KIMBERLY J. MUELLER, District Judge.
Appellant Dale G. Parrel timely appeals his conviction before a magistrate judge under 38 C.F.R. § 1.218(a)(3) for improperly disposing of a cigarette butt on the ground. He bases his appeal on an as-applied challenge to the constitutionality of the regulation. The court heard argument on this case on October 24, 2012. Zachary Schultz, Certified Law Student, and Rachelle Barbour appeared for appellant, with Mr. Schultz making the oral argument. Special Assistant United States Attorney Ashwin Janakiram appeared for the United States. For the following reasons, the magistrate judge's decision is AFFIRMED.
I. PROCEDURAL HISTORY AND UNDISPUTED FACTS
Parrel originally was charged by citation on March 24, 2011 for improper disposal of rubbish. (Appellant's Excerpts of Record at 1 ("ER").) On August 25, 2011, the United States ("government") filed an information charging one count of improper disposal of rubbish on Department of Veterans Affairs ("VA") property. (ER at 2-3.) The magistrate judge presided over a bench trial on July 2, 2012.
At trial, the government presented only one witness, the citing officer Sergeant Clinton Bickell ("Bickell"). Bickell is a police officer at the Department of Veterans Affairs Hospital in Mather, California ("Hospital"). Parrel presented only one witness, Juan Doig, an investigator for the Federal Defender's Office. According to Bickell's uncontroverted testimony, Bickell was called to the Hospital about a disturbance involving Parrel. (ER at 9.) The disturbance concerned Parrel's running over someone's feet with his motorized scooter and his use of a recording device in the hospital. (ER at 21-22, 25.) Parrel's doctor had asked him to surrender his recording device, but Parrel refused. (ER at 21.)
Parrel was sitting in his motorized chair outside the west entrance to one of the hospital buildings when Bickell contacted him about the disturbance. (ER at 10, 12-13.) Parrel was smoking a cigarette while Bickell discussed the disturbance with him; when Parrel finished the cigarette, he flicked it approximately eight to ten inches above Bickell's shoulder onto the ground. (ER at 13.) In response, Bickell "directed [Parrel's] attention towards the trash receptacle to his rear, and asked him in the future if he could use the trash receptacle." ( Id. ) The surrounding area contained many cigarettes that had been thrown on the ground. (ER at 23.) Parrel acknowledged Bickell's request with something like "sure, yeah, I'll do that, whatever." (ER at 13.)
Bickell returned to his patrol car parked nearby and watched Parrel as he lit up another cigarette. (ER at 15.) Bickell continued watching Parrel because "he was still the subject of our investigation, and I wanted to see what he was - if he was going to properly dispose of his cigarette." (ER at 16.) Proper disposal, Bickell testified, would have been to place the cigarette in the ashtray on top of the trash can. (ER at 17.) After finishing the second cigarette, Parrel testified he "put" the cigarette butt on the ground and did not pick it up. (ER at 16.) Bickell immediately began writing a citation, and Parrel still had not picked up the cigarette when Bickell approached him with the citation about one to one-and-a-half minutes later. (ER at 16-17.) This was the first time Bickell, in his two-and-a-half year employment with the VA, had cited anyone for throwing a cigarette butt on the ground. (ER at 18-19.) Bickell also testified that the regulation at issue here is posted at every VA hospital entrance, including the entrance near where Bickell cited Parrel. (ER at 14.)
Investigator Doig testified about his observations while visiting the Hospital for this case. He stated that he, too, saw many cigarette butts on the ground near where Parrel was cited. (ER at 30.) He also testified that the garbage cans around the hospital grounds contain ashtrays on the top of them. (ER at 29.) On cross-examination, Doig admitted he was not aware of any place in the United States where people "can throw [their] cigarette butts on the ground." (ER at 31.)
At the close of trial, the magistrate judge found Parrel guilty of violating 38 C.F.R. § 1.218(a)(3) and ordered he pay a fine of $100, a $10 special assessment, and serve a one-year probation term to terminate upon payment of the fine. (ER at 36-37, 45.) Parrel timely appealed. (ER at 43.)
Challenges to the constitutionality of a statute or regulation are reviewed de novo. United States v. Shetler, 665 F.3d 1150, 1164 (9th Cir. 2011). In an as-applied challenge, a statute is unconstitutionally void for vagueness "if the statute 1) does not define the conduct it prohibits with sufficient definiteness and 2) does not establish minimal guidelines to govern law enforcement.'" Id. at 1164 (quoting United States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005)).
Parrel argues that 38 C.F.R. § 1.218(a)(3) violates both parts of the applied vagueness standard. (Appellant's Opening Br. at 4, ECF 29.) Because Parrel does not challenge the regulation on its face or under the First Amendment, this court "need only examine the vagueness challenge under the facts of the particular case and decide whether, under a reasonable construction of the statute, the conduct in question is prohibited.'" United States v. ...