United States v. Larry B. Semenza
835 F.2d 223
9th Cir.
1987
Check Treatment

*1 223 officer, id., investigating ment’s FBI Agent trial. 804 (plain F.2d at 570 error Smith, witness, who testified as a to sit at appears if the evidence is inadmissible and throughout counsel table This trial. its admission affects the outcome and his argument is meritless. right trial). Here, elsewhere, to a fair as we find no reversible error.

This court reviews the district court’s decision not to exclude a for an witness AFFIRMED. abuse of discretion. Breneman v. Kenne Corp., cott (9th Cir.1986). provides:

Fed.R.Evid. request

At party of a the court shall

order witnesses excluded so that testimony

cannot hear the of other wit-

nesses. ... This rule does authorize not party

exclusion ... an officer aof which is designated not a natural representative by attorney. its its Plaintiff-Appellee, circuit, Agent Under the law of this Smith was excluded from this rule SEMENZA, B. government. See, e.g., as an officer for the Meyer, F.2d Cir.1968) curiam) (not (per error to agent one FBI to sit at the States Court of during although table the trial he was a Little, witness); United States v. (9th Cir.1984) (IRS agent al- and Submitted June prosecutor’s

lowed to remain at table throughout despite agent assertion position by relaying abused information coaching prospective government wit-

nesses). We find no abuse of discretion.

Admission proba- statements made to tion officer July proba Thomas told his April, officer that as of par his longer

ents would no cover his bad checks. probation officer so testified. Thomas

contends that testimony was received

in evidence in violation of Miranda v. Ari

zona, Thomas’ Miranda ob

L.Ed.2d

jection testimony to the was made

form suppress day motion after testimony. Because this not a

timely objection, we will review for Houser, error. United States v.

plain

F.2d Thomas has showing

made no that the circumstances of probation with his discussion officer

called for Miranda warnings. Nor has he

shown how the admission of his statement probation

to the officer the out affected right

come the case and to a fair *2 Varbel,

(9th Cir.1986). posi- It is the Government’s 261.7(a) tion that creates a strict § position, crime. of this we are urged adopt reasoning Eighth to the of the Circuit, interpreted the court that has 261.7(a). Larson, See United States § 746 F.2d 455 The Larson court noted that ... is not an “[i]ntent essential element of 261.7.” § reject F.2d at 456. We the of the Mont., McLean, Butte, plain- for Kris A. Eighth Circuit. tiff-appellee. legisla a clear Absent indication Falls, Schwanke, Mont., K. Dale Great intent, should tive courts be reluctant defendant-appellant. for requirement. with a mens rea Morissette v. United (1952). Department Agriculture regulation POOLE, FERGUSON and Before did not make unauthorized entrance or CANBY, Judges. Circuit presence per on Forest land a Service se operative language violation. The CANBY, Judge: 261.7(a) prohibits “allowing unautho § D. convicted of two Semenza was rized livestock to enter or be” Forest allowing counts of unauthorized livestock land, added). (emphasis Service Criminal in trespass on National Forest Land liability may imposed against only be 261.7(a). 644 violation of 36 C.F.R. § defendant if the defendant has allowed regulation prohibits F.Supp. 780. That presence. livestock’s entrance or allowing “[p]lacing or unauthorized live- rigid precise The word allow “has no or stock to enter or in the National Forest but, meaning,” in the context in which it is System under Forest or other lands Service regulation, may mean “to ac- used regulation promulgated control.” The in; suffer; quiesce to tolerate.” Black’s pursuant to 16 U.S.C. 551 § 1979). Dictionary Law ed. We sighted had re- Semenza’s cattle been give meaning proper think it it the same peatedly Forest Lands. Forest on National permit or We construed those suffer. employees positive had made identi- Service two words in charged in fications on each of the dates (9th Cir.1984). In that case a did the indictment. Semenza not have a signal and set a fire hiker who became lost graze his cattle. Semenza had to attract started a forest fire. rescuers legal responsibility restraining the sole violating He was convicted of 18 U.S.C. entering remaining livestock 1856, which makes it a crime when a § on Forest lands. Semenza Service con- person “permits or fire to burn [a] suffers tends that he cannot be convicted of violat- spread beyond his control” federal ing regulation unless some there is reversed, holding these forests. We that purposeful evidence of a action or inaction language words were “not the of strict resulting him in the livestock’s unautho- liability. legal ‘permitting’ terms presence. Alternatively, urges rized he ‘suffering’ clearly require a act or a willful he is to a that entitled new trial on the of a clear willful failure to act the face of new basis evidence. We reverse. opportunity to do so.” Id. at 689. The first issue we must resolve is wheth- 261.7(a) requires analysis why er a criminal intent. We find no reason interpretation in this case raises a at question of law which we review de novo. should differ from that used Launder. proof In addition to that the livestock were requirement. mens rea While the Court land, on Forest Service were un- respect so held with “incorporat- crimes authorized, and that the defendant had re- law,” from the common id. at sponsibility to control the livestock in S.Ct. at the Court carefully distin- tion, 261.7(a) language requires an guished “regulatory measures ... where additional element. The Government must emphasis of the statute evidently prove that the defendant acted to upon achievement of some social better- *3 allow cattle enter the National For- punishment ment rather than the est, willfully prevent failed their en- crimes as in cases of mala in se.” Id. at tering when he had a opportunity clear 258-59, 72 at 247. S.Ct. Justice Brennan do so. elaborated on this distinction in United Freed, 601, 1112, 401 U.S. 91 S.Ct. There evidence the record that could (1971), saying: L.Ed.2d 356 support a trier of fact’s that Se- [Wjhere a federal criminal statute omits keep menza failed to his cattle off mention of intent and where it seems to Forest Service lands when he had a clear involve what is basically poli- a matter of opportunity to do so. There is also evi cy, is, where the imposed standard under contrary dence that could a find circumstances, reasonable and court, adher- ing. appellate As an we are not free properly ence thereto expected per- to resolve this issue. See Dunn v. United son, penalty small, where the is relatively States, 99 S.Ct. where the conviction gravely does not (1979) (“appellate L.Ed.2d 743 besmirch, statutory where the crime is courts are not free to revise the basis on not one taken over from the common which a defendant simply is convicted be law, congressional and where purpose is likely cause the same result would obtain supporting, the statute can be construed retrial”); on United States v. Castillo-Fe requiring one not criminal lix, (9th Cir.1976) intent. (appellate 539 F.2d court not free to affirm conviction “reached U.S., S.Ct., n. 4 at n. 4 at 1115 reason”; wrong on the basis of a defense (Brennan, J., concurring) (quoting Hol attorney might ap have taken different States, dridge v. United proach framed). if case had been (8th Cir.1960)). accordingly Semenza is entitled to a new exactly The at issue here is of governed by proper

trial construction of type passage to which the from Freed 261.7(a).1 refers. The penalty maximum under 16 REVERSED AND REMANDED. U.S.C. 551 is a fine $500 or six months in prison. imposed The standard is a matter POOLE, Judge, dissenting. policy it is require reasonable to that a cattle owner responsibility take respectfully I I dissent. believe that the his animals. The conviction is hardly one question imposes strict liabili- “gravely which will besmirch” Semenza’s ty on entry Semenza for the unauthorized reputation. Consequently, uphold I would of his cattle onto National Forest Land. reg- the district court’s conclusion that the ulation establishes a strict offense. clearly As the evidence imported As the offense is not one shows that Semenza’s repeatedly cattle had law, the common Morissette does not re- entered onto National Forest Lands and quire a different result. permit, that he had no I would affirm his conviction. majority opinion The also relies on Unit majority opinion cites Morissette v. States 240, Cir.1984), U.S. which this Court reversed a (1952) proposition “permitting” for the hiker’s conviction for or “suf fering” spread courts should be reluctant to with beyond a fire to burn or light disposition, denying 1. In of our we need new not ad- erred in his motion for ground newly dress Semenza’s claim that court district discovered evidence. inapposite find that case control. involved in Launder The statute

here. Congress under Title

was enacted specifically deal with Crimes

which contrast, regu-

Criminal Procedure. promulgated under U.S.

lation here was grants Secretary which

C. § authority provisions

Agriculture to make national forests. protection

for the regulatory, the statute is

entire thrust of regulation at

not criminal. provision un-

should be contrasted makes it a crime for a

der Title 18 which permit his “knowingly” cattle *4 public lands. 18 U.S.C. onto certain

enter of this criminal stat- 1857. The existence

ute, supports requirement, intent with its Agricul- Department of

my view that the merely duplicate it in

ture did not intend regulations, intended

promulgating its but strict-liability prohibi-

rather to establish a protective mandate.

tion in of its

Finally, suggest that whether agrees disagrees here, power it has the

outcome reached

amend the to make its intended Such a clarification would

scope clear. necessity litigating

avoid the in future cases. guardian her Ad Li

Michelle Colleen DEARING, Dearing

tem Ronald Ronald Dearing, Plaintiffs-Appel

and Marcia

lees,

United States Court Aug. and Submitted