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United States v. Marcavage

July 15, 2009


The opinion of the court was delivered by: Legrome D. Davis, J.


Presently before the Court is Appellant Michael Anthony Marcavage's appeal from the June 17, 2008 Order entered by the Honorable Arnold C. Rapoport, United States Magistrate Judge, in the United States District Court for the Eastern District of Pennsylvania. For the reasons that follow, we affirm the judgment of the Magistrate Judge.


On April 22, 2008 and June 13, 2008, Appellant Michael Anthony Marcavage was tried before the Honorable Arnold C. Rapoport, United States Magistrate Judge, in the United States District Court for the Eastern District of Pennsylvania on two misdemeanor charges: non-compliance with permit requirements in violation of 36 C.F.R. § 1.6(g)(2) and interference with an agency function, in violation of 36 C.F.R. § 2.32(a). After the Government presented its case in chief, Appellant moved for judgment of acquittal. Appellant's motion was denied, and at the close of the two-day bench trial, he was convicted of both charges and sentenced to $425 in fines and 12 months of probation with special conditions. This sentence has been stayed pending the resolution of this appeal.


Upon hearing all of the evidence presented at trial, Judge Rapoport entered the following findings of fact in support of the verdict.

On October 6, 2007, Appellant*fn1 staged an anti-abortion demonstration in Independence National Historical Park ("Park") located in the City of Philadelphia and managed by the National Park Service ("Park Service"). Appellant, who did not have a demonstration permit for his activities, was stationed on the sidewalk at the entrance and exit of the Liberty Bell Center along 6th Street on the block between Market and Chestnut Streets, and at various other sites surrounding the Center. At the time of Appellant's demonstration, the 6th Street sidewalk was busy with pedestrian traffic and hosted a queue of visitors waiting to see the Liberty Bell. (Findings of Fact and Conclusions of Law at 6 ¶ 15, June 17, 2008.) Several horse carriages and duck boats were parked in the bed of 6th Street, and their drivers were soliciting business outside the Liberty Bell Center, not on Park Service property. (Id. at 5 ¶ 14.) No evidence was found to suggest that the horse carriage or duck boat drivers interfered with Park Service Programming or obstructed the sidewalk. (Id.) A breast cancer awareness march was also proceeding along 6th Street. (Id. at 5 ¶ 13.) These breast cancer march participants did not congregate on the sidewalk, but walked past and through the area where Appellant was staging his protest. (Id.) One march participant was stationary, but there was "no evidence that this march organizer could be heard inside the Liberty Bell Center, disturbed Park Service programming, or interfered with Ranger instructions outside of the Liberty Bell Center." (Id.)

Appellant, on the other hand, utilized a bullhorn which could be heard inside the Liberty Bell Center, approximately thirty feet away, and which interfered with both Park Service programming and the Rangers' instructions to visitors standing outside the Liberty Bell Center. (Id. at 3 ¶ 2) His activities also created a choke point obstructing the flow of visitors into the Liberty Bell Center. (Id. at 6 ¶ 17.) In accordance with the evidence presented at trial, Judge Rapoport found that Appellant's demonstration "interfered with public movement and interpretive programming, affected the atmosphere of peace and tranquility in a historic zone, obstructed the sidewalk, and impeded public movement and safe emergency access to the [Liberty Bell Center]." (Id. at 6 ¶ 19.)

During the demonstration, Appellant was approached by two Park Rangers who informed Appellant that he could not continue his protest at the Liberty Bell Center entrance. The Park Service regulations, known as the Superintendent's Compendium of Designations ("Compendium"), prohibit demonstrations along the 6th Street sidewalk, among other locations, as such "demonstrations would be unsafe and inconsistent with Park programming." (Id. at 3 ¶ 6.) Because demonstrations are not allowed at certain locations throughout the Independence National Historical Park, the Compendium makes alternative locations available, and the Park hosts at least 100,000 demonstrators on an annual basis, as well as 2 million visitors. (Id. at 4 ¶ 8,10.) Judge Rapoport found no evidence of preferential treatment for protest locations to any groups or causes, nor did he find any credible evidence that Appellant was asked to move because of the content of his message. (Id. at 4 ¶ 9,11; 6 ¶ 18.) Rather, the Rangers issued Appellant a verbal permit so that he could continue his demonstration on the Market Street side of the Liberty Bell Center, one of the areas designated by the Park Service for protest activity. (Id. at 3 ¶ 3,4.) This new location gave Appellant greater access to the public than the Liberty Bell Center entrance and accommodated his desire to use the bullhorn. (Id. at 5 ¶ 12.) Appellant however refused this verbal permit and refused to move to the alternative area. (Id. at 3 ¶ 4.) He continued to protest at the entrance of the Liberty Bell Center. After repeated refusals to obey the Rangers' orders, Appellant was arrested.


This Court has appellate jurisdiction over this matter under 18 U.S.C. § 3402. We apply the same standard of review to the Magistrate Judge's decision that the Court of Appeals would apply in reviewing a decision that we had rendered. United States v. Forchion, No. 04-949, 2005 WL 2989604, at *2 (E.D. Pa. July 22, 2005). Therefore, we review the Magistrate Judge's factual findings for clear error. United States v. Helbling, 209 F.3d 226, 237 (3d Cir. 2000). Our review of the Magistrate Judge's conclusions of law, including his conclusions of constitutional law, is plenary. Id.; Gov't of V.I. v. Steven, 134 F.3d 526, 527 (3d Cir. 1998).


A. Factual Findings of the Trial Court

Appellant challenges each and every factual finding made by Judge Rapoport,*fn2 arguing that they all lack basis and are not substantiated by the evidence in any way. (Appellant Br. 4- 14.)*fn3 We disagree. A finding of fact is clearly erroneous "only if it is completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data." Am. Home Prods. Corp. v. Barr Labs., Inc., 834 F.2d 368, 370-71 (3d Cir. 1987).

In challenging Judge Rapoport's factual findings, Appellant presents his subjective view of the facts. However, mere disagreement is not sufficient to establish that the findings were clearly erroneous. Having reviewed Judge Rapoport's factual findings under this standard, we find that each factual finding is fully substantiated by the trial record. Therefore, we find no clear error in the Magistrate Judge's factual findings.

B. Sufficiency of the Evidence

Appellant next contends that the evidence was insufficient to convict him on either of the charges. We review the sufficiency of the evidence "in the light most favorable to the government and must credit all available inferences in favor of the government." United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998) (citation omitted). "We do not weigh evidence or determine the credibility of witnesses in making this determination." United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000). A judgment will be reversed only if we find that no reasonable trier of fact could consider the ...

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