
    UNITED STATES of America v. John A. O’NEAL, Appellant.
    No. 07-4394.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit LAR 34.1(a) June 20, 2011.
    Filed: June 22, 2011.
    As Amended July 18, 2011.
    
      Pamela Foa, Esq., Robert A. Zauzmer, Esq., Office of United States Attorney, Philadelphia, PA, for United States of America.
    Joseph P. Green, Jr., Esq., Duffy & Green, West Chester, PA, for Appellant.
    Before: HARDIMAN and ALDISERT, Circuit Judges and RESTANI, Judge.
    
      
       The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation.
    
   OPINION OF THE COURT

HARDIMAN, Circuit Judge.

John O’Neal appeals his conviction for unauthorized posting of material on Veterans Affairs (VA) property. We will reverse.

I

During the presidential election campaign of 2004, O’Neal submitted a request to the administration of the VA Medical Center (VAMC) asking to hold a sign on VAMC grounds stating that Senator John Kerry was unfit to serve as the Democratic candidate for President. The VAMC administration denied O’Neal’s request, reasoning that the Hatch Act forbade it from sanctioning any activity directed toward the success or failure of a political candidate.

After the VAMC denied O’Neal’s request to protest on premises, he appeared across the street from the VAMC facility holding a sign protesting Senator Kerry’s presidential bid. O’Neal then was approached by VA Police Corporal Richard Sload, who informed him that he could not protest on VA property. O’Neal refused to move, however, contending that he was on State property. Corporal Sload then cited O’Neal for unauthorized posting of material on VA property, in violation of 38 C.F.R. § 1.218(a)(9).

O’Neal contested the citation before a United States Magistrate Judge, arguing that he was protesting on State grounds and that his prosecution violated the First Amendment. The Magistrate Judge disagreed, finding that O’Neal protested on VA property. The District Court affirmed and O’Neal filed this timely appeal.

II

O’Neal’s violation of 38 C.F.R. § 1.218(a)(9) was premised upon his protest occurring on “property under the charge and control” of the VA. In its Summary of Argument in the brief before us the United States Attorney states: “The government, upon careful consideration of the matter, reverses its earlier position and agrees with the part of the Appellant’s argument asserting that the government presented insufficient evidence to support a restriction on O’Neal’s political activity on October 28, 2004. The government did not sustain its burden in defeating the presumption that the area where O’Neal mounted his protest was a public forum; and further did not establish the circumstances justifying a restriction on political speech in a public forum.” Our independent review of the record confirms that the Government failed to carry its burden. This finding invalidates the premise upon which O’Neal’s conviction was based and compels reversal of the judgment of the District Court and the entry of a judgment of acquittal in favor of O’Neal. See United States v. McKee, 506 F.3d 225, 251 (3d Cir.2007). An appropriate judgment follows.  