NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 11 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50119

                Plaintiff-Appellee,             D.C. No.
                                                2:17-cr-00315-FMO-1
 v.

MICHAEL D. OMONDI,                              MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding

                             Submitted April 1, 2020**
                               Pasadena, California

Before: BEA and BADE, Circuit Judges, and Y. GONZALEZ ROGERS,***
District Judge.

      Defendant-Appellant Michael D. Omondi appeals his misdemeanor

conviction for unlawful entry onto Vandenberg Air Force Base (“Vandenberg”), in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Yvonne Gonzalez Rogers, United States District Judge
for the Northern District of California, sitting by designation.
violation of 18 U.S.C. § 1382. A magistrate judge found Omondi guilty of the

offense following a bench trial, and the district court upheld that conviction after

Omondi’s initial appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm the conviction.

      1. Omondi first argues that the government failed to introduce evidence

sufficient to find him guilty of violating § 1382. “We review challenges to the

sufficiency of evidence, including questions of statutory interpretation, de novo.”

United States v. Aldana, 

, 880 (9th Cir. 2017) (citation omitted).1

“There is sufficient evidence to support a conviction if, ‘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.’” United

States v. Stanton, 

, 1099 (9th Cir. 2007) (quoting Jackson v.

Virginia, 

, 319 (1979)).

      Section 1382 provides in relevant part that: “[w]hoever . . . goes upon any

military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or

installation, for any purpose prohibited by law or lawful regulation . . . [s]hall be

fined under this title or imprisoned not more than six months.” 18 U.S.C. § 1382.



      1
        Although Omondi did not file a motion for acquittal pursuant to Federal
Rule of Criminal Procedure 29, his plea of not guilty placed the issue before the
magistrate judge for purposes of his bench trial. See United States v. Atkinson, 

, 503 (9th Cir. 1993). Thus, we need not review for plain error. See

government need not prove that a defendant acted with a specific intent. See

United States v. Mowat, 

, 1203 (9th Cir. 1978). Rather, “[w]here

entry alone is the basis of the violation,” the government must prove only that the

defendant knew that “the entry [was] unauthorized.” United States v. Cottier, 

, 762 (9th Cir. 1985); see also United States v. Patz, 

, 929

(9th Cir. 1978) (“The usual situation in which 18 U.S.C. § 1382 is applicable is

that in which the entry is with knowledge that the facility has been closed to the

public by properly promulgated regulations of the military commander. Such an

entry is for a ‘purpose prohibited by regulation.’”).

      That is precisely what happened here. As with many military sites,

Vandenberg is a “closed” installation by order of its Base Commander (the

“Commander”) issued pursuant to 50 U.S.C. § 797 and 32 C.F.R. § 809a. The

order provides for two exceptions: (1) a limited right-of-way easement for local

highways; and (2) a designated protest area on the base. Relevant here, a painted

green line and a highway demarcate the protest area. Thus, although the

Commander permits members of the public—in certain instances and subject to

restrictions—to access this designated portion of the base, the rest of the base

remains closed at all times.

      On the date of Omondi’s offense, a crowd permissibly gathered in the

protest area. But, as testimony, photographs, and video presented by the


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government established, Omondi left that designated area by himself and crossed

over the painted green line. As Omondi left that area, he passed a large sign

indicating he was entering a restricted portion of the base, and after walking nearly

100 yards, he approached a line of officers standing shoulder-to-shoulder blocking

any further entry into the base. Lastly, the government introduced evidence that

Omondi was arrested on three previous occasions for illegally entering

Vandenberg. Viewed in the light most favorable to the government, the evidence

as a whole was sufficient to find Omondi guilty of the offense beyond a reasonable

doubt.2

      Omondi’s arguments to the contrary fail to persuade us otherwise. Omondi

argues that the government cannot prove that he knowingly entered Vandenberg

without authorization because he was in fact authorized to enter the protest area.

Put differently, Omondi asks this court to hold that § 1382 loses all applicability

once a defendant steps onto a military installation with authorization. If Omondi is

correct, § 1382 would afford him free reign to access the most sensitive portions of

Vandenberg because the Commander permitted him to protest in a designated

portion of the base. We disagree. Omondi’s proposed reading of the statute lacks

support in its plain language and “would frustrate its more general purpose of


      2
        Because we conclude that the government introduced evidence sufficient to
convict Omondi for a violation of § 1382, we also reject his argument that the
magistrate judge misstated the elements of the offense.

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protecting the property of the Government so far as it relates to the national

defense.” United States v. Albertini, 

, 681–82 (1985) (internal

quotation and brackets omitted); see also United States v. Apel, 

, 364

(2014) (describing the defendant’s prior conviction under § 1382 as “trespass[ing]

beyond the designated protest area” at Vandenberg). Accordingly, the government

introduced evidence sufficient to convict Omondi of the offense beyond a

reasonable doubt.

      2. For similar reasons, we reject Omondi’s argument that we must set aside

his conviction because it violates the Due Process Clause. Specifically, Omondi

argues that § 1382, when read in combination with the Commander’s order, was

unconstitutionally vague as applied to him. We review de novo whether a criminal

statute violates the Due Process Clause. See United States v. Lee, 

,

1031 (9th Cir. 1999).

      The Due Process Clause prohibits the enforcement of vague laws, which fail

to provide fair notice of what conduct is prohibited. FCC v. Fox Television

Stations, Inc., 

, 253 (2012). When a defendant challenges the statute

as applied to his own conduct, whether the statute is vague “turns on whether the

statute provided adequate notice to him that his particular conduct was proscribed.”

United States v. Harris, 

, 932 (9th Cir. 2013). If the defendant had

actual notice that his conduct was prohibited, we will not set aside a conviction for


                                          5
vagueness because “there is no due process problem.” United States v. Backlund,

, 997 (9th Cir. 2012).

      As detailed previously, the government presented ample evidence

demonstrating that Omondi knew that he was not permitted to enter the restricted

portions of Vandenberg. Omondi, however, contends that he was entitled to a

warning to leave the restricted area prior to his arrest in accordance with the

Commander’s order. The right to a warning is not an element of the offense. See

18 U.S.C. § 1382. The statute, in combination with the Commander’s order,

established a line that Omondi was not permitted to cross. As the evidence at trial

demonstrated, Omondi crossed that line, knowing very well that he was not

permitted to do so. Because Omondi had actual notice that his conduct was

prohibited, his conviction does not run afoul of the Due Process Clause. See

.

      AFFIRMED.




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