UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4516
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUSSELL L. LEE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:08-cr-00485-DKC-1)
Argued: May 13, 2011 Decided: May 27, 2011
Before MOTZ, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Benjamin C. Wiles, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Jonathan Biran,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: John J. Korzen, Director, Megan M. Curran,
Student, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Hollis Raphael Weisman, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
At approximately noon on March 3, 2008, Sergeant
Daniel Chaale, a law enforcement officer stationed at Andrews
Air Force Base, and his partner responded to reports of a verbal
altercation inside the Base barber shop. They found Russell Lee
standing outside the barber shop in the common area of the Base
Exchange. Lee, who matched the description of the man involved
in the altercation, was wearing a large black trench coat and
was standing with his hands behind his back. Lee approached the
officers and admitted to “arguing with an individual . . .
inside the barber shop.”
Sgt. Chaale ordered Lee to step back and show his
hands. Lee, who was angry and belligerent, refused to comply
with these orders. Because they were in a confined space inside
the Base Exchange, Sgt. Chaale took Lee’s arm and directed him
to the common smoking area just outside the Base Exchange
complex. Once outside, Sgt. Chaale ordered Lee to sit down. By
Lee’s own admission, he refused. During this encounter, Lee
cursed at the officers and continued to refuse to show his
hands. Thereafter, based on Lee’s lack of cooperation and
refusal to show his hands, Sgt. Chaale forcibly detained,
searched, and eventually arrested Lee.
Lee was charged with two offenses: (1) “willfully
act[ing] in a disorderly manner that disturbs the public peace,”
2
in violation of Md. Code Ann. Crim. Law § 10-201(c)(2); and (2)
“willfully fail[ing] to obey a reasonable and lawful order that
a law enforcement officer makes to prevent a disturbance to the
public peace,” in violation of § 10-201(c)(3). Because the
events occurred on a military base within federal jurisdiction,
the offenses were adjudicated in federal court.
On October 6, 2008, a federal magistrate judge
conducted Lee’s bench trial. The Government presented the
testimony of Sgt. Chaale. At the close of the Government’s
case, the magistrate judge acquitted Lee of the first offense,
finding that the Government failed to present evidence “to
suggest that anybody was disturbed” by Lee’s actions. As to the
second offense, the magistrate judge first found as fact that
Lee failed to obey “two if not three” police orders. The judge
then considered whether this confrontation “was a problem that
needed to be resolved so as not to lead to a breach of the
public peace,” and found that “it was reasonable to believe that
it would cause a disturbance,” and thus found Lee guilty of the
second offense. The judge sentenced Lee to six months’
probation with conditions that he attend anger management and
perform 20 hours of community service.
The magistrate judge advised Lee of his right to
appeal the ruling to the district court. On October 17, 2008,
proceeding pro se, Lee timely appealed the magistrate judge’s
3
order to the district court. Lee challenged Sgt. Chaale’s
testimony and questioned whether there was any “evidence that
the ‘Sit down’ command was meant to prevent him from inciting or
offending others.” On November 4, 2008, Lee filed another
notice of appeal, which the district court construed as a brief.
The Government did not respond until March 20, 2009 -- well
after the allotted 30-day period.
On the same day the Government filed its response, the
district court entered judgment, affirming the magistrate
judge’s order in a memorandum opinion. The court concluded that
the magistrate judge was not clearly erroneous in finding that
the officer’s “orders to [Lee] were necessary and reasonable to
prevent a disturbance of the public peace.” The district court
did not enter a separate formal order of judgment. 1 More
significantly, the record does not reflect that the district
court informed Lee of his right to appeal the judgment to this
court within the 10-day appeal period of Federal Rule of
Appellate Procedure 4(b). Apparently unaware that the district
court entered judgment, on March 24, 2009, Lee filed a reply
brief. Thereafter, the district court neither entered a formal
1
Pursuant to the civil rules of procedure, “the result of
failure to enter judgment on a separate document is that the
time . . . to appeal under Appellate Rule 4(a) . . . does not
begin to run.” Fed. R. Civ. P. 58 advisory committee’s note
(discussing 2002 amendments to rule). This so-called “separate
document requirement” has no analogue in the criminal rules.
4
order of judgment nor informed Lee of his right to appeal the
judgment.
On May 19, 2009, Lee, still proceeding pro se, noted
an appeal outside the applicable 10-day window. 2 This court set
an informal briefing schedule, and on September 24, 2009, Lee
filed an informal merits brief. The Government opted not to
file a response. On August 31, 2010, we appointed Lee counsel
and ordered supplemental briefing on the question of whether
this court could sua sponte raise the Rule 4(b) time bar. On
November 10, 2010, Lee, through appointed counsel, filed a
formal merits brief. On December 8, 2010 -- 99 days after we
ordered formal briefing and 18 months after Lee noted the appeal
-- the Government invoked the Rule 4(b) time bar in a motion to
dismiss Lee’s appeal. Shortly thereafter, the Government filed
its formal appellate brief.
I.
The time bar in Rule 4(b) is not jurisdictional. See
United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009). We
note, moreover, that the district court never informed Lee, who
was proceeding pro se, of his right to appeal. See Fed. R.
Crim. P. 32(j) (providing that district courts “must advise the
2
In 2009, after the commencement of this appeal, Fed. R.
App. P. 4(b) was amended to allow 14 days.
5
defendant of the right to appeal the conviction . . . [and]
sentence”); Fed. R. Crim. P. 58(c)(4) (setting forth identical
duties in misdemeanor cases); see also Peguero v. United States,
526 U.S. 23, 27 (1999) (instructing that district courts “must
be meticulous and precise” in advising criminal defendants of
their appeal rights). 3 Because reaching the merits of Lee’s
appeal would not waste any judicial resources beyond those
already squandered by the Government’s lengthy delay, we see no
barrier to considering the substance of Lee’s appeal. Cf.
Kontrick v. Ryan, 540 U.S. 441, 456 (2004) (explaining that a
claim-processing rule can “be forfeited if the party asserting
the rule waits too long to raise the point”); Urutyan, 564 F.3d
at 684, 686 (reaching the merits of defendant’s appeal when
government waived the time bar).
Lee contends that the Government presented
insufficient evidence to support his conviction. “In assessing
3
Although the parties did not brief whether the district
court’s error in failing to advise Lee of his appeal rights was
harmless, at oral argument the Government suggested that because
Lee timely filed his appeal from the magistrate judge’s order,
he can be held to have known of his right to appeal. See
Peguero, 526 U.S. at 28 (holding failure to advise was harmless
because defendant “had full knowledge of his right to appeal”).
Of course, the magistrate judge clearly instructed Lee of his
right to appeal to the district court. Thus, contrary to the
Government’s suggestion, Lee’s timely appeal of the magistrate
judge’s order serves to “underscore the importance of the advice
which comes from the court itself,” id. at 27, not to diminish
it.
6
the sufficiency of the evidence presented in a bench trial, we
must uphold” a judgment of guilt “if, taking the view most
favorable to the Government, there is substantial evidence to
support the verdict.” United States v. Armel, 585 F.3d 182, 184
(4th Cir. 2009) (internal quotation omitted). “‘Substantial
evidence’ means evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (internal
quotation omitted).
Lee relies primarily on the magistrate judge’s finding
that the Government presented “no testimony to suggest that
anybody was disturbed” by Lee’s conduct. According to Lee,
“because the public was not present during [his] interaction
with the police, the orders could not have been given to prevent
a disturbance of the public peace.” Appellant’s Br. at 28. But
the magistrate judge’s finding involved whether Lee actually
disturbed the public peace, not whether there was a public
presence such that Lee’s conduct posed a threat to the public
peace. Relevant to the latter inquiry, the magistrate judge
considered the evidence that Lee “was in a public area of the
Base Exchange” during lunchtime when he failed to comply with
Sgt. Chaale’s orders and exchanged “heated words” with the
officers. From this evidence, the magistrate judge as fact
finder could conclude that “it was reasonable to believe” that
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Lee’s conduct “would cause a public disturbance.” Indeed, in
his informal brief to this court, Lee acknowledged that there
were “numerous customers . . . coming and going with the mix of
active duty personnel outside and inside the [Base Exchange]”
during the events in question. Appellant’s Informal Br. at 2.
Lee maintains, however, that there must be evidence of
a gathering crowd to satisfy the requirement that the lawful
order be made “to prevent a disturbance of the public peace.”
He relies on Lamb v. Maryland, 786 A.2d 783 (Md. Ct. Spec. App.
2001), in which Maryland’s intermediate appellate court reversed
a conviction under Md. Code Ann. Crim. Law § 10-201(c)(3)
because the defendant actually obeyed the police officer’s only
lawful order to step back. The court went on to note that by
stepping back the defendant “withdrew from the public sidewalk
to his parent’s property and that there was no evidence of a
gathering crowd during the confrontation.” Id. at 800. Thus,
the Lamb court concluded, “there could be neither a disturbance
of the public peace nor an obstruction of the free passage of
pedestrians or others in a public place or on a public
conveyance pursuant to [Maryland law].” Id. Rather than
delineating the presence of a gathering crowd as an element of
the offense, the Lamb court was merely noting the lack of
evidence that the defendant, standing on his parent’s private
property and not attracting attention, was a threat either to an
8
existing public peace or to the free passage of the public.
Here, of course, Lee stood in a public place in the middle of
the day where he himself has acknowledged “numerous” members of
the public were “coming and going.” 4
II.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
4
We very much appreciate the fine efforts of Lee’s
appointed counsel in assisting us in resolving this appeal.
9