Appeal from a judgment of conviction for violating the Freedom of Access to Clinic Entrances Act ("FACE Act"), 18 U.S.C. § 248, entered on November 3, 2010, by the United States District Court for the Southern District of New York (Sweet, J.), following a bench trial.
Before: WALKER, KATZMANN, and WESLEY, Circuit Judges.
We hold that Defendant-Appellant Richard R. Dugan was charged with a petty offense and was thus not entitled to a jury trial.
Defendant-Appellant Richard R. Dugan appeals from a judgment of conviction entered on November 3, 2010, by the United States District Court for the Southern District of New York (Sweet, J.), following a bench trial. The district court found Dugan guilty of physically obstructing access to a reproductive services facility in violation of the Freedom of Access to Clinic Entrances Act ("FACE Act"), 18 U.S.C. § 248. On appeal, Dugan contends, inter alia, that he was entitled to a jury trial as opposed to a bench trial.*fn1 Because we conclude that Dugan was charged with a petty offense, we agree with the district court that Dugan was not entitled to a jury trial.
Defendant-Appellant Richard Dugan was arrested on December 12, 2009, outside of a Planned Parenthood clinic located in New York, New York (the "Clinic"), which provides various reproductive health services, including abortions. During an anti-abortion protest, Dugan stood in front of the main entrance to the Clinic, thus preventing people from entering.
Dugan was charged with a class B misdemeanor under the FACE Act, 18 U.S.C. § 248(a), which makes it a crime to engage in nonviolent physical obstruction of a reproductive health facility and carries penalties for nonviolent first-time offenders of up to six months' imprisonment and a $10,000 fine, id. § 248(b).
On March 10, 2010, Dugan was arraigned before Magistrate Judge Debra C. Freeman, and he informed the court that he wished to proceed pro se. He was permitted to have standby counsel. Dugan initially appeared before Judge Robert W. Sweet on March 18, 2010 by telephone. During this conference, Judge Sweet scheduled the trial date and the date for filing pre-trial motions. After Dugan got off the line, there was a discussion about whether the case should be tried by a jury and Judge Sweet indicated that he would hold a bench trial as opposed to a jury trial. Dugan's standby counsel did not object. On March 22, 2010, the district court issued an order stating, inter alia, that "the trial shall proceed as a non-jury bench trial." Dugan App. 37. Before the trial commenced, co-defendant Theodore Puckett objected for the first time that he was entitled to a jury trial rather than a bench trial. Dugan, however, never raised any such challenge below.
The bench trial was held on April 26, 2010. At trial, the Government presented testimony from a Clinic staff member, two security guards working at the Clinic the day Dugan was arrested, two New York City Police Department officers who arrested Dugan, as well as photographs of the Clinic. The Government's evidence demonstrated, among other things, that Dugan stood directly in front of the Clinic's main entrance, that he failed to move after being told to do so by a security guard, that he prevented a Clinic staff member from entering the Clinic by pushing her with his stomach, and that even after police officers arrived at the scene and instructed Dugan to move, ...