United States v. Uterburger

                     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).