United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI, District Judge.
Defendant Thomas Wright, proceeding pro se, appeals his misdemeanor conviction for disorderly conduct after entering a guilty plea before the United States Magistrate Judge on September 8, 2015. Wright admits to using obscene language but asserts he lacked the requisite mens rea for the offense of conviction, disorderly conduct, in violation of 36 C.P.R. § 2.34(a)(2). Having carefully reviewed the record in this case, the court concludes there is not a sufficient factual basis to support Wright's plea of guilty. As such, the court will VACATE the judgment and REMAND this case to the magistrate judge for further proceedings.
The facts of this case according to the government's proffer at the September 8, 2015 guilty plea hearing are as follows.
On April 15, 2015, Park Ranger Neumann responded to complaints that Wright made a vulgar and offensive statement to two guests at Big Meadows Wayside, a restaurant and store in Shenandoah National Park. Management told Ranger Neumann the guests, a couple, reported that Wright approached them and showed them a drawing he had made and, in the context of doing so, made an offensive statement. At the plea hearing, the government proffered, after consultation with the ranger, that the statement made by Wright was: "Okay. Now how big is your cock?" See Guilty Plea Tr., ECF No. 9, at 9-10. Management asked Wright to leave the restaurant, and he did. At that point, management contacted the National Park Service. The following day, Ranger Neumann located Wright elsewhere in the park based on the description given by the complaining witnesses. Ranger Neumann issued Wright a citation for "disorderly conduct-obscene behavior/language, " a violation of 36 C.P.R. § 2.34(a)(2). The violation notice indicates Wright admitted to being at the Big Meadows Wayside the previous evening and that he told the ranger "I mentioned something about a cock." Viol. Not., ECF No. 2.
At the September 8, 2015 hearing, at which Wright waived his right to counsel, the government indicated that the parties had reached an agreement as to the appropriate resolution of the matter and that Wright intended to enter a guilty plea pursuant to Rule 11 of the Federal Rules of Criminal Procedure. In the course of the ensuing plea colloquy, the court asked Wright whether he disputed the facts listed in the violation notice. Wright responded: "Only nominally, the wording of a particular phrase, but nothing of significance." Guilty Plea Tr., ECF No. 9, at 7. Wright clarified later at the hearing that the picture he had drawn on the date in question was not vulgar or inappropriate-rather, it was a picture of the complaining gendeman's face. Wright stated his recollection was that he went over to the man, showed him the drawing, and said he "wasn't interested in [the complaining victim's] cock." Id. at 10.
THE COURT: Okay. Mr. Wright, do you contest those facts?
THE DEFENDANT: I mean- yeah, I- my recollection is I said I wasn't interested in his cock. I mean, either way, there was nothing about it that was intended to put him off. I was trying to make light of it. Yeah -
THE COURT: But you drew this picture and used that language -
THE DEFENDANT: Yeah. I'm sorry. The picture, I had been sitting at the diner, drawing. And I started drawing just the guy that I wound up speaking to. There was nothing vulgar or inappropriate about the drawing.
THE COURT: Yeah, this is the drawing of a penis and-
THE DEFENDANT: No, No. No. I'm sorry. This is a drawing of a face. I offered to show the ranger. It is a person's face.
THE COURT: So you drew a person's face and then-
THE DEFENDANT: I had gone over to him-
THE COURT: -what did you say to him?
THE DEFENDANT: I mean, looking back at it now, I can absolutely see how it would be off-putting. But I had gone over to him and showed him the drawing. And I was trying to put him at ease, and wound up making it far more - so I apologize and - yeah.
THE COURT: All right.
Id. at 10-11.
The court asked Wright if he intended to plead guilty because he was ...