Argued and Submitted March 11, 2014, San Francisco, California
Submission vacated March 19, 2014.
Resubmitted August 6, 2014.
Appeal from the United States District Court for the Northern District of California. D.C. No. 5:11-cr-00945-RMW-1. Ronald M. Whyte, District Judge, Presiding.
The panel affirmed a misdemeanor conviction for violating a Department of Veterans Affairs regulation prohibiting disorderly conduct that creates loud, boisterous, and unusual noise.
The panel held that the regulation, reasonably interpreted, includes a controlling standard of conduct: it prohibits the creation of loud, boisterous, and unusual noise that would tend to disturb the normal operation of a VA facility. Applying that interpretation, the panel held that the regulation is not unconstitutionally vague as applied to the defendant, and that sufficient evidence supported his conviction.
Steven G. Kalar, Federal Public Defender, Heather M. Angove (argued) and Cynthia C. Lie, Assistant Federal Public Defenders, Federal Public Defender's Office, San Jose, California, for Defendant-Appellant.
Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, and Anne M. Voigts (argued), Assistant United States Attorney, Office of the United States Attorney, San Francisco, California, for Plaintiff-Appellee.
Before: Sidney R. Thomas, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.
FISHER, Circuit Judge
We consider whether a Department of Veterans Affairs (VA) regulation prohibiting disorderly conduct that creates loud, boisterous, and unusual noise, see 38 C.F.R. § 1.218(a)(5) and (b)(11), is unconstitutionally vague as applied to the defendant, Louis Agront, Sr. The regulation, reasonably interpreted, includes a controlling standard of conduct: it prohibits the creation of " loud, boisterous, and unusual noise" that would tend to disturb the normal operation of a VA facility. Applying that interpretation, we hold that the regulation is not vague as applied to the defendant and that sufficient evidence supported his conviction. We therefore affirm.
In September 2011, Agront visited the emergency room at the Veterans Affairs hospital in Palo Alto, California. His adult son and two adult daughters had brought him to the hospital during the late afternoon because they were concerned about recent changes in his behavior, although they had not told him that was the reason. Instead, Agront believed his visit was to treat knee and foot pain he had been experiencing. When he did not receive the treatment he expected, Agront left the VA hospital and began walking home. His children went after him around an hour later and, to induce him to return to the hospital and have bloodwork done, falsely told Agront that his normal podiatrist would treat him if he returned.
Upon arriving back at the hospital that evening, Agront was initially seen by VA nurse Laura Rutherford. Agront's children told her outside his hearing that, although he believed he was being treated for knee pain and significant weight loss, they were concerned about his increasingly erratic behavior. She observed that Agront was alert and oriented, able to maintain linear thoughts and converse appropriately, but also that he kept pacing, had pressured and quick speech, did not want to sit and generally seemed to not want to remain at the hospital. She stood outside the door while he was attended by a doctor and testified that he became agitated and " stormed off."
Agront then spoke to VA social worker Susan Harrison in the hospital lobby. Because he believed he had been treated poorly, he was very upset and wanted to leave. She observed that his body language was tense, his face was red and his speech was pressured and rapid; he also seemed angry and fidgety to her, and would start to become loud but then reduce his volume. After he " ...