IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 91-4677

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES J. PATERNOSTRO,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Eastern District of Texas

 

 (July 2, 1992)

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Charles J. Paternostro appeals from his second conviction

for violating Corps of Engineers regulations by failing to abide

by the terms of his Shoreline Use permit. Finding no error, we

affirm.

I.

Paternostro's family bought property on Lake Texoma in 1965

and built a boathouse on the property. The boathouse was built

pursuant to a permit issued in 1968 by the Corps of Engineers. In

1988, Paternostro replaced an old diving platform next to the

boathouse with a three-tiered metal structure atop a platform. The

structure, which Paternostro refers to as a "wet and wild" facility
2

contains several diving boards and three water slides. It was not

part of the approved plan for the boathouse and Paternostro did not

obtain Corps of Engineers approval for constructing the new water

slide platform.

On November 2 and again on November 16, 1989, the Army Corps

of Engineers issued Paternostro Notices of Violation for failing to

obtain proper approval for building the water slide platform.

Paternostro was charged under 36 C.F.R. § 327.19(a) which makes it

a violation to refuse or fail to comply with the conditions of any

permit issued under Part 327. Paragraph 17 of Paternostro's

Lakeshore Use Permit issued under Part 327 provides that:

If an inspection . . . reveals conditions which . . .

deviate from the approved plans, such conditions will be

corrected immediately by the owner upon receipt of

notification. No deviation or change from approved plans

will be permitted without prior written approval of the

Resource Manager.

After a bench trial, the district court convicted Paternostro

for failing to receive approval for constructing the platform in

violation of 36 C.F.R. § 327.19(a). He was fined $400 under 36

C.F.R. § 327.25 and charged a $10 special assessment. Paternostro

did not appeal this conviction. 

After his conviction, Paternostro applied for approval of the

water slide platform by submitting plans and a letter from an

engineer certifying that the platform was safe. The Corps of

Engineers rejected his application. Paternostro did not appeal the

rejection of his application. The water slide platform remained in

place beside the boathouse. Two weeks after the first conviction

became final, the Corps of Engineers issued another Notice of
3

Violation for failure to obtain approval for the water slide

platform. The district court conducted a bench trial and again

found Paternostro guilty. The court fined Paternostro $5,000 and

sentenced him to five years probation. Paternostro appeals from

this second conviction.

1. Double Jeopardy

The Double Jeopardy Clause protects against (1) a second

prosecution after acquittal, (2) a second prosecution for the same

offense after conviction, and (3) multiple punishments for the same

offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

Paternostro's principal argument is that he is being punished

multiple times for the single act of building these water slides in

violation of his permit. We disagree. His crime as defined by the

applicable regulations is the continuing offense of failure to

abide by the terms of his Shoreline Use permit by maintaining the

non-conforming water slide platform. 

The Double Jeopardy Clause's protection against multiple

punishments is "limited to assuring that the court does not exceed

its legislative authorization." Brown v. Ohio, 432 U.S. 161, 165

(1977). Our inquiry then is whether the legislature has authorized

the multiple punishments. The government relies upon the fact that

the governing regulations provide that "[a]ny violation of any

section of this part 327 shall constitute a separate violation for

each calendar day in which it occurs." 36 C.F.R. § 327.1(g).

Therefore, unlike the Court in Blockburger v. United States, 284

U.S. 299 (1932), and Brown v. Ohio, 432 U.S. 161 (1977), we need
4

not struggle to discern the intent to impose multiple punishments:

the rulemaking body at issue here has explicitly stated its desire

to treat each day of the continuing violation as a separate

offense. The Brown court, which held that a defendant who was

convicted of joy riding could not be retried for auto theft, stated

that it "would have a different case if the Ohio Legislature had

provided that joy riding is a separate offense for each day in

which a motor vehicle is operated without the owner's consent."

432 U.S. at 169 n.8; see United States v. Holloway, 905 F.2d 895

(5th Cir. 1990) (where cumulative punishments are authorized for

"even the same offense, the Double Jeopardy Clause of the Fifth

Amendment is not offended.").

We agree that if Congress explicitly provided for these

multiple punishments this would be an easy case under Brown and its

progeny. However, this case is different from Brown in one

important way which makes it more difficult to resolve: the

explicit decision to create separate offenses on a daily basis was

made by a regulatory agency, not by Congress. We have found no

authority specifically answering the question whether regulatory

intent should be treated as the equivalent of legislative intent

for double jeopardy purposes. We note, however, that in another

context, the Supreme Court has held that congressional intent may

be found in federal regulations promulgated by an administrator in

the exercise of delegated congressional authority. Fidelity

Federal Savings & Loan Ass'n v. De La Cuesta, 102 S.Ct 3014, 3022-
5

23 (1982) (court looks to regulations in determining whether

Congress intended to pre-empt state law).

In determining whether the legislative intent was to provide

for cumulative punishments, we believe that it is consistent with

the purposes of the Double Jeopardy Clause to attribute to Congress

the intent embodied in these regulations. The double jeopardy

guarantee "serves principally as a restraint on courts and

prosecutors." Brown v. Ohio, 432 U.S. at 165. When the Corps of

Engineers enacts regulations it is not acting as either court or

prosecutor; its role is that of a quasi-legislative rulemaker. We

believe that the "legislative intent" referred to in the Supreme

Court's double jeopardy analysis in Brown and Grady includes

rulemaking pursuant to a valid grant of congressional authority.

Paternostro has not asserted that the Corps of Engineers acted

outside its authority as delegated by Congress in dividing this

continuing offense into daily offenses. See 16 U.S.C. § 460d. Our

task of statutory interpretation is at an end once we determine

that cumulative punishment is specifically authorized; we need not

determine whether these offenses are the same under the Blockburger

analysis. Missouri v. Hunter, 103 S.Ct. 673, 679 (1983). Because

we find that Congress has authorized cumulative punishments, there

is no double jeopardy violation in Paternostro's punishment. 

Paternostro also asserts that his prosecution violates the

Double Jeopardy Clause because he has been subjected to the

harassment of multiple prosecutions. United States v. Houltin, 566

F.2d 1027, 1033 (5th Cir. 1978) (Double Jeopardy Clause protects
6

defendant from harassing multiple prosecutions). We need not

address whether repeated prosecutions for daily offenses may

impinge upon the Double Jeopardy Clause in some circumstances

because Paternostro has not been subjected to harassing multiple

prosecutions. 

Where the defendant continues engaging in an offense after an

original conviction and sentence become final, he cannot rely upon

the Double Jeopardy Clause to prevent a later prosecution and

conviction. Unlike the defendant in Grady v. Corbin, 110 S.Ct.

2084 (1990), Paternostro is not being prosecuted for acts committed

in the past but for his conduct continuing after the first

prosecution. As the Supreme Court has said "one who insists that

the music stop and the piper be paid at a particular point must at

least have stopped dancing himself before he may seek such an

accounting." Garrett v. United States, 105 S.Ct. 2407, 2417

(1985); United States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir.

1990).

In this case, Paternostro has not stopped dancing. His

prosecution for his continuing refusal to abide by the terms of his

Shoreline Use permit is not barred by double jeopardy because the

government could not have brought this case in the earlier

prosecution. See Diaz v. United States, 223 U.S. 442 (1912)

(double jeopardy does not bar prosecution for murder after

conviction of assault where victim did not die until after first

trial). Paternostro was prosecuted once for his violations in

November 1989. The Corps did not take any further prosecutorial
7

action until that conviction became final and then relied only upon

violations occurring after that date. The Corps could not have

tried Paternostro for these separate violations at his first trial

because they had not yet occurred. Paying his $400 fine in the

first case does not immunize Paternostro from prosecution for his

continued willful violation of the Corps of Engineers regulations.

We conclude that Paternostro's prosecution did not violate the

Double Jeopardy Clause.

2. The Petite policy

Paternostro contends that the government failed to follow its

dual prosecution policy, known as the Petite policy, by prosecuting

him for a second time. Petite v. United States, 361 U.S. 531

(1960). First, we note that the Petite policy applies to federal

prosecutions following state prosecutions for the same offense, not

multiple prosecutions for a continuing federal offense. In any

event, "the Petite policy is an internal rule of the Justice

Department; criminal defendants may not invoke it to bar

prosecution by the federal government." United States v. Harrison,

918 F.2d 469, 475 (5th Cir. 1990). Paternostro cannot rely upon

this policy to assert an error in his prosecution.

3. Exhaustion of Administrative Remedies

Paternostro asserts that the government should not have

prosecuted him because the Corps had adequate administrative

remedies against him for violating his Lakeshore Use Permit.

Paternostro confuses the scope and purposes of the exhaustion of

administrative remedies doctrine. This doctrine is designed to
8

prevent judicial interference in administrative procedures before

the agency has been allowed to complete its own decision and review

processes. Patsy v. Florida Int'l University, 634 F.2d 900, 903

(5th Cir. 1981). Where the agency itself decides to pursue a

judicial remedy, the exhaustion of remedies doctrine is simply not

applicable. Although pursuing the revocation of Paternostro's

permit before criminally prosecuting him might have been the wiser

course, the Corps of Engineers is not required to do so.

4. Right to Counsel

Paternostro asserts that the district court violated his Sixth

Amendment right to counsel by rejecting his request for a

continuance in order to allow him to obtain legal counsel. The

Sixth Amendment requires only that a defendant be given a fair or

reasonable opportunity to obtain particular counsel; it does not

guarantee an absolute right to the counsel of one's choice. United

States v. Mitchell, 777 F.2d 248 (5th Cir. 1985).

Paternostro is an attorney and represented himself at his

first trial. He was planning to represent himself at the second

trial as well, but apparently changed his mind when the government

filed its "Brief in Support of Sentencing Alternatives" asserting

its view of the possible sentences available to the district court.

Paternostro asserts that the government's decision to argue for a

$5,000 fine and long-term probation made it necessary for him to

retain an attorney with experience in "the federal legal arena."

Assuming that Paternostro's need for an attorney increased as

he argues, he has failed to show that the district court's denial
9

of a continuance prevented him from obtaining one. The government

filed its brief twenty days before the trial date. Given the

simplicity of the trial in this case, Paternostro had sufficient

time to retain an attorney in time to prepare for trial. The fact

that the particular attorney he wished to hire was unavailable does

not constitute a violation of his Sixth Amendment rights where he

had sufficient opportunity to obtain other counsel. Mitchell, 777

F.2d at 256-57. Determining whether to grant a continuance

allowing the defendant to obtain the counsel of his choice

"requires a delicate balance between the defendant's due process

right to adequate representation by counsel of his choice and the

general interest in the prompt and efficient administration of

justice." Gandy v. State of Alabama, 569 F.2d 1318, 1323 (5th Cir.

1978). The district court did not abuse its discretion by denying

Paternostro's motion for a continuance under the circumstances of

this case.

5. Right to a jury trial

Paternostro next asserts that the district court's denial of

his request for a jury trial violated his Sixth Amendment rights.

The Sixth Amendment right to a jury trial is triggered only by

prosecution for "serious" crimes as opposed to "petty" crimes.

Blanton v. North Las Vegas, 109 S.Ct. 1289 (1989). The most

relevant criterion for determining the seriousness of a crime is

the maximum authorized penalty. Id. Paternostro concedes that the

maximum sentence for violation of 36 C.F.R. § 327.20 is six months

imprisonment and a $5,000 fine.
10

For Sixth Amendment purposes, we presume that offenses

carrying a maximum prison term of six months or less are petty

offenses. Blanton, 109 S.Ct. at 1293. A defendant in such

circumstances must demonstrate that "any additional statutory

penalties viewed in conjunction with the maximum authorized period

of incarceration are so severe that they clearly reflect a

legislative determination that the offense in question is a

'serious' one." Id. The additional penalties of a $5,000 fine and

extended probationary period imposed under 18 U.S.C. § 3571(b) are

not so severe as to lead us to conclude that Congress intended to

make failure to abide by the terms of a Shoreline Use permit a

serious offense.

Paternostro argues that because under the government's theory

he committed a violation for every day the water slide structure

remained intact, his potential punishment was many times the six

month maximum. In analyzing the seriousness of the offense under

Blanton, we look only at the penalty to which the defendant is

subject to for the crimes actually charged in that proceeding.

Blanton, 109 S.Ct. at 1294 (refusing to consider fact that DUI

offender would face more serious penalties for repeat offenses).

Regardless of what sentences Paternostro was exposed to in his

first trial and what he might be subject to in the future, the

offense he was being tried for had a maximum penalty of six months

and therefore he was not entitled to a jury trial.

6. Legal defenses and sufficiency of the evidence
11

Finally, Paternostro asserts that the district court erred in

failing to credit his defenses to the violation of the regulations

and that the evidence was insufficient to support his conviction.

The defenses not addressed elsewhere in the opinion are (1)

approval of the Corps of Engineers was unnecessary because the

plans on file with the Corps show a diving board on the boathouse;

(2) the Corps had actual notice that he had had a water slide

structure of some sort on the boathouse since 1976; (3) the Corps

is estopped by its letter renewing the boathouse permit in 1989 and

stating that there were "no deficiencies noted," (4) Paternostro

had submitted plans for approval prior to being charged with the

third violation; (5) the Corps had the authority to grant

Paternostro a permit for the water slide as a "private recreational

facility," (6) approval of the Corps was unnecessary because he

submitted the plans with a letter from an engineer certifying the

structure's safety; and (7) other structures on the lake are

allowed to have water slides and more elaborate boathouse

facilities. None of these arguments has merit. Whether the Corps

could or should have issued Paternostro a permit for his water

slide platform is irrelevant to the issue of whether he varied his

boathouse without approval. Paternostro could have challenged the

denial of his application but chose not to do so. As to the

sufficiency of the evidence, we find that the evidence in the

record fully supports the district court's verdict.

The judgment of the district court is AFFIRMED.