U.S. v. Bird

Page 667

124 F.3d 667

UNITED STATES of America, Plaintiff-Appellee, v. Frank Lafayette BIRD, Defendant-Appellant.

No. 95-20792.

United States Court of Appeals Fifth Circuit.

Sept. 24, 1997.

Lisa J. Stark, U.S. Department of Justice, Washington, DC, Jessica Dunsay Silver, Washington, DC, for Plaintiff-Appellee.

Richard W. Schmude, Spring, TX, Thomas Anthony Zakes, Houston, TX, for Defendant-Appellant.

Yolanda Wu, New York City, Priscilla Joyce Smith, Center for Reproductive Law & Policy, New York City, for American College of Obstetricians and Gynecologists, American Medical Women's Association, Feminist Majority Foundation, Medical Students for Choice, National Abortion and Reproductive Rights Action League, National Abortion Federation, National Center for the Pro Choice Majority, National Organization for Women, National Women's Law Center, Planned Parenthood Federation, Texas NOW and Women's Law Project and Women's Legal Defense Fund, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, DAVIS and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant, an abortion protester, appeals his conviction for violating the Freedom of Access to Clinic Entrances Act. He challenges the authority of the Congress to enact a statute under the Commerce Clause that proscribes intrastate, noncommercial activity and he raises First Amendment challenges to the scope of the Act and to the terms of his supervised release. Because we find that there was a sufficient basis for the Congress to have determined that the activity proscribed by the Act, though intrastate, could have a substantial affect on the congressionally-recognized national market for abortion-related services, and because we find that the Act, as applied, is neither unduly vague nor overbroad, we affirm the judgment of the district court. We also find that the district court did not abuse its discretion when it set the terms of appellant's supervised release.

Facts and Proceedings Below

The facts are few and undisputed. On December 13, 1994, appellant Frank Bird (Bird), while protesting outside the America's Women Clinic in Houston, Texas, threw a bottle at a car driven by Dr. Theodore Herring (Herring), an abortion provider, as he attempted to enter the clinic premises. As Bird threw the bottle, he yelled, "Herring, I'm going to get you. I'm going to kill you." Although Dr. Herring was not physically injured, the bottle shattered the windshield of his car. Employees of the clinic subsequently called the police, who arrived at the scene and arrested Bird.

On March 29, 1995, Bird was charged in a one-count indictment with violating 18 U.S.C. § 248(a)(1), the provision of the Freedom of Access to Clinic Entrances Act (FACE or the Act) that criminalizes certain threats and intimidation directed at providers of abortion services.

The case was tried on June 12, 1995. The jury returned a guilty verdict the same day. On September 14, 1995, the district court sentenced Bird to imprisonment for one year followed by one year of supervised release with the special condition that he stay at least one thousand feet from any abortion clinic, specifically the America's Women Clinic in Houston. The district court also ordered Bird to pay $820.67 in restitution and ordered an assessment of $50.

Bird filed a timely notice of appeal. Although Bird challenges the constitutionality of the Act, he does not otherwise contest his guilt under the statutory scheme. He also objects to the wording of the district court's judgment and the terms of his supervised release. We affirm.

Discussion

Some four years ago, this Court, emphasizing the Constitution's establishment of a national government of limited and enumerated powers--in which the powers of the federal government were designed to be " 'few and defined' "--held that Congress, by enacting a statute making it a federal crime to possess a firearm in a school zone, had exceeded its authority under the Commerce Clause. United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir.1993) (quoting The Federalist No. 45, at 292 (C. Rossiter ed.1961), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)). This case calls on us to visit again the issue of Congress's authority to regulate intra state activity pursuant to its Commerce Clause authority, this time aided by more recent clarifying Supreme Court authority. As with any challenge to the constitutional validity of an act duly passed by Congress, we approach our task knowing that it is both "the gravest and most delicate duty that this Court is called on to perform," Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927) (Opinion of Holmes, J.), and that it "forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies," Alexis de Tocqueville, Democracy in America 76 (1956, Richard D. Heffner ed.).

In 1994, reacting to a perceived nationwide problem of violent protests and blockades directed at both providers and recipients of abortion services, Congress enacted the Freedom of Access to Clinic Entrances Act, an act making it a federal crime to engage in certain prohibited activities interfering with the provision or obtainment of "reproductive health services." Specifically, the Act provides:

"(a) Prohibited activities.--Whoever--

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;

....

shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c), except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor." 18 U.S.C. § 248(a)(1), (3) (West Supp.1997). ¹

The Act itself states that it was passed "[p]ursuant to the affirmative power of Congress to enact ... legislation under section 8 of article I of the Constitution, as well as under section 5 of the fourteenth amendment to the Constitution." Freedom of Access to Clinic Entrances Act of 1994, Pub.L. No. 103-259, § 2, 108 Stat. 694, 694. Although the Act itself does not contain congressional findings, the "Joint Explanatory Statement of the Committee of Conferees" to Senate Bill 636, which was ultimately adopted as the Act, sets forth a number of relevant findings. ²

I.

Bird makes a number of arguments challenging the constitutionality of the Act. First, he argues that section 248(a)(1) was beyond the authority granted to Congress under either the Commerce Clause ³ or Section Five of the Fourteenth Amendment. ⁴ Second, he argues that the Act is "invidiously discriminatory" because it protects certain familial relationships and fails to protect others. Third, he contends that the Act is constitutionally overbroad. Finally, he challenges the Act on vagueness grounds.

Five other circuits have addressed the constitutionality of the Act, each finding it to be a legitimate exercise of Congress's authority under the Commerce Clause. Terry v. Reno, 101 F.3d 1412 (D.C.Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997); United States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 516 U.S. 809, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). The constitutionality of the Act is a question of first impression in this Circuit. ⁵ Although we agree with their ultimate holdings, we nevertheless set forth our reasoning, which differs in some respects from that of our sister circuits.

A. Congress's Commerce Clause Authority

Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Bird argues that section 248(a)(1) criminalizes private, noneconomic conduct that is neither commercial in nature nor " 'an essential part of a larger regulation of economic activity.' " Accordingly, because the Act lacks a jurisdictional element that would ensure that each instance of proscribed activity had an effect on interstate commerce, Bird contends that the Act " 'neither regulates a commercial activity nor contains a requirement that the [prohibited activity] be connected to interstate activity.' " Bird further argues that the congressional findings set forth in the Act's legislative history are not relevant to our inquiry because Congress cannot use findings that a noncommercial activity "affected interstate commerce" to support a statute that regulates intrastate conduct. Finally, Bird attacks the "regulatory means" chosen by the Act as not " 'reasonably adapted to the end permitted by the Constitution.' " In this regard, Bird contends that the statutory definitions of "facility" and "reproductive health services" sweep too broadly and exceed the reach of Congress's Commerce Clause authority.

The United States defends the Act as a proper exercise of Congress's authority under the Commerce Clause. First, also relying on Lopez, 514 U.S. at 557-61, 115 S.Ct. at 1629-30, the United States argues that the Act is "a proper exercise of Congress' power to 'protect ... persons or things in interstate commerce.' " Second, the government contends that the Act may be "sustained as an exercise of Congress' power to regulate 'activities that substantially affect interstate activity.' " The government emphasizes the congressional findings that the proscribed activity "threatens in the aggregate to...