United States of America v. Abrams

Filing 47

ORDER Affirming 26 Judgment of Magistrate Judge, denying 32 MOTION to Vacate 26 Judgment filed by Michael Abrams. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Case No. 15-50750
Plaintiff-Appellee,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
MICHAEL ABRAMS,

U.S. MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendant-Appellant.
/

ORDER AFFIRMING THE MAGISTRATE JUDGE’S JUDGMENT [26]; DENYING
APPELLANT’S MOTION TO VACATE JUDGMENT [32]
On November 25, 2014, Appellant attempted to enter the United States
through the Detroit-Windsor tunnel. At the primary and secondary inspection
areas, Appellant engaged in increasingly volatile verbal interactions with officers
from the Customs and Border Protection (CBP). Appellant refused to follow the
commands of the CBP officers and used racially and sexually derogatory terms and
threats against the officers. Appellant was placed in a holding cell to calm down
and issued a citation for disorderly conduct upon release.
On May 6, 2015 the Government filed a violation notice against Appellant
for disorderly conduct. A bench trial was held before Magistrate Judge Patti from
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June 17 to June 18, 2015 and Appellant was found guilty of a violation of 41 CFR
102-74.390. Appellant was sentenced to fourteen days in custody, a $1500 fine and
a $5 special assessment. [26].
Appellant filed a timely appeal of the Magistrate Judge’s Judgment [26] on
September 4, 2015 [30]. Appellant’s Motion to Vacate Judgment [32] was filed on
November 32, 2015 and the Government responded on February 4, 2016. [37].
Appellant did not file any other brief on the matter regarding his appeal. For the
reasons stated below, Appellant’s Motion to Vacate Judgment is DENIED and the
Judgment of the Magistrate Judge is AFFIRMED.
Appellant appeals his conviction on three grounds: (1) Appellant contends
that § 102-74.390 is not a criminal provision created by the United States [32 at 4];
(2) that to the extent that § 102-74.390 is a criminal violation, Congress has not
provided an enabling statute that would allow violations of the § 102-74.390 to
carry criminal penalties [32 at 6]; and (3) there is insufficient proof that his
conduct at issue in the violation occurred on federal property or on property
controlled by the GSA as required by the provision [32 at 10-12].
§ 102-74.390 states, inter alia, that, “[a]ll persons entering in or on Federal
property are prohibited from loitering, exhibiting disorderly conduct” that
“impedes or disrupts the performance of official duties by Government
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employees.” 41 C.F.R. § 102-74.390. The penalties for a violation of § 102-74.390
are governed by 41 C.F.R. § 102-74.450, which states that:
[a] person found guilty of violating any rule or regulation in this
subpart while on any property under the charge and control of GSA
shall be fined under title 18 of the United States Code, imprisoned for
not more than 30 days, or both.
41 C.F.R. § 102-74.450. Per title 18, fines for crimes with a maximum
imprisonment time of 30 days are usually limited to no more than $5,000. Given
that a violation of § 102-74.4390 can result in criminal sanctions under 41 C.F.R. §
102-74.450 and title 18, the provision at issue is clearly a criminal provision. See
United States v. Baldwin, 745 F.3d 1027, 1030 (10th Cir. 2014).
The Executive Branch has the authority to criminalize conduct and impose
jail terms for violations of the Code of Federal Regulations. Congress expressly
authorized the General Services Administration and the Department of Homeland
Security to establish regulations “for the protection and administration of property
owned or occupied by the Federal Government” and allows these regulations to
include “reasonable penalties” of “not more than 30 days’ in prison and fines in the
amounts allowed by title 18.” See 40 U.S.C. § 1315(c) (formerly found at 40
U.S.C. §§ 318a, 318c); see also 6 U.S.C. § 552 (facilitating transfer of authority
from GSA to DHS). Therefore, as the Court in Baldwin concluded, this regulation
“can claim at least some legislative pedigree, some measure of congressional
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authorization” and Appellant cannot claim that there is no enabling statute by
Congress. Baldwin, supra.
Appellant also argues that the Government failed to prove that his disorderly
conduct occurred in or on property controlled by the GSA or other Federal agency.
At the bench trial, federal officers who work at the Detroit-Windsor tunnel testified
that the Detroit-Windsor tunnel is on federal property [18 at 5; 104]. This evidence
was not contradicted and was not brought up in any cross-examinations of these
officers [18 at 49-64; 122-150]. At the trial, the Magistrate Judge found beyond a
reasonable doubt that the Government did prove that Appellant’s conduct did occur
on federal property.
In response to an objection to sentencing by Appellant who stated that the
Court had not determined that the violation occurred on “property under the charge
and control of the GSA,” the Court ordered supplemental briefing on this issue for
the sentencing hearing. In their sentencing memorandum [21], the Government
produced a letter from GSA, a lease showing that the US Government has a lease
on the Detroit Windsor Tunnel, and website links to show that the Detroit-Windsor
tunnel was indeed federal property [29]. The Magistrate Judge ultimately took
judicial notice of the GSA website, a lease with lists the GSA as the lessee and
Detroit-Windsor Tunnel as the lessor, and various sections of the Federal
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Regulations which speak to GSA’s scope of authority, including 41 CFR § 10271.5, that all point to the fact that the Detroit-Windsor tunnel is on federal
property, specifically property controlled by the GSA. The Magistrate Judge thus
found beyond a reasonable doubt that Appellant’s crime was committed on federal
property. Therefore, there is no valid claim of relief based on the allegation that the
Court did not establish that the crime was not committed on federal property.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s Judgment [26] is
AFFIRMED.
IT IS FURTHER ORDERED that Appellant’s Motion to Vacate Judgment
[32] is DENIED.
SO ORDERED.

Dated: September 21, 2016

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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