United States v. Dugan , 450 F. App'x 20 ( 2011 )

10-4248-cr (L)
USA v. Dugan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 5th day of December, two thousand eleven.
Present: JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. - Nos. 10-4248-cr (L); 10-4537-cr (CON)
RICHARD R. DUGAN, THEODORE A. PUCKETT,
Defendants-Appellants.
____________________________________________________________
For Defendant-Appellant Dugan: DARRELL B. FIELDS, Federal Defenders of New
York, Inc., Appeals Bureau, New York, N.Y.
For Defendant-Appellant Puckett: DANIEL NOBEL, New York, N.Y.
For Appellee: ALVIN L. BRAGG, JR., Assistant United States
Attorney (Brent S. Wible, Assistant United
States Attorney, on the brief), for Preet Bharara,
United States Attorney for the Southern District
of New York, New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Sweet, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court entered on October 18, 2010 is
AFFIRMED, and the judgment of the district court entered on November 3, 2010 is
AFFIRMED in part and VACATED and REMANDED in part for further proceedings
consistent with this order.
Defendant-Appellant Theodore A. Puckett appeals from an amended judgment of
conviction entered on October 18, 2010, and Defendant-Appellant Richard R. Dugan appeals
from a judgment of conviction entered on November 3, 2010, by the United States District Court
for the Southern District of New York (Sweet, J.), following a bench trial. The district court
found both Puckett and Dugan guilty of physically obstructing access to a reproductive services
facility in violation of the Freedom of Access to Clinic Entrances Act (“FACE Act”), 18 U.S.C.
§ 248. On appeal, Puckett challenges the sufficiency of the evidence in support of his conviction
and Dugan challenges the supervised release condition barring him from knowingly coming
within 1,000 feet of a reproductive health clinic without prior written permission.1 We assume
the parties’ familiarity with the facts and procedural history of the case.
Turning first to Puckett’s appeal, we review challenges to the sufficiency of the evidence
de novo, viewing the evidence in the light most favorable to the government. See United States
v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008). An appellant “bears a heavy burden” in
challenging the sufficiency of the evidence. Id. (internal quotation marks omitted). The
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Dugan also contends that he was entitled to a jury trial as opposed to a bench trial. We
address this issue in a separate opinion in which we conclude that Dugan’s offense constitutes a
“petty offense” and thus that the district court properly conducted a bench trial.
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standard of review is “exceedingly deferential.” United States v. Hassan, 578 F.3d 108, 126 (2d
Cir. 2008). “[W]e must . . . credit[] every inference that could have been drawn in the
government’s favor.” United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008). A conviction
must be affirmed if “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
omitted).
The relevant provision of the FACE Act penalizes “[w]hoever . . . by force or threat of
force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts
to injure, intimidate or interfere with any person because that person is or has been, or in order to
intimidate such person or any other person or any class of persons from, obtaining or providing
reproductive health services.” 18 U.S.C. § 248(a)(1). Thus, under the circumstances of this
case, the government had to prove that Puckett (1) by physical obstruction, (2) intentionally
interfered with or attempted to interfere with any person, (3) because that person was or had
been obtaining or providing reproductive health services. The statute defines “physical
obstruction” as “rendering impassable ingress to or egress from a facility that provides
reproductive health services . . . or rendering passage to or from such a facility . . . unreasonably
difficult or hazardous.” Id. § 248(e)(4).
Drawing all reasonable inferences in the government’s favor, as we must, we conclude
that the evidence was sufficient to support Puckett’s conviction. As noted by the district court,
the testimony of the clinic’s security guard established that Puckett kneeled intentionally in front
of the door to block it, thus satisfying the first two elements. Puckett App. 113. Puckett argues
that he was arrested simply after he assumed a “silent, prayerful position,” Puckett Br. 9, and that
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nobody sought to enter the clinic during the time he was in front of the main door. He contends
that he did not physically obstruct the entrance to the facility so as to interfere with anyone’s
effort to enter or leave. However, the security guard testified that Puckett “was kneeling directly
in front of the door so the door could not have opened.” Puckett App. 62. The security guard
then indicated that the police arrested Puckett after he refused to move and that “[a]fter the
police removed him . . . both staff and patients were able to enter into the clinic.” Id. at 63.
When viewing this testimony in the light most favorable to the government, the testimony
supports the district court’s conclusion that Puckett sought to interfere with those outside the
clinic seeking to obtain or provide reproductive services.
Puckett further claims that he lacked the specific intent to block access to the facilities
and was merely expressing his solidarity with the other protestors. However, at his initial
appearance before the magistrate judge, Puckett stated that he had been “captured while
performing a duty,” and that his duty was to “interven[e] against the slaughter of our unborn
citizens,” and during his arraignment, he said that he was “defending the unborns.” Gov’t Add.
7, 22.2 While Puckett argues that these statements merely reflect his “general sympathy for the
cause of the protesters that were out in front of the Planned Parenthood clinic,” Puckett Br. 13,
rather than a specific intent to block anyone’s access to the facility, the district court was entitled
to infer from these statements that Puckett had acted with the requisite motive. See United States
v. Weslin, 156 F.3d 292, 298 (2d Cir. 1998) (per curiam) (holding that protestors who sought to
“save the lives of unborn children” satisfied the FACE Act’s intent requirement).
2
Audio recordings and transcripts of these proceedings were introduced into evidence at
trial.
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Turning to Dugan’s appeal, courts may impose additional conditions of supervised
release beyond those required by statute if they are “reasonably related” to the goals of
deterrence, protection of the public, and rehabilitation of the defendant. 18 U.S.C. § 3583(d)(1).
A deprivation of liberty is “reasonably necessary only if the deprivation is narrowly tailored to
serve a compelling government interest.” United States v. Reeves, 591 F.3d 77, 83 (2d Cir.
2010) (internal quotation marks omitted). “We review de novo questions of law arising from the
imposition of a condition of supervised release,” but “subject the conditions themselves to an
abuse of discretion standard, where any error of law constitutes an abuse of discretion.” Id. at 80
(internal quotation marks omitted). Where a defendant fails to object to the imposition of a
condition of supervised release at sentencing, we review for plain error, but may apply a relaxed
form of plain error review where the defendant lacked prior notice that a particular condition of
supervised release might be imposed. United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir.
2002) (“Both because the alleged error relates only to sentencing and because Sofsky lacked
prior notice, we will entertain his challenge without insisting on strict compliance with the
rigorous standards [of plain error review].”).
We vacate the district court’s imposition of a condition of supervised release that Dugan
not knowingly be within 1,000 feet of a reproductive health facility to allow the district court to
consider, with the benefit of argument from both Dugan and the government, whether the
condition is narrowly tailored to serve a compelling government interest. Dugan had no prior
notice that the condition might be imposed because it first was suggested in the government’s
sentencing letter, submitted to the district court a day before the hearing and not copied to
Dugan, who was proceeding pro se. On remand, the district court must determine whether the
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substantial limit on Dugan’s freedom of movement is “reasonably related” to the government’s
interest in deterring future violations of the FACE Act and in protecting the patients and staff of
reproductive health facilities. See United States v. Bird, 124 F.3d 667, 684 (5th Cir. 1997)
(holding that the district court did not abuse its discretion in imposing a condition of supervised
release that the defendant stay at least 1,000 feet away from abortion clinics where the defendant
committed a prior violent FACE Act offense and had a history of “prior . . . criminal activity at
or near both abortion clinics and at the residence of an abortion provider”); United States v.
Turner, 44 F.3d 900, 903 (10th Cir. 1995) (approving a narrower condition that prohibited a
FACE Act offender from “harras[sing], intimidat[ing], or picket[ing] in front of any
gynecological or family planning service center”). The district court should consider Dugan’s
history of protesting at reproductive health clinics, his First Amendment interests in free speech,
as well as his statements that he has a “duty” to prevent abortions. In addition, the district court
must consider whether a stay-away distance of 1,000 feet (more than the length of three football
fields) is narrowly tailored to the government interest where Dugan’s offense arose from the
non-violent obstruction of a clinic entrance, and where, particularly in urban areas, the condition
could significantly impede Dugan’s freedom of movement.
We have considered all of Defendants-Appellants’ arguments and, for the reasons stated
above, we VACATE and REMAND with respect to the challenged condition of supervised
release and otherwise AFFIRM.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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