UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 24-po-23-SM-1

Frank N. Staples Opinion No.

United States of America

v. Case No. 24-po-11-SM-1

Jason L. Gerhard

Order on Appeal

Defendants, Frank Staples and Jason Gerhard, appeal their

convictions on charges of violating 41 C.F.R. 102.74-385,

failure to comply with federal law enforcement orders. The

charges arose from each defendant’s electronic recording in this

courthouse in September of 2023 and their failure to comply with

federal law enforcement orders to stop recording. Following

their convictions in bench trials before Magistrate Judge Saint-

Marc, each defendant filed a notice of appeal, and the cases

were consolidated for appeal.

Staples moved to add evidence to the appellate record and

to sever the appeals. Those motions are addressed below. For

the reasons that follow, the convictions are affirmed. Standard of Review

Defendants Staples and Gerhard each appeal from decisions

by the magistrate judge following their bench trials.

; Fed. R. Crim. P. 58(g)(2). The scope of review of a

magistrate judge’s decision is “the same as in an appeal to the

court of appeals from the judgment entered by a district judge.”

Fed. R. Crim. P. 58(g)(2)(D). When a defendant challenges his

conviction for insufficient evidence, “the relevant question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

United States v. Abbas,

(1st Cir. 2024).

When a defendant challenges a legal conclusion, however, review

is under the de novo standard. United States v. Langston,

(1st Cir. 2024).

I. Preliminary Motions

Defendants move to add evidence to the record for purposes

of the appeal. Staples also moves to sever the appeals.

A. Record Evidence

Generally, the record on appeal consists of the original

evidence submitted to the trial court and the transcript of

those proceedings. Fed. R. App. P. 10(a). Rule 10(e) allows

2 certain modification of the record, but a party cannot expand

the record on appeal by “putting additional evidence, no matter

how relevant, before the court of appeals that was not before

the district court.” United States v. Rivera-Rosario,

(1st Cir. 2002); accord United States v. Pagán-Ferrer,

(1st Cir. 2013). In other words, “Rule 10(e) is

not a vehicle for parties to raise a belated challenge to the

course of proceedings below.”

Staples moves for leave to supplement the record with

“video recordings and other materials that were obtained during

interactions post-trial with DHS Officer Michael Plante, as well

as conversations with court clerks and security officials.”

Doc. no. 40, at 1 (emphasis added). He argues that the video

recordings are relevant to a variety of issues on appeal.

Because the video recordings were not part of the trial record

and, in fact, were not made until after the trial, they cannot

be added to the record on appeal. The motion is denied.

B. Separate Appeals

Staples also moves to sever his appeal from Gerhard’s

appeal because, he says, Gerhard has not been assisting with the

appeal and the relationship between them has deteriorated.

(Doc. no. 44). Gerhard did not respond to the motion.

Staples’s reasons for separating the appeals do not suggest that

3 consolidation is prejudicial to his rights on appeal. Given the

similarity of the cases and appeals, consolidation is

appropriate. The court considers the appeals in their

consolidated form.

II. Appeals

Staples and Gerhard raise the same issues on appeal based

on the same briefing. 1

A. Background

The events at issue in this case occurred here, in the

Warren B. Rudman United States Courthouse, and are essentially

undisputed. On Friday, September 9, 2023, defendants Staples

and Gerhard came into the courthouse lobby with video recording

equipment and proceeded to record inside the courthouse.

1Neither Staples nor Gerhard requested a transcript of his trial. For that reason, official transcripts are not part of the record on appeal. Fed. R. App. P. 10(a). In the absence of official transcripts, Staples and Gerhard cannot challenge the sufficiency of the evidence or otherwise dispute the evidentiary bases for their convictions. See Fed. R. App. P. 10(b)(2) (“If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.”); see also Downey v. Bob's Disc. Furniture Holdings, Inc.,

, 8–9 (1st Cir. 2011) (“An appellant has the burden of ensuring that the record is adequate to permit reasoned review of her claims.”).

4 Federal police officer Michael Plante told them they could not

video record inside the courthouse because that violated court

rules. Staples and Gerhard asserted their right to record

inside the courthouse and said they would return on Monday for a

hearing in a criminal case, United States v. Freeman, 21-cr-41-

JL.

On Monday, Staples and Gerhard again entered the courthouse

with video recording equipment and recorded in the lobby area.

Officer Plante asked them to stop recording. Staples and

Gerhard refused to stop and were arrested for the petty offense

of failing to comply with the lawful order of a federal police

officer in violation of 41 C.F.R. § 102–74.385.

Staples and Gerhard represented themselves during the petty

offense proceedings. Judge Saint-Marc held separate bench

trials for Staples and Gerhard on April 9, 2024. Gerhard’s

trial was held first, followed by Staples’s trial. Ruling

orally from the bench in each case, Magistrate Judge Saint-Marc

denied their motions to dismiss the charges, found each of them

guilty of violating § 102-74.385, and sentenced each of them to

pay a fine of $100 with a $30 assessment fee. Judgment was

entered against each defendant on April 10, 2024. Doc. no. 25

(Gerhard); Doc. no. 21 (Staples).

Staples and Gerhard each moved for reconsideration and

asked for a written decision. Judge Saint-Marc construed the

5 motions as notices of appeal under Federal Rule of Criminal

Procedure 58(g)(2)(B), and the notices of appeal were docketed.

End. orders, May 2, 2024. The cases were consolidated for

appeal (doc. no. 32 in each case), and defendants were given

additional time to file their appellate briefs (end. order, June

24, 2024). Defendants filed their appellate briefs, the

government responded, and defendants replied.

B. Discussion

Defendants raise 12 issues that they contend require

overturning their convictions. The government asserts in its

appellate brief that some of the issues were waived because they

were not raised at trial and that all of the issues lack merit.

In their reply to the government’s brief, defendants identify

three categories of issues on appeal: “Failure to Establish

Federal Jurisdiction,” “Constitutional Violations,” and

“Misapplication of Local Rule 83.8.” Doc. no. 41, at 1. They

also state that they raised additional “novel arguments.” Id.

Because defendants have not identified any error, much less

reversible error, their convictions are affirmed.

1. Jurisdiction

Defendants assert that the charges against them are invalid

because the federal government lacks jurisdiction over the

6 property where the courthouse is located. Specifically,

defendants argue the property belongs to the State of New

Hampshire, not the federal government, and for that reason, the

federal government had no authority to enforce Local Rule

83.8(a) and

against them. In support,

defendants rely on a New Hampshire statute, RSA 123:1, which

pertains to land ownership between the State of New Hampshire

and the United States of America, and

, which

pertains to federal jurisdiction over land.

Defendants’ jurisdictional issue is unclear and appears to

be frivolous. 2 The court is satisfied that this is a federal

courthouse and that Local Rule 83.8 and

,

which were the bases of defendants’ petty offense convictions,

may be enforced here. Defendants’ convictions are unaffected by

their jurisdictional theories.

2. Constitutional Issues

Defendants contend that their First and Second Amendment

rights were violated by restricting their efforts to make video

recordings in a public space. They contend that the government

2 To the extent defendants are attempting to raise an issue about ownership of the property where the courthouse is located, which would be on behalf of the State of New Hampshire, they lack standing to do so. See United States v. Gerhard,

(1st Cir. 2010).

7 has been selective in enforcing restrictions on video recording

in the courthouse in violation of their Fourteenth Amendment

rights. They contend that their due process rights were

violated because Judge Saint-Marc did not issue a written order

giving reasons for their convictions. They further contend that

confiscation of Staples’s telephone at the end of his trial

violated due process and the Fourth Amendment. 3

a. First Amendment right to record 4

Defendants contend that enforcement of LR 83.8(a) to

prevent them from recording in the courthouse lobby deprived

them of their First Amendment right to record public officials

and proceedings in a public forum. 5 The interior of a

3 In addition, defendants assert a variety of violations of the New Hampshire Constitution, but they provide no basis on which the alleged violations would apply or would have any effect in the context of this appeal from their convictions of federal petty offenses.

4 Defendants also assert a right to video record in the courthouse under the Second Amendment. They have not shown that the Second Amendment, which pertains to the right to bear arms, has any relevance to their convictions.

5 To the extent Staples argues that his First Amendment right to record was violated when his cell phone was confiscated at the end of his trial, he is mistaken. He has not shown that he had a First Amendment right to record the proceedings in the courtroom during his trial. See, e.g., Berner v. Delahanty,

(1st Cir. 1997) (“A courthouse—and, especially, a courtroom—is a nonpublic forum.”); Decker v. Bales, No. CV-16- 02872-PHX-SRB,

, at *3 (D. Ariz. Feb. 28, 2017) (“[T]here is no First Amendment right to record a court

8 courthouse, however, is not a public forum. 6 For that reason,

enforcement of Local Rule 83.8(a) did not deprive defendants of

their First Amendment rights.

“When it comes to First Amendment free speech challenges,

not every public property is the same, and different types of

property will require different treatment.” 7 Porter v. City of

Philadelphia,

(3d Cir. 2020). “Traditional

public forums are places that the government has historically

proceeding or meeting.); McKay v. Federspeil,

(E.D. Mich. May 20, 2014) (finding no constitutional right to record proceedings inside a courtroom and citing Chandler v. Florida,

(1981) and Nixon v. Warner Communications, Inc.,

(1978)); see also Pitta v. Medeiros,

, 21 n.9 (1st Cir. 2024) (citing cases affirming restriction on recording inside a courtroom).

6 Defendants point to a commemorative plaque in the courthouse lobby that acknowledges the contributions of Judges Stahl and DiClerico and Clerk of Court Starr to the building committee for the courthouse as evidence that the lobby is a public forum. Although the plaque describes the result of their efforts as a “pleasing public forum,” taken in context, the statement is only a descriptive phrase, meaning that the courthouse is a pleasing location for the public purpose of providing courts and dispensing justice. That descriptive phrase is not a legal determination of the status of the courthouse or the lobby for purposes of the First Amendment.

7 The First Amendment protects the “right to gather news from any source by means within the law, a privilege that extends to non-journalists too.” Berge v. Sch. Comm. of Gloucester,

(1st Cir. 2024) (internal quotation marks omitted). As with all First Amendment rights, however, the type of property or forum controls the extent of the protection for newsgathering. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

(1985); Mocek v. City of Albuquerque,

(D.N.M. 2014).

9 held out for speech and assembly, such as public streets and

parks.” Davis v. Fallen, No. 24-CV-1563,

, at *3

(E.D. Pa. Oct. 30, 2024). In contrast, the interiors of

courthouses are nonpublic forums. Berner v. Delahanty,

(1st Cir. 1997); see also Enoch v. Hamilton Cnty.

Sheriff's Off., No. 22-3946,

, at *5 (6th Cir.

July 31, 2024), cert. denied sub nom. Enoch v. Hamilton Co.

Sheriff, No. 24-742,

(U.S. Mar. 24, 2025);

Courthouse News Serv. v. Planet,

(9th Cir.

2020); Huminski v. Corsones,

(2d Cir. 2005);

Braun v. Baldwin,

(7th Cir. 2003); Waitzmann

v. Clay Cnty., Missouri, No. 4:23-CV-00789-DGK,

,

at *3 (W.D. Mo. Nov. 15, 2024); Davis,

, at *3;

Wright v. Marshall Cnty. Alabama,

, 1262

(N.D. Ala. 2024); Peltz v. Roberts, No. CV-23-00094-TUC-RCC,

, at *8 (D. Ariz. Nov. 13, 2023); Pace v. Cnty. of

Cortland, No. 522-CV-1211,

, at *5 (N.D.N.Y. Nov.

7, 2023). “In a nonpublic forum like a courthouse, ‘the First

Amendment rights of everyone . . . are at their constitutional

nadir.’” Enoch,

, at *5 (quoting Mezibov v.

Allen,

(6th Cir. 2005)). That is,

expressive speech in a nonpublic forum, such as a courthouse,

“can be restricted as long as the restrictions are reasonable

and are not an effort to suppress expression merely because

10 public officials oppose the speaker's view.” Cornelius v. NAACP

Legal Def. & Educ. Fund, Inc.,

(1985).

Defendants rest their First Amendment argument on the

assumption that the interior of the courthouse is a public

forum. 8 It is not. They make no argument that Local Rule

83.8(a) is an unreasonable restriction in a nonpublic forum nor

do they argue that the rule is not viewpoint neutral.

Importantly, “[t] he function of a courthouse and its

courtrooms is principally to facilitate the smooth operation of

a government’s judicial functions. A courthouse serves

to provide a locus in which civil and criminal disputes can be

adjudicated.” Huminski v. Corsones,

(2d Cir.

2005) (citing Berner,

). Because of that purpose,

“the courthouse is a place in which rational reflection and

8 Defendants also state that that Officer Plante’s order to stop recording was an unconstitutional prior restraint on speech that violated the First Amendment. “[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. Int’l Soc. for Krishna Consciousness, Inc.,

(1981). Defendants’ prior restraint theory fails for the same reasons discussed above. In addition, defendants merely speculate that “[i]f the recording was intended for public dissemination,” an argument of prior restraint on speech “could be particularly compelling.” Doc. no. 34, at 6. Defendants do not show that they raised this theory in the trial proceedings, and they have not sufficiently developed a theory with actual facts to allow reasoned review by the court. See United States v. Burgos,

(1st Cir. 2025). The prior restraint theory is likely waived and is otherwise without merit.

11 disinterested judgment [must] not be disrupted.” Berner,

.

Local Rule 83.8(a) prohibits photographing, recording,

broadcasting, transmitting and televising inside the Warren B.

Rudman United States Courthouse and also prohibits possession of

equipment for those purposes inside the courthouse. Given the

nonpublic nature of the building and the purpose of the

courthouse, that prohibition is reasonable to avoid disruption

of court proceedings. Because there are exceptions to the

prohibition for authorized personnel and for certain

proceedings, the rule avoids unreasonable applications. LR

83.8(c). Local Rule 83.8(a) applies to “all persons” without

any reference to or restriction based on viewpoint, and, for

that reason, it is viewpoint neutral.

Defendants have not shown that they were convicted in

violation of the First Amendment.

b. Due process

Defendants contend that their due process rights were

violated because Judge Saint-Marc did not issue an oral or

written decision. They also contend that their due process

rights were violated because Staples’s cell phone was taken from

him at the end of his trial.

12 (1). Guilty Verdicts

Defendants cite Federal Rule of Criminal Procedure 23(c) in

support of their due process argument. Rule 23(c) provides: “In

a case tried without a jury, the court must find the defendant

guilty or not guilty. If a party requests before the finding of

guilty or not guilty, the court must state its specific findings

of fact in open court or in a written decision or opinion.”

Judge Saint-Marc stated her guilty verdicts in open court

at the end of each defendant’s trial, along with the findings

that supported each verdict. She also stated each defendant’s

sentence. As such Judge Saint-Marc found Gerhard and Staples

guilty and issued an oral verdict in each case. The

proceedings, including the guilty verdicts and sentences, were

transcribed, which provides a written record of those decisions.

Defendants can request that transcripts be prepared, which

requires purchasing the transcripts, unless other arrangements

are requested and allowed. No due process violation occurred

based on the oral decisions on the record by Judge Saint-Marc,

which are preserved by transcriptions of the proceedings.

(2). Staples’s cell phone

Judge Saint-Marc allowed Staples to use his phone during

his trial for the limited purpose of presenting evidence but

prohibited him from recording the proceedings. Staples complied

13 with that restriction to a point. When Judge Saint-Marc began

to deliver the verdict and the reasons for the verdict, however,

Staples began to record the proceedings. The judge ordered him

to stop recording, which he refused to do. He repeatedly swore

at the judge and despite her direction to compose himself, he

was unable to do so. The phone was then taken from him.

Staples’s phone incident did not affect Gerhard’s trial,

which had already concluded. The phone incident occurred at the

end of Staples’s trial, and he has not shown or even argued that

removal of his phone caused any prejudice to his ability to

defend himself. To the extent he believes his rights were

violated by the manner in which the phone was removed or the

time before it was returned, those are not issues for appeal.

Staples has not shown any due process violation caused by the

removal of his phone that would be grounds for overturning his

conviction.

c. Selective enforcement

Defendants contend that they are the victims of selective

enforcement of LR 83.8(a), but they have not pointed to evidence

in the record to support that theory. To demonstrate selective

enforcement, “defendants bear a heavy burden of establishing

that (1) defendants have been singled out while other similarly

situated violators were left untouched, and (2) that the

14 government selected defendants for prosecution invidiously or in

bad faith, i.e., based upon such impermissible considerations as

race, religion, or the desire to prevent the exercise of their

constitutional rights.” United States v. Google, LLC,

, 594 (E.D. Va. 2023) (internal quotation marks

omitted); see also McCoy v. Town of Pittsfield, NH,

(1st Cir. 2023) (“To establish a claim of selective

treatment, a plaintiff must show that (1) the plaintiff,

compared with others similarly situated, was selectively

treated; and (2) such selective treatment was based on

impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person.” Defendants

have not shown that their convictions were the result of

selective enforcement.

d. Fourth Amendment

Staples also contends that confiscation of his phone during

his trial violated his Fourth Amendment rights. As above, he

makes no argument or showing that confiscation of his phone

affected his ability to defend himself. Any Fourth Amendment

violation is not an issue for appeal.

15 3. Application of Local Rule 83.8(a)

Officer Plante’s order to defendants to stop recording was

lawful under Local Rule 83.8(a). Local Rule 83.8(a) provides:

Prohibition. Except authorized personnel in the discharge of their official governmental duties, all persons are prohibited from photographing, recording (audio or video), broadcasting, transmitting, or televising within the Warren B. Rudman U.S. Courthouse (including the garage, basement, and ramp area, as well as other areas designated on specific occasions by the United States Marshal when necessary for security reasons). This prohibition extends to persons participating in a court proceeding remotely by video or teleconference.

There is no dispute that defendants were recording in the lobby

of the courthouse, without permission, when Officer Plante told

them to stop, and they refused.

Contrary to defendants’ theories, LR 83.8 applies to the

entire area within the Rudman Courthouse. 9 LR 83.8 also applies

whether persons entering the courthouse are interested in civil

or criminal proceedings. 10

does not

undermine defendants’ convictions because the regulation allows

photographs in certain federal properties “[e]xcept where

9 Defendants contend that LR 83.8 is limited to courtrooms, and in their reply they quote a “Local Rule 83.8” from “Combined Local Rules” with language limited to restrictions in courtrooms. The cited and quoted rule is not the rule in this district. Doc. no. 41, at 12. Defendants were ordered to comply with LR 83.8(a), not the rule that they cite.

10The civil local rules apply for purposes of criminal proceedings absent “conflict with any statue, federal or local criminal rule or individual order.” LCrR 1.1(d).

16 security regulations, rules, orders or directives apply or a

Federal court order or rule prohibits it.” LR 83.8(a), one of

the local rules in this district, prohibits it.

Defendants have not shown that LR 83.8 was misapplied to

require them to stop recording inside the courthouse.

4. Novel arguments

The court assumes that defendants’ “novel arguments” are

those issues raised in their appellate brief but not addressed

in their reply. Those arguments appear to be the overturning of

Chevron deference in Loper Bright Enterprises v. Raimondo,

(2024); the void for vagueness doctrine, and the

exclusionary rule. 11 None of those arguments have merit.

a. Chevron deference

In Loper Bright, the Supreme Court overturned the doctrine

of deferring to a federal agency’s statutory interpretation,

11To the extent defendants challenge the constitutionality of their bench trials (trial without a jury) and their lack of appointed counsel, that claim also lacks merit. The Sixth Amendment does not require either a trial by jury or representation by counsel for minor violations, such as petty offenses, that do not include penalties of incarceration. See Blanton v. City of N. Las Vegas,

(1989) (holding that the Sixth Amendment does not guarantee a jury trial on petty offenses); Scott v. Illinois,

(1979) (holding that there is no Sixth Amendment right to counsel when defendant does not face incarceration).

17 known as Chevron deference. There was no issue of statutory

interpretation in Staples’s and Gerhard’s cases. Therefore, the

holding in Loper Bright has no effect here.

b. Void for vagueness doctrine

The government contends that defendants did not raise a

challenge to the charges against them before Judge Saint-Marc

based on the void for vagueness doctrine and that they cannot

raise the issue for the first time on appeal. See United States

v. Feliciano-Candelario,

(1st Cir. 2025)

(holding that defendant’s failure to argue an issue not raised

below under the plain error standard doubly waived the issue on

appeal). Because defendants did not pursue that issue in their

reply, it is likely waived.

In any case, even if the issue were not waived, defendants

have not shown that either Local Rule 83.8 or § 102-74:385 is

void for vagueness. See, e.g., Frese v. Formella,

(1st Cir. 2022) (holding that a law “is impermissibly vague

for lack of notice only if it prohibits an act in terms so

uncertain that persons of average intelligence would have no

choice but to guess at its meaning and modes of application.”

(internal quotation marks and citations omitted)). Local Rule

83.8(a) states that the following conduct is prohibited:

“photographing, recording (audio or video), broadcasting,

18 transmitting, or televising within the Warren B. Rudman U.S.

Courthouse.” Section 102-74:385 provides that persons on

federal property must comply “with the lawful direction of

Federal police officers and other authorized individuals.”

Defendants have not shown that the language in either the rule

or the regulation is not certain. Defendants’ meritless

disagreement with whether Officer Plante’s order was lawful does

not make the regulation vague.

c. Exclusionary rule

For purposes of the exclusionary rule, defendants argue

that any evidence obtained by the government pursuant to an

unlawful order to cease recording was obtained in violation of

the Fourth Amendment, citing Mapp v. Ohio,

(1961).

Defendants point to no evidence that was introduced at either

trial that was obtained by an unlawful order. In fact, Officer

Plante’s orders to cease recording were lawful. The

exclusionary rule has no application in this consolidated

appeal.

19 Conclusion

For these reasons, the convictions of Frank Staples and

Jason Gerhard for violating

are affirmed.

SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

May 9, 2025

cc: Frank N. Staples, pro se Jason L. Gerhard, pro se Counsel of Record

20