US v. Elizabeth O'Nan
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [998586177-2]; denying Motion [998584876-2] Originating case number: 1:10-cr-00044-MR-1 Copies to all parties and the district court/agency. [998716584].. [11-4271]
Appeal: 11-4271
Document: 30
Date Filed: 11/04/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4271
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIZABETH MARGARET O’NAN,
Defendant – Appellant.
-----------------------THOMAS
JEFFERSON
EXPRESSION,
CENTER
FOR
THE
PROTECTION
OF
FREE
Amicus Supporting Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00044-MR-1)
Submitted:
October 25, 2011
Decided:
November 4, 2011
Before MOTZ, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elizabeth Margaret O’Nan, Appellant Pro Se. David A. Thorneloe,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER
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FOR
THE
PROTECTION
OF
FREE
EXPRESSION,
Virginia, for Amicus Supporting Appellant.
Charlottesville,
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Elizabeth Margaret O’Nan appeals the district court’s
order affirming the magistrate judge’s judgment finding O’Nan
guilty of violating 36 C.F.R. § 261.12(d) ∗, imposing a fine and
restitution, and ordering O’Nan not to interfere with the use of
a Forest Service road for five years.
On appeal, O’Nan first argues that the court violated
her First Amendment rights by punishing her for speech that was
“merely the expression of her sincerely held beliefs about her
property rights.”
Second, she argues that the magistrate judge
made several erroneous factual findings.
the
government
question.
illegally
seized
the
Third, she argues that
Forest
Service
road
in
Fourth, she argues that the government violated her
right to equal protection by punishing her but not punishing
various hunters who she alleges have trespassed on her property.
The Thomas Jefferson Center for the Protection of Free Speech
filed an amicus brief in support of O’Nan, arguing that her
prosecution violated her First Amendment rights.
In “cases raising First Amendment issues, an appellate
court has the obligation to make an independent examination of
the whole record to ensure that the judgment does not constitute
∗
This regulation prohibits interfering with the use of a
National Forest System road.
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a forbidden intrusion on the field of free expression.”
Corp.
v.
(1984).
Consumers
Union
of
U.S.,
Inc.,
466
U.S.
Bose
485,
486
Therefore, we review O’Nan’s First Amendment argument
Snyder v. Phelps, 580 F.3d 206, 218 (4th Cir. 2009).
de novo.
O’Nan’s remaining arguments on appeal were not raised below.
Accordingly, as to those arguments, this court applies the plain
error standard of review, which requires that O’Nan show that
there
is
an
“error”
substantial rights.”
that
is
“plain”
and
that
“affects
United States v. Olano, 507 U.S. 725, 731-
32 (1993).
O’Nan’s
argument
that
the
court
violated
her
First
Amendment rights by punishing her for speech that was “merely
the expression of her sincerely held beliefs about her property
rights,”
is
without
merit.
O’Nan
was
prosecuted
not
for
exercising her free speech rights, but for interfering with the
use of a Forest Service Road.
The Amicus Brief argues that
because O’Nan had no unlawful intent, she cannot be punished
under the First Amendment.
However, this argument is based on
the
behavior
premise
that
O’Nan’s
was
protected speech, a premise we reject.
nothing
more
than
Further, to the extent
that the Amicus Brief implicitly argues that the regulation is
overbroad, the Supreme Court has cautioned that the use of the
overbreadth doctrine in this situation is “strong medicine” that
should
be
used
“sparingly
and
4
only
as
a
last
resort.”
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Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
“[O]verbreadth
scrutiny has generally been somewhat less rigid in the context
of
statutes
regulating
conduct
in
the
shadow
of
the
First
Amendment, but doing so in a neutral, noncensorial manner.”
at 614.
Id.
This regulation, on its face, regulates conduct, not
expressive speech.
O’Nan has thus failed to show that her First
Amendment rights were violated.
O’Nan
several
next
erroneous
argues
factual
that
the
findings.
magistrate
We
judge
conclude
made
that
the
magistrate judge’s factual findings are supported by the record,
even
though
conflicted
O’Nan
with
provided
the
some
magistrate
testimonial
judge’s
evidence
factual
that
findings.
Assessing the credibility of witnesses is within the province of
the trier of fact, who, in this case, was the magistrate judge.
United States v. Jordan, 509 F.3d 191, 203 n.8 (4th Cir. 2007).
Moreover,
none
of
the
factual
issues
O’Nan
raises
have
bearing on whether she violated 36 C.F.R. § 261.12(d).
any
Thus,
this argument is also without merit.
O’Nan
claims
the
government
is
guilty
of
an
unconstitutional “taking” of her property because her permit to
use the road in question provided that the road would not be
open
to
granting
public
use.
O’Nan’s
use
The
record
permit,
reveals,
the
however,
government
that
in
specifically
reserved the right to “use the road for all purposes deemed
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necessary or desirable,” which extends to members of the public.
Accordingly, O’Nan presents no credible argument that there has
been any “taking” of her property.
Finally, O’Nan argues that the government violated her
Fourteenth Amendment right to equal protection by punishing her
but not punishing hunters who trespassed on her property.
To
succeed on an equal protection claim, a plaintiff must show that
she has been treated differently from other similarly-situated
individuals and that the unequal treatment was the result of
intentional or purposeful discrimination.
F.3d
726,
showing.
730
(4th
Cir.
2002).
O’Nan
Veney v. Wyche, 293
failed
to
make
that
She provides no basis for her conclusory assertions
that hunters have trespassed on her land without punishment.
Moreover, even assuming such trespassing, the hunters are not
similarly
situated
to
O’Nan
because
trespassing
on
private
property is not the same as interfering with the use of a public
road.
Thus, O’Nan is not entitled to relief on this argument.
We deny O’Nan’s motion for appointment of counsel.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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