UNITED STATES OF AMERICAN, PETITIONER V. JAMES VINCENT ALBERTINI No. 83-1624 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United states Court of Appeals for the Ninth Circuit Reply Brief for the United States 1. a. In our opening brief, we demonstrated that respondent violated the unambiguous prohibition of 18 U.S.C. 1382 when he reentered Hickam Air Force Base in 1981 (U.S. Br. 8-21). In responding to our argument, respondent carefully avoids discussing the plan language of Section 1382, and he does not claim that the legislative history directly supports his poition. Instead, respondent principally emphasizes (e.g.,Br. 12-19) that the bar letter that formed the basis of his conviction was issued in 1972, nine years before the reentry for which he was prosecuted. As we noted in our opening brief, the court of appeals explicitly declined to reach the question whether respondent's bar letter was stale (see Pet. App. 4a, 15a), and there is no reason for this Court to consider that question in the first instance. /1/ Moreover, even if the Court were to accept respondent's contention, the Court should not affirm the judgment of the court of appeals; it should vacate the judgment, which is based on First Amendment grounds, and order the case remanded for a new trial at which the government will be entitled to attempt to demonstrate that respondent was lawfully barred from Hickman in 1981. /2/ In any event, respondent's contention that he could not be convicted on the basis of his 1972 bar letter is incorrect. The plain language of Section 1382 imposes no limit on the duration of a bar order. Respondent does not suggest -- and cannot plausibly suggest -- that the Court should "legislate" some arbitrary number of years as a limitation on a bar order. Rather, respondent appears to agree with the principle -- which we have at all times acknowledged (see Pet. 10; Reply Mem. 3; Br 27-28) -- that the duration of a bar letter is limited only by a general requirement of reasonableness. /3/ Although the government had no reason to present evidence at trial demonstrating the reasonableness of the Air Force's decision to continue respondent's bar order in effect through May 1981 (see page 2 note 2, supra), even this record contains ample evidence of the reasonableness of that decision. If respondent had committed only a minor misdeed in 1972 and had done nothing else that would suggest that he posed a danger to the security and good order of a military base, it might well have been unreasonable to continue his bar order in effect through 1981. But that is not at all the case. Respondent received his bar letter 1972 for committing a criminal act of destructive vandalism, and -- according to respondent's own testimony at trail -- in the years between 1972 and 1981 he committed numerous acts that caused him to receive bar letters from other military installations in Hawaii (see J.A. 39). Specifically, respondent testified that only two months before the open house, he entered a sensitive military installation on Hawaii from which he had also previously been barred for the purpose of deliberately engaging in an illegal act -- in respondent's words, a rather serious clear-cut case of non-violent civil disobedience" (J.A. 30). Respondent also testified that he had received bar letters from "(p)retty much" every military installation in Hawaii (J.A.39). One of the persons who demonstrated with respondent during the open house testified that all the members of their group were well aware of respondent's various bar orders, including the one that was the basis of this prosecution (J.A. 26). In these circumstances, there was nothing unreasonable about continuing respondent's bar letter in force through 1981. /4/ More fundamentally, however, respondent was not entitled simply to ignore a facially valid bar letter and reenter Hickman. If respondent wished to claim that his bar letter was stale, there was an obvious and appropriate forum open to him. The bar letter that respondent received stated that he was barred not "for life" -- as respondent repeatedly asserts (Br. 10; see id. at 15, 17) -- but until he obtained the written permission of the commanding officer, or his designee, to reenter the base. See J.A. 43. Respondent was free to apply to the commanding officer for permission to reenter on the ground that his bar letter should not continue in force any longer and, if permission was denied, to institute a suit for declaratory relief, claiming that the continuation of the bar order was arbitrary and capricious. See 5 U.S.C. 706; Cafeteria Workers v. McElroy, 367 U.S. 886 (1961); Serrano Medina v. United States, 709 F.2d 104 (1st Cir. 1983); Bridges v. Davis, 443 F.2d 970 (9th Cir. 1971), cert. denied, 405 U.S. 919 (1972). Had respondent pursued this course, the reasonableness of the commanding officer's decision to continue the bar order in effect could have been litigated in an orderly fashion in the appropriate proceeding instead of as a diversionary, collateral issue in a criminal prosecution. /5/ Indeed, as we have noted, in asserting that it was unreasonable for the bar order to continue in effect through 1981, respondent is not invoking any defense made available by Section 1382 itself; rather, he is challenging the reasonableness of an administration action. The proper way to raise such a challenge is to sue for specific relief under the Administrative Procedure Act, not to ignore the bar order and attempt to litigate the issue of reasonableness in a criminal prosecution. Cf. Lewis v. United States, 445 U.S. 55, 64, 67 (1980). /6/ b. We demonstrated in our opening brief that the second paragraph of Section 1382 -- the provision under which respondent was convicted -- applies not only to closed military installations but to installations that are open to public access. Indeed, as we explained, this provision has its principal application to open bases. See U.S. Br. 13-21. Respondent explicitly acknowledges that our submission on this point is correct. Resp. Br. 21. Nonetheless, respondent attempts to distinguish between a base that is generally open to the public and a one-day open house at a normally closed base. We explained in our opening brief (at 18-21) why there is no principled basis for this distinction and why, as a practical matter, it is even more necessary to enforce bar letters at a one-day open house than at a base that is normally open. Respondent's only reply appears to be that during an open house, "the usual military functions are suspended and all sorts of activities normally treated as inappropriate in the military context are conducted" (Br. 21-22). We note that even during an open house, sensitive military operations -- including, for example, the storage of equipment and documents -- routinely take place elsewhere on the installation. And respondent does not explain why an open house is an "inappropriate" miliatry function. But most important, respondent ignores the fact that many daily occurences on an open base unquestionably have far less to do with "the usual military functions" than events at an open house. Respondent is simply incorrect in asserting that when a base is generally open to the public, visitors are allowed only if their "presence is consistent with military need (Br. 21); an open base is different from a closed base precisely because visitors to an open base are not screened for this purpose. For example, on an open base civilians may use the thoroughfares to conduct normal business wholly unrealted to the military. See, e.g., Greer v. Spock, 424 U.S. 828, 830 (1976). Respondent nonetheless expressly acknowledges that Section 1832 applies in such circumstances. Respondent's contention that Section 1382 applies in such circumstances. Respondent's contention that Section 1382 does not apply to an open house because an open house involves "non-military" activities is, therefore, without foundation. Respondent also appears to suggest (see Br. 20) that it was somehow unfair for the military to enforce his bar letter against him when it had invited the public at large to the open house. But the entire purpose of a bar letter is to inform the recipient that he is in a separate category from the general public; a bar letter is, precisely, a notification to the recipient that he must now obtain special permission -- permission of a form that others need not obtain -- before he can enter the base. Respondent explicitly concedes (Br. 21) that the recipeint of a bar letter violates Section 1382 if, without obtaining such permission, he enters a base that is generally open to the public; nothing in Section 1382, or in the general principles of trespass law on which respondent attempts to rely, provides any support for the view that a different result should obtain when the public is informed that a generally closed base will be open on one particular day. /7/ c. Finally, respondent suggest that he did not have the state of mind required to establish a violation of Section 1382. It is undisputed that respondent knew he had received a bar letter, and it is undisputed that he deliberately entered what he knew to be the military base to which that letter applied. Respondent cites no case that remotely suggests that Section 1382 -- or any other criminal statute -- requires any more. In essence, respondent appears to contend that even if he has no valid defense, he should be immune from criminal liability because he though he had a valid defense (see Resp. Br. 23-26); this extraordinary suggestion is without support in the law. Cf. Harlow v. Fitzgerald, 457 U.S. 800 (1982). /8/ 2. As we explained in our opening brief (at 21-40), Section 1382, as enforced against respondent, is a limited, neutral regulation that is unrealted not only to the content of respondent's speech but to the fact that he was engaging in speech, and that had only an incidental impact on his speech. Respondent continues to be unable to cite a single case of this Court holding that such a statute violates the First Amendment. Ironically, respondent relies primarily on Adderley v. Florida, 385 U.S. 39 (1966), where the Court upheld a restriction that had an incidental effect on speech. the Court in Adderley based its decision on the fact that the restriction in issue was "aimed at conduct of one limited kind" and provided "no lack of notice" (385 U.S. at 42); the same is true of Section 1382, which is aimed at a particular category of conduct that the government has a strong interest in preventing and that is defined without reference to speech. /9/ CONCLUSION For these reasons and the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General APRIL 1985 /1/ In addition, we do not agree with respondent that this issue is comprised within the question that the Court asked the parties to address. Respondent sugges (Br. 13n.21) that because his bar letter was issued in 1972, his attendance at the open in 1981 did not constitute "reenter(ing)" Hickam within the meaning of Section 1382. But Section 1382 does not require a "rentry", it requires only that respondent be "found within" Hickam. See U.S. Br. 9. Moreover, as we explain below, any limit on the permissible duration of a bar order derives not from Section 1382 itself but from a general requirement administrative actions be reasonable. /2/ Before trial, respondent moved to dismiss the information on the ground that the 1972 bar letter was stale. See J.A. 63. The district court denied the motion. J.A. 1,68. Accordingly, the case was -- as respondent agrees (Br. 6n. 16) -- tried by the government on the assumption that the 1972 bar letter was legally sufficient. As a result, the facts concerning the bar letter sent to respondent in March 1981 but allegedly not received by him (see J.A. 30) were not brought out at trial; nor were all the facts bearing on the reasonableness of continuing the 1972 bar order in force. Indeed, the extent to which evidence on these issues would even have been admissible at trial is unclear. Accordingly, even if this Court (or the court of appeals) were to agree with respondent's contention that his 1972 bar letter was stale, respondent's prosecution would not be barred, as it evidently is under the court of appeals' ruling that his conduct was constitutionally protected. Instead, the proper remedy would be a retrial at which the government could attempt to show that a valid bar order was properly in effect against respondent in May 1981. /3/ As we noted in our opening brief, Air Force regulations are to the same effect. See, e.g., A.F. Reg. 355-11, para. 1.b (10 Sept. 1971) (a bar order "must be reasonable in relation to (the commander's) responsibility to protect and to preserve order on the installation and to safeguard persons and property thereon"). /4/ Respondent cites the legislative history of Section 1382 soley to support the proposition -- with which we have no disagreement -- that the second paragraph of Section 1382 was enacted "to vindicate the authority of commanders to eject unwelcome visitors" (Br. 17). Respondent suggests that enforcing his bar letter against him did not serve this purpose. But in his testimony, respondent admitted that he had repeatedly reentered military reservations for illegal purposes and in violation of bar letters. See J.A. 30-31 38-39. As we noted in our opening brief (at 16 n.8), the legislative history shows that when the Congressman who introduced the bill that became Section 1382 described the conduct that it would proscribe, he used terms that almost perfectly describe respondent's conduct: he spoke of individuals who "constantly def(y) authority by reappearing upon (a military) reservation" and "constantly return," notwithstanding orders to leave, "time after time" (42 Cong. Rec. 689 (1908) (remarks of Rep. Moon)). /5/ In addition, if respondent had followed this course, the facts relating to his conduct on military installations since 1972 would have been brought before the commander of Hickham. /6/ As we noted in our opening brief (at 27), in Flower v. United States 407 U.S. 197 (1972), the Court permitted the holder of a bar letter to raise, as a defense in a criminal prosecution, the claim that the bar letter was issued for unconstitutional purposes. But a consititutional claim is obviously on a different footing from the claim of temporal unreasonableness that respondent raises. /7/ The Model Penal Code, on which respondent relies heavily (see, e.g. Resp. Br. 20-23), does not in any way support his effort to distinguish between a base that is generally open and a base that is open for only one day each year. The Model Penal Code states that persons who enter property open to the public have a defense to a charge of criminal trespass only if they "compl(y) with all lawful conditions imposed on access" (Model Penal Code Section 221.2(3)(b) (1980); respondents' bar letter was a lawful condition with which he did not comply. /8/ Under Section 1382, it is the base commander -- not the recipient of a bar letter -- who is empowered to decide whether it is reasonable to allow a recipient to reenter the pase on a particular occasion. /9/ Respondent renews his contention (see Br. in Opp. 23-25) that he was unalwfully singled out for prosecution because of his speech-related activities. But the records shows -- and the district court specifically found (Tr. 98) -- that the officer who apprehended respondent knew that respondent was the holder of a bar letter and, for that reason, took care to identify respondent before apprehending him. See J.A. 9-11, 13-14, 35; U.S. Br. 4. In addition, as we explained in our reply memorandum supporting the petition (at 1-3), the question whether respondent's prosecution was improperly motivated was not raised by respondent in either the district court of the court of appeals and is accordingly not now in issue.