United States v. 2012-04-25 | 11-50003 | USA V. JOHN APEL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 11-50003 Plaintiff-Appellee,
D.C. No. v.  2:10-cr-00830-
JOHN DENNIS APEL, JFW-1
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 11-50004 Plaintiff-Appellee,
D.C. No. v.  2:10-cr-00869-
JOHN DENNIS APEL, JFW-1
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 11-50005
Plaintiff-Appellee, D.C. No.
v. 2:10-cr-00831-  JFW-1JOHN DENNIS APEL,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 13, 2012—Pasadena, California
Filed April 25, 2012
4413

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Before: Barry G. Silverman and Johnnie B. Rawlinson,
Circuit Judges, and John R. Tunheim, District Judge.*
Per Curiam Opinion
COUNSEL
André Birotte Jr., Robert E. Dugdale, and Mark R. Yohalem
*The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
4414 UNITED STATES v. APEL

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(argued), United States Attorney’s Office, Los Angeles, Cali-
fornia, for the plaintiff-appellee.
Erwin Chemerinsky, Selwyn Chu, law student (argued), and
Matthew Plunkett, law student (argued), Appellate Litigation
Clinic, University of California Irvine School of Law, Irvine,
California, for the defendant-appellant.
OPINION
PER CURIAM:
[1] Appellant John Apel, who was subject to a pre-existing
order barring him from Vandenberg Air Force Base, was con-
victed of three counts of trespassing on the base in violation
of 18 U.S.C. § 1382. After his convictions became final in
district court, we decided United States v. Parker, 651 F.3d
1180 (9th Cir. 2011). Parker held that because a stretch of
highway running through Vandenberg AFB is subject to an
easement “granted to the State of California, which later relin-
quished it to the County of Santa Barbara,” the federal gov-
ernment lacks the exclusive right of possession of the area on
which the trespass allegedly occurred; therefore, a conviction
under 18 U.S.C. § 1382 cannot stand, regardless of an order
barring a defendant from the base. 651 F.3d at 1184.
[2] Although we question the correctness of Parker, it is
binding, dispositive of this appeal, and requires that Apel’s
convictions be REVERSED.
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