18-1344 U.S. v. Wasylyshyn

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2018

(Argued: May 20, 2019 Decided: November 3, 2020)

Docket No. 18-1344 ______________

UNITED STATES OF AMERICA,

Appellee,

–v.–

MARINA WASYLYSHYN,

Defendant-Appellant. ______________

B e f o r e:

LIVINGSTON and CARNEY, Circuit Judges, and BERMAN, District Judge. * ______________

Defendant-Appellant Marina Wasylyshyn appeals her conviction following a bench trial for creating a loud noise and nuisance at the Binghamton federal courthouse. Wasylyshyn entered the lobby of the Binghamton courthouse to retrieve tax forms, but was told by court security officers (“CSOs”) Alan Canfield and David Lawrence that she was not allowed to go to the IRS office inside the building without an appointment. Wasylyshyn engaged in a loud argument with Canfield, aggressive on both sides.

*Judge Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation. Canfield arrested her. Federal Protective Service Inspector Joseph Chapman issued Wasylyshyn a violation notice charging her with creating a “loud or unusual noise or a nuisance” in the courthouse, in violation of

(a) (the “Noise Regulation”). Wasylyshyn was convicted of the violation at a bench trial before a magistrate judge of the United States District Court for the Northern District of New York (Dancks, M.J.), and her conviction was upheld on appeal to a district judge (Suddaby, C.J.). See Fed. R. Crim. P. 58(g). On appeal before this Court, Wasylyshyn argues that her conviction is invalid because the Noise Regulation was not conspicuously posted in the courthouse and she was not otherwise on notice that her conduct was illegal. Wasylyshyn also contends that the evidence presented at trial was insufficient to establish that she acted with the requisite mental state to violate the Noise Regulation. Finally, Wasylyshyn assails the Noise Regulation as unconstitutionally vague as applied to her conduct in this case. We affirm. We conclude that Wasylyshyn forfeited her challenge to the conspicuous posting of the Noise Regulation by not raising the argument on appeal to the District Court. We further conclude that, under United States v. Weintraub,

(2d Cir. 2001), the Noise Regulation carries only a general intent requirement, and that the evidence supports that Wasylyshyn acted with this mens rea. Finally, we determine that the Noise Regulation is not unconstitutionally vague as applied to Wasylyshyn’s conduct.

AFFIRMED. ______________

MICHAEL F. PERRY, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

DONNA ALDEA, Barket Epstein & Kearon LLP, Garden City, NY, for Defendant-Appellant. ______________

CARNEY, Circuit Judge:

Defendant-Appellant Marina Wasylyshyn appeals her conviction following a

bench trial for creating a loud noise and nuisance at the Binghamton federal courthouse.

2 Wasylyshyn entered the lobby of the Binghamton courthouse to retrieve tax forms, but

was told by court security officers (“CSOs”) Alan Canfield and David Lawrence that

she was not allowed to go to the IRS office inside the building without an appointment.

Wasylyshyn then engaged in a loud argument with Canfield, aggressive on both sides.

During the argument, Canfield arrested her. Federal Protective Service (“FPS”)

Inspector Joseph Chapman issued Wasylyshyn a violation notice charging Wasylyshyn

with creating a “loud or unusual noise or a nuisance” in the courthouse, in violation of

(a) (the “Noise Regulation”). Wasylyshyn was convicted of the

violation at a bench trial before Magistrate Judge Thérèse Wiley Dancks of the United

States District Court for the Northern District of New York, 1 and her conviction was

upheld on an initial appeal to Chief District Judge Suddaby. 2

1With or without the defendant’s consent, a magistrate judge may try “petty offense[s] for which no sentence of imprisonment will be imposed.” Fed. R. Crim. P. 58(a)(2), (b)(2)(E)(i), (b)(2)(F).

2 Federal Rule of Criminal Procedure 58(g)(2)(B) provides, “A defendant may appeal a magistrate judge’s judgment of conviction or sentence to a district judge within 14 days of its entry.” See also

(“In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court of the district in which the offense was committed.”). The scope of such an appeal “is the same as in an appeal to the court of appeals from a judgment by a district judge.” Fed. R. Crim. P. 58(g)(2)(D). The district court’s determination on appeal may in turn be appealed as of right to the Circuit Court of Appeals as a “final decision” under

. See, e.g., United States v. Hollingsworth,

, 558 & n.2 (5th Cir. 2015) (affirming district court’s judgment, which in turn affirmed sentence and conviction entered by magistrate judge, and noting that appellant “was required to appeal first to the district court under 18 U.S.C. § 3402”); United States v. Falciglia, No. 93 CR. 1016 (SEG),

, at *1 (S.D.N.Y. Dec. 13, 1994) (affirming magistrate judge’s sentence on appeal), aff’d,

(2d Cir. 1995). The Court of Appeals then reviews the magistrate judge’s ruling applying the same standard of review as used by the district court. See Hollingsworth,

.

3 Wasylyshyn now challenges her conviction on three grounds. She argues first

that her conviction is invalid because (she asserts) the Noise Regulation was not

conspicuously posted in the courthouse and she was not otherwise on notice that her

conduct was illegal. Wasylyshyn contends next that the mens rea for the violation at

issue is “knowledge that the action is wrongful,” Appellant’s Br. 30, and that the

prosecution failed to make the necessary showing. Finally, Wasylyshyn urges that the

regulation is unconstitutionally vague as applied to her conduct.

We reject these arguments. First, by failing to raise the conspicuous-posting

argument in her initial appeal to the District Court, Wasylyshyn forfeited any challenge

to her conviction on this ground. Next, under United States v. Weintraub,

(2d Cir. 2001), a conviction for violating the Noise Regulation requires proof only of

a defendant’s general intent. The proof presented at trial was sufficient to meet this

standard as to Wasylyshyn. Finally, the Noise Regulation is not unconstitutionally

vague as applied to Wasylyshyn’s conduct.

We therefore AFFIRM the decision and order of the District Court.

BACKGROUND

I. The Courthouse Incident

The following account is drawn from the record made before Magistrate Judge

Dancks at the bench trial. In view of Wasylyshyn’s conviction, we summarize the facts

in the light most favorable to the government. See Garbutt v. Conway,

(2d

Cir. 2012). The evidence presented consisted primarily of testimony given by

Wasylyshyn, CSOs Canfield and Lawrence, and FPS Inspector Chapman; photographs

4 of the Binghamton courthouse lobby; and video footage of Wasylyshyn’s encounter

with the CSOs.

Near noon on February 14, 2017, Dr. Marina Wasylyshyn visited the Federal

Building and U.S. Courthouse in Binghamton, New York, to collect tax forms from a

self-service rack in a hallway off the building’s lobby, as she had done in previous

years. CSOs Canfield and Lawrence were behind the security desk in the courthouse

lobby, facing the revolving door through which the public entered the building. After

Wasylyshyn entered the building through the revolving door, Lawrence asked her

“where she wanted to go.” App’x 51. 3 A protest was assembling outside the building

and the CSOs did not know whether Wasylyshyn was a protester. Wasylyshyn replied

that she wanted to visit the office of the Internal Revenue Service. Lawrence informed

Wasylyshyn that, under a new policy, “she [needed] an appointment to get into the

I.R.S.,” and “[t]hey no longer [accepted] walk-ins.” Id. at 51-52. Wasylyshyn replied, “I

don’t need an appointment. I am just here to pick up some tax forms.” Id. at 109.

Lawrence turned to retrieve a flyer that provided a telephone number for scheduling an

appointment with the IRS. As he retrieved the flyer, Lawrence asked Wasylyshyn which

forms she needed and told her he “would get them for her.” Id. at 90.

According to both Canfield’s and Lawrence’s testimony, at this point in the

exchange Wasylyshyn had become “agitated.” Id. at 52, 90. She “slammed” her purse on

the counter, and then searched in her bag for a list of the forms she wanted. Id. at 52, 70,

90. Canfield stood up and joined Lawrence at the desk. Lawrence directed Wasylyshyn

3Unless otherwise noted, in text quoted from case law, this Opinion omits all alterations, citations, footnotes, and internal quotation marks.

5 to “calm down.” Id. at 60, 105. Video surveillance footage shows Canfield extending his

right arm and pointing a finger close to Wasylyshyn’s face. 4 Lawrence testified that

Wasylyshyn told him in a “very loud” voice that she was a doctor. Id. at 90. Lawrence

responded that he did not care that she was a doctor and that “this is how it [is] done.”

Id. at 90-91. Wasylyshyn replied that she “pays [his] salary,” that he was “a public

servant,” and that he “ha[s] to do what she tells [him] to do.” Id. at 91. Next,

Wasylyshyn handed Lawrence her list of forms. Lawrence took the paper and walked

to the tax form rack in a hallway off the lobby, about 40 to 45 feet away. From there,

Lawrence could hear Wasylyshyn “yelling about how [Lawrence and Canfield were]

public servants” and how she “pays [their] salary,” but he could not see Wasylyshyn or

Canfield. Id. at 53, 91-92. The Magistrate Judge characterized Wasylyshyn as “shouting”

during the encounter. Id. at 153-54.

Back at the security desk, Canfield advised Wasylyshyn that his “function” was

not to help her; rather, he was “there for the security of the federal court only.” Id. at 61.

Wasylyshyn told Canfield that he was a federal employee, to which Canfield responded

he was not, because he worked for a private company that contracted with the federal

government. Canfield parried that “if she didn’t like the rules in the building [she

should] leave.” Id. at 54, 61. Canfield acknowledged in his testimony that, during this

argument, his “voice level” may have “exceeded hers.” Id. at 79.

4The video footage of the encounter was reviewed by the Magistrate Judge, the District Judge, and was available on appeal to this Court. We noted no inconsistencies in interpretation or characterization of what the video recorded. The video recording did not include an audio component.

6 Canfield then walked out from behind the counter, approached Wasylyshyn, and

pointed at her face. She backed away from him, toward the door. The surveillance

footage shows (and no one disputes) that Canfield advanced several steps toward

Wasylyshyn, pointing and appearing to speak aggressively, while Wasylyshyn

continued to retreat. Eventually, Wasylyshyn stopped, stepped toward Canfield, and

thrust her face toward Canfield’s face. Magistrate Judge Dancks found based on the

video footage that Wasylyshyn “stepp[ed] toward the CSO[,] . . . getting extremely close

to him, if not touching him.” Id. at 154. Canfield testified that Wasylyshyn made contact

with him in “kind of a belly bump.” Id. at 54-55. Canfield then placed Wasylyshyn

under arrest, taking hold of her arm and directing her back to the security desk. Once at

the security desk, Canfield took Wasylyshyn’s purse from her hands, placed it on the

desk, and struggled to pull Wasylyshyn’s hands behind her back while he arrested her.

At the same time, Canfield called for Lawrence to return.

When Lawrence returned from the tax form rack, he saw Canfield standing

behind Wasylyshyn, with Canfield holding her arms behind her back. Canfield

instructed Lawrence to retrieve Wasylyshyn’s driver’s license from her purse.

Wasylyshyn “squirm[ed] around” and “yell[ed]” at Lawrence to tell Canfield to release

her. Id. at 62, 93. Lawrence directed her to stand still and told her that she was under

arrest. Wasylyshyn continued to move, and Lawrence stopped looking through her

purse and assisted Canfield in handcuffing Wasylyshyn. After Wasylyshyn had been

handcuffed, she asked why she was under arrest. Canfield answered that Wasylyshyn

was under arrest “for being a bitch.” Id. at 62-63, 93-94. Lawrence testified that he

“clarified” this statement by explaining to Wasylyshyn that she was under arrest for

“dis con or disorderly conduct.” Id. at 94.

7 The CSOs detained Wasylyshyn for twenty to thirty minutes after handcuffing

her; they also called for assistance. When FPS Inspector Chapman arrived at the scene in

response to their call, he issued Wasylyshyn a violation notice for creating a “loud or

unusual noise or a nuisance” in breach of the Noise Regulation,

-

74.390(a), 5 and released her. App’x 5, 33-34, 95. Wasylyshyn was then permitted to walk

into the hallway past the CSO security desk to retrieve the tax forms she had come for.

Wasylyshyn later filed a complaint with the U.S. Marshal about the incident and

Canfield received a formal reprimand for his verbal insult to Wasylyshyn.

II. Notice

During the bench trial, the government elicited testimony and introduced

photographs to establish the size and placement of a poster entitled “GSA Rules and

Regulations Governing Conduct on Federal Property” (the “Notice”). The Notice was

posted roughly seven-and-a-half feet behind the security desk, on a bulletin board

behind an x-ray machine and inside a glass frame. Although the Noise Regulation was

printed on the Notice, Lawrence testified that an individual standing in front of the

security desk could read only the bold-text title at the top of the document—the

substance of the rules and regulations was illegible from that distance. Lawrence

testified that he at no point saw Wasylyshyn reading the Notice and that he did not

inform Wasylyshyn of the regulations posted on the Notice before he arrested her.

5 The Noise Regulation provides, “All persons entering in or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that— (a) creates loud or unusual noise or a nuisance . . . .”

.

8 The District Court found, and no one disputed, that the regulations had been

posted in the courthouse in this fashion for many years, and that Wasylyshyn had

visited the courthouse on several prior occasions.

III. The Trial and Appeal to the District Court

The case was tried before Magistrate Judge Dancks on August 23, 2017. After the

government’s case-in-chief, Wasylyshyn (represented by counsel) testified in her own

defense. At the conclusion of the government’s case, and again after she testified,

Wasylyshyn moved for judgment of acquittal under Federal Rule of Criminal Procedure

29(a). In support, she argued, first, that the government had failed to prove that she had

knowingly violated a federal regulation. Second, Wasylyshyn submitted that the Noise

Regulation was unconstitutionally vague as applied in her case. Magistrate Judge

Dancks denied Wasylyshyn’s motion, found her guilty of the charged offense, and

sentenced her to pay a $50 fine and a $30 processing fee.

Wasylyshyn appealed to the District Court, asserting that the evidence presented

at trial was insufficient to establish that she had violated the Noise Regulation, that the

Magistrate Judge applied the wrong mens rea requirement, and that the Noise

Regulation was unconstitutionally vague as applied to her conduct. The District Court

affirmed the conviction. United States v. Wasylyshyn, No. 17-cr-234-GTS (N.D.N.Y. Apr.

24, 2018).

Wasylyshyn now appeals to our Court.

9 DISCUSSION

In conducting a sufficiency review of a guilty verdict, we review the evidence

presented at trial in the light most supportive of the verdict. United States v. Griffith,

(2d Cir. 2002). We will not disturb a conviction on grounds that the

evidence at trial was legally insufficient “if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v.

Wilkerson,

(2d Cir. 2004). We review de novo questions of law,

including the application of the law to undisputed facts and constitutional challenges to

a law. See Deegan v. City of Ithaca,

(2d Cir. 2006).

I. The Statutory Notice Requirement

Section 1315(c)(1) of title 40 in the U.S. Code (“section 1315” or the “statutory

notice requirement”) requires that certain regulations related to conduct on federal

property, including the Noise Regulation, “be posted . . . in a conspicuous place.” It

reads:

The Secretary, in consultation with the Administrator of General Services, may prescribe regulations necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property. The regulations may include reasonable penalties, within the limits prescribed in paragraph (2), for violations of the regulations. The regulations shall be posted and remain posted in a conspicuous place on the property.

(c)(1) (emphasis added).

Wasylyshyn now maintains that, because the Noise Regulation could not easily

be read by visitors to the Binghamton courthouse, the government failed to comply

with the statutory notice requirement. This failure makes her conviction invalid,

10 Wasylyshyn contends, arguing that before the CSOs arrested her she was not otherwise

put on notice that her conduct was illegal.

We do not reach this argument, however, because Wasylyshyn did not raise it in

the District Court. As a general rule, we will not consider arguments first raised on

appeal to this court. 6 Otal Investments Ltd. v. M/V CLARY,

(2d Cir.

2012); see Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,

, 124 n.29 (2d Cir. 2005)

(“The law in this Circuit is clear that where a party has shifted his position on appeal

and advances arguments available but not pressed below, waiver will bar raising the

issue on appeal.”); see also United States v. Pilati,

(11th Cir. 2010)

(holding that issues not raised on appeal to district court under

are

waived or abandoned by defendant). We are particularly reluctant to do so when, as

here, the party appears to have previously disclaimed any intention of making the

argument now pressed on appeal.

Wasylyshyn did not raise the government’s failure to comply with the statutory

notice requirement in her appeal to the District Court. In that appeal, Wasylyshyn

pointed to the illegibility of the Noise Regulation only to advance her mens rea

argument that she couldn’t knowingly violate the Noise Regulation without being able

to read it as posted. In fact, in her brief on appeal to Chief Judge Suddaby, Wasylyshyn

6 We have not previously addressed this practice in the context of appeals to our court from district court rulings made under

. The requirement that arguments raised on appeal have been raised in the district court is motivated, however, by considerations that apply with equal, if not greater, force when we are reviewing a district court’s exercise of appellate jurisdiction. See, e.g., In re Anderson,

(2d Cir.) (declining to consider argument not raised before bankruptcy court or on appeal to district court), cert. denied sub nom. Credit One Bank, N.A. v. Anderson,

(2018). We therefore comfortably apply the identical rule here.

11 essentially disclaimed any intention to challenge the government’s compliance with

section 1315. She wrote:

The error of the magistrate judge in this case was that she conflated the 40 U.S.C. 1315(c) requirement that the GSA regulations be “posted in a conspicuous place” with the totally separate requirement that a mens rea element is implied in the regulation (41 CFR 102-74.390) itself. In this case all the evidence is consistent that the GSA regulation was posted in a glass case on a pillar behind the CSO’s station. . . . It is respectfully submitted that when this court reviews, de novo, the magistrate’s conclusions of law which did not require the government to prove a culpable mental state, it should reverse the conviction because the government failed to prove that Dr. Wasylyshyn knowingly and willfully violated 41 CFR 102-74.390. Brief for Defendant-Appellant at 22-23, United States v. Wasylyshyn, No. 17-cr-234-GTS

(N.D.N.Y. Apr. 24, 2018). In affirming the conviction, Chief Judge Suddaby

acknowledged Wasylyshyn’s position that she was not challenging the conspicuousness

of the Noise Regulation’s posting: he commented, “There is no dispute here that the

regulations were conspicuously posted at the entrance of the Binghamton Federal

Building.” App’x 173.

After disclaiming this argument in her appeal to Chief Judge Suddaby,

Wasylyshyn may not now contend that her conviction is invalidated by any failure of

the government to comply with the statutory notice requirement. 7 Because Wasylyshyn

7It is true that, on appeal to the District Court, Wasylyshyn cited United States v. Marotz,

(N.D. Cal. 2014). Marotz is a case in which a district court held that the government did not prove a violation of the Noise Regulation because the regulation was not posted in a “conspicuous place” and the defendant was not otherwise placed on notice that his conduct was illegal.

. Yet Wasylyshyn cited this case solely for the proposition—not supported by Marotz—that the court should read a mens rea requirement into the Noise Regulation. See Brief for Defendant-Appellant at 21-22, United States v. Wasylyshyn,

12 did not raise the government’s failure to comply with the statutory notice requirement

before the District Court, we treat the argument as waived and decline to consider it

here. 8

II. Mens Rea

The Noise Regulation is silent as to the mens rea required to commit the offense.

Wasylyshyn argues that she did not have the requisite mens rea for the violation because

she lacked “knowledge that the action is wrongful.” Appellant’s Br. 30. We disagree.

Neither the Noise Regulation nor section 1315 states the mens rea for

Wasylyshyn’s offense. Nonetheless, the “legal principle that criminal statutes are

presumed to contain a mens rea requirement” compels us to interpret the text of the

Noise Regulation to include at least a minimal mens rea expectation. United States v.

Bronx Reptiles, Inc.,

(2d Cir. 2000). In doing so, we apply “a canon of

statutory interpretation to read criminal statutes that are silent or ambiguous as to the

required standard of mens rea[] to demand knowledge of enough facts to distinguish

conduct that is likely culpable from conduct that is entirely innocent.” United States v.

Weintraub,

(2d Cir. 2001). As Weintraub teaches, we presume that

No. 17-cr-234-GTS (N.D.N.Y. Apr. 24, 2018). Even if a mere citation were sufficient to preserve an argument for appeal, this citation would not be sufficient here: Wasylyshyn’s citation of Marotz did not support the argument she now tenders.

8We use the term “waived” here rather than “forfeited” because the decision not to raise the argument earlier reflects a choice, rather than an unwitting fault. But our usage over time has varied. Compare Katel Ltd. Liab. Co. v. AT & T Corp.,

(2d Cir. 2010) (“An argument raised for the first time on appeal is typically forfeited.”), with Wal-Mart Stores,

n.29 (“The law in this Circuit is clear that where a party has shifted his position on appeal and advances arguments available but not pressed below, waiver will bar raising the issue on appeal.”).

13 implicit scienter requirements “require no more knowledge than necessary to put a

defendant on notice that he is committing a non-innocent act.”

In our review here,

we therefore focus on “knowledge of wrongdoing,” which, we have explained,

“requires knowledge only of facts that in a reasonable person would create an

expectation that his conduct was likely subject to strict regulation.”

.

We read into the Noise Regulation only a general intent requirement—i.e., “that

the defendant possessed knowledge with respect to the actus reus of the crime.” Carter v.

United States,

(2000). Courthouses are formal spaces where solemn

government business takes place; a reasonable person would understand that shouting

at security officers in a courthouse is a “non-innocent act,” likely subject to some form

of regulation. Weintraub,

. Hence, a general intent requirement suffices

to distinguish “likely culpable” from “entirely innocent” conduct.

. Cf. United

States v. Brice,

(9th Cir. 1991) (holding that predecessor regulation to

Noise Regulation outlined only general intent offense). To convict Wasylyshyn of

violating the Noise Regulation, the government had to prove that she had knowledge

she was creating a “loud or unusual noise or a nuisance” on federal property,

(a), not that she knew of a specific regulation proscribing her conduct.

In this case, the Magistrate Judge credited the CSOs’ testimony that Wasylyshyn

was shouting at them, that her voice could be heard from 40 to 45 feet away, and that

she kept shouting after being told to calm down. Accordingly, the District Court did not

err in determining that the record contained evidence sufficient for a reasonable trier of

fact to conclude beyond a reasonable doubt that Wasylyshyn knowingly created a loud

noise or a nuisance.

14 III. Vagueness

Finally, Wasylyshyn asserts that the Noise Regulation is unconstitutionally

vague as applied to her conduct in this case. Because Wasylyshyn brings an as-applied

challenge only, we consider whether the Noise Regulation is unconstitutionally vague

in the context of Wasylyshyn’s conduct. Yet “all vagueness challenges—whether facial

or as-applied—require us to answer two separate questions: whether the statute gives

adequate notice, and whether it creates a threat of arbitrary enforcement.” Farrell v.

Burke,

(2d Cir. 2006). Wasylyshyn contends that the Noise Regulation

is unconstitutionally vague under both of these tests: first, Wasylyshyn submits that she

“could not have reasonably understood that her conduct was prohibited by the

regulation”; and second, she asserts that the language of the regulation is “sufficiently

indefinite to allow the CSOs to engage in arbitrary and discriminatory law enforcement,

motivated more by the content of [her] words than the volume of her voice.”

Appellant’s Br. 35. Neither argument persuades.

We review de novo challenges to the constitutionality of a statute. Deegan,

. We begin by addressing Wasylyshyn’s first contention.

The “notice” prong of the vagueness inquiry “asks whether the statute, as

written, provides notice sufficient to alert ordinary people as to what conduct is

prohibited.” Arriaga v. Mukasey,

(2d Cir. 2008). Wasylyshyn asserts

that the use of the terms “loud” and “unusual” to modify the noise-making conduct

barred by the Noise Regulation failed to provide a “sufficiently definite warning . . .

that her conduct was prohibited.” Appellant’s Br. 35-36. In support, Wasylyshyn points

to non-binding state and federal court decisions holding certain municipal anti-noise

ordinances that bar “unusual” and “annoying” noises to be unconstitutionally vague.

15 See

at 36 (citing Fratiello v. Mancuso,

(D.R.I. 1987); Thelen v. State,

(Ga. 2000); Nichols v. City of Gulfport,

(Miss. 1991)).

We see little similarity between a municipal noise ordinance of general

applicability and the Noise Regulation. While the ordinances in the cases cited by

Wasylyshyn applied to conduct occurring at any location in an entire municipality, the

Noise Regulation applies only to individuals who are on or who enter federal property

managed by the General Services Administration.

. Moreover, in

Wasylyshyn’s case, the regulation was applied in the highly secured and regulated

space of a federal courthouse. In this particular setting, reasonable people can discern

with relative ease whether a noise is “loud” or “unusual” and whether conduct

constitutes a nuisance. We have little doubt that, inside a federal courthouse, a

reasonable person would discern that “yelling” at a CSO constitutes creating a “loud

noise.”

Wasylyshyn also argues that the Noise Regulation’s prohibition of conduct that

creates a “nuisance” is subjective to the point that “no standard of conduct is specified

at all.” Appellant’s Br. 37. In support, Wasylyshyn relies on the Supreme Court’s

decision in Coates v. City of Cincinnati, in which the Court struck down a municipal

ordinance that “ma[de] it a criminal offense for ‘three or more persons to assemble on

any of the sidewalks and there conduct themselves in a manner annoying to persons

passing by.’”

(1971) (quoting Code of Ordinances of the City of

Cincinnati § 901—L6 (1956)). The Court held that the ordinance was unconstitutionally

vague, explaining that because “[c]onduct that annoys some people does not annoy

others,” the ordinance failed to provide any meaningful “standard of conduct” to which

a person could conform. Id. at 614.

16 Once again, the enforcement context is dispositive of the Noise Regulation’s

survival under Wasylyshyn’s vagueness attack. As explained above, enforcement of the

Noise Regulation is restricted to a narrow and special environment. The determination

of whether a person creates a “loud or unusual noise or a nuisance” on federal

property,

(a), is considerably less subjective than the

determination of whether conduct on city streets may be “annoying to persons passing

by.” Coates,

. This distinction is particularly stark when analyzed, as we

must do here, in the context of Wasylyshyn’s own offense. Reasonable people can

predict with a high degree of accuracy whether their conduct would create a “loud or

unusual noise or a nuisance” in a federal court building.

(a). It is

much more difficult to foretell whether conduct on a city street would annoy any

member of the public who happened to be passing by.

Wasylyshyn’s second contention—that the purported vagueness of the Noise

Regulation allows arbitrary and discriminatory enforcement—also fails. “Courts

considering as-applied vagueness challenges may determine either (1) that a statute as a

general matter provides sufficiently clear standards to eliminate the risk of arbitrary

enforcement or (2) that, even in the absence of such standards, the conduct at issue falls

within the core of the statute’s prohibition, so that the enforcement before the court was

not the result of the unfettered latitude that law enforcement officers and factfinders

might have in other, hypothetical applications of the statute.” Farrell,

. As

Magistrate Judge Dancks found following the trial, Wasylyshyn began “shouting” at

CSOs Lawrence and Canfield shortly after entering the Binghamton federal courthouse,

continued shouting after the CSOs directed her to calm down, and ultimately took a

step toward Canfield, “getting extremely close to him” during their argument. App’x

17 153-54. Wasylyshyn’s conduct cannot reasonably be described as anything other than

conduct that creates a loud noise or nuisance in a courthouse lobby, however justified

she may have felt in making a ruckus. Because we conclude that Wasylyshyn’s conduct

“falls within the core” of the Noise Regulation’s prohibition, her challenge based on

arbitrary enforcement falls short. Farrell,

.

Wasylyshyn’s contention that her “conduct was no different in kind or degree

than that exhibited by the CSOs themselves” has no bearing on this conclusion, or on

the outcome of her appeal in general. Appellant’s Br. 37. Wasylyshyn insists that when

Canfield began shouting at her and approached her in front of the security desk, it was

reasonable for her to conclude that she would not violate the law by shouting or

stepping toward him. Id. at 38. Even assuming this argument had firm support in the

factual record of the encounter, it would have no bearing on the arbitrary enforcement

inquiry discussed above. Because we find that, to sustain a conviction, Wasylyshyn’s

offense required a showing of no more than her general intent to engage in the subject

conduct, any inferences about the legality of her actions that she may mistakenly have

drawn from the CSOs’ conduct are not relevant to the mens rea determination either.

CONCLUSION

Wasylyshyn argues that she was unlawfully arrested and ultimately convicted of

a federal misdemeanor violation without the benefit of statutorily required notice,

without the requisite mens rea, and based on an unconstitutionally vague regulation.

Although we are troubled by Wasylyshyn’s aggressive treatment at the hands of the

CSOs in response to her behavior, Wasylyshyn presents no valid basis to disturb her

conviction. Wasylyshyn forfeited any challenge based on the statutory notice

18 requirement when she failed to advance the argument before the District Court. The

record contains evidence sufficient to support that the applicable mens rea

requirement—which we decide is of general intent—was met. The Noise Regulation is

not unconstitutionally vague as applied to Wasylyshyn’s conduct. We therefore

AFFIRM the decision and order of the District Court.

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