United States v. Allen, 788 F.3d 61

George Allen, a volunteer captain in the Wallingford (VT) Volunteer Fire Department, was indicted and convicted after a jury trial for conspiring to set fires on public lands in violation of 18 U.S.C. §§ 371 and 1855; sentenced to 13 months' imprisonment.
Between January–May 2008, a group of WFD members (including two junior firefighters, Burnham and Woods) started numerous brush/grass fires, often responding quickly to the resulting calls; some fires occurred on National Forest federal land (Long Trail/Appalachian Trail parking area; White Rocks picnic area).
Co-conspirators testified they set fires because they were bored; Burnham and Woods admitted starting many fires and identifying locations; Allen admitted he suggested some locations and acknowledged knowledge of up to sixteen fires but denied lighting them himself.
Indictment charged Allen with conspiring to willfully set fire to underbrush/grass on the public domain (18 U.S.C. § 1855) and conspiracy (18 U.S.C. § 371). District court denied a Rule 29 motion and the jury convicted.
On appeal Allen argued (1) insufficient evidence because § 1855 requires specific intent/knowledge that land was federal, and (2) his Rule 43/due process right to be present was violated when the judge conducted a jury orientation outside his and counsel’s presence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1855 requires the defendant to know land is federal (mens rea element)	Gov: Willfulness applies to setting fires; knowledge of federal ownership is not required; statute’s jurisdictional element need not carry scienter.	Allen: § 1855 requires specific intent to burn federal land; conspiracy requires same specific intent.	Court: § 1855 does not require knowledge that land is federal; willfulness refers to intentionally setting fires, not knowing federal ownership. Conspiracy requires no greater scienter than the substantive offense.
Whether Allen’s absence from a pre-impanelment jury orientation violated Rule 43 / due process	Gov: Orientation was noncritical/administrative; parties had been invited and could attend; any right was waived.	Allen: The orientation involved substantive discussion with the venire (evidence, presumption of innocence, bias) and counsel’s absence deprived him of the right to be present; error not harmless.	Court: Orientation risked problems but Allen had been explicitly invited and adequately informed of its nature; he and counsel declined to attend, so he knowingly and voluntarily waived any right to be present; conviction affirmed.

United States v. Feola, 420 U.S. 671 (1975) (where substantive crime requires intent to commit act, knowledge that victim is federal is not required)
United States v. Yermian, 468 U.S. 63 (1984) (jurisdictional language need not carry a scienter requirement)
United States v. LaPorta, 46 F.3d 152 (2d Cir. 1994) (no scienter requirement as to government ownership for § 1361 depredation statute)
United States v. Abner, 35 F.3d 251 (6th Cir. 1994) (distinguished; reversed where no evidence defendant knew area contained government land)
United States v. Hawkins, 547 F.3d 66 (2d Cir. 2008) (standard for reviewing sufficiency of evidence)