U.S. v. Peck

Citation545 F.2d 962
Decision Date20 January 1977
Docket NumberNo. 76-1106,76-1106
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harry Anthony PECK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Leroy H. Scott, Jr., B. J. Woods, Shreveport, La., for defendant-appellant.

Donald E. Walter, U.S. Atty., J. Ransdell Keene, James E. Wilson, D. H. Perkins, Jr., Asst. U.S. Attys., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, GODBOLD and HILL, Circuit Judges.

GODBOLD, Circuit Judge:

The appellant Peck landed his private plane at night on Barksdale Air Force Base, located at or near Shreveport in Bossier Parish, Louisiana. A federal complaint was filed charging that he did:

intentionally, unlawfully, without authorization and within the territorial jurisdiction of the United States, enter and criminally trespass upon posted public lands in Bossier Parish, to wit, Barksdale Air Force Base, in violation of U.S.C. Tit. 18 Section 13; and LRS 14:63.6.

18 U.S.C. § 13 is an assimilative crimes statute, providing:

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

The complaint tracks the Louisiana statute referred to in the complaint, LRS 14:63.6, which is assimilated into federal law by 18 U.S.C. § 13. Section 63.6 provides:

A. Criminal trespass in the parish of Bossier is:

(1) the unauthorized and intentional taking possession of any tract of land or structure thereon without the consent of the owner thereof; or

(2) the unauthorized and intentional entry upon any:

(a) plot of immovable property enclosed by natural barriers and/or artificial barriers and upon the boundaries of which legible signs have been placed by authority of the owners at main points of ingress and egress and at regular intervals along said boundaries bearing such words as "Posted", "Private Property", "No Trespassing", "No Hunting", "No Fishing" or words of similar import in such manner as to reasonably notify the public that said land is posted against trespassers; or

(b) posted public lands and lands belonging to public institutions, whether or not the same are enclosed; or

(c) building, dwelling, structure, water craft or movable, whether or not the same is posted or enclosed;

(d) plot of immovable property in excess of one (1) acre which is posted but not enclosed, unless said property is situated in an Open Range area as same is defined in this Section.

B. As used in this Section:

(1) "Enclosed" property means any immovable property which is surrounded or encompassed by natural and/or artificial barriers.

(2) Natural barriers include:

(a) Lakes or ponds or other bodies of water which hold water during twelve months of the year; and

(b) Any river, stream, bayou or canal in which water is held or runs during twelve months of the year; or

(c) Other similar natural barriers.

(3) Artificial barriers include:

(a) Any wall or wire, stone, metal or wooden fence; and

(b) Any cattle-guard being used as part of a fence; or

(c) Other similar barriers.

(4) Open Range area means any area in which livestock are not prohibited by law to freely rove, provided that any road or highway which is required by law to be fenced, and which passes through any area in which livestock are not otherwise prohibited by law to freely rove, shall not prevent such area from being classified as Open Range.

A United States magistrate found Peck guilty. He appealed to the district court pursuant to 18 U.S.C. § 3402. Review by the district court of a conviction before the magistrate is not a trial de novo but is the same as review by a court of appeals of a decision by a district court. Rule 8(d), Federal Rules of Procedure for the Trial of Minor Offenses Before the U.S. Magistrate. The district court held that there was "ample law and evidence" to support a finding by the magistrate that Barksdale was "posted (public land)."

In our review we apply to the magistrate the same standard used by the district court. U. S. v. Hughes, 542 F.2d 246 (CA 5, 1976). We reverse the district court and hold that the conviction must be reversed.

The first step is to examine the Louisiana statutory scheme. "Offenses Against Property" are covered by Part III, of Chapter 1, of Title 14 of the Louisiana Revised Statutes. Sub-part A of Part III covers offenses against property "By Violence to Buildings and Other Property." Part 4 of Sub-part A is devoted to "Criminal Trespass." Part 4 contains a general criminal trespass statute (§ 63), statutes concerning illegal posting, and illegal destruction, defacing or removal of posted signs (§§ 63.1 and 63.2), entry upon or remaining in a place after being forbidden (§§ 63.3 and 63.4), and a number of local criminal trespass statutes (§§ 63.5-.10), including the one at issue in this case.

Section 63 is the general criminal trespass statute. Part A thereof covers all parishes except ten named parishes. It defines criminal trespass as:

(1) The unauthorized and intentional taking possession of any tract of land or structure thereon without the consent of the owner thereof; or

(2) The unauthorized and intentional entry upon any:

(a) Plot of immovable property in excess of one acre which is posted but not enclosed, unless said property is situated in an open range area; or

(b) Plot of immovable property which is posted and enclosed, including property situated in open range areas; or

(c) Posted lands belonging to public institutions; or

Sub-section B of § 63 is the definitions sub-section. It provides:

B. Definitions

For purposes of criminal trespass, the following definitions are adopted:

(1) "Posted" property means any immovable property which is designated as such by the owner, lessee or other person lawfully authorized to take such action, provided the following requirements are satisfied:

(a) The owner or person seeking to post the property shall place and maintain signs along the boundaries of the property or area to be posted, which signs shall be written in the English language, and said signs shall contain the words, "Posted", or, "Private Property", or words to that effect.

(b) The signs shall have letters at least five inches in height and shall be of sufficient size and clarity to give notice to the public of the location and boundary of the posted property. The signs shall be placed and maintained at intervals of not more than one-eighth of a mile and shall be at least three but not more than nine feet above the ground or water level.

(c) At the main entrance to the property and at no less than four extremities along the boundary of said property the party seeking to post same shall include his name and address on the posted signs in addition to the words "Posted", or, "Private Property", or words to that effect.

(d) In woodland, or areas where land is heavily overgrown, the party seeking to post the property, in addition to placing and maintaining signs as prescribed in this section, must be fenced with not less than three strand wire, or its equivalent.

(e) In marsh lands, posted signs shall also be placed at all major points of ingress or egress.

(2) "Enclosed" property means any immovable property which is surrounded or encompassed by natural and/or artificial barriers.

Natural barriers include:

(a) The Gulf of Mexico,

(b) Lakes or ponds or other bodies of water which hold water during twelve months of the year,

(c) Any river, stream, bayou or canal in which water is held or runs during twelve months of the year,

(d) Other similar natural barriers.

Artificial barriers include:

(e) Any wall or wire, stone, metal or wooden fence,

(f) Any cattle-guard being used as part of a fence,

(g) Other similar barriers.

(3) "Open Range" area means any area in which livestock are not prohibited by law to freely rove, provided that any road or highway which is required by law to be fenced, and which passes through any area in which livestock are not otherwise prohibited by law to freely rove, shall not prevent such area from being classified as "open range".

Sub-section D of § 63 covers the ten parishes excepted in sub-section A. Sub. (1) thereof is the same as A(1). Sub. (2) provides:

(2) The unauthorized and intentional entry upon any:

(a) enclosed and posted plot of ground; or

(b) posted lands belonging to public institutions; or

Section 63 was rewritten in 1960 at which time sub-section B, the definitions part, was added. Thus, prior to 1960 "posting" was not defined.

The local acts differ in some details but insofar as pertinent to this case they follow the same general pattern. 1 Each contains a section similar to sub-section A(2)(a) of § 63.6, the Bossier statute, forbidding entry upon enclosed immovable property where appropriate legible signs have been placed. Each contains a section similar to A(2)(b) of § 63.6, covering public land, or land belonging to public institutions, or both; each refers to "posting." Some of the local acts contain the definitions of posting set out in § 63, sub-section B; others do not. The Bossier statute, § 63.6, was adopted in 1964. From the portion quoted above, it is seen that its definition section tracks § 63, sub-section B with respect to enclosed property, natural and artificial barriers, and open range. It does not contain the precise definition language of § 63, sub-section B. Rather it includes in sub-section A(2)(a) its own provisions covering (for certain immovable property) the giving of notice by signs bearing such words as "Posted" (etc.), "or words of...

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