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  • United States v. Uterburger, 97 F.3d 1413, 11th Cir. (1996)

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    This document summarizes a court case involving two defendants, Raymond Unterburger and Eric Olson, who were charged under the Freedom of Access to Clinic Entrances Act (FACE) for blockading an abortion clinic entrance using bicycle locks and chains. The defendants appealed their convictions on the grounds that they were entitled to a jury trial and that FACE was unconstitutional. The appellate court upheld the defendants' convictions, finding that the penalties under FACE for a first, nonviolent offense were not severe enough to warrant a jury trial based on previous Supreme Court rulings. The court also affirmed its prior ruling that FACE did not violate the Constitution based on the doctrine that a panel cannot overturn established circuit precedent.

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    Filed: 1996-10-23 Precedential Status: Precedential Citations: 97 F.3d 1413 Docket: 95-5199

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    This document summarizes a court case involving two defendants, Raymond Unterburger and Eric Olson, who were charged under the Freedom of Access to Clinic Entrances Act (FACE) for blockading an abortion clinic entrance using bicycle locks and chains. The defendants appealed their convictions on the grounds that they were entitled to a jury trial and that FACE was unconstitutional. The appellate court upheld the defendants' convictions, finding that the penalties under FACE for a first, nonviolent offense were not severe enough to warrant a jury trial based on previous Supreme Court rulings. The court also affirmed its prior ruling that FACE did not violate the Constitution based on the doctrine that a panel cannot overturn established circuit precedent.

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    13 views4 pages

    United States v. Uterburger, 97 F.3d 1413, 11th Cir. (1996)

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    This document summarizes a court case involving two defendants, Raymond Unterburger and Eric Olson, who were charged under the Freedom of Access to Clinic Entrances Act (FACE) for blockading an abortion clinic entrance using bicycle locks and chains. The defendants appealed their convictions on the grounds that they were entitled to a jury trial and that FACE was unconstitutional. The appellate court upheld the defendants' convictions, finding that the penalties under FACE for a first, nonviolent offense were not severe enough to warrant a jury trial based on previous Supreme Court rulings. The court also affirmed its prior ruling that FACE did not violate the Constitution based on the doctrine that a panel cannot overturn established circuit precedent.

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    of 4

    97 F.

    3d 1413

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    Raymond UNTERBURGER, Eric Olson, DefendantsAppellants.
    No. 95-5199.

    United States Court of Appeals,


    Eleventh Circuit.
    Oct. 23, 1996.

    Kathleen M. Williams and Robin Cindy Rosen, Federal Public Defenders,


    Miami, FL, for Unterburger and Olson.
    Kendall Coffey, U.S. Atty., Linda C. Hertz, Asst. U.S. Atty., Miami, FL,
    Gregory B. Friel and Jessica D. Silver, U.S. Dept. of Justice, Civil Rights
    Division, Washington, DC, for plaintiff-appellee.
    Appeals from the United States District Court for the Southern District of
    Florida.
    Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and
    COHILL* , Senior District Judge.
    DUBINA, Circuit Judge:

    I. BACKGROUND
    A. Procedural History
    1

    This is an abortion protestor case. Appellants Eric Olson and Raymond


    Unterburger ("the defendants") were charged in a one-count information with
    violating the Freedom of Access to Clinic Entrances Act of 1994 ("Access Act"
    or "FACE"), 18 U.S.C. 248(a). The information charged that the defendants
    used physical obstruction to intentionally intimidate and interfere with, and
    attempt to intimidate and interfere with, persons because they were trying to
    provide and obtain reproductive health services. Because the defendants had no

    prior convictions under the Access Act, and because the alleged offense
    involved "exclusively a nonviolent physical obstruction," the defendants faced a
    maximum prison term of six months and a maximum fine of $10,000. 18
    U.S.C. 248(b).
    2

    The defendants requested a jury trial, but a magistrate judge recommended that
    the request be denied. The district court overruled the defendants' objections to
    the magistrate judge's report, agreeing with the magistrate judge that the
    charged offense was not sufficiently serious to trigger the constitutional right to
    a jury trial.

    The defendants also filed motions to dismiss the information, arguing that the
    Access Act was facially unconstitutional under the free speech clause of the
    First Amendment and that Congress lacked the power to enact the statute under
    the Commerce Clause. The magistrate judge disagreed, concluding that the
    Access Act was content--and viewpoint--neutral, that it withstood immediate
    scrutiny under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20
    L.Ed.2d 672 (1968), and that it was not unconstitutionally vague or overbroad.
    The magistrate judge also rejected the defendants' Commerce Clause argument.
    The district judge adopted the magistrate judge's report over the defendants'
    objections.

    The district court then conducted a bench trial and in light of the evidence
    presented found, beyond a reasonable doubt, that the defendants engaged in
    physical obstruction of the clinic, that they intentionally interfered with and
    intimidated two employees who provided reproductive health services at the
    clinic, and that the defendants engaged in such conduct because the two
    employees were, and had been, providing reproductive health services. The
    defendants were sentenced to time served and a one-year period of supervised
    release. They then perfected this appeal.

    B. Facts
    5

    The specific events leading to the information filed against the defendants
    involved the blockading of the Aware Women Medical Clinic, an abortion
    clinic in Lake Clark Shores, Florida. The defendants accomplished the
    blockade by chaining themselves to the main entrance of the building that
    contained the clinic. The defendants took a series of steel bicycle locks and
    locked them around their necks so that they were linked to one another. The
    chain of bicycle locks was then secured to the front door of the building.
    Defendant Olson also attached his arm to a large concrete block that weighed
    between 200 and 300 pounds.

    At least two staff members of the clinic were unable to enter the front door of
    the building because of the blockade. When a staff member asked the
    defendants to let her enter the building, one of them called her an "assassin."

    A police officer arrived and instructed the defendants to remove themselves


    from the entrance of the building. When they refused to move, local officials
    had to obtain a "jaws of life" device to cut the chains and bicycle locks. It took
    local officials approximately four hours to physically remove the defendants.

    II. STANDARD OF REVIEW


    8

    This appeal involves questions of law that we review de novo. O'Reilly v.


    Ceuleers, 912 F.2d 1383, 1385 (11th Cir.1990).

    III. ISSUES
    9

    (1) Whether this court should reconsider its ruling in Cheffer v. Reno, 55 F.3d
    1517 (11th Cir.1995), and hold that the Access Act violated the First and Tenth
    Amendments to the United States Constitution.

    10

    (2) Whether the potential penalties under the Access Act were sufficiently
    severe to warrant a jury trial in this case.

    IV. ANALYSIS
    11

    The defendants' arguments in support of the first issue are foreclosed by our
    decision in Cheffer v. Reno, in which we held that the Access Act survived
    constitutional challenge under both the First and Tenth Amendments.
    Notwithstanding the defendants' request that we reconsider Cheffer, one panel
    of our court cannot unilaterally reverse circuit precedent. See Vernon v. FDIC,
    981 F.2d 1230, 1233 n. 6 (11th Cir.1993); Ballbe v. INS, 886 F.2d 306, 310-11
    (11th Cir.1989), cert. denied, 495 U.S. 929, 110 S.Ct. 2166, 109 L.Ed.2d 496
    (1990). Accordingly, we affirm the district court's disposition of this issue.

    12

    Concerning the second issue, the defendants argue that they had a
    constitutional right to a jury trial under Article III and the Sixth Amendment to
    the United States Constitution. The defendants were each charged with an
    offense involving "exclusively a nonviolent physical obstruction." 18 U.S.C.
    248(b). Since it was the defendants' first violation of the Access Act, the
    offense was punishable by a maximum term of imprisonment of six months and
    a maximum fine of $10,000. Id. As an alternative to imprisonment, the district

    court could have sentenced the defendants to a five-year term of probation. 18


    U.S.C. 3561(a) & (c); 18 U.S.C. 3559(a). In our view, these maximum
    penalties are not sufficiently severe to entitle the defendants to a jury trial.
    13

    In the recent case of United States v. Soderna, 82 F.3d 1370 (7th Cir.1996), the
    Seventh Circuit held: (1) that defendants are not entitled to a jury trial when
    charged under the Access Act with a first offense of engaging in a non-violent
    physical obstruction of a clinic; (2) that Congress had the authority under the
    Commerce Clause to enact the Access Act; and (3) that the Access Act does not
    violate the First Amendment.1 Soderna is therefore directly on point with the
    issues presented in this appeal. Moreover, in Lewis v. United States, 516 U.S. ---, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996), the Supreme Court recently
    reaffirmed (1) that a defendant charged with a "petty offense" has no Sixth
    Amendment right to a jury trial; (2) that an offense is presumed to be "petty" if
    the maximum prison term authorized is no more than six months; and (3) that
    courts should place primary emphasis on the maximum prison term authorized-rather than on other penalties, such as fines or probation--in determining
    whether Congress viewed the offense as serious. 516 U.S. at ---- - ----, 116 S.Ct.
    at 2166-68. Although Lewis was not an Access Act case, its rationale and
    holding are certainly relevant to the jury issue in the present case.

    14

    Because we agree with the Seventh Circuit's holding in Soderna, we conclude


    that the defendants here were not entitled to a jury trial. Accordingly, we affirm
    the judgments of conviction.

    15

    AFFIRMED.

    Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western
    District of Pennsylvania, sitting by designation

    But see United States v. Lucero, 895 F.Supp. 1419 (D.Kan.1995) (holding that
    defendants charged with first time nonviolent violations of the Access Act were
    entitled to trial by jury)

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