United States District Court, E.D. North Carolina, Western Division
C. DEVER CHIEF UNITED STATES DISTRICT JUDGE.
P. Wainscoat ("Wainscoat" or defendant")
appeals his conviction for trespassing by reentry on
government property in violation of 18 U.S.C. § 1382.
See [D.E. 32]; Fed. R. Crim. P. 58(g); 18 U.S.C. § 3402.
United States Magistrate Judge Swank presided at
Wainscoat's trial, found him guilty of trespassing by
reentry on Fort Bragg Military Reservation, and sentenced him
to a $500 fine and a $10 special assessment. See [D.E. 28].
On appeal, Wainscoat's counsel concluded that there are
no meritorious grounds for appeal. See [D.E. 32]; Anders
v. California. 3 86 U.S. 738 (1967). The government asks
the court to affirm Wainscoat's conviction and sentence.
See [D.E. 34]. On September 14, 2017, the court
heard oral argument. As explained below, the court affirms
Wainscoat's conviction and sentence.
January 11, 2017, Wainscoat was charged with misdemeanor
trespassing on the Fort Bragg Military Reservation on March
12, 2016, for one or more purposes prohibited by law (count
one) and misdemeanor trespassing on the Fort Bragg Military
Reservation on March 14, 2016, by reentering Fort Bragg after
having been removed or ordered not to reenter (count two).
See [D.E. 13]; 18 U.S.C. § 1382. The maximum penalty for
each charge is 6 months' confinement, a $5, 000 fine, and
a $10 special assessment. See 18 U.S.C. § 1382.
6, 2017, Judge Swank held a bench trial. Chief Daniel
Bjorklund (Chief of the Fort Bragg Police Department) and
military police officers Leslie Langford, Brandon Holland,
and Rachel Brown testified for the government. See [D.E. 28].
There were no defense witnesses. The court found Wainscoat
not guilty on count one (trespass for prohibited purpose) and
guilty on count two (trespassing by reentry). See
Id. at 83-86. The court ordered Wainscoat to pay a
$500 fine and a $ 10 special assessment. Id. at
21, 2017, Wainscoat filed a notice of appeal. See [D.E. 27].
On July 20, 2017, the official transcript of the Mai was
filed with the court. See [D.E. 28].
13 82 provides that:
Whoever, within the jurisdiction of the United States, goes
upon any military, naval, or Coast Guard reservation, post,
fort, arsenal, yard, station or installation, for any purpose
prohibited by law or lawful regulation; or
Whoever reenters or is found within any such reservation,
post, fort, arsenal, yard, station, or installation, after
having been removed therefrom or ordered not to reenter by
any officer or person in command or charge thereof - Shall be
fined under this title or imprisoned not more than six
months, or both.
18 U.S.C. §1382. To prove violation of the second clause
of section 1382 (the reentry clause), the government need not
prove intent. See Holdridge v. United States. 282
F.2d 302, 310 (8th Cir. 1960) ("We therefore regard
[section] 13 82's second paragraph as falling into that
category where. . . intent may be properly omitted as an
element of the offense."). Moreover, a defendant's
subjective belief that his reentry onto a military base was
not improper is not a defense under section 1382's
reentry prong. See United States v. Albertini. 472
U.S. 675, 683 (1985). In Albertini. respondent was
barred from entry onto a military base after he and a
companion entered the base in 1972 and destroyed government
property. Id. at 677-78. Nine years later,
respondent entered the base and demonstrated against nuclear
weapons. Id. Respondent was convicted under 18
U.S.C. §1382 of reentry onto a military base after
having been ordered not to reenter. Respondent raised
numerous objections on appeal, including that he lacked
notice that his bar from entry was still effective almost a
decade later and that the bar violated the First Amendment.
The Supreme Court rejected these arguments and upheld the
conviction. Id. at 682-84, 688-89.
case fits comfortably within the text of section 1382's
reentry clause. On March 12, 2016, Fort Bragg authorities
notified Wainscoat that he was trespassing, cited
him for trespassing, removed him, and orally ordered
him not to reenter. See [D.E. 28] 7-13, 20-30, 32-38, 41. On
March 14, 2016, Wainscoat intentionally reentered Fort Bragg
"after having been removed" and thereby violated
section 1382's reentry clause. See 18 U.S.C. § 1382;
[D.E. 28] 42-74, 85.
opposition to this conclusion, Wainscoat argues that he never
received a letter from Fort Bragg's commander barring
him from reentry after the incident of March 12,
2016, but before the incident on March 14, 2016. However, the
fact that Wainscoat did not receive a letter from Fort
Bragg's commander barring him from Fort Bragg
after the March 12, 2016 incident but before the March 14,
2016 incident does not affect his conviction on count two. In
light of Wainscoat's removal from Fort Bragg on March 12,
2016, Wainscoat's conduct in intentionally reentering
Fort Bragg on March 14, 2016, violated 18 U.S.C. § 1382.
Simply put, 18 U.S.C. § 1382's reentry clause does
not require a written bar order from the post commander.
See, e.g.. United States v.
Vasarais. 908 F.2d 443, 447 n.7 (9th Cir. 1990);
United States v. Parrilla Bonilla. 648 F.2d 1373,
1378 (1st Cir. 1981).
extent that Wainscoat challenges the sufficiency of the
evidence on count two, the argument fails. The evidence was
sufficient. See, e.g.. United States v. Cornell. 780
F.3d 616.630 (4th Cir. 2015); United States v.
Penniegraft. 641 F.3d 566, 571 (4th Cir. 2011);
United States v. Ashley. 606 F.3d 135, 138 (4th Cir.
2010). Finally, to the extent Wainscoat requests to testify
during this appeal [D.E. 36], the request comes too late and
is denied. See Fed. R. Crim. P. 58(g); cf [D.E. 28] 74-75
(defense declined to present evidence during the trial).
the judgment is AFFIRMED. The stay [D.E. 33] is DISSOLVED,
and Wainscoat's ...