United States of America v. Jamison L. Krahenbuhl

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3264
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMISON L. K RAHENBUHL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 21-cr-00127 — William C. Griesbach, Judge.
____________________
A RGUED S EPTEMBER 27, 2023 — DECIDED D ECEMBER 14, 2023
____________________
Before S YKES , Chief Judge, and F LAUM and LEE, Circuit
Judges.
F LAUM , Circuit Judge. Seeking to defend veterans’ right to
express discontent with treatment received at VA medical
centers, Jamison Krahenbuhl appeals his disorderly conduct
convictions. First, he protests that his convictions violate the
Constitution because he has a First Amendment right to shout
profanity at medical workers and police at the VA Clinic. Sec-
ond, he argues that the government failed to prove all the

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2 No. 22-3264
elements of the crimes. For the reasons that follow, we affirm
Krahenbuhl’s convictions.
I. Background
A. Factual Background
In March of 2021, Krahenbuhl, an Air Force veteran, went
to the Milo C. Huempfner Veterans Affairs Outpatient Clinic
in Green Bay, Wisconsin for a respiratory therapy appoint-
ment.1 During his appointment, Krahenbuhl became agitated
when respiratory therapist, Tiffany Mueller, informed him
that based on test results he did not appear to have sleep ap-
nea.
Krahenbuhl slammed his fists on the table between them
and, in a raised voice, asked Mueller “who the fuck [she was]”
to make that determination. Another VA respiratory thera-
pist, Julie Malchak, overheard the commotion and, fearing for
Mueller’s safety, activated a silent alarm to summon VA po-
lice. Meanwhile, Mueller asked Krahenbuhl to leave. He con-
tinued to yell as Mueller walked him back to the patient wait-
ing area.
Officer Daniel St. Amour, investigating the silent alarm,
encountered Krahenbuhl near the Patient Advocate Office.
He described Krahenbuhl as walking “very intently” with a
“thousand-yard stare” and looking “very upset.” When
St. Amour attempted to speak with Krahenbuhl, Krahenbuhl
told him to “fuck off.” Finding no one at the Patient Advocate
1 Because Krahenbuhl challenges the sufficiency of the evidence, we
relay the facts in the light most favorable to the government. United States
v. York, 48 F.4th 494, 499 (7th Cir. 2022), cert. denied, 143 S. Ct. 1772 (2023).

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No. 22-3264 3
Office available to help him, Krahenbuhl headed toward the
exit. St. Amour attempted to speak with him again and was
rebuffed by another round of expletives as Krahenbuhl exited
the Clinic. Outside, St. Amour placed his hand on Krahen-
buhl’s shoulder and told him to stop. Krahenbuhl turned
around and once again told St. Amour to “fuck off.”
Another VA police officer, Lieutenant Andrew Turk, ap-
proached and attempted to speak with Krahenbuhl. Krahen-
buhl told Turk to “fuck off” and that he was “just a security
guard.” On the sidewalk next to the patient parking lot, Turk
grabbed Krahenbuhl’s arm. Krahenbuhl responded by as-
suming a “bladed fighting stance,” that is, swinging back his
right arm and clenching his fist like he was going to strike
Turk.
Only after St. Amour drew his pepper spray did Krahen-
buhl relax his stance. St. Amour lowered the pepper spray
and the officers attempted to engage him again, informing
him they were veterans as well. Krahenbuhl explained that
“the VA was fucking with” his disability rating. He then got
into his car and sped away.
B. Procedural Background
Krahenbuhl was charged by information with two counts
of disorderly conduct in violation of 38 C.F.R. § 1.218(a)(5),
(b)(11). Count 1 alleged that Krahenbuhl “knowingly en-
gaged in conduct which created a loud or unusual noise, and
used loud, abusive, or otherwise improper language” during
his interactions with VA police officers. Count 2 alleged that
he “knowingly engaged in conduct which impeded and dis-
rupted the performance of official duties by Government Em-
ployees,” respiratory therapists, Mueller and Malchak, “and

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4 No. 22-3264
used loud, abusive, and otherwise improper language” dur-
ing his interactions with them.
After a one-day bench trial, Magistrate Judge Sickel found
Krahenbuhl guilty on both counts. Krahenbuhl challenged his
conviction through a motion for judgment of acquittal and
then an appeal to the district court. Neither was successful,
and he was sentenced to pay a fine of $500.
II. Discussion
On appeal, Krahenbuhl challenges his convictions on two
bases: first, that they violate the First Amendment, and sec-
ond, that there was insufficient evidence to convict him be-
cause the government did not prove necessary elements of the
crimes.2 We address each argument in turn.
A. First Amendment
In assessing Krahenbuhl’s First Amendment challenge,
we review legal conclusions de novo and defer to the trial
court’s factual findings unless they are clearly erroneous. In
re Veluchamy, 879 F.3d 808, 817 (7th Cir. 2018). To determine
whether the convictions violated the First Amendment, we
first identify the forum where the speech occurred. Then, we
evaluate the constitutionality of the regulation underpinning
the convictions.
2 Krahenbuhl abandoned his other arguments—a facial challenge to
the regulation under the First Amendment and a Fifth Amendment
vagueness challenge—by, among other things, failing to argue them on
appeal. Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056, 1063 (7th Cir.
2020) (“Arguments [on appeal] that are underdeveloped, cursory, and
lack supporting authority are waived.”).

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No. 22-3264 5
1. Forum Analysis
We will assume for purposes of this opinion that Krahen-
buhl’s expression deserves constitutional protection. But
“[e]ven protected speech” can be regulated because speech “is
not equally permissible in all places and at all times.” Cor-
nelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799
(1985). “Nothing in the Constitution requires the Government
freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without
regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.” Id. at 800.
The constitutionality of the regulation depends on where
the expression occurred, that is, the forum. In turn, “the forum
category defines the level of scrutiny applicable to the chal-
lenged government action.” Milwaukee Deputy Sheriffs’ Ass’n
v. Clarke, 588 F.3d 523, 530 (7th Cir. 2009). At one end of the
spectrum are public fora—spaces devoted to public expres-
sion and the exchange of ideas. Cornelius, 473 U.S. at 800, 802.
In public spaces, “speakers cannot be excluded without a
compelling governmental interest.” Id. at 800. A prototypical
example is a public sidewalk, which “traditionally ha[s] been
held open to the public for expressive activities.” United States
v. Kokinda, 497 U.S. 720, 727–28 (1990) (citation and internal
quotation marks omitted).
On the opposite end of the spectrum are nonpublic
spaces—areas where greater regulation is permissible be-
cause they “[are] not by tradition or designation … forum[s]
for public communication.” Christian Legal Soc’y v. Walker, 453
F.3d 853, 865 (7th Cir. 2006) (citation omitted); see Kokinda, 497
U.S. at 728–30 (holding that a sidewalk next to a post office
was a nonpublic forum because it “was constructed solely to

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6 No. 22-3264
assist postal patrons to negotiate the space between the park-
ing lot and the front door of the post office, not to facilitate the
daily commerce and life of the neighborhood or city”). “Ex-
clusion from nonpublic fora is permitted subject to two con-
ditions: the government cannot engage in viewpoint discrim-
ination against speech otherwise within the forum’s limita-
tions, and the restriction must be reasonable in light of the
purpose served by the forum.” Milwaukee Deputy Sheriffs’
Ass’n, 588 F.3d at 530.
There are also “forum[s] made public by designation,” a
category that encompasses “public property which the state
has opened for use by the public as a place for expressive ac-
tivity.” Carreon v. Ill. Dep’t of Hum. Servs., 395 F.3d 786, 796
(7th Cir. 2005) (citation and internal quotation marks omit-
ted). To establish a designated public forum, it is not sufficient
for the government to simply “permit[] limited discourse.” Id.
Rather, it must “intentionally open[] a non-traditional forum
for public discourse.” Id. Additionally, “[a]lthough a state is
not required to indefinitely retain the open character of the
facility, as long as it does so it is bound by the same standards
as apply in a traditional public forum.” Id. (citation omitted).
We have not had occasion to evaluate whether a VA clinic
is a public or nonpublic forum. The Ninth Circuit has, though,
and concluded it is nonpublic. United States v. Szabo, 760 F.3d
997, 1002 (9th Cir. 2014); see also Preminger v. Sec’y of Veterans
Affs., 517 F.3d 1299, 1314 (Fed. Cir. 2008) (“We conclude that
VA Medical Centers … are, for First Amendment purposes,
nonpublic fora.”).
In Preminger v. Principi, the Ninth Circuit considered the
forum classification of a VA building that functioned as a
home for veterans who needed medical treatment. 422 F.3d

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No. 22-3264 7
815, 824 (9th Cir. 2005). Animating its conclusion that the
building was a nonpublic forum was that the building was
designed “to provide for veterans who require long-term
nursing care,” “not to facilitate public discourse.” Id. Any
speech that occurred at the facility, such as between “veterans
and their visitors,” was ancillary. Id.
The record in this case establishes that the Green Bay
Clinic is a nonpublic forum as well. Like the building in Pre-
minger, the Clinic’s “primary aim” is to provide veterans with
medical care, not a space to exchange ideas. Id. Even if some
speech occurred incidentally at Clinic events, the purpose of
the Clinic was not to facilitate speech. See Carreon, 395 F.3d at
796 (explaining that the government does not create a desig-
nated public forum through merely “permitting limited dis-
course”).
The focus of the forum analysis is on “the government’s
intent,” not how the forum is used by speakers, Cornelius, 473
U.S. at 802, because “[d]esignated public fora are … created
[only] … where the government has expressly dedicated the
property for expressive conduct,” Principi, 422 F.3d at 824. Re-
gardless of how Krahenbuhl might wish to use the Clinic, it
was designed to provide outpatient medical treatment, not a
forum to air discontent with veterans’ benefits. As a result, the
Clinic does not belong in the same category as places that
“time out of mind, have been used for purposes of assembly,
communicating thoughts …, and discussing public ques-
tions.” Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S.
37, 45 (1983).

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8 No. 22-3264
2. Regulation
Having determined that the Clinic is a nonpublic forum,
we must evaluate whether 38 C.F.R. § 1.218(a)(5) is viewpoint
neutral and “reasonable in light of the purpose served by the
forum.” Milwaukee Deputy Sheriffs’ Ass’n, 588 F.3d at 530; Kok-
inda, 497 U.S. at 730 (holding that when analyzing restrictions
on speech in a nonpublic forum, the restriction “must be rea-
sonable and not an effort to suppress expression merely be-
cause public officials oppose the speaker’s view” (citation and
internal quotation marks omitted)).
The regulation prohibits, among other things, “[c]onduct
on property which creates loud or unusual noise [or] … oth-
erwise impedes or disrupts the performance of official duties
by Government employees,” as well as “the use of loud, abu-
sive, or otherwise improper language.” 38 C.F.R. § 1.218(a)(5).
No court in this Circuit has evaluated whether the regulation
passes First Amendment muster. Two other circuits have,
though, both concluding that it does.
In Szabo, the Ninth Circuit found it “undisputed that 38
C.F.R. § 1.218(a)(5) is a viewpoint neutral regulation” and
concluded that its application was “reasonable in light of the
purpose served by the [VA hospital].” 760 F.3d at 1003 (alter-
ation in original) (citation omitted). The regulation plainly
furthered the legitimate government interest of “prohibit[ing]
disturbances” so as to “not trigger[] adverse psychological re-
actions from … patients.” Id.
Similarly, the Sixth Circuit held that “[t]he restrictions set
forth in § 1.218(a)(5) and (b)(11) are reasonable in light of the
purposes served by the VA medical facility, which is to pro-
vide medical care and services to its veteran patients.” United

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No. 22-3264 9
States v. Puch, No. 20-3265, 2021 WL 867038, at *4 (6th Cir. Jan.
21, 2021). It concluded that the restrictions are also “viewpoint
neutral because [they] do not discriminate on the basis of con-
tent or viewpoint,” but instead “restrict conduct, including
speech, that tends to impede or prevent the normal operation
of the facility in order to serve its purpose of treating pa-
tients.” Id.
We agree with the Sixth and Ninth Circuits that the regu-
lation is viewpoint neutral. Although its prohibition of “oth-
erwise improper language” is broad, it does not distinguish
based on the content of the speech but instead how the con-
tent is relayed. Put a different way, the regulation does not
prohibit speech expressing discontent with the VA but rather
language that could adversely affect patients and impede
Clinic operations. For the same reasons, the regulation’s pro-
hibition against loud and abusive language, loud or unusual
noise, and conduct that “otherwise impedes or disrupts the
performance of official duties by Government employees” is
also viewpoint neutral.
In addition to being viewpoint neutral, the regulation is
reasonable for the reasons explained by the Sixth and Ninth
Circuits. The Clinic is a place veterans go to receive necessary
medical treatment. Loud noises, shouting, abusive language,
and other conduct that disrupts Clinic employees from their
work is properly prohibited. As the Ninth Circuit concluded,
“prohibiting a visitor from yelling obscenities … is eminently
reasonable in view of th[ese] goal[s].” Szabo, 760 F.3d at 1003.
Accordingly, Krahenbuhl’s First Amendment challenge to his
convictions fails.

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10 No. 22-3264
B. Sufficiency of the Evidence
Krahenbuhl also challenges the sufficiency of the evidence
supporting his convictions. We will reverse a conviction for
insufficient evidence “only when the record contains no evi-
dence, regardless of how it is weighed, from which the [fact-
finder] could find guilt beyond a reasonable doubt.” United
States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) (alteration
in original) (citation and internal quotation marks omitted).
As a result, “[a] defendant posing this challenge faces a nearly
insurmountable hurdle.” United States v. Dinga, 609 F.3d 904,
907 (7th Cir. 2010) (citation and internal quotation omitted).
The enabling statute, 38 U.S.C. § 901, obligates the VA Sec-
retary to prescribe regulations for “land and buildings that
are under the jurisdiction of the Department and are not un-
der control of the Administrator of General Services.” Corre-
spondingly, 38 C.F.R. § 1.218(a) “appl[ies] at all property un-
der the charge and control of the VA (and not under the
charge and control of the General Services Administration).”
Krahenbuhl argues that the government failed to prove
that the Clinic was “under the charge and control of the VA
(and not under the charge and control of the General Services
Administration),” which he submits constitute two distinct el-
ements of his alleged crimes. 38 C.F.R. § 1.218(a).
We will address the “charge and control of the VA” piece
first. Although there is scant case law on the subject, most
cases, like United States v. DeGarza, conclude the element is
established through “evidence that [the defendant] was in-
side a VA facility at all relevant times.” 468 F. Supp. 3d 794,
798 (W.D. Tex. 2020). Nothing suggests that the VA’s control
of the facility must be proven with a specific type of evidence.

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No. 22-3264 11
Viewing the evidence in the light most favorable to the
government, a “rational trier of fact could have found” that
the Clinic was under the charge and control of the VA. Faulk-
ner, 885 F.3d at 492. Officers St. Amour and Turk testified that
they were employed by the VA and stationed at the Clinic.
They wore VA police uniforms and were responsible for re-
sponding to disturbances and silent panic alarms, like the one
triggered in response to Krahenbuhl’s tense interaction with
Mueller. The two respiratory therapists also testified that they
worked for the VA at the Clinic, as did a medical support as-
sistant who testified to interacting with Krahenbuhl when he
checked in for his appointment.3
The closer question is whether the government needed to
separately prove that the Clinic was not under the charge and
control of the GSA. No courts have addressed whether this is
an element of the offense or instead an exception operating
like an affirmative defense on which Krahenbuhl has the bur-
den of production.
At the outset, we must consider whether Krahenbuhl in-
vited any error. Pre-trial, the parties submitted dueling trial
instructions, proposing the elements of proof for the offenses.
Krahenbuhl listed four elements. On the ownership element,
he maintained that to be convicted, the magistrate judge
would have to find that his “conduct occurred on property
under the charge and control of the VA.” While the parties
disagreed about other elements, such as whether Krahenbuhl
3 Krahenbuhl’s primary case in support of his argument, United States
v. Gillis, is too factually distinct to be persuasive. 12-cr-40028, 2013 WL
1682378, at *4–6 (D. Mass. Apr. 16, 2013). There, the government admitted
the VA did not own the property on which the incident occurred. Id. There
is no such allegation or admission in Krahenbuhl’s case.

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12 No. 22-3264
needed to have acted intentionally or knowingly, neither
party listed disproving GSA control as an element of the of-
fense.
After enumerating the elements necessary for a convic-
tion, Krahenbuhl described each element in greater detail.
However, for the ownership element, he merely stated:
[T]he charged offenses are contained within the
CFR provision entitled Security and [L]aw
[E]nforcement at VA facilities. Section 1.218(a)
provides that the rules and regulations apply to
all property under the charge and control of the
VA that is not under the charge and control of
the Government Services Agency.
The first time he indicated that the government had to dis-
prove control by the GSA was in an oral directed verdict mo-
tion made after the government’s case-in-chief. He argued
that the government’s “fail[ure] to prove one essential ele-
ment” of the offense necessitated an acquittal. Contrary to his
proposed trial instructions, he argued that proving VA con-
trol was not sufficient. Instead, to convict him, the govern-
ment had to prove the Clinic was solely under the control of
the VA by disproving the potential for joint control with the
GSA.
Krahenbuhl used similar language when he renewed his
argument in a written motion for acquittal. He argued that
“the Government [had] to prove two parts … (1) [that] the
property [was] under the control of the VA; and (2) [that] the
property [was] not under the control of the General Services
Administration.” He referred to the GSA control piece as
“[t]he second element.”

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No. 22-3264 13
This Circuit has applied the invited error doctrine when a
criminal defendant’s proposed jury instructions invited the
error of which he later complains. United States v. Muskovsky,
863 F.2d 1319, 1329 (7th Cir. 1988); United States v. Gan, 54
F.4th 467, 478 n.1 (7th Cir. 2022) (indicating that invited error
prohibits appellate review of jury instructions). Where the
trial judge solicits proposed jury instructions, a defendant
cannot later complain of an instruction he proposed; “it
would be a case of ‘invited error.’” United States v. Hamilton,
499 F.3d 734, 736 (7th Cir. 2007); see also United States v. Couch,
94 F. App’x 373, 376 (7th Cir. 2004) (“A defendant cannot com-
plain that the trial court gave an instruction which his counsel
requested.”).
Analogously, in his proposed trial instructions, Krahen-
buhl asserted that, to be convicted, the magistrate judge
would have to find ownership and control of the Clinic by the
VA. Nowhere in those instructions did he suggest that dis-
proving GSA control was a separate element of the crime—
one not implicitly proven by establishing VA ownership and
control. The only time he mentioned the GSA was to para-
phrase the regulation, not make any discernible argument
with respect to GSA control. It was only after the government
rested at trial that Krahenbuhl changed course.
A defendant cannot propose the necessary elements of the
crime and then, after the government concludes its presenta-
tion of evidence, perform an about-face. United States v. Gaya,
647 F.3d 634, 640 (7th Cir. 2011) (explaining “[a] party may not
‘invite’ error [at trial] and then argue on appeal that the error
for which he was responsible entitles him to relief” (citation
omitted)). The situation might be different if Krahenbuhl had
raised his argument earlier, even the morning of trial, or

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14 No. 22-3264
admitted to erroneously excluding the GSA-control element
from his proposed trial instructions. He did neither. Despite
almost certainly foreseeing his directed verdict argument (his
trial lasted one day), Krahenbuhl permitted the government
to present evidence aimed at satisfying the elements of the of-
fense. Only after the government rested did he attempt to pull
an ace from his sleeve, claiming that a not-previously-dis-
closed element prohibited his conviction.
That amounts to an invited error. Consequently, there is
no need for us to consider whether disproving GSA control is
an element of the offense. Id. (calling invited error an “a fortiori
case of waiver”). We leave that question for another day,
should it come.
III. Conclusion
For the reasons explained, the judgment of the district
court is A FFIRMED.

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