Opinion
Case No. 1:14-cr-124
03-31-2015
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUSTICIA RIZZO, Defendant-Appellant.
DECISION AND ENTRY AFFIRMING THE UNITED STATES MAGISTRATE JUDGE'S VERDICT
Following a bench trial, United States Magistrate Judge Stephanie K. Bowman found Defendant-Appellant Justicia Rizzo ("Defendant") guilty of disorderly conduct in violation of 38 C.F.R. § 1.218(a)(5), (b)(11). (Doc. 1-1). This matter is before the Court on Defendant's appeal of her conviction. (Doc. 1). Defendant filed a brief in support of her appeal, and the Government filed a brief in response. (Docs. 7, 9). The appeal is now ripe for the Court's review.
I. FACTUAL BACKGROUND
On December 19, 2013, Charles Smith, president of the American Federation of Government Employees local union, presided over a union meeting in a conference room at the VA Medical Center in Cincinnati, Ohio. (Doc. 4 at 3-4). Several union members attended the meeting in person, including Defendant, Alicia Williams, and Elizabeth Benton. (Id. at 5, 34, 76). Several others participated in the meeting via video conference. (Id. at 59).
Smith testified that Defendant spoke without being recognized and interrupted the flow of the meeting after several warnings. (Doc. 4 at 5). Smith perceived Defendant's conduct to be disruptive, condescending, rude, and sarcastic. (Id. at 6). According to Smith, while Defendant was not overly loud, she could be heard. (Id.) Smith recalled that it appeared that Defendant called Williams a thief and that Williams "started tearing up." (See id. at 25-26, 28). Williams testified that Defendant was mumbling and using profanity, while looking directly at her. (Id. at 43-44). Smith asked Defendant to leave the meeting. (Id. at 6-7). Defendant left the conference room on her own accord, and the meeting continued in her absence. (Id. at 6-7, 20).
Williams testified that several other people also spoke and laughed out of turn and that Smith warned those who were making comments that they needed to wait their turn. (Id. at 35, 40).
Specifically, Williams testified that Defendant called her a "bitch." (Id. at 43). Williams earlier testified, perhaps contradictorily, that Defendant and did not make any personal attacks on her. (Id. at 36). Williams noted that Defendant was not screaming at the meeting. (Id.)
At the conclusion of the meeting, Defendant went back into the conference room and asked Smith for a check. (Doc. 4 at 8). Smith, Williams, and others left the conference room and walked down the corridor. (Id. at 12-13, 37). Smith testified that Defendant followed behind Williams and continued to "mouth[] off." (Id. at 13). Williams testified that Defendant came from behind and made negative comments about her, including characterizing her as a "felon." (See id. at 37-38).
Smith admitted that he may have said Defendant needed psychiatric help after the meeting. (Id. at 21-22). According to Smith, he was voicing his opinion like Defendant voiced hers. (Id. at 22).
At the time, Williams was running for union office. (Id. at 38).
Smith testified that he ushered the union members into an elevator so that nothing escalated. (Doc. 4 at 13). Benton, who was walking toward the elevator, testified that Defendant's comments felt like threats due to the tone of her voice and the manner in which she approached the group. (Id. at 76-77). Garry Cutright, who was inside the elevator, testified that he observed an "altercation of sorts going on" outside the elevator. (Id. at 74-75). Surveillance video footage depicts a group of people walking from the conference room to the corridor that housed the elevators and Defendant pointing her finger and making comments toward the group.
The Government played the surveillance video footage during Smith's direct examination. (Id. at 10-13). The footage does not have audio. As the parties note, and as confirmed by this Court's review of the footage, nobody stopped or acknowledged Defendant while walking toward the corridor with the elevators.
Smith asked Williams if she needed an escort to her car, and Williams requested one. (Id. at 40). Williams testified that she was concerned for her safety. (Id. at 39-40).
The Government rested after the testimony of Smith and Williams. Defendant called several additional witnesses. Tony Hayes was present at the meeting and testified that it is normal for people to speak out of turn during the meetings and that, at the meeting in question, Defendant did not attack anybody; she simply spoke out of turn. (Id. at 56). Rhea Taylor was present at the meeting and testified that Defendant did not attack or threaten anyone at the meeting. (Id. at 56, 58). Greg Allen was present at the meeting and testified that he did not observe anyone attacking or making any obscene statements at the meeting. (Id. at 73). Linda Hudson was present at the meeting and testified that she did not hear Defendant make any threats of violence after the meeting toward anyone. (Id. at 81). Lavelia Davis was present at the meeting and testified that in previous meetings she observed Smith to be disruptive, hostile, and offensive. (Id. at 69). Willie Wanton attended the meeting via video conference and testified that he did not see anyone being attacked or threated at the meeting but noted that quite a few people were talking out of turn. (Id. at 59-60, 63). Janet Johnson attended the meeting via video conference and testified that during past meetings Smith was volatile toward her. (Id. at 64-65).
Defendant was issued a citation for disorderly conduct. (Doc 1-2). On October 9, 2014, following a bench trial, Defendant was found guilty of the offense, fined $200.00, and assessed $25.00 in Court costs. (Doc 1-1). Defendant timely filed her notice of appeal. (Doc. 1). Defendant denies that she engaged in disorderly conduct and argues that the evidence in the record is insufficient to support her conviction. (Doc. 7 at 1).
On the citation, officers described the offense as "Conduct which creates a loud boisterous noise, obstructing normal use of Elevator. Disorderly Conduct[.]" (Id.) The Statement of Probable Cause explains: "An Investigation supported by video footage of the incident, lead VA Police to charge employee Justicia Rizzo with 38 CFR 1.218 (a)(5)(b)(11) Disorderly Conduct. Rizzo did wait in the corridor for approximately 20 minutes for the victim to come out of a meeting for the purpose of loudly arguing with the victim in front of co-workers outside the Directors Conference Room. Rizzo was in a similar confrontation two weeks prior to this incident with another employee and was issued a verbal warning by VA Police." (Id.)
Defendant characterizes this case as being about a federal employee who exercised her right to free speech during and after a union meeting held on VA property. (Id.) However, because Defendant does not provide any further argument regarding the First Amendment, the Court does not address it here.
II. STANDARD OF REVIEW
"In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court of the district in which the offense was committed." 18 U.S.C. § 3402; see also Fed. R. Crim. P. 58(g)(2)(B) ("A defendant may appeal a magistrate judge's judgment of conviction or sentence to a district judge within 14 days of its entry."). "The defendant is not entitled to a trial de novo by a district judge." Fed. R. Crim. P. 58(g)(2)(D) (emphasis supplied). "The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Id.
Where a defendant challenges her conviction on the basis of insufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Accordingly, the reviewing court does not weigh the evidence, assess the credibility of the witnesses, or substitute its judgment for that of the trier of fact. United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006) (citing United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994)).
The court reverses a conviction "only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence." United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991). "A defendant challenging the sufficiency of the evidence bears a very heavy burden." United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) (citing Wright, 16 F.3d at 1439).
III. ANALYSIS
The Magistrate Judge found Defendant guilty of violating 38 C.F.R. § 1.218(a)(5), (b)(11). Pursuant to Subsection(a)(5), the Government must prove that Defendant engaged in conduct on VA property which: (1) created loud or unusual noise; (2) unreasonably obstructed the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; (3) involved the use of loud, abusive, or otherwise improper language; or (4) constituted loitering, sleeping, or assembly. 38 C.F.R. § 1.218(a)(5); United States v. Rone, 2003 WL 723986, at *2 (10th Cir. March 4, 2003)). Subsection (b)(11) provides the relevant penalty provision: "Disorderly conduct which creates loud, boisterous, and unusual noise, or which obstructs the normal use of entrances, exits, foyers, offices, corridors, elevators, and stairways or which tends to impede or prevent the normal operation of a service or operation of the facility, $250." 38 C.F.R. § 1.218(b)(11). Taken together, these provisions target conduct serious enough to disturb the normal operation of a VA facility. See United States v. Williams, 892 F.2d 1044 (6th Cir. 1990).
The Magistrate Judge framed the issue for trial as follows: "The Court: Yes. All right. And we're set for a bench trial for a citation that you received on December 19th for conduct which created a loud boisterous noise, obstructing normal use of an elevator. Is that correct? Mr. Springer: Yes." This is consistent with the description of the offense provided on the citation. See note 8, supra.
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Viewing the evidence in the light most favorable to the Government, as the Court must, the Court finds support for the conclusion that Defendant created boisterous and unusual noise which disturbed the normal operation of the VA Medical Center. Defendant repeatedly disrupted the union meeting and refused to adapt her behavior after receiving warnings. Smith and Williams testified that Defendant targeted Williams with verbal attacks that included profanity and personal insults. Rather than leave the premises after removing herself from the meeting, Defendant waited in the hallway for the meeting to conclude. Defendant then followed Williams as she left the meeting and continued to level personal insults. As a result of this behavior, Smith ushered union members into an elevator to avoid Defendant. Williams was so concerned for her safety that she asked for an escort to her car.
Defendant argues that several defense witnesses observed everything that happened in the conference room, the corridor, and the elevator and testified that Defendant did not do anything constituting the crime of disorderly conduct. See note 6, supra. Defendant also argues that Cutright and Benton's testimony is not probative of whether she committed the crime and that the surveillance video footage is neither probative of what type of remarks, comments, or statements were made, nor Defendant's tone or volume.
These arguments are not well taken because this evidence is probative of whether Defendant created a boisterous and unusual noise. Cutright testified that an "altercation of sorts [was] going on" outside the elevator. Benton felt threatened by Defendant's conduct because of the tone of her voice and the speed of her approach. The surveillance video footage clearly depicts Defendant pointing her finger and making comments towards the union members as they were in the corridor.
This Court is obligated to give deference to the fact finder's resolution of conflicts in the testimony, weighing of the evidence, and drawing of reasonable inferences. See Jackson, 443 U.S. at 319; Paige, 470 F.3d at 608. Viewing the evidence in the light most favorable to the Government, the Court concludes that a rational trier of fact could have found Defendant guilty of disorderly conduct. As such, Defendant has not carried her heavy burden in this appeal.
IV. CONCLUSION
Accordingly, based on the foregoing:
1. The Court AFFIRMS the Magistrate Judge's verdict (Doc. 1-1) and DENIES Defendant's appeal (Doc. 1);
2. The Clerk shall enter judgment accordingly, whereupon this case is TERMINATED in this Court.
IT IS SO ORDERED. Date: 3/31/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge