States v. 

Beckett, 208 F.3d 140, 151 (3d Cir. 2000) (citation omitted). 

Protesters’ first insufficiency argument is that they were 

either not given an order or were not given an opportunity 

to comply. Kissinger, Goldin, and Cohen were arrested after 

they blocked a police van. All three were told to move, all 

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three were given between twenty and thirty seconds to 

move, and all three refused. 

Jackson was arrested after she rolled her motorized 

wheelchair past a police barricade. She was told to leave, 

refused to do so, and then demanded to be arrested. When 

viewed in the light most favorable to the government, the 

evidence was sufficient to show that Kissinger, Goldin, 
Cohen, and Jackson were given both an order to move and 

an opportunity to comply. 

Gayer does not argue that she was not given an order or 

opportunity to move. Rather, she argues that the order she 

was given was not lawful because it was arbitrary. An order 

given under 36 C.F.R. S 2.32(a)(2) must be"lawful." For an 

order to be lawful under the regulation, it must be 1) given 

in one of the circumstances outlined in section 2.32(a)(2) 

and 2) constitutional. The order Gayer received was given in 

a circumstance outlined in section 2.32(a)(2). Because the 

order was given after Gayer had interrupted a park service 

presentation and while she was preventing new tourists 

from accessing the Pavillion, it was given during another 

"activit[y] where the control of public movement and 

activities [was] necessary to maintain order and public 

safety." Id. Since the order Gayer received was given in one 

of the circumstances outlined in section 2.32(a)(2) and, as 

we conclude later, was constitutional, it was lawful. 

Kissinger, Goldin, and Cohen also argue that the 

evidence at trial was insufficient to show that they were 

among those that blocked the police van. Viewed in the 

light most favorable to the government, the evidence-- 

especially the eye-witness testimony--was sufficient to 

show that Kissinger, Goldin, and Cohen were amongst 

those that blocked the police van. 

Protesters argue further that the evidence was 

insufficient to support their convictions because it did not 

show that there was an emergency at the time they were 

arrested. One of the provisions of 36 C.F.R. S 2.32(a)(2) 

requires an order to be given during "emergency 

operations." Protesters suggest that the emergency had 

abated by 12:30 or 1:00 p.m. The videotape introduced at 

trial, though, showed that the Pavillion was blocked at 

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12:28 p.m. and that the last protesters were not removed 

from the Pavillion roof until 2:23 p.m. This was sufficient to 

show that an emergency existed during this period. Cohen, 

Goldin, and Kissinger were arrested at 1:31 p.m. Although 

Jackson was never arrested (only cited), she was told to 

leave the blockaded area and refused at approximately 1:08 

p.m. Viewed in the light most favorable to the government, 

the evidence was sufficient to show that Cohen, Goldin, 

Kissinger and Jackson disobeyed a Park Ranger’s order 

during "emergency operations." We have no need to decide 

whether Gayer’s arrest occurred during emergency 

operations because, as we have already discussed, her 

arrest was authorized by another provision in 36 C.F.R. S 

2.32(a)(2). 

II. 

Protesters next argue that 36 C.F.R. S 2.32(a)(2) is 

unconstitutional. 
A. 

Their first argument is that it violates the Due Process 

Clause of the Fifth Amendment because it is too vague. 

 [T]he void-for-vagueness doctrine requires that a penal 

 statute define the criminal offense with sufficient 

 definiteness that ordinary people can understand what 

 conduct is prohibited and in a manner that does not 

 encourage arbitrary and discriminatory enforcement. 

Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations 

omitted). 

Protesters assert that the Regulation, unless confined to 

operations that are the equivalent of "firefighting or wild 

animal control operations" is so unclear that it"encourages 

arbitrary and discriminatory enforcement" by the Park 

Rangers. Id. at 357. City of Chicago v. Morales, 527 U.S. 41 

(1999), is the closest, most recent case from the Supreme 

Court on this subject. Morales involved an ordinance 

designed to prevent gang loitering on Chicago’s streets. The 

ordinance empowered the Chicago Police to order groups of 

loiterers to disperse if an officer "reasonably believed" that 

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one of the loiterers was a gang member. The ordinance did 

not prohibit the actual loitering; rather, it prohibited a 

loiterer’s refusal to obey the dispersal order. 

The Court struck down the ordinance because its 

definition of loitering--"remaining in any one place with no 

apparent purpose"--was so vague that it gave Chicago 

police "absolute discretion . . . to determine what activities 

constitute[d] loitering." Id. 

36 C.F.R. S 2.32(a)(2) is unlike the ordinance in Morales 

because it carefully confines a Park Ranger’s authority to 

issue an order. For 36 C.F.R. S 2.32(a)(2) to apply, the 

Ranger’s order must be given 

 during firefighting operations, search and rescue 

 operations, wildlife management operations involving 

 animals that pose a threat to public safety, law 

 enforcement actions, and emergency operations that 

 involve a threat to public safety or park resources, or 

 other activities where the control of public movement 

 and activities is necessary to maintain order and public 

 safety. 

Unlike the Chicago ordinance, where the police were 

empowered to order almost anyone standing in place 

anywhere in the city to disperse, a Park Ranger, under the 

regulation, may only give an order in a limited, rather 

narrow, set of circumstances. Two of those circumstances 

are relevant here: 1) "emergency operations that involve a 

threat to public safety or park resources" and 2)"other 

activities where the control of public movement and 
activities is necessary to maintain order and public safety." 

Id. 

Unlike the Chicago ordinance’s definition of loitering, 36 

C.F.R. S 2.32(a)(2) is not so unclear that it vests unbridled 

discretion in Park Rangers. An order given under the 

"emergency operations" provision, for example, must be 

given not only in "emergency operations," but in 

"emergency operations that involve a threat to public safety 

or park resources." What is more, an order given under the 

"public movement" provision may only be given if 

"necessary to maintain order and public safety." Id. 

Recognizing that "we can never expect mathematical 

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certainty from our language," Hill v. Colorado, 530 U.S. 

703, 733 (2000) (citation and quotation marks omitted), we 

hold that the Regulation is sufficiently clear and narrow 

that it "does not encourage arbitrary and discriminatory 

enforcement," Kolender, 461 U.S. at 357 (citation omitted), 

and therefore "establish[es] [the kind of] minimal 

guidelines" that Due Process requires. Morales, 527 U.S. at 

60 (citation omitted). 

B. 

Both Gayer and the American Civil Liberties Union as 

amicus argue that Gayer’s arrest also implicated Gayer’s 

First Amendment right to speak freely. Whether the 

government may restrict a person’s ability to speak on its 

property depends upon whether the property is "public or 

nonpublic." Kreimer v. Bur. of Police for Morristown, 958 

F.2d 1242, 1255 (3d Cir. 1992) (citation and quotation 

marks omitted). 

All parties in this case agree that the Pavillion is a limited 

public forum. A limited public forum is a public forum only 

to the extent that it has been "intentionally opened [by the 

government] . . . to the public for expressive activity." 

Kreimer, 958 F.2d at 1259 (quotation marks omitted, 

emphasis in original). Thus, the constitutionality of a 

restriction on expressive activity that is consistent with a 

limited public forum’s purpose is determined using the 

more rigorous public forum standard and, conversely, the 

constitutionality of a restriction on expressive activity that 

is inconsistent with the forum’s purpose is determined 

using the nonpublic forum reasonableness standard. Id. at 

1262. 

Our first inquiry is whether the government had opened 

the Pavillion to expressive activity like Gayer’s. The 

evidence taken in a light most favorable to the government, 

demonstrates that the government had opened the Pavillion 

to the public to see the Liberty Bell, to take part in a short 

presentation, and then to leave. The government did not 

intend to open the Pavillion to speeches made by members 

of the general public. Indeed, the fact that the government 

had designated areas outside of the Pavillion for public 
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speech suggests that the Pavillion had not been so 

designated. 

Consequently, we will apply the nonpublic forum 

reasonableness standard to determine whether Gayer’s 

arrest under 36 C.F.R. S 2.32(a)(2) was constitutional. 

Under that standard, we ask whether Gayer’s arrest was 

"reasonable and not an effort to suppress expression merely 

because public officials oppose the speaker’s view." Perry 

Educ. Ass’n, 460 U.S. at 46. As we have said, the 

regulation permits a Park Ranger to arrest a person who 

disobeys an order given "during . . . other activities where 

the control of public movement and activities is necessary 

to maintain order and public safety." 36 C.F.R.S 2.32(a)(2). 

The record demonstrates that Gayer interrupted the park 

service presentation inside the Pavillion and halted the flow 

of tourists through the Pavillion while thousands of tourists 

were waiting in line outside. It was reasonable for the 

government to ask her to stop and then to arrest her when 

she refused. Further, there is no indication that she was 

asked to stop speaking because she was expressing a 

particular point of view. The Ranger that told her to stop 

merely said, "that [is] not allowed." 36 C.F.R. S 2.32(a)(2) is 

therefore constitutional as-applied to Gayer. 

III. 

Protesters also argue that the district court should not 

have admitted a 15 minute video tape of the demonstration 

because it was not properly authenticated. They argue that 

the tape, since it was an edited version of the complete twohour tape, should have been authenticated by the editor 

instead of Officer Murphy, the camera operator. We review 

a trial court’s decision to admit evidence for an abuse of 

discretion. United States v. Sriyuth, 98 F.3d 739, 745 n.9 

(3d Cir. 1996). Evidence may be properly authenticated if a 

witness with knowledge testifies that it "is what[it] claim[s] 

to be." F.R.E. 901(b). Because the tape was authenticated 

at trial by a person with knowledge--the camera operator-- 

the trial court did not abuse its discretion when it admitted 

the tape. See United States v. McNair, 439 F. Supp. 103, 

105 (E.D. Pa. 1977), aff’d, 571 F.2d 573 (3d Cir.) 

(photographs authenticated by witness to the event). 

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Protesters also argue that the trial judge should have let 

them question Officer Murphy about his membership in the 

Philadelphia Fraternal Order of Police (F.O.P.). They wanted 

to ask Murphy about his membership because they might 

have shown, given the F.O.P.’s supposed criticism of Jamal 

supporters in the past, that Murphy recorded the event in 

a biased way. Since the tape showed scenes of what 

actually happened during the emergency at the Pavillion, 

any bias attributable to Murphy because of his membership 
in the F.O.P. would have been marginally relevant at best. 

The trial court did not abuse its discretion when it held 

that the F.O.P. line of questioning was irrelevant. Pfeiffer v. 

Marion Ctr. Area Sch. Dist., 917 F.2d 779, 781 (3d Cir. 

1990) (relevancy determinations reviewed for an abuse of 

discretion). 

IV. 

Protesters also challenge several aspects of their 

sentences. They first argue that the trial judge should not 

have limited their travel to the federal district in which they 

resided. 

 A court may impose a special condition of probation to 

 the extent that any such condition is reasonably 

 related to factors set forth in [18 U.S.C. S] 3553(a)(1) 

 and (2), and to the extent that such conditions involve 

 only such deprivations of liberty and property as are 

 reasonably necessary to fulfill the purposes of 

 probation. 18 U.S.C. S 3563(b). 

United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999) 

(footnote omitted). 

Travel restrictions are a standard probation condition. Id. 

There was no abuse of discretion in the trial judge’s 

imposition of the travel restrictions because those 

restrictions "reflect the seriousness of the offense, . . . 

promote respect for the law, . . . and prove [a] just 

punishment for the offense." 18 U.S.C. S 3553. 

Protesters also argue that they were punished for 

exercising their right to go to trial because their sentences 

were more severe than the sentences received by those 

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demonstrators who chose not to go to trial. We agree with 

the district court that protesters’ punishment reflects both 

their lack of remorse and their unwillingness to accept 

responsibility for their illegal acts. 

Further, protesters suggest that it was error for the trial 

judge to sentence them in a "fixed and mechanical" 

manner. See United States v. Thompson, 483 F.2d 527 (3d 

Cir. 1973). However, the trial judge considered each 

protester separately at sentencing. That protesters received 

the same sentence merely indicates that their differences 

were not so significant as to warrant varied sentences. 

There was no abuse of discretion. 

Finally, it appears that each protester was ordered to pay 

a $25 assessment instead of the $10 special assessment 

authorized by 18 U.S.C. S 3013(a)(1)(A)(ii). The government 

properly conceded error. We vacate the special assessment 

and remand to the district court with instructions to 

decrease the assessment to $10 as to each protester. 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED. 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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