2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-22-2011

USA v. John O'Neal

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4394

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-4394

____________

UNITED STATES OF AMERICA

v.

JOHN A. O’NEAL

 Appellant 

____________

On Appeal from United States District Court

for the Eastern District of Pennsylvania

District Court No.: 04-mj-01060

Magistrate Judge: Honorable Charles B. Smith

__________

Submitted Under Third Circuit LAR 34.1(a)

June 20, 2011

Before: HARDIMAN and ALDISERT, Circuit Judges

and RESTANI * Judge.

(Filed: June 22, 2011)

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

 *

The Honorable Jane A. Restani, Judge of the United States Court of International 

Trade, sitting by designation.
2

John O’Neal appeals his conviction for unauthorized posting of material on 

Veterans Affairs (VA) property. We will reverse.

I

During the presidential election campaign of 2004, O’Neal submitted a request to 

the administration of the VA Medical Center (VAMC) asking to hold a sign on VAMC 

grounds stating that Senator John Kerry was unfit to serve as the Democratic candidate 

for President. The VAMC administration denied O’Neal’s request, reasoning that the 

Hatch Act forbade it from sanctioning any activity directed toward the success or failure 

of a political candidate.

After the VAMC denied O’Neal’s request to protest on premises, he appeared 

across the street from the VAMC facility holding a sign protesting Senator Kerry’s 

presidential bid. O’Neal then was approached by VA Police Corporal Richard Sload, 

who informed him that he could not protest on VA property. O’Neal refused to move, 

however, contending that he was on State property. Corporal Sload then cited O’Neal for 

unauthorized posting of material on VA property, in violation of 38 C.F.R. § 1.218(a)(9).

O’Neal contested the citation before a United States Magistrate Judge, arguing that 

he was protesting on State grounds and that his prosecution violated the First 

Amendment. The Magistrate Judge disagreed, finding that O’Neal protested on VA 

property. The District Court affirmed and O’Neal filed this timely appeal.
3

II

O’Neal’s violation of 38 C.F.R. § 1.218(a)(9) was premised upon his protest 

occurring on “property under the charge and control” of the VA. On appeal, the United 

States concedes that it failed to demonstrate that O’Neal’s protest occurred on VA 

property. Our independent review of the record confirms that the Government failed to 

carry its burden. This finding invalidates the premise upon which O’Neal’s conviction 

was based and compels reversal of the judgment of the District Court and the entry of a 

judgment of acquittal in favor of O’Neal. See United States v. McKee, 506 F.3d 225, 251 

(3d Cir. 2007). An appropriate judgment follows.