PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Respondent,

v.

ALISA D. CHRISTENSEN,

Defendant-Appellant.

Case No. 3:14-cr-00272-SI

OPINION AND ORDER

S. Amanda Marshall, United States Attorney, Annemarie Sgarlata, Assistant United States 

Attorney, and Celeste Strate (law student appearing with permission), Office of the United States 

Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for the 

United States of America.

Kenneth A. Kreuscher, Attorney at Law, 1130 S.W. Morrison Street, Suite 407, Portland, OR 

97205. Of Attorneys for Defendant-Appellant.

Michael H. Simon, District Judge.

On June 24, 2014, Defendant-Appellant Alisa D. Christensen (“Appellant”) was 

convicted, after a bench trial before United States Magistrate Judge Paul Papak, of Disorderly 

Conduct Creating a Disturbance in violation of 38 C.F.R. § 1.218(a)(5) and (b)(11).

1 Disorderly 

 

1

38 C.F.R. § 1.218 concerns security and law enforcement at Veterans Administration

facilities. 38 C.F.R. § 1.218(a)(5) defines the offense of Disorderly Conduct. 38 C.F.R. 

§ 1.218(b)(11) sets the penalty provision related to 38 C.F.R. § 1.218(a)(5) for a term of 

imprisonment of not more than six months and a fine of not more than $250.

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PAGE 2 – OPINION AND ORDER

Conduct Creating a Disturbance under this provision is a Class B Misdemeanor, 18 U.S.C. § 

3559(a)(7), and thus a petty offense as defined by 18 U.S.C. § 19. Judge Papak imposed a fine of 

$75, and ordered Appellant to pay, in addition to the fine, a processing fee of $25, a special 

assessment of $10, and restitution of $440.95, for a total of $550.95. The case is now before this

Court on Appellant’s timely appeal of her conviction under 18 U.S.C. § 3402 and 

Fed. R. Crim. P. 58(g)(2)(B). The only challenge raised by Appellant is to the sufficiency of the 

charging document. For the reasons that follow, Appellant’s conviction is affirmed.

STANDARDS

The court has jurisdiction over this appeal under Fed. R. Crim. P. 58(g)(2)(B). In an

appeal from a magistrate judge’s judgment of conviction, “[t]he scope of the appeal is the same 

as in an appeal to the court of appeals from a judgment entered by a district judge.” 

Fed. R. Crim. P. 58(g)(2)(D). Because the issue before the Court is a question of law, the 

magistrate judge’s conclusions are reviewed de novo. Robbins v. Carey, 481 F.3d 1143, 1147 

(9th Cir. 2007).

DISCUSSION

Appellant contends that the charging document in this case, a Central Violations Bureau 

(“CVB”) Violation Notice and Statement of Probable Cause, failed to conform to the 

requirements of the Sixth Amendment and the Federal Rules of Criminal Procedure. Specifically, 

Appellant argues that because the charging document failed adequately to allege that she

committed the elements of Disorderly Conduct Creating a Disturbance, it did not provide her

with a sufficient description of the charge to enable her to prepare a defense or plead double 

jeopardy against potential future prosecutions. 

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A. Law Governing the Sufficiency of a Charging Document

The Sixth Amendment guarantees a criminal defendant the right “to be informed of the 

nature and cause of the accusation.” See U.S. CONST. amend. VI (“In all criminal prosecutions, 

the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation”); 

In re Oliver, 333 U.S. 257, 273 (1948) (“A person's right to reasonable notice of a charge against 

him, and an opportunity to be heard in his defense . . . are basic in our system of 

jurisprudence.”). When determining whether a defendant has received fair notice under the Sixth 

Amendment of the charges against her, a court begins by analyzing the content of the charging 

document. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). The court must also recognize, 

however, that the demands of Sixth Amendment may vary depending upon the severity of the 

punishment at risk. For example, the Sixth Amendment also provides that “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” 

U.S. CONST. amend. VI. Nevertheless, in Lewis v. United States, 518 U.S. 322 (1996), the 

Supreme Court held: “The Sixth Amendment’s guarantee of the right to a jury trial does not 

extend to petty offenses, and its scope does not change where a defendant faces a potential 

aggregate prison term in excess of six months for petty offenses charged.” Lewis, 518 U.S. 

at 323-24. In addition, the Ninth Circuit has instructed that a charging document “should be read 

in its entirety, construed according to common sense, and interpreted to include facts which are 

necessarily implied.” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007) (quoting

United States v. King, 200 F.3d 1207, 1217 (9th Cir. 1999)).

Further, Appellant argues that the standards of Fed. R. Crim. P. 3 and 7 (regarding 

complaints, indictments, and informations) apply to this case, or should at least be considered by 

analogy. The charging document here, however, was a CVB Violation Notice, not a complaint, 

indictment, or information. As the Ninth Circuit has explained, “[v]astly different levels of 

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PAGE 4 – OPINION AND ORDER

judicial scrutiny apply to complaints and violation notices, respectively.” United States v. Boyd, 

214 F.3d 1052, 1057 (9th Cir. 2000).

Moreover, because Appellant was charged with and convicted of a petty offense, Rule 58 

of the Federal Rules of Criminal Procedure (“Petty Offenses and Other Misdemeanors”) must be 

examined. According to Rule 58(b)(1), “[t]he trial of a petty offense may also proceed on a 

citation or violation notice.” Further, Rule 58(b)(2) provides: “At the defendant’s initial 

appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform 

the defendant of the following: (A) the charge, . . . .” Fed. R. Crim. P. 58(b)(2)(A). Finally, as the 

Eleventh Circuit has explained: “Rule 58 contemplates that the charging document for a petty 

offense need not be as formal or require as much as an indictment or information would.” United 

States v. Kowallek, 438 F. App’x 889, 890 (11th Cir. 2011) (unpublished).

2

 

2

 In Defendant-Appellant’s Memorandum of Additional Authorities, Appellant refers the 

Court to the Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 28 (1972). In that 

case, the defendant, an indigent person, was charged in Florida with carrying a concealed 

weapon, an offense punishable by imprisonment up to six months. The defendant, unrepresented 

at trial, was convicted and sentenced to serve 90 days in jail. The Florida Supreme Court held 

that the defendant’s right to court-appointed counsel extends only to trials for non-petty offenses 

punishable by more than six months imprisonment. The U.S. Supreme Court reversed, holding 

that the defendant did have a right to court-appointed counsel before being sentenced to any term 

of imprisonment. Argersinger, 407 U.S. at 40. In explaining its decision, the Supreme Court 

noted that the guarantees of the Sixth Amendment, made applicable to the states by the Due 

Process Clause of the Fourteenth Amendment, applies in “all criminal prosecutions” and that 

these guarantees include “the right to be informed of the nature and cause of the accusation.” 

No one disputes that a criminal defendant has the Sixth Amendment right to be informed 

of the nature and cause of the accusation, even for a petty offense where no jail time is imposed. 

The relevant question, however, is whether the standard for evaluating the sufficiency of a 

charging document remains the same, regardless of whether the context is a felony prosecution 

or one for a petty offense. Under the rule announced in Argersinger, no term of imprisonment 

may be imposed, even for one day, unless the accused is represented by counsel. Id. That 

necessarily means, however, that no right to counsel attaches under the Sixth Amendment in 

petty offenses where no term of imprisonment is imposed. See also Lewis, 518 U.S. at 323-24. 

Thus, there are different standards that apply under the Sixth Amendment depending on context, 

especially when a term of imprisonment is being imposed.

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B. Regulatory Provision and Violation Notice

Appellant was convicted of violating 38 C.F.R. § 1.218(a)(5), which states in part:

Conduct on property which creates loud or unusual noise; which 

unreasonably obstructs the usual use of entrances, foyers, lobbies, 

corridors, offices, elevators, stairways, or parking lots; which 

otherwise impedes or disrupts the performance of official duties by 

Government employees; which prevents one from obtaining

medical or other services provided on the property in a timely 

manner; or the use of loud, abusive, or otherwise improper 

language; or unwarranted loitering, sleeping, or assembly is 

prohibited.

The CVB Violation Notice issued to Appellant identifies the “Offense Charged” as “38 

C.F.R. 1.218(a)(5) (b)(11).” Its Statement of Probable Cause asserts:

On 11/13/2013, at about 1445 hours, the subject Christensen, Alisa 

was involved in a verbal and physical altercation in the street in 

front of building 104 on the Portland VA Medical Center. This 

altercation caused a disruption of the facilities operations by 

blocking traffic. Additionally, Christensen assaulted another 

individual during this incident. . . .

C. Analysis

Appellant first argues that the charging document fails to allege all of the elements of the 

offense, contending that the charging document must show a violation of every clause of the 

regulation’s text quoted above. The Court rejects this argument because it contradicts the plain 

text of the regulation. The word “or,” as used in several places in 38 C.F.R. 1.218(a)(5),

unambiguously indicates that a person may violate the statute in any one or more of the ways 

listed; a prosecutor need not prove that every one of the disjunctive clauses was violated. 

Appellant ignores the word “or,” and this is not proper statutory construction. See Huping Zhou, 

678 F.3d at 1113 (“an important rule of statutory construction” is that “every word and clause in 

a statute be given effect”).

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PAGE 6 – OPINION AND ORDER

Appellant next argues that the charging document did not provide her with a sufficient 

description of the charge against her to enable her to prepare a defense, and she further contends 

that the charging document was so deficient that “defendant and undersigned counsel were at a 

loss prior to trial as to what evidence and law must be presented to the court to prepare a 

defense.” To support this argument, Appellant provides a long list of “questions” that Appellant 

had concerning the nature of the charge against her. For example, Appellant argues that she was 

unable to prepare a defense because, based on the charging document, she was unsure whether 

she would be required to present evidence “that any verbal altercation was not loud, unusual, or 

abusive,” as defined in the statute. This argument is unpersuasive, as are the other “questions” 

listed by Appellant. See Black’s Law Dictionary 91 (9th ed. 2009) (defining altercation as “a 

vehement dispute; noisy argument”); Bryan A. Garner, A Dictionary of Modern American Usage

34 (1998) (“[t]he traditional view is that the word [altercation] refers to a ‘noisy brawl or 

dispute’”). When “read in its entirety, construed according to common sense, and interpreted to 

include facts which are necessarily implied,” Berger, 473 F.3d at 1103, the charging document 

was more than sufficient to provide Appellant with a description of the charges against her to 

enable her to prepare a defense. 

Finally, Appellant argues that Judge Papak’s findings “departed from any of the factual 

allegations of the charging instrument” and that she is therefore unable to plead double jeopardy 

against a potential second prosecution. In addition to this argument being materially different 

from Appellant’s statement of the issues presented on appeal, it lacks substantive merit. The 

Court has reviewed the entire trial transcript and finds that Judge Papak provided a lengthy and 

thorough explanation of his conclusions, that Judge Papak’s conclusions closely track the 

allegations made in the charging document, and that the Appellant will be able to plead double 

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PAGE 7 – OPINION AND ORDER 

jeopardy if she is ever again charged with disorderly conduct occurring on November 13, 2013 

at 2:45 p.m. in front of Building 104 on the Portland Veterans Administration Medical Center. 

CONCLUSION 

Appellant’s Final Judgment of Conviction and Sentence is AFFIRMED. 

IT IS SO ORDERED. 

DATED this ___ day of March, 2015. 

/s/ Michael H. Simon 

Michael H. Simon 

United States District Judge 

3rd

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