United States of America v. Elizabeth Margaret O’nan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4271
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIZABETH MARGARET O’NAN,
Defendant – Appellant.
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THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00044-MR-1)
Submitted: October 25, 2011 Decided: November 4, 2011
Before MOTZ, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elizabeth Margaret O’Nan, Appellant Pro Se. David A. Thorneloe,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER

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FOR THE PROTECTION OF FREE EXPRESSION, Charlottesville,
Virginia, for Amicus Supporting Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Elizabeth Margaret O’Nan appeals the district court’s
order affirming the magistrate judge’s judgment finding O’Nan
guilty of violating 36 C.F.R. § 261.12(d)∗
On appeal, O’Nan first argues that the court violated
her First Amendment rights by punishing her for speech that was
“merely the expression of her sincerely held beliefs about her
property rights.” Second, she argues that the magistrate judge
made several erroneous factual findings. Third, she argues that
the government illegally seized the Forest Service road in
question. Fourth, she argues that the government violated her
right to equal protection by punishing her but not punishing
various hunters who she alleges have trespassed on her property.
The Thomas Jefferson Center for the Protection of Free Speech
filed an amicus brief in support of O’Nan, arguing that her
prosecution violated her First Amendment rights.
, imposing a fine and
restitution, and ordering O’Nan not to interfere with the use of
a Forest Service road for five years.
In “cases raising First Amendment issues, an appellate
court has the obligation to make an independent examination of
the whole record to ensure that the judgment does not constitute
∗ This regulation prohibits interfering with the use of a
National Forest System road.

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a forbidden intrusion on the field of free expression.” Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 486
(1984). Therefore, we review O’Nan’s First Amendment argument
de novo. Snyder v. Phelps, 580 F.3d 206, 218 (4th Cir. 2009).
O’Nan’s remaining arguments on appeal were not raised below.
Accordingly, as to those arguments, this court applies the plain
error standard of review, which requires that O’Nan show that
there is an “error” that is “plain” and that “affects
substantial rights.” United States v. Olano, 507 U.S. 725, 731-
32 (1993).
O’Nan’s argument that the court violated her First
Amendment rights by punishing her for speech that was “merely
the expression of her sincerely held beliefs about her property
rights,” is without merit. O’Nan was prosecuted not for
exercising her free speech rights, but for interfering with the
use of a Forest Service Road. The Amicus Brief argues that
because O’Nan had no unlawful intent, she cannot be punished
under the First Amendment. However, this argument is based on
the premise that O’Nan’s behavior was nothing more than
protected speech, a premise we reject. Further, to the extent
that the Amicus Brief implicitly argues that the regulation is
overbroad, the Supreme Court has cautioned that the use of the
overbreadth doctrine in this situation is “strong medicine” that
should be used “sparingly and only as a last resort.”

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Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). “[O]verbreadth
scrutiny has generally been somewhat less rigid in the context
of statutes regulating conduct in the shadow of the First
Amendment, but doing so in a neutral, noncensorial manner.” Id.
at 614. This regulation, on its face, regulates conduct, not
expressive speech. O’Nan has thus failed to show that her First
Amendment rights were violated.
O’Nan next argues that the magistrate judge made
several erroneous factual findings. We conclude that the
magistrate judge’s factual findings are supported by the record,
even though O’Nan provided some testimonial evidence that
conflicted with the magistrate judge’s factual findings.
Assessing the credibility of witnesses is within the province of
the trier of fact, who, in this case, was the magistrate judge.
United States v. Jordan, 509 F.3d 191, 203 n.8 (4th Cir. 2007).
Moreover, none of the factual issues O’Nan raises have any
bearing on whether she violated 36 C.F.R. § 261.12(d). Thus,
this argument is also without merit.
O’Nan claims the government is guilty of an
unconstitutional “taking” of her property because her permit to
use the road in question provided that the road would not be
open to public use. The record reveals, however, that in
granting O’Nan’s use permit, the government specifically
reserved the right to “use the road for all purposes deemed

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necessary or desirable,” which extends to members of the public.
Accordingly, O’Nan presents no credible argument that there has
been any “taking” of her property.
Finally, O’Nan argues that the government violated her
Fourteenth Amendment right to equal protection by punishing her
but not punishing hunters who trespassed on her property. To
succeed on an equal protection claim, a plaintiff must show that
she has been treated differently from other similarly-situated
individuals and that the unequal treatment was the result of
intentional or purposeful discrimination. Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002). O’Nan failed to make that
showing. She provides no basis for her conclusory assertions
that hunters have trespassed on her land without punishment.
Moreover, even assuming such trespassing, the hunters are not
similarly situated to O’Nan because trespassing on private
property is not the same as interfering with the use of a public
road. Thus, O’Nan is not entitled to relief on this argument.
We deny O’Nan’s motion for appointment of counsel. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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