United States v. Gilbert

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.