USA v. John Apel

Filing

FILED PER CURIAM OPINION (BARRY G. SILVERMAN, JOHNNIE B. RAWLINSON and JOHN R. TUNHEIM) REVERSED. FILED AND ENTERED JUDGMENT. [8152345] [11-50003, 11-50004, 11-50005]

Case: 11-50003

04/25/2012

ID: 8152345

DktEntry: 33-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN DENNIS APEL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN DENNIS APEL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN DENNIS APEL,
Defendant-Appellant.

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No. 11-50003
D.C. No.
2:10-cr-00830JFW-1

No. 11-50004
D.C. No.
2:10-cr-00869JFW-1

No. 11-50005
D.C. No.
2:10-cr-00831JFW-1
OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 13, 2012—Pasadena, California
Filed April 25, 2012
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Page: 1 of 3

Case: 11-50003

4414

04/25/2012

ID: 8152345

DktEntry: 33-1

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UNITED STATES v. APEL

Before: Barry G. Silverman and Johnnie B. Rawlinson,
Circuit Judges, and John R. Tunheim, District Judge.*
Per Curiam Opinion

COUNSEL
André Birotte Jr., Robert E. Dugdale, and Mark R. Yohalem

*The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.

Case: 11-50003

04/25/2012

ID: 8152345

DktEntry: 33-1

UNITED STATES v. APEL

Page: 3 of 3

4415

(argued), United States Attorney’s Office, Los Angeles, California, for the plaintiff-appellee.
Erwin Chemerinsky, Selwyn Chu, law student (argued), and
Matthew Plunkett, law student (argued), Appellate Litigation
Clinic, University of California Irvine School of Law, Irvine,
California, for the defendant-appellant.

OPINION
PER CURIAM:
[1] Appellant John Apel, who was subject to a pre-existing
order barring him from Vandenberg Air Force Base, was convicted of three counts of trespassing on the base in violation
of 18 U.S.C. § 1382. After his convictions became final in
district court, we decided United States v. Parker, 651 F.3d
1180 (9th Cir. 2011). Parker held that because a stretch of
highway running through Vandenberg AFB is subject to an
easement “granted to the State of California, which later relinquished it to the County of Santa Barbara,” the federal government lacks the exclusive right of possession of the area on
which the trespass allegedly occurred; therefore, a conviction
under 18 U.S.C. § 1382 cannot stand, regardless of an order
barring a defendant from the base. 651 F.3d at 1184.
[2] Although we question the correctness of Parker, it is
binding, dispositive of this appeal, and requires that Apel’s
convictions be REVERSED.