United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Roberta Helmerick timely filed an appeal from a decision of
United States Magistrate Judge Daneta Wollmann. (Docket 1).
See 18 U.S.C. §§ 3402 & 3742(e) &
(h). Ms. Helmerick appeals from the judgment in her criminal
case for a petty offense entered by Magistrate Judge Daneta
Wollmann in which the magistrate judge found Ms. Helmerick
guilty of collecting signatures in violation of 39 CFR §
232.1(h)(1). (Docket 1-1). The magistrate judge imposed a
fine of $200 and processing fees of $25 for a total of $225.
Id. at p. 1. 'Upon review of the record, the
[district court] shall determine whether the sentence . . .
was imposed in violation of law . . . .” 18 U.S.C.
sole ground for Ms. Helmerick’s appeal pursuant to Fed.
R. Crim. P. 58(g)(2)(B) is that the magistrate judge erred in
denying her Fed. R. Crim. P. 29 motion for judgment of
acquittal. (Docket 1). Within the Rule 29 motion, Ms.
Helmerick’s only claim is “[t]he Government did
not meet its burden because it was unable to prove an
essential element of the case, that 39 CFR § 232.1 was
posted in a conspicuous place.” Id.
reasons stated below, defendant’s appeal is denied and
the judgment of the magistrate judge is affirmed.
considering a defendant’s motion for judgment of
acquittal, the court must view the evidence in the light most
favorable to the government’s evidence, draw all
reasonable inferences in the government’s favor, and
determine if the evidence is insufficient to sustain a
conviction. Fed. R. Crim. P. 29(a). Questions of the weight
of the evidence and credibility of witnesses are the province
of the trier of fact, in this case, the magistrate judge.
United States v. Nolen, 536 F.3d 834 (8th Cir.
2008); United States v. Jones, 600 F.3d 985 (8th
defendant is not entitled to a trial de novo by a district
judge. The scope of the appeal is the same as in an appeal to
the court of appeals from a judgment entered by a district
judge.” Fed. R. Crim. P. 58(2)(D). The court must
“view the evidence in the light most favorable to the
guilty verdict and accept all reasonable inferences that may
be drawn from the evidence.” United States v.
Rojas, 356 F.3d 876, 878 (8th Cir. 2004). The court is
limited to asking whether “any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (internal
quotation marks and citation omitted) (emphasis in original).
With this standard in mind, the court finds the following
evidence determinative of Ms. Helmerick’s Rule 29
motion and this appeal.
Code of Federal Regulations prohibits the “collecting
[of] signatures on petitions” on property of the United
States Postal Service. 39 CFR § 232.1(a) & (h)(1).
The regulation requires that this rule governing conduct on
postal property “shall be posted and kept posted at a
conspicuous place on all such property.” Id.
at 232.1(a). The exception to the “collecting of
signatures” prohibition is that the restriction does
not apply to “sidewalks along the street frontage of
postal property falling within the property lines of the
Postal Service that are not physically distinguishable from
adjacent municipal or other public sidewalks, and any paved
areas adjacent to such sidewalks that are not physically
distinguishable from such sidewalks.” Id. at
§ 232.1(a)(ii). This exception is commonly referred to
as the Grace exception.
April 14, 2015, Ms. Helmerick and others were at the Main
Branch of the United States Post Office in Rapid City, South
Dakota, circulating petitions for a ballot issue. During the
course of the day Postmaster Lorrie Papka became concerned
these individuals were violating § 232.1(h)(1) because
they were stopping postal patrons at the front doors of the
post office and having patrons sign the petitions directly
outside the front doors. (Docket 5 at p. 127:15-18).
consulting with the legal department, Postmaster Papka told
the group “they could not have people signing petitions
in front of the . . . post office . . . I told them if you
want people to sign your petition, you can tell them in front
of the post office that there’s someone over on the
public sidewalk . . . that’s over there and you can go
over there and sign it.” Id. at p. 130:2-10.
See also id. at p. 141:15-17 (“they could ask
customers if they wanted to go over to the sidewalk and sign
a petition, the public sidewalk.”).
on April 14 another postal employee, Sonny Magnuson, gave the
group a packet of information which included a sheet received
from the postal legal department “outlining that they
couldn’t be collecting signatures on postal
property.” Id. at p. 143:13-15. Exhibit 5 is
a short explanation of the postal regulations applicable to
The activities of the petitioners on postal property are
prohibited by two postal regulations, which prohibit: (1)
conduct that “impedes ingress to or egress from a post
office, ” and (2) “collecting signatures on
petitions, polls, or surveys.” (39 C.F.R. Part 231).
The petitioners are welcome to use the public spaces
surrounding the post office so long as they do not impede
access to, nor interfere with egress from, the post office.