UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4271

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ELIZABETH MARGARET O’NAN,

Defendant – Appellant.

------------------------

THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE 

EXPRESSION, 

Amicus Supporting Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:10-cr-00044-MR-1)

Submitted: October 25, 2011 Decided: November 4, 2011

Before MOTZ, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Elizabeth Margaret O’Nan, Appellant Pro Se. David A. Thorneloe, 

OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, 

for Appellee. J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER 
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FOR THE PROTECTION OF FREE EXPRESSION, Charlottesville, 

Virginia, for Amicus Supporting Appellant.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Elizabeth Margaret O’Nan appeals the district court’s 

order affirming the magistrate judge’s judgment finding O’Nan 

guilty of violating 36 C.F.R. § 261.12(d)∗

On appeal, O’Nan first argues that the court violated 

her First Amendment rights by punishing her for speech that was 

“merely the expression of her sincerely held beliefs about her 

property rights.” Second, she argues that the magistrate judge 

made several erroneous factual findings. Third, she argues that 

the government illegally seized the Forest Service road in 

question. Fourth, she argues that the government violated her 

right to equal protection by punishing her but not punishing 

various hunters who she alleges have trespassed on her property. 

The Thomas Jefferson Center for the Protection of Free Speech 

filed an amicus brief in support of O’Nan, arguing that her 

prosecution violated her First Amendment rights.

, imposing a fine and

restitution, and ordering O’Nan not to interfere with the use of 

a Forest Service road for five years. 

In “cases raising First Amendment issues, an appellate 

court has the obligation to make an independent examination of 

the whole record to ensure that the judgment does not constitute 

 ∗ This regulation prohibits interfering with the use of a 

National Forest System road.
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a forbidden intrusion on the field of free expression.” Bose 

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 486 

(1984). Therefore, we review O’Nan’s First Amendment argument 

de novo. Snyder v. Phelps, 580 F.3d 206, 218 (4th Cir. 2009).

O’Nan’s remaining arguments on appeal were not raised below. 

Accordingly, as to those arguments, this court applies the plain 

error standard of review, which requires that O’Nan show that 

there is an “error” that is “plain” and that “affects 

substantial rights.” United States v. Olano, 507 U.S. 725, 731-

32 (1993).

O’Nan’s argument that the court violated her First 

Amendment rights by punishing her for speech that was “merely 

the expression of her sincerely held beliefs about her property 

rights,” is without merit. O’Nan was prosecuted not for 

exercising her free speech rights, but for interfering with the

use of a Forest Service Road. The Amicus Brief argues that 

because O’Nan had no unlawful intent, she cannot be punished 

under the First Amendment. However, this argument is based on 

the premise that O’Nan’s behavior was nothing more than 

protected speech, a premise we reject. Further, to the extent 

that the Amicus Brief implicitly argues that the regulation is 

overbroad, the Supreme Court has cautioned that the use of the 

overbreadth doctrine in this situation is “strong medicine” that 

should be used “sparingly and only as a last resort.” 
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Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). “[O]verbreadth 

scrutiny has generally been somewhat less rigid in the context 

of statutes regulating conduct in the shadow of the First 

Amendment, but doing so in a neutral, noncensorial manner.” Id.

at 614. This regulation, on its face, regulates conduct, not 

expressive speech. O’Nan has thus failed to show that her First 

Amendment rights were violated.

O’Nan next argues that the magistrate judge made

several erroneous factual findings. We conclude that the 

magistrate judge’s factual findings are supported by the record, 

even though O’Nan provided some testimonial evidence that 

conflicted with the magistrate judge’s factual findings. 

Assessing the credibility of witnesses is within the province of 

the trier of fact, who, in this case, was the magistrate judge. 

United States v. Jordan, 509 F.3d 191, 203 n.8 (4th Cir. 2007). 

Moreover, none of the factual issues O’Nan raises have any 

bearing on whether she violated 36 C.F.R. § 261.12(d). Thus, 

this argument is also without merit.

O’Nan claims the government is guilty of an 

unconstitutional “taking” of her property because her permit to 

use the road in question provided that the road would not be 

open to public use. The record reveals, however, that in 

granting O’Nan’s use permit, the government specifically 

reserved the right to “use the road for all purposes deemed 
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necessary or desirable,” which extends to members of the public. 

Accordingly, O’Nan presents no credible argument that there has 

been any “taking” of her property.

Finally, O’Nan argues that the government violated her 

Fourteenth Amendment right to equal protection by punishing her 

but not punishing hunters who trespassed on her property. To 

succeed on an equal protection claim, a plaintiff must show that 

she has been treated differently from other similarly-situated 

individuals and that the unequal treatment was the result of 

intentional or purposeful discrimination. Veney v. Wyche, 293 

F.3d 726, 730 (4th Cir. 2002). O’Nan failed to make that 

showing. She provides no basis for her conclusory assertions 

that hunters have trespassed on her land without punishment. 

Moreover, even assuming such trespassing, the hunters are not 

similarly situated to O’Nan because trespassing on private 

property is not the same as interfering with the use of a public 

road. Thus, O’Nan is not entitled to relief on this argument.

We deny O’Nan’s motion for appointment of counsel. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED