United States Court of Appeals,
Eleventh Circuit.
No. 95-5199.
UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond UNTERBURGER, Eric Olson, Defendants-Appellants.
Oct. 23, 1996.
Appeals from the United States District Court for the Southern
District of Florida. (No. 95-8025-CR-JAG),Jose A. Gonzalez, Jr.,
District Judge.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and
COHILL*, Senior District Judge.
DUBINA, Circuit Judge:
I. BACKGROUND
A. Procedural History
This is an abortion protestor case. Appellants Eric Olson and
Raymond Unterburger ("the defendants") were charged in a one-count
information with violating the Freedom of Access to Clinic
Entrances Act of 1994 ("Access Act" or "FACE"), 18 U.S.C. § 248(a).
The information charged that the defendants used physical
obstruction to intentionally intimidate and interfere with, and
attempt to intimidate and interfere with, persons because they were
trying to provide and obtain reproductive health services. Because
the defendants had no prior convictions under the Access Act, and
because the alleged offense involved "exclusively a nonviolent
physical obstruction," the defendants faced a maximum prison term
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
of six months and a maximum fine of $10,000. 18 U.S.C. § 248(b).
The defendants requested a jury trial, but a magistrate judge
recommended that the request be denied. The district court
overruled the defendants' objections to the magistrate judge's
report, agreeing with the magistrate judge that the charged offense
was not sufficiently serious to trigger the constitutional right to
a jury trial.
The defendants also filed motions to dismiss the information,
arguing that the Access Act was facially unconstitutional under the
free speech clause of the First Amendment and that Congress lacked
the power to enact the statute under the Commerce Clause. The
magistrate judge disagreed, concluding that the Access Act was
content—and viewpoint—neutral, that it withstood immediate scrutiny
under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20
L.Ed.2d 672 (1968), and that it was not unconstitutionally vague or
overbroad. The magistrate judge also rejected the defendants'
Commerce Clause argument. The district judge adopted the
magistrate judge's report over the defendants' objections.
The district court then conducted a bench trial and in light
of the evidence presented found, beyond a reasonable doubt, that
the defendants engaged in physical obstruction of the clinic, that
they intentionally interfered with and intimidated two employees
who provided reproductive health services at the clinic, and that
the defendants engaged in such conduct because the two employees
were, and had been, providing reproductive health services. The
defendants were sentenced to time served and a one-year period of
supervised release. They then perfected this appeal.
B. Facts
The specific events leading to the information filed against
the defendants involved the blockading of the Aware Women Medical
Clinic, an abortion clinic in Lake Clark Shores, Florida. The
defendants accomplished the blockade by chaining themselves to the
main entrance of the building that contained the clinic. The
defendants took a series of steel bicycle locks and locked them
around their necks so that they were linked to one another. The
chain of bicycle locks was then secured to the front door of the
building. Defendant Olson also attached his arm to a large
concrete block that weighed between 200 and 300 pounds.
At least two staff members of the clinic were unable to enter
the front door of the building because of the blockade. When a
staff member asked the defendants to let her enter the building,
one of them called her an "assassin."
A police officer arrived and instructed the defendants to
remove themselves from the entrance of the building. When they
refused to move, local officials had to obtain a "jaws of life"
device to cut the chains and bicycle locks. It took local
officials approximately four hours to physically remove the
defendants.
II. STANDARD OF REVIEW
This appeal involves questions of law that we review de novo.
O'Reilly v. Ceuleers, 912 F.2d 1383, 1385 (11th Cir.1990).
III. ISSUES
(1) Whether this court should reconsider its ruling in Cheffer
v. Reno, 55 F.3d 1517 (11th Cir.1995), and hold that the Access Act
violated the First and Tenth Amendments to the United States
Constitution.
(2) Whether the potential penalties under the Access Act were
sufficiently severe to warrant a jury trial in this case.
IV. ANALYSIS
The defendants' arguments in support of the first issue are
foreclosed by our decision in Cheffer v. Reno, in which we held
that the Access Act survived constitutional challenge under both
the First and Tenth Amendments. Notwithstanding the defendants'
request that we reconsider Cheffer, one panel of our court cannot
unilaterally reverse circuit precedent. See Vernon v. FDIC, 981
F.2d 1230, 1233 n. 6 (11th Cir.1993); Ballbe v. INS, 886 F.2d 306,
310-11 (11th Cir.1989), cert. denied, 495 U.S. 929, 110 S.Ct. 2166,
109 L.Ed.2d 496 (1990). Accordingly, we affirm the district
court's disposition of this issue.
Concerning the second issue, the defendants argue that they
had a constitutional right to a jury trial under Article III and
the Sixth Amendment to the United States Constitution. The
defendants were each charged with an offense involving "exclusively
a nonviolent physical obstruction." 18 U.S.C. § 248(b). Since it
was the defendants' first violation of the Access Act, the offense
was punishable by a maximum term of imprisonment of six months and
a maximum fine of $10,000. Id. As an alternative to imprisonment,
the district court could have sentenced the defendants to a
five-year term of probation. 18 U.S.C. § 3561(a) & (c); 18 U.S.C.
§ 3559(a). In our view, these maximum penalties are not
sufficiently severe to entitle the defendants to a jury trial.
In the recent case of United States v. Soderna, 82 F.3d 1370
(7th Cir.1996), the Seventh Circuit held: (1) that defendants are
not entitled to a jury trial when charged under the Access Act with
a first offense of engaging in a non-violent physical obstruction
of a clinic; (2) that Congress had the authority under the
Commerce Clause to enact the Access Act; and (3) that the Access
Act does not violate the First Amendment. 1 Soderna is therefore
directly on point with the issues presented in this appeal.
Moreover, in Lewis v. United States, 516 U.S. ----, 116 S.Ct. 2163,
135 L.Ed.2d 590 (1996), the Supreme Court recently reaffirmed (1)
that a defendant charged with a "petty offense" has no Sixth
Amendment right to a jury trial; (2) that an offense is presumed
to be "petty" if the maximum prison term authorized is no more than
six months; and (3) that courts should place primary emphasis on
the maximum prison term authorized—rather than on other penalties,
such as fines or probation—in determining whether Congress viewed
the offense as serious. 516 U.S. at ---- - ----, 116 S.Ct. at
2166-68. Although Lewis was not an Access Act case, its rationale
and holding are certainly relevant to the jury issue in the present
case.
Because we agree with the Seventh Circuit's holding in
Soderna, we conclude that the defendants here were not entitled to
a jury trial. Accordingly, we affirm the judgments of conviction.
AFFIRMED.
1
But see United States v. Lucero, 895 F.Supp. 1419
(D.Kan.1995) (holding that defendants charged with first time
nonviolent violations of the Access Act were entitled to trial by
jury).