United States v. Tatiana Zagorovskaya , 628 F. App'x 503 ( 2015 )

FILED
NOT FOR PUBLICATION DEC 31 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50464
Plaintiff - Appellee, D.C. No. 2:13-cr-00583-PA-1
v.
MEMORANDUM*
TATIANA ZAGOROVSKAYA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted December 10, 2015
Pasadena, California
Before: REINHARDT, LUCERO**, and NGUYEN, Circuit Judges.
Tatiana Zagorovskaya appeals her conviction for violation of 41 C.F.R. §
102-74.390(a), which prohibits all persons who “enter[] in or on [f]ederal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
property” from exhibiting “conduct” that creates a nuisance. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. Viewing the evidence in the light most favorable to the government, as
we must, see United States v. Nevils, 598 F.3d 1158, 1163-65 (9th Cir. 2010) (en
banc), the evidence was sufficient to sustain Zagorovskaya’s conviction. Based on
the witness testimony and photographic evidence in the record, a rational trier of
fact could have concluded that GSA-controlled property included the lobby outside
the immigration courtrooms. In any event, Zagorovskaya’s criminal conduct
occurred on both sides of the GSA security checkpoint.
2. Likewise, there was sufficient evidence to find that Zagorvoskaya
“knowingly” engaged in the conduct proscribed by 41 C.F.R. § 102-74.390(a). See
United States v. Brice, 926 F.2d 925, 929-30 (9th Cir. 1991). Multiple witnesses
testified that they heard Zagorovskaya threaten to kill Officer Valadez in English,
and that Zagorovskaya threw a hair clip at Officer Valadez during the security
screening process. To the extent Zagorovskaya argues that she cannot be
convicted because she did not know that throwing her hair clip or threatening to
kill a security officer actually constituted a “nuisance” prohibited by regulation,
she is wrong. See, e.g., Elonis v. United States, 135 S. Ct. 2001, 2009 (2015)
(“The familiar maxim ‘ignorance of the law is no excuse’ typically holds true.
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Instead, our cases have explained that a defendant generally must ‘know the facts
that make his conduct fit the definition of the offense,’ . . . even if he does not
know that those facts give rise to a crime.”) (quoting Staples v. United States, 511
U.S. 600, 608 n.3 (1994)).
3. Because Zagorovskaya’s conduct unambiguously falls within the
prohibition against creating a nuisance on federal property, her vagueness
challenge fails. See, e.g., United States v. Szabo, 760 F.3d 997, 1003 (9th Cir.
2014) (“We consider whether a statute is vague as applied to the particular facts at
issue, for ‘[a] plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others.’”)
(citation omitted); United States v. Agront, 773 F.3d 192, 197-99 (9th Cir. 2014).
4. The nuisance prohibition in 41 C.F.R. § 102-74.390(a), which applies
only to persons “entering in or on [f]ederal property,” is not overbroad in violation
of the First Amendment. Indeed, “[r]arely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or to
conduct necessarily associated with speech (such as picketing or demonstrating).”
Virginia v. Hicks, 553 U.S. 113, 124 (2003); see also, e.g., Brice, 926 F.2d at 931(rejecting comparable overbreadth challenge to predecessor regulation because the
impact on speech was incidental). In addition, “the First Amendment does not
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immunize ‘true threats.’” United States v. Bagdasarian, 652 F.3d 1113, 1116 (9th
Cir. 2011) (citing Watts v. United States, 394 U.S. 705, 708 (1969)). Here, the
evidence establishes that “a reasonable person who heard [Zagorovskaya’s]
statement[s] would have interpreted [them] as a threat” and that Zagorovskaya
subjectively intended her speech as threats. See Bagdasarian, 652 F.3d at 1119-
24; see also United States v. Stewart, 420 F.3d 1007, 1018 n.9 (9th Cir. 2005)
(citing Virginia v. Black, 538 U.S. 343, 360 (2003)).
5. Finally, the trial court did not abuse its discretion by admitting Officer
Valadez’s testimony that her security firm was employed by GSA. See United
States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). Officer Valadez worked as a
security guard on seventeenth floor of the building for about eight years, and she
was familiar with the specific GSA regulations that covered the area near the
immigration courtrooms. See Fed. R. Evid. 602 (evidence to support a finding that
a witness has personal knowledge of a matter “may consist of the witness’s own
testimony”).
AFFIRMED.
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