USA v. Lynch

• Decision Date: 07 December 2000
• Docket Number: No. 99-30325,99-30325
• Citation: 233 F.3d 1139
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. IAN MARTIN LYNCH, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1139

233 F.3d 1139 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. IAN MARTIN LYNCH, Defendant-Appellant.

No. 99-30325

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 14, 2000

Filed December 7, 2000

Mary C. Geddes, Assistant Federal Defender, Anchorage, Alaska, for the defendant-appellant.

Steven E. Skrocki, Kevin Feldis, Assistant U.S. Attorneys, Anchorage, Alaska, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska James M. Fitzgerald, District Judge, Presiding. D.C. No.CR 98-00001-JMF

Before: Alfred T. Goodwin, Mary M. Schroeder and Michael Daly Hawkins, Circuit Judges.

GOODWIN, Circuit Judge:

Ian Martin Lynch appeals his conviction under 16 U.S.C. S 470ee(a) of the Archeological Resources Protection Act ("ARPA"). He entered a conditional guilty plea after the District Court advised him that the Government would not have to prove that the defendant knew that his act was against the law nor that the skull he removed from government land was an archeological resource.

The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We have jurisdiction under 28 U.S.C.S 1291. The conditional guilty plea was entered under Federal Criminal Rule 11(a)(2). Pursuant to an agreement with the Government and with the approval of the district court, Lynch preserved for appeal the mens rea issue. Therefore, the only question before us is whether the trial court erred in holding that the indictment, which charged a knowing violation ofS 470ee(a) did not require proof that the defendant knew that a human skull he picked up and took home was an "archeological resource."

The facts are not disputed. The defendant concedes that he saw a human skull partially exposed and partially covered by soil, that he scraped away the dirt with his hands and lifted the skull from a rocky hillside. There is no evidence that the defendant had reason to know that the location was a burial place, or that the skull was of ancient origin. There is no evidence that the defendant knew that the skull had any monetary value, or that its removal would create government funding for contractors.

Expert witnesses brought into the case after the defendant's conduct was reported to authorities could not fix the age of the skull until after a sample of bone was removed and sent to a laboratory for carbon dating. The skull turned out to be 1400 years old, and the costs associated with the investigation and restoration of the site where the skull was found amounted to something in excess of $7,000, which the Government says the defendant must pay for violating the statute. The Government says these later discovered facts are the risks one assumes when picking up human bones on government land.

We have examined the limited judicial authority we have found on the criminal liability of one who is charged with a knowing violation of a statute denouncing as a crime the removal of an "archeological resource," and are satisfied that the Government must prove that the defendant knew more than that the object he removed was a human skull.

In the summer of 1997, Lynch was a twenty-three year old high school graduate. He and two friends went deer-hunting on Heceta Island, an uninhabited island in southeast Alaska. The island contains an area identified by a report conducted for the Alaska Native Claims Settlement Act as the "Warm Chuck Village and Burial Site," which contains the remains of an Alaska native village. There is no evidence that Lynch knew of the quoted report.

When the others were packing up camp, Lynch went looking for caves. After walking over some boulders, he looked down and saw what looked like the back of a skull. Lynch picked it up, and knew it was a skull. He then picked up some rocks, found other bones, and cleared away some dirt with his hands. He put the rest of the bones back in place and "took the skull back home to do some research on it." The skull was not found in a cemetery or apparent burial ground, but rather was in the side of a hill, under a rock outcropping. The skull was found outside of the area previously identified as archeologically significant by anthropologists and Native historians.

On August 5, 1997, U.S. Forest Service agents interviewed Lynch. Lynch agreed to the interview, gave the agents the skull, and directed the agents to the location of the bones. During the interview, Lynch admitted that he knew the skull was old: "So I mean, it's definitely been there for a while. Oh, man, it's definitely old. There's not a stitch of clothin' or nothin' with it."

The regional Forest Service archeologist stated that in his opinion the skeleton had been deliberately placed or interred at the site, but he could not determine its age. The archeologist called in a physical anthropologist to determine the age of the skull. Osteological examination of the skull and the skeleton failed to provide sufficient evidence of their antiquity for ARPA prosecution. In order to determine whether the skull was at least 100 years old, and therefore an "archeological resource" under 16 U.S.C. S 470bb(1), authorities cut out a section of the skull and had the fragment's age measured by carbon dating. The analysis showed an age of at least 1400 years.

Lynch was indicted for felony violation of ARPA, 16U.S.C. S 470ee(a). Lynch filed motions to dismiss the indictment and to disclose the grand jury transcript. He argued that the indictment had omitted the requisite statutory scienter and that the grand jury had been incorrectly instructed. The district court denied Lynch's motions, and concluded that taking a skull was "malum in se," defined in Black's Law Dictionary 959 (6th ed. 1990) as "a wrong in itself; an act or case involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law." The court held that to fulfill the statutory scienter requirement, the accused need know only that he was excavating, removing, damaging and/or otherwise altering a human skull out of a grave. 16 U.S.C. S 470ee(a) provides:

No person may excavate, remove, damage, or other wise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 470cc of this title, or the exemption contained in section 470cc(g)1 of this title.

The statute's penalty provision 16 U.S.C. S 470ee(d) provides:

Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a),(b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, that if the commercial or archaeological value of the archaeological resources involved exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both . . .

Lynch's argument that the Government must prove that he knew he was breaking the law has been rejected in a number of somewhat similar cases. See United States v. Sherbondy, 865 F.2d 996 (9th cir. 1988) (holding that the statute's use of the phrase "knowingly violates subsection . . . (g) of section 922" does not imply that knowledge of the law is required to satisfy the mens rea requirement of the statute). In United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971), which also held that "knowingly violates" language did not imply that knowledge of the law was required, the Court explained:

We . . . see no reason why the word `regulations' should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse. . ."

Id. at 561.

We turn next to Staples v. United States, 511 U.S. 600 (1994) (holding that the Government must prove that the defendant knew the weapon he possessed was a machine gun, not that he knew his possession was against the law) and Morissette v. United States, 342 U.S. 246 (1952) (holding that a statute punishing "knowing conversion" required that the defendant have knowledge of the facts, though not necessarily the law that made the taking a conversion). We find these cases instructive, in that the defendant must know that he is in fact performing an act, whether or not he knows that the act has been criminalized by statute.

The Government argues that ARPA's use of "knowingly" rather than "wilfully" reflects legislative intent that the statute not require a knowledge that one's actions are against the law. We agree. See United States v. Flores , 753 F.2d 1499, 1505 (9th Cir. 1985) (declining to hold that knowledge of the law was necessary absent the word "willful " in the statute and a clear Congressional intent). But this case does not turn on Lynch having known the law, it turns on whether he knew, or should reasonably have been expected to know, that the human remains he found were "archeological resources" and that they possessed value other than the satisfaction of his curiosity.

The legislative history of the ARPA appears to reject the requirement of specific intent. Appellant states in his brief: "[t]he legislative history does not fully clarify the intent of its framers with respect to the mens rea issue. " He offers a number of remarks from the legislative debate. For example, the bill's House sponsor, Congressman Morris Udall, stated:

I want to take just a moment to explain to the House why this Legislation is needed. In the West, where most of the public lands of the United States are located, and where the archaeological resources are rich, there is a growing tendency on the part of a few industrious entrepreneurs to locate likely sites of ancient ruins to move in a backhoe or...