US v. Holder

• Citation: 256 F.3d 959
• Decision Date: 10 July 2001
• Docket Number: No. 00-7133,00-7133
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRED L. HOLDER, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 959

256 F.3d 959 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRED L. HOLDER, Defendant - Appellant.

No. 00-7133

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 10, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 00-CR-2-S)

Stephen Jones, Enid, Oklahoma, for Defendant-Appellant.

Dennis Fries, Assistant United States Attorney, Oklahoma City, Oklahoma (Sheldon J. Sperling, United States Attorney for Oklahoma, and Jeffrey A. Gallant, Muskogee, Oklahoma, with him on the brief), for Plaintiff - Appellee.

Before BRORBY, PORFILIO and MURPHY, Circuit Judges.

JOHN C. PORFILIO, Senior Circuit Judge.

While awaiting trial in state court for first degree murder, Fred Lloyd Holder was charged in the Eastern District of Oklahoma with murder in violation of 18 U.S.C. 1111(a) and 1114(1); and assaulting, resisting, or impeding a federal officer in violation of 18 U.S.C. 111. A jury convicted Mr. Holder of both counts. Although he persists in challenging our jurisdiction, this appeal, in fact, turns upon the sufficiency of the evidence supporting his conviction. We affirm.

A. Background

The Natural Resources Conservation Service (Service) of the United States Department of Agriculture (Department) administers the Wetlands Reserve Program, through which the Department purchases land to be placed into perpetual easements intended to restore, protect, manage, and enhance wetlands. While retaining certain rights and recreational uses, like hunting and fishing in the easement, the landowner is prohibited from haying and mowing; altering the grassland; dumping refuse; cutting timber; draining or diverting surface or underground water; planting or harvesting crops; placing buildings on the easement; and "grazing or allowing livestock on the easement area." Exhibit 4, Warranty Easement Deed.

Of the several programs for which he is responsible, Kenneth Swift, a Service District Conservationist, administers the Wetlands Reserve Program in southeastern Oklahoma and reports to Ronnie L. Clark, the Service's State Conservationist in Stillwater, Oklahoma. In this capacity, Swift oversaw the Department's sale of a 2,220 acre wetlands easement in February 1998 to a limited partnership of outdoors enthusiasts (BC Partnership or BC Partners), Larry Manning, Kenny Klug, Lacy Hartborne, Beau Purvis, and David Pickens, who named the venture the BC Wetlands. From the outset, David Pickens, described by Swift as the group's "point man," met with Swift to discuss the management of the property according to the terms of the federal government's easement. Of chief concern were cattle which wandered onto the property from neighboring land owned by Clara Holder and her son, Fred.

Larry Manning, a BC Wetlands partner, visited Fred Holder on six occasions explaining how the cattle continued to migrate through dilapidated fencing onto the BC Wetlands. In response, Holder gave his assurance he would remove them. Weeks later with the cattle still on the BC Wetlands, Manning again visited Holder who eyed him "across the gate [and] . . . said, "Boy, I'll catch you on the back of that place, I'll hang your ass from a tree." Later that spring while plowing with Manning, David Pickens confronted Holder at the BC Wetlands' boundary. Holder, reacting to Pickens' demand to remove the cattle, asked, "Why don't we shoot it out?"

When words failed to persuade Fred Holder, David Pickens met with Swift to express his frustration, cataloging specific grievances: expenses the BC Partners incurred to replace gates and chain and lock them, only to find the chains and locks cut; the discovery of a bulldozer with its tracks leading to a culvert submerged in Tanyard Creek to permit crossing; and finding 30 acres of timber clear-cut and hauled away from the BC Wetlands. In fact, in April 1998, Kenneth Swift sent David Pickens a letter notifying the BC Partnership of its violation of the Wetlands Reserve Program easement provisions and explaining their failure to remove the livestock "shall result in potentially severe penalties. You may and will be responsible for all expenses incurred by the United States (including any legal fees or attorney fees). This conceivably could involve reimbursement for easement costs, restoration expenses and legal cost, which could approach one million dollars."¹

In September 1998, David Pickens wrote Ronnie Clark, the Department's State Conservationist, detailing the BC Partnership's problems with Fred Holder. He stated:

Initially, we simply asked the man to remove his cattle, and we gave him a key to our gate to allow him access to the property to do this. We then were made aware that not only was he not removing the cattle, but he was allowing more cattle onto the land. We have contacted the Choctaw County Sheriff's department at least 30 times. We have also contacted the County Attorney at least a dozen times. We have discovered through these contacts that they are either unwilling or not able to assist us in our efforts.²

This man verbally threatened the life of one of our partners. In another incident Holder pulled a gun on one of our other partners. We are represented by [attorneys] who sent Holder a certified letter asking him to remove the cattle. We have filed and received a Temporary Restraining Order, which has been violated no less than 20 times, and we have filed a civil lawsuit. Obviously, our efforts have been completely ignored because as of yesterday, there remains at least 250 head of cattle on the property.

Pickens also told Clark the recent rains exacerbated the damage the cattle caused and, while the BC Partners had legal recourse to remove the livestock themselves, they would then have to shoulder the expense of holding the cattle until judgment and repayment, perhaps a protracted time given Fred Holder's claim of adverse possession on some of the property.

Clark responded, telling Pickens that after discussing the problem with the Wetlands Reserve Program National Manager in Washington, D.C., and the Regional Attorney for the Office of General Counsel in Temple, Texas, the Service "plan[s] to construct a fence within the WRP [Wetlands Reserve Program] easement property. The fence will be a well-constructed barbed wire fence meeting NRCS standards and specifications. All costs of materials and construction will be federally funded through WRP."³

To that end, on September 23, 1998, David Pickens met Swift at the north end of the easement and the two traveled by four-wheeler to flag an old fence line on the southeast corner where the surveyor had completed his work. After two hours, they finished this fence section and crossed Tanyard Creek, planning to head back north to continue flagging fence line. Within two hundred yards of the four-wheeler, David Pickens spotted two men on horseback. Pickens handed Swift the video camera he carried to record the flagging and old fence row and undid his belt, removing a leatherman tool and the .22 caliber pistol he carried in a holster.⁴ Pickens slid the holster under his waistband in the small of his back and worked his belt through the loops, instructing Swift to stay back.

Pickens, on foot, approached the riders, his back to his companion. When Swift looked up, he saw Fred Holder cradling a shotgun pointed at David Pickens. Although their words were baffled by Pickens' body, Swift saw David Pickens reach for the gun tucked into his waistband. As he fumbled, Swift heard Fred Holder yell, "I told you never pull a gun on me again," and Holder's shotgun blast enveloped David Pickens, standing ten feet in front of the muzzle. His right arm swinging in a wide arc, Pickens fell backwards as Fred Holder pumped another round into the chamber and leveled the shotgun at Kenneth Swift.

Swift raised his hands, telling Holder he was unarmed, identifying the object slung over his shoulder as a video camera, not a weapon. Dropping the camera to the ground, Swift asked Holder if he could approach David Pickens. With Holder's shotgun tracking him, Swift went to Pickens, who lay on his back gasping, the shotgun blast having torn a hole in the base of his neck. Swift asked Fred Holder and his companion to go for help. Still pointing the shotgun at Swift, Holder refused, explaining, "Someone will shoot me if I get on the other side of that fence." Despite Swift's assurance he was the only one left on the BC Wetlands, Holder declined and rejected Swift's request for a ride two miles north where his pickup was parked so that he could go for help. Swift asked if he could take the four-wheeler, parked nearby, but Holder answered, "No, it had a gun on it." Although Swift offered to remove the gun, Holder rebuffed him, relenting only when his companion asked, "Why don't you let him take the four-wheeler to go get some help?" Holder told his companion to keep an eye on David Pickens and walked his horse along the fence line, the shotgun pointed at Swift as he ran to the four-wheeler. Swift then drove north to a neighboring house and called the sheriff.

The District Attorney of Choctaw County filed an information charging Fred Holder with first degree murder in violation of 21 Okla. Stat. 701.7(A), and, after a hearing, a state judge released him on bond with the condition Holder not "enter upon any property of this particular neighbor, B.C. Wetlands."⁵ Four months later, a federal grand jury in the Eastern District of Oklahoma charged Fred Holder in a two count indictment with violating 18 U.S.C. 1111(a) and 1114(1) for the first degree murder of David Pickens "while David Pickens was assisting Kenneth Swift, an employee of the federal government, while Kenneth Swift was engaged in and in performance of his official duties as an employee of the United States government;" and forcibly assaulting, resisting, opposing, impeding, intimidating and interfering with Kenneth Swift, "in his official capacity as an...