USA v. Hobert Parker, Jr.
Filed PER CURIAM OPINION (BETTY BINNS FLETCHER, KIM MCLANE WARDLAW and BRETT M. KAVANAUGH) VACATED; REMANDED.  [10-50248, 10-50250, 10-50251]
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
HOBERT PARKER, JR.,
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
March 11, 2011—Pasadena, California
Filed August 22, 2011
Before: Betty B. Fletcher, Kim McLane Wardlaw and
Brett M. Kavanaugh,* Circuit Judges.
Per Curiam Opinion
*The Honorable Brett M. Kavanaugh, Circuit Judge for the District of
Columbia Circuit, sitting by designation.
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UNITED STATES v. PARKER
James H. Locklin, Assistant Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Michael J. Raphael, Assistant U.S. Attorney, and Mark Remy
Yohalem, Assistant U.S. Attorney, Los Angeles, California,
for the plaintiff-appellee.
Hobert Parker, Jr., appeals his misdemeanor convictions,
after retrial, of three counts of violating 18 U.S.C. § 1382. He
argues that his retrial violated the proscription against double
jeopardy, that there was insufficient evidence to convict, and
that his convictions violate his First Amendment rights. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.
We address the insufficiency of the evidence argument
first. See Polar Shipping Ltd. v. Oriental Shipping Corp., 680
F.2d 627, 630 (9th Cir. 1982) (courts should not pass upon a
constitutional question if there is a nonconstitutional ground
upon which the case may be decided). We review de novo the
sufficiency of the evidence to support the conviction. United
States v. Stanton, 501 F.3d 1093, 1099 (9th Cir. 2007). There
is sufficient evidence to support a conviction if, “viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id.
Parker’s charges arose from his protest activities on Ocean
Avenue, which is a public road that crosses the Vandenberg
Air Force Base (“VAFB”) in Santa Barbara County, California. On each of the three occasions charged, Parker was carry-
UNITED STATES v. PARKER
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ing signs of protest against VAFB military police along the
shoulder of Ocean Avenue. Each time, Parker was advised by
military officers that he was not permitted to protest on Ocean
Avenue and that the VAFB Commander had designated a protest area outside the VAFB Main Gate. Each time, Parker
refused to leave or relocate. After the first two incidents, Parker was cited twice for violating section 1382 and the VAFB
Commander issued a “barment” letter that barred Parker from
entering VAFB for any reason for a period of three years.
Several days later, Parker was cited for the third time.
 Section 1382 provides:
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. § 1382.1
 We have interpreted section 1382 to require the government to prove its absolute ownership or exclusive right to
the possession of the property upon which the violation
Parker was cited twice for violating the first paragraph of section 1382,
and once—after the VAFB Commander issued the bar letter—for violating the second paragraph of section 1382. This distinction is irrelevant for
the purposes of this appeal.
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UNITED STATES v. PARKER
occurred. See United States v. Vasarajs, 908 F.2d 443, 446-47
(9th Cir. 1990) (the government must have control, in addition to “absolute ownership, or an exclusive right to the possession” of the property in question, to preserve the right to
exclude others pursuant to section 1382); United States v.
Mowat, 582 F.2d 1194, 1206 (9th Cir. 1978) (accepting, in
light of precedent, the parties’ stipulation that the government
“was required to prove, as an element of the offense, absolute
ownership or the exclusive right to the possession of the property upon which the violation occurred”), cert. denied, 439
U.S. 967 (1978); United States v. Douglass, 579 F.2d 545,
547-48 (9th Cir. 1978) (holding that “[m]ere toleration of certain uses by the public designed for their convenience does
not result in the loss of the right to exclusive use” and that the
requisite “ownership and possession of the area to enable [the
United States] to exclude the appellant” had been established); United States v. Packard, 236 F. Supp. 585, 586
(N.D. Cal. 1964) (holding that the government met its burden
of establishing “absolute ownership, or an exclusive right to
the possession, of the road”), aff’d, 339 F.2d 887 (9th Cir.
1964) (affirming “for the reasons stated in the opinion of the
Our position is consistent with that of several other courts and the U.S.
Attorney’s Manual. See, e.g., United States v. Allen, 924 F.2d 29, 31 (2d
Cir. 1991) (“[A] naval reservation includes (1) property owned by the
United States Navy and (2) property over which the United States Navy
exercises dominion and control and from which it may exclude the general
public.”) (citing Mowat); Holdridge v. United States, 282 F.2d 302,
306-08 (8th Cir. 1960) (holding that “exclusive possession of the premises
in the government has been appropriately established” where public use of
roads traversing military base was extinguished in condemnation proceeding); U.S. Attorney’s Manual, Title 9, Criminal Resource Manual § 1634
(2010) (citing Holdridge for the proposition that Section 1382 “applies to
any military, naval, or coast guard reservation, post, fort, arsenal, yard,
station or installation over which the United States has exclusive possession.”). But see United States v. McCoy, 866 F.2d 826, 830 n. 4 (6th Cir.
1989) (rejecting Mowat and holding that “if proceedings under 18 U.S.C.
§ 1382 are comparable to trespass actions, centuries of legal history support the government’s refusal to concede that anything more than a possessory interest had to be shown”).
UNITED STATES v. PARKER
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The government acknowledges our section 1382 authority,
but challenges its precedential value. The government argues
that the Mowat parties stipulated that section 1382 requires
“absolute ownership or exclusive right of possession,”
Mowat, 582 F.2d at 1206, and contends that subsequent cases
merely assumed, without squarely deciding, the same.
 The government is mistaken. While the parties in
Mowat indeed stipulated that section 1382 requires that the
government prove “absolute ownership or exclusive right of
possession,” we did not blindly accept that stipulation, but did
so in light of Ninth and Eighth Circuit precedent. See id. (citing Packard and Holdridge). Moreover, at the same time
Mowat was decided, a different panel of this court independently held that section 1382 requires ownership or exclusive
right of possession. See Douglass, 579 F.2d at 547-48 (citing
Packard, Holmes, and Watson). Subsequent panels have also
held so independently of Mowat. See Vasarajs, 908 F.2d at
446 (citing Holmes and Watson).
 The government further argues that our cases left open
the question of what kind of government control over an area
within a military base is insufficient for a section 1382 prosecution, as they all upheld section 1382 convictions and did
not, in fact, involve an easement. The lack of an easement,
however, was an important part of the Vasarajs and Douglass
panels’ rationale in upholding the convictions. See Vasarajs,
908 F.2d at 446-47 (the government exercised actual control
over area involved and defendant did not argue that either she
or the public at large benefitted from an easement burdening
the portion of roadway at issue, or that she or the public at
large gained title to that portion of roadway through adverse
possession or an implied dedication); Douglass, 579 F.2d at
547 (rejecting appellant’s argument that the area at issue “was
not a part of the base because the United States did not have
the requisite ownership and possession of the area to enable
it to exclude the appellant” where appellant has not challenged the title of the United States to the area, there was no
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UNITED STATES v. PARKER
easement residing in the public with respect to this area, arising either by grant or by reservation, nor was there a relinquishment of control over the area by the base personnel).
 In conclusion, our circuit’s requirement that the government prove absolute ownership or exclusive right of possession does not rest on the parties’ unverified stipulation in
one isolated case, but has been reaffirmed and applied by
multiple panels in light of authority from this and other
courts. We must therefore follow this precedent as the law of
the circuit, the government’s arguments that it is incorrect or
imprudent notwithstanding. Only the en banc court can overturn a prior panel precedent. See Miranda B. v. Kitzhaber, 328
F.3d 1181, 1186 (9th Cir. 2003) (per curiam) (“[W]here a
panel confronts an issue germane to the eventual resolution of
the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit,
regardless of whether doing so is necessary in some strict logical sense.”) (internal quotations omitted); Hart v. Massanari,
266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves
an issue in a precedential opinion, the matter is deemed
resolved, unless overruled by the court itself sitting en banc,
or by the Supreme Court . . . . [A] later three-judge panel considering a case that is controlled by the rule announced in an
earlier panel’s opinion has no choice but to apply the earlieradopted rule; it may not any more disregard the earlier panel’s
opinion than it may disregard a ruling of the Supreme
 The law of the circuit rule, of course, has an important
exception: a panel may disagree with the circuit precedent
when intervening Supreme Court decisions have undercut the
theory or reasoning underlying the prior circuit precedent in
such a way that the cases are clearly irreconcilable. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The
government cites United States v. Albertini, 472 U.S. 675
(1985), where the Supreme Court held that section 1382’s bar
against re-entry after a defendant had received a bar letter
UNITED STATES v. PARKER
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applies during an open house, as “a person may not claim
immunity from [the bar letter’s] prohibition on entry merely
because the military has temporarily opened a military facility
to the public.” 472 U.S. at 687 (emphasis added). Albertini
did not address the scenario where a military base or area
thereof is permanently open to the public by virtue of a public
easement. Albertini and the line of Ninth Circuit cases requiring absolute ownership or exclusive right of possession are
therefore not irreconcilable. Cf. Vasarajs, 908 F.2d at 447
(holding that Albertini supports the view that the government
“must exercise control over its property in order to preserve
the right to exclude others from it pursuant to § 1382”).
 In this case, the evidence conclusively shows that
Ocean Avenue had been established pursuant to a public road
easement that the United States had initially granted to the
State of California, which later relinquished it to the County
of Santa Barbara. The road is subject to the concurrent jurisdiction of the County of Santa Barbara and VAFB, with the
county exercising primary responsibility for the enforcement
of criminal laws.
 In all three incidents, Parker was within the physical
limits of the public road easement corresponding to Ocean
Avenue, a fact which the government does not challenge.
Because the government does not have an exclusive right of
possession over Ocean Avenue, under this court’s precedent,
Parker’s presence and protest activities cannot constitute violations of section 1382.
The judgment of conviction is therefore VACATED.
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