United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2007 Decided January 11, 2008
No. 07-3002
UNITED STATES OF AMERICA,
APPELLEE
v.
CINDY SHEEHAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05mj00649-17)
Catherine M.A. Carroll argued the cause for appellant.
With her on the briefs were David S. Cohen and Jennifer M.
O’Connor.
Florence Y. Pan, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese III and Michael Truscott,
Assistant U.S. Attorneys.
Before: SENTELLE and ROGERS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
2
EDWARDS, Senior Circuit Judge: Appellant Cindy Sheehan
was arrested in September 2005 for demonstrating without a
permit on the White House sidewalk during an antiwar protest.
She was charged with violating 36 C.F.R. § 7.96(g)(2), a
National Park Service (“NPS”) regulation promulgated pursuant
to the authority granted by 16 U.S.C. § 3. The regulation
governs demonstrations in all park areas in the National Capital
Region, including the White House sidewalk, and provides that
demonstrations involving more than 25 people may be held only
pursuant to a permit. Following a bench trial before a
Magistrate Judge, appellant was convicted and assessed a $50
fine and a $25 administrative fee.
Appellant appealed her conviction to the District Court
pursuant to 18 U.S.C. § 3402 (“an appeal of right shall lie from
the judgment of the magistrate to a judge of the district court of
the district in which the offense was committed”) and Federal
Rule of Criminal Procedure 58(g)(2). The District Court
rejected appellant’s arguments that the NPS regulations were
unconstitutional and that the evidence was insufficient to
support a conviction, and affirmed the judgment of the
Magistrate Judge:
[T]he National Park Service regulation at issue – 36 C.F.R.
§ 7.96 – does not impose strict liability and may be
interpreted to require that an accused “knowingly”
demonstrate without a permit. Moreover, even if the
regulation were deemed to lack a mens rea element, the
appellants waived their right to challenge the
constitutionality of the regulation on that ground by failing
to raise the argument below. The Court also concludes that
the evidence was sufficient for a fair-minded and
reasonable trier of fact to find the appellants guilty beyond
a reasonable doubt of demonstrating without a permit in
violation of 36 C.F.R. § 7.96.
3
Sheehan v. United States, No. 05-MJ-00649, 2006 WL 3756349,
at *9 (D.D.C. Dec. 19, 2006).
On appeal to this court, appellant contests the District
Court’s judgment on five principal grounds. She asserts the
following: (1) the First Amendment challenge to the NPS
regulations was properly preserved at trial; (2) the NPS permit
requirement is facially unconstitutional under the First
Amendment, because it imposes strict liability on protected
expressive conduct; (3) there is no evidence of appellant’s mens
rea, because the Government prosecuted the case on the premise
that strict liability applied and the Magistrate Judge excluded
evidence that addressed appellant’s mens rea; (4) the evidence
does not show that appellant was “demonstrating” within the
meaning of the NPS regulations; and (5) the evidence does not
show that appellant knowingly demonstrated without a permit.
We hold that appellant’s facial challenge to the
constitutionality of the regulations is properly before the court,
but that it fails. We agree with the District Court that the NPS
regulations should be construed to contain a mens rea
requirement. We also reject appellant’s claim that a valid permit
existed for demonstrations on the White House sidewalk on the
day of her arrest. We reverse and remand for a new trial,
however, because appellant was convicted of a crime that does
not exist and prevented from offering a viable defense. There is
no strict liability under 36 C.F.R. § 7.96. Yet, the Magistrate
Judge allowed the Government to prosecute the case against Ms.
Sheehan on the erroneous premise that the disputed regulations
imposed strict liability for her alleged expressive activity, and
sustained the prosecutor’s objections when appellant sought to
advance a defense based on her knowledge and intent. As a
result, appellant’s conviction is based on errors of law that
eliminated the prosecutor’s burden to prove mens rea and barred
the appellant from presenting a defense on that issue. We are
therefore obliged to reverse and remand for a new trial.
4
BACKGROUND
On July 20, 2005, individuals from a group called the Iraq
Pledge of Resistance (“IPR”) submitted an application to the
NPS for a permit to hold a demonstration near the White House
on September 26, 2005. The stated purpose of the
demonstration was to “peaceful[ly] protest against the Iraq War
and [memorialize] those killed in it.” Appendix to Brief of
Appellant (“App.”) A22. This first permit request indicated that
the location of the proposed activity was “[t]he Ellipse,
Constitution Avenue between 14th and 16th Streets N.W., The
Ellipse Drive (behind the White House).” Id.
On July 28, 2005, IPR submitted a revised application, this
time designating the demonstration location as “Lafayette
Square, sidewalk surrounding the park” and “White House
sidewalk.” Id. at A25. NPS took no action on the amended
application. The NPS regulations governing the National
Capital Region state that “[a]ll demonstration applications . . .
are deemed granted, subject to all limitations and restrictions
applicable to said park area, unless denied within 24 hours of
receipt.” 36 C.F.R. § 7.96(g)(3). Therefore, by the end of July
2005, IPR had a “deemed granted” permit to demonstrate on the
White House sidewalk.
On September 22 and 23, 2005, an individual affiliated with
IPR corresponded by email with NPS officials regarding details
of the upcoming event. App. A28-33. In an email sent on
September 23, the IPR representative indicated that the group no
longer sought to include the White House sidewalk as a
designated location in the demonstration permit:
I want to communicate that we do NOT wish our permit to
include the White House sidewalk. We would like to
include the Ellipse and Lafayette Park, of course, as we
have discussed previously, but to repeat we do not want the
permit to include the White House sidewalk.
5
Id. at A31. A written permit was faxed by NPS to IPR
coordinators later that day. The permit specified that the
approved location of the public gathering was “The Ellipse – SE
quadrant, Lafayette Park east-side.” Id. at A15. The White
House sidewalk was not listed on the written permit.
On September 26, 2005, appellant and four other members
of an organization called Gold Star Families for Peace
approached the northwest gate of the White House and
requested a meeting with the President of the United States to
discuss the Iraq War. When the guard at the gate informed them
that no one would meet with them, the five walked a short
distance away from the gate and sat down on the White House
sidewalk. Appellant remained there for approximately one hour.
Meanwhile, more than 200 other people assembled on the White
House sidewalk to protest the Iraq War. By all accounts, these
participants engaged in nonviolent conduct that included
singing, chanting, and carrying signs, and their activities drew
a crowd of spectators. Around 1:30 p.m., an officer of the
United States Park Police (“USPP”) announced that the
demonstrators were in violation of NPS regulations and
instructed them to leave the area or risk arrest. Using a
megaphone amplified by the loudspeaker system on two police
cars, the officer repeated the warning three times, with two to
five minutes between warnings. After the final warning, the
police officers cordoned off the sidewalk and then arrested the
people remaining on the sidewalk within the enclosure.
Appellant was among those arrested.
Appellant and the persons with whom she was arrested were
charged with demonstrating without a permit on the White
House sidewalk in violation of 36 C.F.R. § 7.96(g)(2). On
November 16 and 17, 2005, appellant and 28 other defendants
were tried together before a Magistrate Judge pursuant to 18
U.S.C. § 3401. The only evidence offered against appellant was
that she was sitting on the White House sidewalk when the area
6
was cordoned off by USPP officers. Both the Magistrate Judge
and the Government proceeded with the trial of the case on the
premise that there was no mens rea requirement under the NPS
regulations. And the Magistrate Judge prevented appellant and
her co-defendants from offering evidence of their intent and
knowledge. When Ms. Sheehan and the other codefendants
attempted to proffer testimony about what they knew during the
day of the demonstration, the prosecutor objected, arguing that
intent was irrelevant, and the Magistrate Judge sustained the
objection and expressly stated that intent was irrelevant. See,
e.g., Trial Tr. (11/17/05) at 60-62 (Testimony of Defendant
Manijeh Saba); id. at 103 (Testimony of Defendant Cindy
Sheehan). Although police officers testified about the bullhorn
warnings they had given the demonstrators, appellant and other
defendants were prevented from providing testimony to the
contrary and were therefore prevented from advancing a defense
on a principal element of the charged offense.
On November 17, 2005, the Magistrate Judge found
appellant and all of her codefendants guilty of demonstrating
without a permit. The Magistrate Judge subsequently filed a
written decision and judgment. United States v. Allen, Mag.
Crim. No. 05-00649 (D.D.C. Dec. 7, 2005). Appellant was
assessed a $50 fine and a $25 administrative fee. Appellant then
appealed her conviction to the District Court pursuant to 18
U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g)(2),
but her appeal was denied. Sheehan, 2006 WL 3756349.
The District Court rejected appellant’s argument that her
conviction for violating the NPS regulations could not stand
because the regulations impose strict criminal liability for
conduct that is protected by the First Amendment. On this
point, the District Court concluded that “inferring a requirement
that an individual ‘knowingly’ demonstrate without a permit
appears appropriate to remedy any question about the mental
state required to convict someone for violating the National Park
7
Service regulation, and such a result is in harmony with the case
law.” Id. at *5. In the alternative, the District Court ruled that,
even if the NPS regulations did impose strict liability, appellant
waived any argument that the regulations lack a mens rea
requirement by failing to raise the issue before or during her
trial. Id. at *5-*6. The District Court also rejected appellant’s
claim that, because there were no facts showing that she was
“demonstrating” as defined by the NPS regulations, the evidence
against her was insufficient to prove the alleged offense. The
court found that prior to her arrest, appellant was sitting on the
White House sidewalk near a mass of other people, all of whom
were expressing their opposition to the war in Iraq. The court
concluded that, given this setting, appellant’s act of sitting
constituted “demonstrat[ing]” within the meaning of the
regulations. Id. at *7-*8. Finally, the trial court rejected
appellant’s contention that a valid permit had been granted to
IPR to demonstrate at the White House sidewalk on the day in
question. The court held:
The appellant is correct that the National Park Service
regulation states that a permit application shall be deemed
granted unless denied in writing within 24 hours of receipt
and permits the Service to revoke a permit only in writing
for the reasons enumerated in the regulation. 36 C.F.R.
§§ 7.96(g)(3) & (g)(6). The regulation does not, however,
cover situations in which an applicant voluntarily
withdraws or cancels their request for a permit, as occurred
here. To suggest that a cancelled request also be subject to
the revocation procedures is not compelling, or even
practical, given that the regulation allows revocation only
in specified circumstances that are not applicable or
relevant when an applicant voluntarily cancels his or her
application.
Id. at *8.
8
Appellant filed a timely appeal with this court challenging
the District Court’s judgment.
ANALYSIS
I. STANDARD OF REVIEW ON APPELLANT’S FACIAL
CHALLENGE TO THE NPS REGULATIONS
As a threshold matter, the parties disagree over the
applicable standard of review covering appellant’s claim that the
NPS regulations are facially unconstitutional. The Government
argues that the plain error standard under Federal Rule of
Criminal Procedure 52(b) applies, because appellant forfeited
her claim by not raising it with sufficient specificity at trial.
Appellant contends that the issue is subject to de novo review by
this court, because it was raised and preserved below.
“No procedural principle is more familiar . . . than that a . . .
right may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.” Yakus v. United States, 321
U.S. 414, 444 (1944). When an appellant fails to clearly raise
an issue at trial, the District Court Judge is deprived of the
opportunity to consider it. See, e.g., United States v. Thomas,
896 F.2d 589, 591 (D.C. Cir. 1990).
[Objections] should be timely, specific, and renewed, when
the court’s initial ruling, correct when made, is proved
erroneous in the light of subsequent evidence. The
rationale for these requirements includes importantly the
need for a record, developed by adversary processes, on
which appellate consideration and resolution can safely
proceed.
United States v. Lewis, 433 F.2d 1146, 1152 (D.C. Cir. 1970)
(internal quotation marks and footnotes omitted); see also
Graham v. Davis, 880 F.2d 1414, 1419-20 (D.C. Cir. 1989).
9
Whether an issue has been properly raised and preserved is
a matter of judgment, however, and it may require the exercise
of discretion by the appellate court. For example, as the
Supreme Court noted in City of St. Louis v. Praprotnik, 485 U.S.
112 (1988), when an appellant’s “legal position in the District
Court . . . was consistent with the legal standard that it . . .
advocates” on appeal, the reviewing court may consider the
issue even though appellant’s “arguments in the District Court
were much less detailed than the arguments” advanced on
appeal. Id. at 120.
During the trial in this case, in answer to a question raised
by the Magistrate Judge, defense counsel indicated that
appellant meant to raise a facial challenge to the NPS
regulations:
Mr. Norris [trial counsel for Ms. Sheehan]: It’s clear, Your
Honor, first off, there’s a constitutional First Amendment
right both to freedom of speech, to assemble, and to be able
to address the government for grievances. So there is a
First Amendment constitutional right to protest, to speak
out, to speak out at the White House. It’s a public area.
The Court: So you’re challenging the constitutionality of
the Code of Federal Regulation.
Mr. Norris: Yes.
Trial Tr. (11/16/05 PM) at 29. The Magistrate Judge then
suggested that the facial validity of the regulations had already
been decided by the court of appeals. The Judge indicated,
however, that appellant could raise the issue on appeal:
The Court: As I read [United States v. Cinca, 56 F.3d 1409
(D.C. Cir. 1995)], certainly our circuit appears to have not
found that particular section of the [NPS regulation]
wanting in terms of constitutionality, but on the other hand,
you will certainly be able to make your record on that and
10
state the record and the Court will rule on it. And if the
Court were to rule against you and it seems to me I have no
choice in view of the circuit decision, that you can then take
it up to the Court of Appeals.
Id. at 30.
The foregoing record excerpts indicate that the Magistrate
Judge understood that appellant meant to raise a facial challenge
to the NPS regulations. Although appellant’s counsel said
nothing more on the matter following his exchange with the
Magistrate Judge, he also did nothing to suggest that he meant
to abandon or waive appellant’s facial challenge to the NPS
regulations. And, more importantly, the matter was fully briefed
by both parties in appellant’s appeal to the District Court. In
these circumstances, there is no good reason why this court
should not address the issue.
In Grace v. Burger, 665 F.2d 1193 (D.C. Cir. 1981), aff’d
in part and vacated in part, United States v. Grace, 461 U.S.
171 (1983), this court was faced with a challenge to the
constitutionality of a statute that made it unlawful to parade,
stand, or move in processions or assemblages in the Supreme
Court building or grounds. The District Court dismissed the
complaint for failure to exhaust administrative remedies. We
rejected the District Court’s dismissal of the case on grounds of
exhaustion and then addressed the constitutional issue even
though the District Court had not ruled on it. We noted that:
Both parties have addressed fully the constitutionality of
[the statute], both in this court and in the District Court.
This is not a case, therefore, where resolution of an issue for
the first time on appeal would cause undue surprise or
prejudice. In addition, since appellants challenge the
constitutionality of [the statute] on its face, the resolution of
this issue is purely one of law, appropriate for appellate
review. For these reasons, we believe that a remand to the
11
District Court, which inevitably would result in a future
appeal to this court, would be a waste of judicial resources.
665 F.2d at 1197 n.9 (internal quotation marks and citations
omitted), aff’d in part and vacated in part, United States v.
Grace, 461 U.S. at 175 n.4 (assuming without deciding that the
court of appeals acted properly in deciding the constitutional
issue).
As we noted in Grace v. Burger, “‘[t]he matter of what
questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.’” 665
F.2d at 1197 n.9 (quoting Singleton v. Wulff, 428 U.S. 106, 121
(1976)). It follows, a fortiori, that if this court has the discretion
to resolve an issue that was not addressed by the trial court, we
surely may address an issue that was raised by appellant before
the Magistrate Judge, briefed and argued by the parties during
the course of appellant’s appeal to the District Court, and
decided by the District Court in an extensive written opinion.
We do so here. In the end, for the reasons discussed below, we
affirm the District Court’s decision that the NPS regulations do
not impermissibly impose strict liability for protected First
Amendment activities.
II. APPELLANT’S FACIAL CHALLENGE TO THE NPS PERMIT
REQUIREMENT
Appellant was convicted of violating 36 C.F.R.
§ 7.96(g)(2), which states that “[d]emonstrations and special
events may be held only pursuant to a permit issued in
accordance with the provisions of this section.” Permits are not
required for some demonstrations involving fewer than 25
people, nor are they required for demonstrations taking place in
certain park areas that are not at issue in this case. 36 C.F.R.
§ 7.96(g)(2)(i) and (ii).
12
Under the regulations, the term “demonstrations”
includes demonstrations, picketing, speechmaking,
marching, holding vigils or religious services and all other
like forms of conduct which involve the communication or
expression of views or grievances, engaged in by one or
more persons, the conduct of which has the effect, intent or
propensity to draw a crowd or onlookers. This term does
not include casual park use by visitors or tourists which
does not have an intent or propensity to attract a crowd or
onlookers.
36 C.F.R. § 7.96(g)(1)(i). And the penalty provision applicable
to appellant’s alleged violation states that
[a] person convicted of violating a provision of the
regulations contained in [Part 7] of this chapter . . . shall be
punished by a fine as provided by law, or by imprisonment
not exceeding 6 months, or both, and shall be adjudged to
pay all costs of the proceedings.
36 C.F.R. § 1.3(a).
Appellant argues that because none of the applicable
provisions in the regulations contains a mens rea element, “a
person may be found guilty even when he has no knowledge as
to the lack of a permit and, indeed, even where he holds a
reasonable, good faith – but mistaken – belief that a permit in
fact exists.” Br. for Appellant at 18. According to appellant,
these provisions establish a “strict liability regime” that imposes
“an unconstitutional burden on free expression.” Id. Appellant
thus contends that the District Court erred in holding to the
contrary. In addressing this claim, we apply a de novo standard
of review. See United States v. West, 393 F.3d 1302, 1310 (D.C.
Cir. 2005) (appellate court reviews de novo the trial court’s
construction of a criminal statute); United States v.
Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C. Cir. 2002)
(“As an issue of statutory construction, our review is de novo.”).
13
Strict liability is generally disfavored in criminal law,
particularly with respect to cases that implicate the First
Amendment. See, e.g., Smith v. California, 361 U.S. 147, 150-
54 (1959). It is well understood, however, that the “mere
omission . . . of any mention of intent will not be construed as
eliminating that element from the crimes denounced.”
Morissette v. United States, 342 U.S. 246, 263 (1952); see also
United States v. U.S. Gypsum Co., 438 U.S. 422, 438 (1978).
This point was reiterated in Staples v. United States, 511 U.S.
600 (1994), where the Supreme Court held that a statute’s
“silence” on the mens rea element “does not necessarily suggest
that Congress intended to dispense with a conventional mens rea
element.” 511 U.S. at 605. The Staples Court importantly
added that “some indication of congressional intent, express or
implied, is required to dispense with mens rea as an element of
a crime.” Id. at 606.
We agree with the District Court that we must “presum[e]
that criminal statutes and regulations contain a mens rea element
unless otherwise clearly intimated in the language or legislative
history.” Sheehan, 2006 WL 3756349 at *4. In this case,
nothing significant in the language or legislative history of the
NPS regulations indicates a congressional intent to adopt a strict
liability regime. The language of the regulations is at worst
ambiguous, and the legislative history is silent. Furthermore, it
is noteworthy that the Supreme Court has implied a mental state
requirement where the legislative history of a disputed statute
has provided much more evidence of congressional intent to
create a strict liability regime than is evident in this case. See
United States v. X-Citement Video, Inc., 513 U.S. 64, 73-78
(1994); see also id. at 80-85 (Scalia, J., dissenting). It is also
significant that, unlike the situation in American-Arab Anti-
Discrimination Committee v. City of Dearborn, 418 F.3d 600
(6th Cir. 2005), the Government here ostensibly concedes that
the NPS regulations would be unconstitutional if they imposed
14
strict liability. Br. for Appellee at 31-40; see also Sheehan,
2006 WL 3756349 at *4.
In light of the well-established precedent covering this
matter, we hold that 36 C.F.R. § 7.96(g)(2) survives appellant’s
facial constitutional challenge. We therefore affirm the decision
of the District Court on this point:
Although the National Park Service regulation contains
no express language indicating that demonstrators must
know that there is no permit before being subjected to
criminal sanctions, there likewise is no language clearly
evincing an intent to dispense with such a mental state, and
the appellant proffered no evidence of such an intent by
citing to the history of the regulation, or to any other source
for that matter. Thus, following the reasoning applied in
Morissette and its progeny, it is clear that the presumption
in favor of a [mens rea] requirement should apply to each
of the statutory elements that criminalize otherwise
innocent conduct.
Id. at *5 (alteration in original) (internal quotation marks and
footnotes omitted). In short, the disputed NPS regulations must
be read to contain a mens rea element. This means that
individuals cannot be convicted of demonstrating without a
permit unless the Government proves beyond a reasonable doubt
that they had the requisite knowledge and intent to do so.
III. THE ABSENCE OF EVIDENCE OF APPELLANT’S MENS REA
A. The Critical Errors During Appellant’s Trial
Although the NPS regulations are not facially
unconstitutional for want of a mens rea requirement, the
Government proceeded with the prosecution of appellant on the
erroneous premise that the regulations imposed strict liability.
As noted above, the Magistrate Judge, in response to the
prosecutor’s objections, prevented appellant and her
15
co-defendants from offering evidence of their intent and
knowledge. In addition, when appellant’s trial counsel moved
for acquittal at the end of the Government’s case, the prosecutor
stated that “[t]he issue of whether or not the Defendants were
notified of the existence or nonexistence of a permit is not
apposite.” Trial Tr. (11/17/05) at 50. And in her closing
rebuttal, the prosecutor reiterated that “notice about the
existence of the permit or lack of a permit is not an element and
not a defense of this violation.” Id. at 130; see also id. at 122.
These arguments by the prosecutor were erroneous. Although
a mistake of law on appellant’s part may not have been a worthy
defense, this did not relieve the prosecution of its burden to
prove her mens rea, i.e., what appellant knew, heard, and
intended on the day in question. The Government incorrectly
proceeded on the basis that mens rea was not an element of the
offense, and successfully objected to appellant’s attempts to
offer evidence of her knowledge and intent.
It is also clear that the findings of the Magistrate Judge were
premised on the erroneous view that the NPS regulations
imposed strict liability. In his written opinion, the Magistrate
Judge failed to mention any mens rea element when discussing
the Government’s burden of proof, stating instead that “[i]n
order to sustain a charge of protesting without a permit, the
Government must show beyond a reasonable doubt that the
Defendants did not, in fact, have a permit to demonstrate on the
sidewalk directly in front of the White House.” Allen, Mag.
Crim. No. 05-00649 at 4.
The Magistrate Judge committed two legal errors. First, in
allowing the Government to prosecute the case against Ms.
Sheehan on the erroneous premise that the disputed regulations
imposed strict liability, the Magistrate Judge eliminated the
prosecutor’s burden of proving mens rea. This was a serious
constitutional error: The prosecution’s “burden of proving all
elements of the offense charged” and obligation to “persuade the
16
factfinder beyond a reasonable doubt of the facts necessary to
establish each of those elements” arise from the Due Process
Clause of the Fifth Amendment. Sullivan v. Louisiana, 508 U.S.
275, 277-78 (1993) (internal quotation marks omitted).
Second, in preventing appellant from presenting a defense
on the mens rea issue, the Magistrate Judge denied her the right
to procedural fairness. The Supreme Court has made it clear
that
[w]hether rooted directly in the Due Process Clause of
the Fourteenth Amendment, or in the Compulsory Process
or Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. . . . [A]n
essential component of procedural fairness is an opportunity
to be heard.
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation
marks and citations omitted).
Given these well-established constitutional protections, it
cannot be doubted that the Magistrate Judge’s rulings in this
case were erroneous. During oral argument before this court,
Government counsel did not contest that error was committed.
Rather, the Government argued that the Magistrate Judge’s
errors should be excused as harmless. We disagree. The
Government was allowed to prosecute appellant for a crime that
does not exist, and appellant was denied “a meaningful
opportunity to present a complete defense.” For the reasons set
forth below, we cannot hold these errors harmless.
B. The Harmless Error Standard of Review
Federal Rule of Criminal Procedure 52(a) states that “[a]ny
error . . . that does not affect substantial rights must be
disregarded.” Because the errors in this case involved
infringements of constitutional rights, we can ignore the errors
17
as harmless only if it appears “beyond a reasonable doubt that
the error[s] complained of did not contribute to the verdict
obtained.” Chapman v. California, 386 U.S. 18, 24 (1967); see
also Neder v. United States, 527 U.S. 1 (1999) (evaluating trial
judge’s failure to submit an element of the crime to the jury
under the Chapman standard for constitutional error). “At all
times, the burden of proving that an error was not prejudicial
rests on the government.” United States v. Smart, 98 F.3d 1379,
1390 (D.C. Cir. 1996).
C. Application of the Harmless Error Standard to the
Facts of this Case
As has already been indicated, the Magistrate was of the
view that the NPS regulations imposed strict liability and
proceeded on the basis that mens rea was not an element of the
offense. Pursuant to this erroneous view of the law, the
Magistrate Judge barred appellant from advancing a defense
based on her lack of knowledge and intent. When Ms. Sheehan
and other defendants attempted to proffer testimony about what
they knew during the day of the demonstration, the prosecutor
objected, arguing that intent was irrelevant, and the Magistrate
Judge sustained the objections and expressly stated that intent
was irrelevant. See, e.g., Trial Tr. (11/17/05) at 103 (Testimony
of Defendant Cindy Sheehan); Trial Tr. (11/17/05) at 60-62
(Testimony of Defendant Manijeh Saba). Thus, as the record
makes clear, the Magistrate Judge incorrectly ruled that the NPS
regulations did not contain a mens rea requirement and then
prevented appellant from advancing a defense on this element of
the charged offense.
In determining whether the Government has met its burden
of demonstrating “beyond a reasonable doubt that the error[s]
complained of did not contribute to the verdict obtained,”
Chapman, 386 U.S. at 24, a reviewing court invariably considers
whether “(1) the case is not close, (2) the issue not central, or
(3) effective steps were taken to mitigate the effects of the
18
error.” In re Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996)
(internal quotation marks omitted). Thus, for example, an error
will be found harmless under Chapman “where a reviewing
court concludes beyond a reasonable doubt that [an] omitted
element [of the charged offense] was uncontested and supported
by overwhelming evidence, such that the . . . verdict would have
been the same absent the error.” Neder, 527 U.S. at 17. None
of these caveats provides relief from the legal errors in the
instant case. First, it surely cannot be said that the case is “not
close.” Indeed, it is impossible to assess the “weight” of the
evidence in this case, because appellant was prevented from
advancing a defense on her knowledge and intent. The
Magistrate Judge’s erroneous legal premise might not have
resulted in reversible error if appellant had been allowed to
present a defense on her mens rea and the Government had been
able to demonstrate beyond a reasonable doubt that the
Magistrate Judge’s failure to consider an element of the charged
offense “did not contribute to the verdict obtained.” No such
showing can be made here, because the Magistrate Judge would
not allow appellant to testify on her knowledge and intent.
Second, appellant’s intent is undoubtedly a central issue in this
case, because, as the Government now concedes, mens rea is an
element of the charged offense. And, finally, no steps were
taken to mitigate the effects of the Magistrate Judge’s error. The
verdict was not rendered by a jury, so no jury instructions or
other steps were readily available to lessen the gravity of the
erroneous legal conclusion drawn by the Magistrate Judge. The
Magistrate Judge was of a clear mind that mens rea was not an
element of the offense and he conducted the trial and reached his
judgment accordingly. At the conclusion of the Government’s
case, appellant’s counsel moved for a judgment of acquittal on
the ground that the Government had failed to prove that
appellant or her codefendants “had notice that they were
violating the law.” Trial Tr. (11/17/05) at 47; see also id. at 44-
47. The motion was denied, undoubtedly because the
19
Magistrate Judge viewed the NPS regulations as imposing strict
liability.
In its arguments to this court, the Government attempted to
minimize the effect of the trial errors by noting that appellant
was asked at one point by the prosecutor whether she had a
permit, and she responded that she “didn’t know that [she]
needed a permit.” Trial Tr. (11/17/05) at 110. It is unclear
whether this statement by appellant was intended as sarcasm, but
it does not matter because the statement does not give evidence
of appellant’s intent or knowledge. Because of the Magistrate
Judge’s ruling, appellant was never allowed to testify about her
intent and knowledge on the day in question. Thus, there is no
evidence in the record indicating, inter alia, (1) whether
appellant heard the police officer’s bullhorn announcements and,
if she did hear them, what she reasonably understood from them;
(2) whether she knew that the original permit would have
allowed the protestors to demonstrate on the White House
sidewalk; and (3) whether she knew that the demonstration
leaders had changed the permit just a few days before September
26, 2005, such that the permit no longer included the White
House sidewalk as an acceptable place for demonstrating. The
Magistrate Judge’s written opinion occasionally refers to “the
intent of the demonstrators to engage in civil disobedience.”
See, e.g., Allen, Mag. Crim. No. 05-00649 at 10. But these
references are merely rhetorical, at least insofar as they relate to
appellant, because she was not allowed to offer any testimony
about her knowledge and intent regarding the charge of
demonstrating without a permit.
When, as happened in this case, a defendant is prevented
from offering crucial evidence in her own defense, it can hardly
be concluded that the trial errors are harmless. “Error cannot be
harmless where it prevents the defendant from providing an
evidentiary basis for his defense.” United States v. Saenz, 179
F.3d 686, 689 (9th Cir. 1999) (holding that where a trial court
20
mistakenly ruled as a matter of law that certain evidence relating
to the defendant’s self-defense claim was inadmissible, the error
was not harmless); United States v. Blum, 62 F.3d 63, 69 (2d
Cir. 1995) (holding that erroneously excluding testimony that
supported appellant’s defense was not harmless error because
the defense “went to the core of the prosecution’s case”); cf.
United States v. Baird, 29 F.3d 647, 653-55 (D.C. Cir. 1994)
(finding reversible error where the trial judge had erroneously
excluded testimony critical to the appellant’s defense).
During oral argument, Government counsel argued that the
Supreme Court’s holding in Neder supports a finding of
harmless error in this case. We disagree, because the
circumstances in Neder are quite different from appellant’s case.
In Neder, the defendant was convicted of filing false federal
income tax returns and of federal mail fraud, wire fraud, and
bank fraud. The trial court determined, inter alia, that the
element of materiality with regard to the tax and bank fraud
charges was a question for the judge, not the jury, and found that
the evidence established that element. The Eleventh Circuit
held that the trial court’s failure to submit the materiality
element of the tax offense to the jury was error, but that the error
was harmless. The Supreme Court affirmed on these points.
However, Neder is distinguishable from the case before us. In
Neder, the district court did not prevent the defendant from
adducing evidence on the disputed issue of materiality. The
defendant was “heard” on the issue. The trial judge’s error was
in deciding the issue, rather than presenting it to the jury. 527
U.S. at 6-7. Moreover, the defendant in Neder did not contest
the issue of materiality. Id. at 15. On this record, the Neder
Court concluded that it was “beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have
been the same absent the error.” Id. at 17.
21
It is clear that, despite the Court’s holding that a trial error
concerning the omission of an element of a charged offense can
be subject to harmless error review, Neder does not control this
case. Unlike the defendant in Neder, Ms. Sheehan sought to
present evidence on the critical element of the charged offense,
but the Magistrate Judge barred the introduction of the evidence
when the prosecutor objected to its admission. The trial judge
in Neder misperceived the law, but he did not eliminate the
prosecutor’s burden of proving an element of the charged
offense or bar the defendant from presenting a defense on that
issue. Given these differences between Neder and the instant
case, and in consideration of the record here, we cannot hold
that the Government has met its burden of proving “beyond a
reasonable doubt” that the Magistrate Judge’s failure to consider
an element of the charged offense “did not contribute to the
verdict obtained.”
In light of our holding that appellant was denied an
opportunity to present a defense to an element of the offense, we
are unable to determine whether appellant was in fact
“demonstrating” on the day in question. Nor can we determine
whether the police officer’s bullhorn announcements gave
appellant notice that she was demonstrating on the White House
sidewalk without a valid permit. These matters can be
addressed if and when appellant is retried for the alleged offense
that gave rise to her prosecution in this case.
IV. THE VALIDITY OF THE FIRST PERMIT
Finally, appellant argues that her conviction should simply
be reversed, with no possibility of a new trial, because, even if
she was demonstrating on the day in question, a valid permit
existed for demonstrations on the White House sidewalk.
Appellant contends that, no later than August 1, 2005, IPR had
a “deemed granted” permit to demonstrate on the White House
sidewalk which was never properly revoked, so any persons who
22
demonstrated on the White House sidewalk on September 26 did
so lawfully. This argument fails.
In circumstances such as these, where the holder of a permit
voluntarily withdraws an existing permit and applies for a new
one, there is nothing to indicate that the Government is obliged
to follow the revocation procedures codified in 36 C.F.R.
§ 7.96(g)(6). The Government’s failure to give any notification
that the scope of IPR’s demonstration permit was narrowed
between the end of July and September 23, 2005, when a new
written permit was issued to IPR, may be relevant to an
assessment of appellant’s knowledge and intent during the
demonstration. It does not, however, indicate that a valid permit
to demonstrate on the White House sidewalk existed on
September 26, 2005.
CONCLUSION
For the reasons indicated in the foregoing opinion, the
judgment of the District Court is affirmed in part and reversed
in part. The case is hereby remanded for a new trial.
So ordered.