ELR Citation: ELR 21021
No(s). 91-4677 (5th Cir. Jul 2, 1992)

The court holds that dividing a landowner's continuing offense into two convictions for failing to obtain an Army Corps of Engineers' permit for a water slide platform does not violate the Double Jeopardy Clause of the U.S. Constitution. The landowner was convicted and fined $400 for failing to obtain proper approval from the Corps to build a water slide platform. The landowner applied for approval of the platform, but the Corps rejected the application and later issued a notice of violation for failing to obtain approval. The landowner was again convicted, fined $5,000, and sentenced to five years' probation. The landowner appealed, arguing that he was punished multiple times for the single act of building a water slide in violation of a Corps' permit. The court first holds that the landowner's crime as defined by applicable regulations is the continuing offense of failure to abide by the terms of a shoreline use permit by maintaining a nonconforming water slide platform. The court notes that no authority specifically answers whether regulatory intent should be treated as the equivalent of legislative intent for double jeopardy purposes. The court then holds that the legislative intent to provide for cumulative punishments includes rulemaking pursuant to a valid grant of congressional authority. The court finds that Congress authorized cumulative punishments and that the landowner has not been subjected to harassing multiple prosecutions. The court holds that the prosecutions do not violate the Double Jeopardy Clause. The Corps could not have tried the landowner for the second set of violations at the first trial because they had not yet occurred, and paying a $400 fine in the first case does not immunize the landowner from prosecution for willful violation of the Corps' regulations. The court rejects the landowner's argument that the government failed to follow its dual prosecution policy, because the landowner cannot rely on the government's internal rule to assert an error in his prosecution. The court holds that the Corps is not required to pursue revocation of the landowner's permit before criminally prosecuting him, even though this may have been the wiser course. The court holds that the district court did not abuse its discretion by denying the landowner's motion for a continuance to obtain legal counsel. The landowner is an attorney and represented himself at the first trial, and assuming that his need for an attorney increased at the second trial when he was facing a $5,000 fine and long-term probation, he failed to show that the denial of a continuance prevented him from obtaining counsel. The court holds that the additional penalties of $5,000 and extended probationary period are not so severe as to trigger the Sixth Amendment right to a jury trial. Finally, the court holds that the landowner's other defenses and arguments concerning the sufficiency of the evidence lack merit. The court notes that the landowner could have challenged the denial of his application, but chose not to.

Counsel for Plaintiff-Appellee
Paul E. Naman
U.S. Attorney's Office
350 Magnolia St., Ste. 150, Beaumont TX 77701
(409) 839-2538

Counsel for Defendant-Appellant
David D. Parron, Charles J. Paternostro
Paternostro & Assoc.
8001 L.B. J. Freeway, 4th Fl., Ste. 450
Dallas TX 75251
(214) 644-5533

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.