United States v. Davis

F I L E D
United States Court of Appeals
Tenth Circuit

AUG 13 2003

PATRICK FISHER
PUBLISH Clerk

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 02-7095

RAY L. DAVIS, JR.,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 02-CR-19-S)

Submitted on the Briefs:

Ray L. Davis, Jr., pro se.

Sheldon J. Sperling, United States Attorney, and Dennis A. Fries, Assistant
United States Attorney, Muskogee, Oklahoma, on brief for Plaintiff-Appellee.

Before SEYMOUR, MURPHY and O’BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.
 Mr. Davis was found guilty and fined $150.00 by a magistrate judge for

two petty offenses: unauthorized engaging in business activities on Army Corps

of Engineers project lands, 36 C.F.R. § 327.18 (a), and unauthorized mooring of a

vehicle at an unapproved mooring site, 36 C.F.R. § 327.3(h). 1 The district court

affirmed Mr. Davis’ convictions and he now appeals pro se. He first contends the

Corps of Engineers’ failure to post the regulations under which he was found

guilty renders his convictions invalid. He also asserts he was directed by the trial

court to attend pretrial conferences pro se, contrary to Federal Rule of Criminal

Procedure 17.1, prejudicing him and resulting in an unfair trial. Because Mr.

Davis is proceeding pro se, we liberally construe his brief. Cummings v. Evans,

161 F.3d 610, 613 (10th Cir. 1998). We nonetheless affirm the district court,

although on slightly different grounds.

I

Mr. Davis runs a boat and jet ski rental service near Hochatown State Park,

1
Section 327.18(a) provides that “[t]he engaging in or solicitation of
business on project land or waters without the express written permission of the
District Commander is prohibited.” Section 327.3(h) provides in pertinent part
that “[v]essels shall not be attached or anchored to structures such as locks, dams,
buoys or other structures unless authorized by the District Commander.” The
penalty for violating these regulations is set out in 36 C.F.R. § 327.25, which
provides that “[a]ny person who violates the provisions of the regulators in this
part . . . may be punished by a fine of not more than $5,000 or imprisonment for
not more than six months or both . . . .”

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located on Broken Bow Lake, Oklahoma. The lake and park are United States

property administered by the Army Corps of Engineers, which has leased the

property to the Oklahoma Tourism and Recreation Department. On July 3, 2001,

after personally using one of his pontoons on the lake, Mr. Davis moored it along

the shoreline overnight, with the intent to deliver it to a rental customer the

following morning. The next morning he also unloaded two jet skis onto the lake,

again in anticipation of renting them to customers. Later that morning, at his

place of business located a short distance from the lake, he rented the pontoon

and one of the jet skis to customers. In the course of these activities, Mr. Davis

received two citations from Corps of Engineers park ranger Clifford Citty for the

unauthorized mooring of the pontoon and for engaging in unauthorized business

activities on the lake. Mr. Davis pled not guilty to both charges. Proceeding pro

se at trial before a magistrate judge, Mr. Davis was found guilty of both

violations. Following the district court’s affirmation of his convictions, Mr.

Davis brought this appeal.

II

Mr. Davis first alleges his convictions should be overturned because the

regulations under which he was found guilty were not posted. 2 The regulations

Testimony at trial confirmed the regulations at issue were not posted in
2

any manner. Rec., vol. II at 34.

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were promulgated in relevant part under the authority of 16 U.S.C. § 460d and 33

U.S.C. § 1. Section 460d states in pertinent part:

The Chief of Engineers, under the supervision of the Secretary
of the Army, is authorized to construct, maintain, and operate
public park and recreational facilities at water resource
development projects under the control of the Department of
the Army . . . . [S]uch projects shall be open to public use
generally for boating, swimming, bathing, fishing, and other
recreational purposes . . . all under such rules and regulations
as the Secretary of the Army may deem necessary . . . .

16 U.S.C. § 460d (emphasis added). Section 1 reads “[i]t shall be the duty of the

Secretary of the Army to prescribe such regulations for the use, administration,

and navigation of the navigable waters of the United States . . . . Such

regulations shall be posted, in conspicuous and appropriate places . . . .” 33

U.S.C. § 1 (emphasis added). Finally, the regulation directing the Corps of

Engineers to establish restrictions at water projects provides “[t]he District

Commander [of the Corps of Engineers] may establish and post a schedule of

visiting hours and/or restrictions on the public use of a project or portion of a

project.” 36 C.F.R. § 327.12(a) (emphasis added).

In his appeal to the district court, see 18 U.S.C. § 3402, Mr. Davis argued

the language of 33 U.S.C. § 1 commands that the regulations under which he was

convicted be posted and the failure of the Corps of Engineers to do should result

in a reversal of his convictions. In the absence of any direct authority to support

his argument, Mr. Davis referred to 40 U.S.C. § 318(a), which dictates that rules

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and regulations promulgated by the General Services Administration for activities

on government property “shall be posted and kept posted in a conspicuous place

on such property.” 40 U.S.C. § 318(a) (current version at 40 U.S.C.A. §

1315(c)(1) (West Supp. 2003)). He further relied on case law interpreting this

section, which indicates that the failure to conspicuously post regulations could

result in the reversal of a defendant’s conviction. See United States v. Strakoff,

719 F.2d 1307, 1310 (5th Cir. 1983) (reversal of conviction required where

regulations barring individual from bringing weapons into federal courthouse

were not posted at building entrance in compliance with posting requirements);

United States v. Boyer, 935 F. Supp. 1138, 1142 (D. Colo. 1996) (defendant’s

motion to dismiss charges granted where regulations were posted in glass case in

locked office).

The district court rejected Mr. Davis’ attempt to analogize the above cases

to the regulations at issue here after concluding no “mandatory language exists

with respect to regulations under 36 C.F.R. § 327.” Rec. vol. I, doc. 15 at 4. The

court did not address whether the mandatory language in 33 U.S.C. § 1 controlled

the permissive language in the regulations. We review a “district court’s

interpretation of federal statutes and regulations de novo.” United States v. 162

MegaMania Gambling Devices, 231 F.3d 713, 718 (10th Cir. 2000). See also

Eastern Inv. Corp. v. United States, 49 F.3d 651, 657 (10th Cir. 1995).

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 Prior to April 2000, the regulations governing Mr. Davis’ conviction were

promulgated under the authority of 16 U.S.C. § 460d, which spoke in permissive

terms regarding the establishment of rules and regulations and made no mention

of the posting of such regulations. In 2000, however, 36 C.F.R. § 327 was

amended to add 33 U.S.C. § 1 as authority for the promulgation of these

regulations. See Public Use of Water Resources Development Projects

Administered by the Chief of Engineers, 65 Fed. Reg. 6896, 6898 (Feb. 11, 2000).

Neither the proposed 2000 rule amendments nor commentary to the final rule

indicated the reason for this addition. Had Mr. Davis been convicted under the

regulations prior to April 2000, the district court’s conclusion that posting the

regulations was not mandatory would have been wholly accurate. But the belated

inclusion of 33 U.S.C. § 1 as statutory authority for the regulations in this case

muddies waters that might otherwise be clear.

Section 1 mandates regulations shall be posted for the “use, administration,

and navigation of the navigable waters of the United States . . . .” 33 U.S.C. § 1

(emphasis added). However, in arguing the regulations in this case had to be

posted pursuant to 33 U.S.C. § 1, Mr. Davis failed to proffer any evidence

establishing that Broken Bow Lake constitutes navigable waters, nor did he

request the district court to make such a determination.

“The question of navigability . . . is a federal question and has been defined

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by decisions of the federal courts.” United States v. Harrell, 926 F.2d 1036, 1040

(11th Cir. 1991) (citing Utah v. United States, 403 U.S. 9, 10 (1971)). Moreover,

determining navigability is a question of fact to be made by a district court. See

Utah v. Marsh, 740 F.2d 799, 801 (10th Cir. 1984) (question whether lake was

navigable and therefore affected interstate commerce was factual question to be

determined in evidentiary hearing). See also Lykes Bros., Inc. v. United States

Army Corps of Eng’rs, 64 F.3d 630, 633 (11th Cir. 1995) (appellate court

affirmed district court’s factual finding that creek was not navigable); Yankton

Sioux Tribe of Indians v. Nelson, 683 F.2d 1160, 1163 (8th Cir. 1982) (“The

question of navigability should first be determined by the district court.”); Mundy

v. United States, 22 Cl. Ct. 33, 34 (1990) (“Navigability is question of fact, and

the burden of proof is on the party asserting navigability.”). In the absence of any

assertion by Mr. Davis or factual determination made by the district court

regarding the navigability of Broken Bow Lake, we are constrained from

addressing whether the regulations at issue here were required to be posted

pursuant to 33 U.S.C. § 1.

Regardless of whether the regulations had to be posted, we are not

precluded from affirming the district court’s decision to uphold Mr. Davis’

convictions. “[A]n appellate court will affirm the rulings of the lower court on

any ground that finds support in the record, even where the lower court reached

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its conclusions from a different or even erroneous course of reasoning.” Cayce v.

Carter Oil Co., 618 F.2d 669, 677 (10th Cir. 1980). See also V-1 Oil Co. v.

Means, 94 F.3d 1420, 1423 (10th Cir. 1996). We hold Mr. Davis’ convictions

must stand because he had actual notice his activities were in violation of the

regulations.

Whether actual notice satisfies a potential posting requirement has received

scant attention from the courts, and we have found no case in which the issue was

specifically raised in terms of regulations regarding boating and business

activities on Corps of Engineers projects. However, at least one court has held a

defendant’s actual notice of regulations satisfies a mandatory posting

requirement.

In United States v. Holdsworth, 990 F. Supp. 1274 (D. Colo. 1998), the

court noted “[t]he rationale of requiring posting is to provide notice to a person

coming onto the property.” Id. at 1278 (citing Boyer, 935 F. Supp. at 1141-42).

In Holdsworth, the defendant was charged with violating a regulation banning

disturbances on property overseen by the General Services Administration. Id. at

1277. This regulation was promulgated pursuant to 40 U.S.C. § 318a, mandating

“rules and regulations shall be posted . . . .” Id. In challenging his conviction,

the defendant noted that no evidence was provided at trial establishing the

regulation under which he was convicted was properly posted. While the court

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acknowledged “the posting requirement was an integral part of a prosecution

under § 318a,” id. at 1278 (quotation and citation omitted), it analyzed “whether

‘posting’ can be done in a different fashion.” Id. The court noted that the

defendant had received correspondence from a Federal Protection Service agent

informing him that his actions were causing a disturbance on federal property, and

that he might be charged with violating the regulations if his behavior continued.

Id. at 1276, 1278. The court concluded the agent’s letter constituted actual notice

to the defendant, thereby satisfying the purpose of the posting requirement of 40

U.S.C. § 318a. Id. at 1278. See also Strakoff, 719 F.2d at 1310 (where

regulations not adequately posted, conviction could not stand “absent any

showing that [defendant] did in fact have notice of the proscriptions.”). We agree

and hold that actual knowledge of a regulation satisfies a potential posting

requirement.

Our conclusion is bolstered by related cases holding that a party can be held

criminally liable under an unpublished regulation where the party has actual

knowledge of its terms. See, e.g., United States v. Ventura-Melendez, 321 F.3d

230, 233-34 (1st Cir. 2003) (citing cases); United States v. F/V Alice Miranda,

987 F.2d 1078, 1084-85 (4th Cir. 1993); United States v. Aarons, 310 F.2d 341,

346 (2d Cir. 1962).

In the instant case, the record reflects that Mr. Davis had actual notice his

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activities on Broken Bow Lake could subject him to prosecution under the

regulations. Testimony admitted at trial indicated Mr. Davis had received verbal

warnings and correspondence from the Corps of Engineers and the Oklahoma

Parks and Tourism Department that his business practices and mooring of boats

was illegal. See rec., vol. II at 8-9, 10, 19. Ranger Citty testified that Mr. Davis

admitted he had received this correspondence, and that Mr. Davis presented at

least one of these items to the prosecution during negotiations prior to trial. Id. at

22, 25. Mr. Davis himself testified to receiving correspondence from the Broken

Bow lake manager informing Mr. Davis that if he rented boats or jet skis to others

for use on the lake, his customers had to tow the equipment to the lake

themselves. Id. at 40. Mr. Davis also admitted as evidence a letter he had

received from one of the park managers regarding his activities. Id. at 42. Mr.

Davis’ own admissions, coupled with the other evidence presented at trial, make

clear that he had actual knowledge of the regulations and that lake management

officials considered his actions to be illegal. Consequently, we decline to

overturn Mr. Davis’ convictions. 3

3
We also reject the contention by Mr. Davis that he was selectively
prosecuted. In order to prevail on this defense, a defendant must prove
first, that he has been singled out for prosecution while others
similarly situated generally have not been proceeded against for the
type of conduct forming the basis of the charge against him; and
second, that the Government’s selection of him for prosecution was
(continued...)

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 III

We next address Mr. Davis’ contention that his convictions should be

overturned because the magistrate judge ordered him to attend two pretrial

discovery conferences, even though he was proceeding pro se. Specifically, Mr.

Davis argues the judge’s order was contrary to the mandate in Federal Rule of

Criminal Procedure 17.1, as then applicable, that pretrial conferences shall not

occur where a defendant is not represented by counsel, and that his appearance

without counsel caused him prejudice resulting in an unfair trial. The district

court rejected this argument, concluding the pretrial discovery conferences at

issue here were not implicated by Rule 17.1. “Interpretation of the Federal Rules

3
(...continued)
invidious or in bad faith and was based on impermissible
considerations such as race, religion, or the desire to prevent the
exercise of constitutional rights.
United States v. Salazar, 720 F.2d 1432, 1487 (10th Cir. 1983). See also United
States v. Dukeheart, 687 F.2d 1301, 1303 (10th Cir. 1982) (“Selective prosecution
or enforcement is not unconstitutional if the selection is not based deliberately on
an unjustifiable categorization such as race and religion.”). Here, Mr. Davis
failed to show he was issued a citation while others similarly situated to him were
not also charged. At trial, Ranger Citty testified he would have issued citations
for other boats moored near Mr. Davis’ if he determined the boat owners, like
Davis, had placed their boats there and left the park to sleep elsewhere for the
night. Ranger Citty did not so determine, and hence only issued a citation to Mr.
Davis. Therefore, Mr. Davis cannot contend he was treated differently from those
similarly situated to him. Nor did he present any evidence indicating the
government’s prosecution against him was based on an unconstitutionally
impermissible consideration. The district court was correct to reject Mr. Davis’
selective prosecution contention.

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of Criminal Procedure is a legal issue subject to de novo review.” United States

v. Roman-Zarate, 115 F.3d 778, 781 (10th Cir. 1997).

Prior to the time Mr. Davis was tried by the magistrate judge, Rule 17.1

stated that it should “not be invoked in the case of a defendant who is not

represented by counsel.” F ED . R. C RIM . P RO . 17.1, 39 F.R.D. 69 (1966) (amended

2002). 4 Generally, the rule allows the parties or the court to move for a pretrial

conference “after the filing of [an] indictment or information . . . to consider such

matters as will promote a fair and expeditious trial.” Id. The rule also implies

the court will be present during the course of the conference, noting that “[a]t the

conclusion of a conference the court shall prepare and file a memorandum of the

matters agreed upon.” Id.

We are persuaded the pretrial meetings which Mr. Davis attended did not

fall within Rule 17.1. First, Mr. Davis was not brought before the magistrate

judge after the filing of an indictment or information. Instead, he received two

citations from Ranger Citty, more appropriately placing this action under the

ambit of Federal Rule of Criminal Procedure 58. 5 Second, the two pretrial

4
The rule was amended, effective December 1, 2002, to permit pretrial
conferences where a defendant chooses to proceed pro se.
5
“This rule governs the procedure and practice for the conduct of
proceedings involving misdemeanors and other petty offenses . . . .” F ED . R.
C RIM . P RO . 58(a)(1), 129 F.R.D. 557 (1990) (amended 2002). “In proceedings
concerning petty offenses for which no sentence of imprisonment will be imposed
(continued...)

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conferences at issue here did not occur before the court, nor were they scheduled

to consider matters to promote a fair and expeditious trial. Rather, the parties met

outside of the court’s presence with the intent to avoid trial by working out a plea

bargain as well as to provide Mr. Davis with his discovery requests. Rule 17.1

was not implicated, and Mr. Davis may not invoke it in an attempt to overturn his

convictions.

Accordingly, we AFFIRM Mr. Davis’ conviction. Appellant’s motion to

proceed in forma pauperis is granted.

5
(...continued)
the court may follow [other provisions of the Federal Rules of Criminal
Procedure] as it deems appropriate . . . .” Id. (a)(2). “The trial of a misdemeanor
may proceed on an indictment, information, or complaint or, in the case of a petty
offense, on a citation or violation notice.” Id. (b)(1). The amendments to Rule 58
which became effective December 1, 2002, are not implicated in Mr. Davis’ case.

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