U.S. v. Unser, 97-1241

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation1999 WL 1601,165 F.3d 755
Docket NumberNo. 97-1241,97-1241
Parties1999 CJ C.A.R. 1249 UNITED STATES of America, Plaintiff-Appellee, v. Robert W. UNSER, Defendant-Appellant.
Decision Date04 January 1999

Todd S. Welch (Bobac A. Barjesteh and William Perry Pendley, with him on the brief) of Mountain States Legal Foundation, Denver, Colorado, for Defendant-Appellant.

Stacey Goh, Assistant U.S. Attorney (Henry L. Solano, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before PORFILIO, HOLLOWAY and TACHA, Circuit Judges.

HOLLOWAY, Circuit Judge.

Mr. Unser brings this timely, direct appeal from his conviction for unlawful possession and operation of a motor vehicle within a National Forest Wilderness Area in violation of 16 U.S.C. § 551 and 36 C.F.R. § 261.16(a). The maximum penalty for this conduct is a sentence of up to six months of imprisonment, a fine of up to $5,000, or both. 16 U.S.C. § 551 (setting out length of imprisonment authorized and maximum fine of $500); 18 U.S.C. § 3571(b)(6) (raising maximum fine to $5,000). The crime charged is a Class B misdemeanor (because the maximum authorized punishment is more than thirty days but no more than six months, 18 U.S.C. § 3559(a)(7)) and a "petty offense," a category which includes misdemeanors of Classes B and C, plus "infractions," 18 U.S.C. § 19. 1 After a two-day trial to the court, Unser was convicted and was sentenced to pay a fine of $75.

This case arises from a story of survival in the wilderness under extreme conditions and involves legal issues requiring examination of some of the most fundamental concepts in criminal law. Like the parties obviously do, we view the case as having significance beyond the penalty actually imposed.

I
A

We will begin with an overview of the facts. Our summary in this part of the opinion is based on the testimony of the defendant, who was the only witness at trial to have been present during the primary events. Much of this evidence was undisputed; we will note later in the opinion the critical areas which are in dispute.

On Friday, December 20, 1996, Mr. Unser set off to go snowmobiling with a friend, Robert Gayton. Unser, who lives in Albuquerque and has a ranch near Chama in far northern New Mexico, was very experienced with snowmobiles and fairly familiar with the place he chose for them to ride. Gayton had never been on a snowmobile before, and so took a few minutes to practice on the snowmobile at Unser's ranch. The two then loaded two snowmobiles onto a trailer and made a short drive on state highways across the state line into far southern Colorado, high in the San Juan Range of the Rocky Mountains near La Manga Pass.

They parked at the Red Lake Trail parking lot on state highway 17. From there, Unser planned a fairly short ride to the Jarosa Peak area of the Rio Grande National Forest. Unser planned on a fairly short ride for several reasons. It was already midday when they reached the parking lot to begin riding, and of course nightfall would come early at that time of the year. While Unser was a very experienced rider, he had only recently recovered from back surgery, and his companion, as we have noted, was a beginner.

Gayton rode around a few minutes in the immediate area of the parking lot to get more familiar with the machine and to riding in the deeper snow at the higher elevation near the pass. The two then set off for the Jarosa Peak area. The area around this peak includes a mesa, sometimes referred to as Jarosa Mesa, which was a climb of a few hundred feet from the parking lot. Unser said he chose this place because it was a fairly short and easy, yet interesting, ride for the beginner, Gayton.

The weather was clear at first, but when the two men reached the mesa, Unser testified, a "ground blizzard" came up rather suddenly. A ground blizzard was described as the result of high winds blowing substantial amounts of fallen snow; these conditions may arise when no new snow is falling. Visibility was near zero. Unser's machine started having problems (the engine died repeatedly for the rest of the ill fated ride), and the situation became dangerous. The two men got lost trying to find their way back to the truck. Then, Gayton went off into a small ravine and his machine was stuck. They abandoned it and rode on. As they did, they were continually having to work on Unser's machine to get it restarted. Eventually, it failed completely. The men started walking but were still lost when night came. They dug a snow cave and spent the night in it. The next day they continued their wanderings on foot, suffering greatly. They hiked through the day and night until some time after midnight when they came upon a barn equipped with a telephone. They were soon rescued. They were treated at a local hospital for frostbite, dehydration and exhaustion.

B

We will now review other evidence presented at trial. While Mr. Unser and Mr. Gayton were lost in the rugged terrain of the National Forest battling the extreme cold and other adverse elements, friends and family were aware that they had not returned on Friday evening. On Saturday December 21 a search and rescue operation was organized. Some friends of Unser went up from Chama to the parking lot where his truck had been noticed. On arriving there, they were told by a local deputy sheriff that they would have to wait for the authorized search and rescue team from Colorado to arrive, which they did. Eventually, six to eight people went out from the trail head on snowmobiles looking for Unser and Gayton. The rescuers did not actually get out on the mountain until mid-afternoon, and so had only a couple of hours before nightfall. In that time they found the snowmobile that Gayton had been riding, but were unable to find enough tracks to determine which way the two men had gone from there.

At trial four witnesses who had participated in the search and rescue operation testified. Only one of these witnesses, Richard Martin, was called by the government. Martin is a resident of southern Colorado and a veteran of a number of similar rescue efforts. Martin testified that the conditions were not bad on December 21 as the group began their search. The men were able to find tracks and, at least at first, to follow the path that Unser and Gayton had made the previous day. From the tracks, it appeared that Unser had started out from the parking lot on a fairly well defined trail, one which had in years past been used by cattlemen taking stock up to summer pastures. (We note at this point that all the witnesses at trial agreed that Unser's ill fated ride had begun along this route, but opinions were divided on where he might have gone after the first five or six miles.) That trail led up to what the witnesses referred to as Jarosa Mesa (but it is not clear from the record just how far this area goes). Conditions up on the mesa were very bad, as visibility was greatly reduced by blowing snow.

Martin testified that he found tracks on the mesa which appeared to have been made when Unser and Gayton were merely riding for fun; at the judge's suggestion, he marked "PT" on the enlarged map exhibit to show the area where he had found these "play tracks." The rescuers attempted to follow Unser's tracks from there, but tracking became very difficult because so many of the tracks had been erased by blowing snow by that time. Eventually, Martin found the snowmobile that Gayton had been riding. Martin testified that the tracks he had been following just before he found this first snowmobile indicated to him that the riders were lost and trying to find their way. The rescue team extricated the abandoned snow mobile and rode on, dividing into two groups. At nightfall, they suspended their efforts for the day.

Martin marked on the map for the court the point where he estimated that the first snow mobile had been found and made a line to show the route he believed he had taken to this point. The route as drawn by Martin proceeds for slightly over three miles in a northwesterly direction, almost in a straight line from the point where Martin had marked "play tracks" on the map, and ends about two miles past the boundary of the wilderness area. This testimony was later cited by the trial judge as the most credible and consistent evidence as to the location of the first machine, an issue of fact which was of considerable significance because of other findings by the judge, as we shall see.

It is worth noting that Martin's testimony was far from precise. Martin was candid in describing his effort as being less than certain, twice describing it as a guess. When the rescuers split into groups after having found the first abandoned snowmobile, Martin had ridden to Red Lake, which was northeast of the point he marked on the map as the likely location of the first machine. Martin testified that his estimate of the location of the snowmobile was based in part on his belief that he had been going northeast from that point to Red Lake during the rescue efforts.

Martin had gone back to the area only a few days before trial in the company of Forest Service Agent Burd, among others, to see if he could retrace the path he had taken during the rescue effort. Martin testified that they were very careful to stay out of the Wilderness Area and stopped before reaching the place where Martin believed the first snow mobile had been found. (Although it was June when this effort was made, they were on snowmobiles.) As the defense has emphasized, both at trial and on appeal, Martin said that the odometer on his snowmobile read 7.2 miles when he turned back at a point he (or others with him) estimated to have been about a quarter of a mile short of the wilderness boundary. 2 Martin also testified that during this second visit to the area he tested his sense of direction and found that he was off by eighty degrees. He was not asked to explain whether he had accounted...

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