Unreported / Non-Citable
Background
Robert L. West was convicted after a bench trial before a magistrate judge of three offenses arising from an incident at a Social Security hearings office in Portland, Oregon: two violations of 41 C.F.R. § 102-74.385 and one violation of 41 C.F.R. § 102-74.420. One § 102-74.385 count concerned failing to comply with a federal officer's directive and the other concerned failing to comply with a posted sign. The § 102-74.420 count concerned unlawful recording on federal property. The District of Oregon affirmed the convictions, and West appealed.
West raised three challenges. He argued that 40 U.S.C. § 1315(c), the statute enabling the regulations, is an unconstitutional delegation of legislative power. He challenged under Federal Rule of Evidence 404(b) the admission of a probation condition from a prior state court conviction that barred him from possessing audio or video recording equipment in a municipal government building. And he argued that the evidence was insufficient on each count. The district court had concluded the probation-condition evidence was admitted in error but that the error was harmless. The panel decided the appeal without oral argument.
The Court’s Holding
The Ninth Circuit affirmed. Reviewing de novo, it held that § 1315(c) satisfies the intelligible principle test. The district court had identified limits in the statute, including that regulations must be necessary for the protection and administration of federal property. The panel noted that the Supreme Court and the Ninth Circuit have upheld far broader delegations, and that the test is routinely applied even where the statute authorizes regulations backed by criminal penalties. Because that limit sufficed, the panel did not reach West's Property Clause arguments. It declined to consider his major questions doctrine arguments because he had not raised them in the district court.
On Rule 404(b), West challenged on appeal only the harmlessness ruling. He argued that the district court wrongly treated the error as less prejudicial because the evidence appeared only in closing argument, and the panel said this mischaracterized the ruling. The district court had reasoned that the conviction appeared to be used only to prove a fact West did not dispute, his knowledge that recording rules existed, and that strong video evidence showed his knowledge and intent. West did not challenge those conclusions. Given the strength of the video evidence, the panel agreed the error was harmless.
On sufficiency, the panel viewed the evidence in the light most favorable to the prosecution. On the directive count, a rational factfinder could find that Officer Carpenter told West to stop recording, that West heard and understood, and that roughly 19 minutes of later video showed he had time to comply. On the posted-sign count, disagreement with the law is not lack of knowledge or intent. West was directed to the signs, argued about their meaning with the officer and a supervisor, and kept recording. On the recording count, the regulation and a separate Social Security Administration sign were posted, and any reception-area-versus-lobby distinction was irrelevant because West also recorded inside several hearing rooms, one with a hearing in progress.
Key Takeaways
- Section 1315(c)'s requirement that regulations be necessary for the protection and administration of federal property supplies an intelligible principle, and the panel treated the test as undemanding even for criminally enforced regulations.
- A harmless-error ruling on Rule 404(b) evidence can stand where the evidence was used to prove an undisputed point and strong independent video evidence established knowledge and intent.
- An appellant who challenges only part of a district court's reasoning, here the harmlessness conclusions, risks the panel treating the unchallenged parts as unopposed.
- Disagreeing with the meaning of a posted sign or an officer's instruction does not negate the knowledge or intent needed for conviction when the defendant plainly saw the sign and heard the instruction.
- Arguments not raised in the district court, such as the major questions doctrine here, will not be considered on appeal.
Why It Matters
This disposition is unpublished and not precedent except as allowed by Ninth Circuit Rule 36-3. It nonetheless shows how the court applies the intelligible principle test to a regulatory criminal offense on federal property and how defendants' own recordings can supply the key proof of knowing violation.
Several questions remain open. The panel did not decide whether the probation-condition evidence was properly admitted, did not reach the Property Clause argument, and did not address the major questions doctrine. The affirmance leaves all three convictions in place, and the opinion does not discuss sentencing.