United States Court of Appeals,
Eleventh Circuit.
No. 93-8716.
UNITED STATES of America, Plaintiff-Appellee,
v.
Abraham GILBERT, Defendant-Appellant.
March 17, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-cr-70), Jack T. Camp, Judge.
Before HATCHETT and ANDERSON, Circuit Judges, and DYER, Senior
Circuit Judge.
HATCHETT, Circuit Judge:
Abraham Gilbert, the appellant, attacks the sufficiency of the
evidence supporting his convictions for failing to follow the
lawful directive of a federal protective officer and for
unreasonably obstructing the entrance to a federal building. Based
upon our review of the record, we reverse Gilbert's conviction for
failing to follow the lawful directive of a federal protective
officer and affirm Gilbert's conviction for unreasonably
obstructing the entrance to a federal building.
FACTS
Abraham Gilbert has for many years conducted protests in front
of the federal courthouse in Atlanta, Georgia. In 1989, the
government sought a civil restraining order to enjoin Gilbert from
protesting and to prevent him from sleeping in front of the
building. See United States v. Gilbert, 720 F.Supp. 1554
(N.D.Ga.1989). In that case, the district court granted summary
judgment for the government. On appeal, this court partially
reversed the district court's ruling, upholding the district
court's order prohibiting Gilbert from protesting or sleeping in
the portico area, the area beneath the colonnade in front of the
building's entrance, but allowing Gilbert to sleep in the
unenclosed plaza beyond the portico area as long as it was part of
his protest.
This case arises from Gilbert's protest in the restricted
portico area on February 22, 1993. On that date, the courthouse
building manager advised Gilbert to move his protest beyond the
planters surrounding the entrances to the building and also
informed Gilbert that he would have to obtain a permit to
demonstrate in front of the building. When Gilbert refused to
move, the building manager instructed a federal protective officer
to remove Gilbert from his location.
When Gilbert resisted, the protective officer instructed
Gilbert to accompany him inside the federal courthouse to fill out
criminal citations. After receiving the citations, Gilbert
attempted to remain in the building. When a federal protective
officer instructed Gilbert to leave the building, Gilbert lay down
on the floor. Consequently, two federal protective officers
carried Gilbert out of the building and placed him in the portico
area near the entrance and exit doors of the building. When the
officers told Gilbert to move beyond the planters surrounding the
building's entrance, Gilbert once again lay down on the ground.
The officers then carried Gilbert beyond the planters. Gilbert
returned to the portico area with a sign, continuing to protest.
The protective officers arrested him.
After a bench trial, the district court found Gilbert guilty
of failing to comply with the lawful direction of a federal
protective officer through the act of placing his duffel bag,
bedroll, and other personal belongings in the portico area of the
federal courthouse after lawfully being instructed not to do so.
See 41 C.F.R. § 101-20.304. The district court also found Gilbert
guilty of unreasonably obstructing the usual use of the entrance of
the federal courthouse through the acts of lying down and shouting
in front of the courthouse entrance. See 41 C.F.R. § 101-20.305.
On appeal, Gilbert challenges the sufficiency of the evidence
supporting his convictions.
CONTENTIONS
On appeal, the government concedes that the facts presented at
trial to support the failure to comply charge differed from the
specific facts charged in the criminal information; consequently,
insufficient evidence supported Gilbert's conviction for failing to
comply with the lawful directive of a federal protective officer,
in violation of 41 C.F.R. § 101-20.304. We agree. Therefore, we
will only address the issue of whether sufficient evidence supports
Gilbert's conviction for unreasonably obstructing the usual use of
the entrance to the federal courthouse.
Essentially, Gilbert contends that he did not unreasonably
obstruct the entrance to the building when he lay on the ground
outside because patrons could and did enter the building through
either the adjacent revolving door or several other entrances.
Gilbert also contends that no evidence demonstrates that patrons
were dissuaded from entering the building due to his presence.
Finally, Gilbert contends that the minimal delay he caused and his
minimal obstruction when balanced against his First Amendment
rights, preponderates against his conviction for obstructing the
entrance to a federal building.
The government responds that Gilbert need not have obstructed
every possible avenue for entering the building to be found guilty
of obstructing the entrance to a federal building. The government
asserts that a defendant need only delay, hinder, or impede entry
into a federal building to be in violation of the federal
regulation. The government also asserts that this court has
already held that Gilbert may not protest on the portico area in
front of the courthouse. See United States v. Gilbert, 920 F.2d
878, 886 (11th Cir.1991).
DISCUSSION
This court reviews the sufficiency of the evidence to
determine whether the evidence viewed in the light most favorable
to the government, with all reasonable inferences and credibility
evaluations resolved in the government's favor, can support a
reasonable fact finder's guilty verdict. United States v. Cooper,
873 F.2d 269, 272 (11th Cir.1989).
The indictment charged Gilbert with "unreasonably
obstruct[ing] the usual use of the entrance of the [federal
courthouse], by laying down and shouting loudly in front of the
revolving door ... in violation of Title 41, Code of Federal
Regulations, Section 101-20.305."1 Viewed in the light most
1
Title 41 C.F.R. § 101-20.305 prohibits "any loitering,
disorderly conduct, or other conduct on property ... which
unreasonably obstructs the usual use of entrances...."
favorable to the government, the facts adduced at trial
demonstrated that Gilbert lay down in front of a revolving door
entrance to the federal courthouse. Due to his presence at that
door, at least two people utilized one of the other entrances.
The government directs our attention to two First Circuit
cases which bolster its position that Gilbert's conduct constituted
unreasonable obstruction of the entrance. In the first case,
United States v. Bader, 698 F.2d 553 (1st Cir.1983), several
protestors sat closely together blocking the doorway to a federal
draft registration room so that potential registrants had to step
over the protestors to enter the room. The First Circuit court
held that the protestors unreasonably obstructed the entrance even
though no evidence demonstrated that anyone was dissuaded from
entering the room to register. In the second case, United States
v. Sachs, 679 F.2d 1015 (1st Cir.1982), the First Circuit held that
a protestor sitting in front of an elevator swinging his arms
unreasonably obstructed the entrance to the elevator even though he
may not have totally obstructed the elevator's entrance.
In response, Gilbert urges this court to balance his right to
protest against the minimal obstruction he may have caused people
in entering the building. This argument cannot prevail, however,
because in an earlier case involving Gilbert, this court held that
Gilbert may not conduct a protest in the portico area in front of
the federal courthouse. See United States v. Gilbert, 920 F.2d
878, 886 (11th Cir.1991) ("the impact of a [Gilbert's] message will
not suffer if it must be conveyed in the unenclosed plaza area
instead of ... on the portico").
Gilbert also argues that no evidence demonstrated that any
person was obstructed from entering the building because of his
presence. Although the government did not present overwhelming
evidence that Gilbert's presence actually deterred persons from
utilizing the entrance he lay before, we must view the evidence in
the light most favorable to the government, with all reasonable
inferences drawn in the government's favor. Based upon such a
review, the government presented sufficient evidence to support a
reasonable fact finder's determination that Gilbert deterred
patrons from utilizing the entrance he lay before. Moreover, the
government need not present evidence that Gilbert totally blocked
the entrance or actually prevented patrons from utilizing the
entrance. See United States v. Bader, 698 F.2d 553 (1st Cir.1983).
It is sufficient if Gilbert's conduct unreasonably obstructed the
path to the courthouse entrance. Gilbert's conduct in laying down
before the entrance and shouting constitutes such an unreasonable
obstruction.
CONCLUSION
For the foregoing reasons, we affirm Gilbert's conviction for
obstructing the entrance to the federal courthouse and reverse
Gilbert's conviction for failing to follow the lawful directive of
a federal protective officer.
AFFIRMED in part and REVERSED in part.