626 F.2d 619 (9th Cir. 1980), 79-1428, United States v. Hughes

Docket Nº79-1428.
Citation626 F.2d 619
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Donald Wayne HUGHES, Defendant-Appellant.
Case DateMay 22, 1980
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 619

626 F.2d 619 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald Wayne HUGHES, Defendant-Appellant.

No. 79-1428.

United States Court of Appeals, Ninth Circuit

May 22, 1980

Rehearing Denied Sept. 17, 1980.

Page 620

Mark E. Griffin, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Peter Robinson, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, [*] District Judge.

WALLACE, Circuit Judge:

Hughes appeals on various grounds from his conviction for conversion of government property, 18 U.S.C. § 641, and for violations of the Wild Free- roaming Horses and Burros Act of 1971, 16 U.S.C. §§ 1331-1340. We affirm.

I.

The Wild Free-roaming Horses and Burros Act (the Act) was enacted to preserve and protect "wild free-roaming horses and burros" on the public lands of the United States. See 16 U.S.C. § 1331. To implement the declared policy to protect these animals from "capture, branding, harassment, or death," id., Congress enacted criminal provisions which defined and established punishment for various offenses. Id. § 1338. Congress' constitutional authority to regulate and protect the wild horses on the public lands was upheld in Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976).

Hughes was a participant in the Adopt-a-Horse program conducted by the United States Bureau of Land Management (BLM), pursuant to the authority granted by the Act, 16 U.S.C. § 1333(b). Under the program, "excess wild free-roaming horses," id., are captured and loaned to private individuals for their use. Applicants for the program were advised that the animals were assigned for the lifetime of the animals and that it was unlawful to sell or use for commercial exploitation any animal or its remains. Between December 1976 and February 1978, Hughes adopted 109 wild horses. At the time he adopted these horses, he signed "co-operative agreements" which included the above terms and which advised him that the horses remained the property of the government.

Between June 1977 and March 1978, Hughes sold a number of horses to a slaughterhouse buyer. The horses were subsequently processed into horsemeat for human consumption abroad. Hughes received a total of approximately $25,000 for the horses.

Hughes eventually confessed to selling the BLM horses, and a four-count indictment issued in March 1979. Hughes was convicted of (1) knowingly converting government property to his own use (Count I); (2) maliciously causing the death of the horses (Count III); and (3) permitting the

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horses and their remains to be processed into commercial products (Count IV). He was sentenced to 18 months' imprisonment on Count I, and five years' probation on Counts III and IV, to run concurrently.

Hughes contends that Count I should have been dismissed on the ground either that the wild horses were not the property of the United States or that he could only be prosecuted under the more specific conversion provision of the Act. In addition, he claims that the court erred in instructing as to the malice element of Count III and in refusing to instruct the jury on Hughes' theory of the case. Finally, he argues that there is not substantial evidence in the record to sustain the conviction on Counts III and IV.

II.

Hughes first contends that Count I should have been dismissed on the ground that the wild horses in question were not the property of the United States. See United States v. Collins, 464 F.2d 1163, 1165 (9th Cir. 1972) (government property loss an essential element of the crime of conversion under § 641). He argues that the district court improperly equated the power of the United States to regulate and protect wild horses with federal ownership of the horses. He asserts that both the language of the Act and the common law of property with respect to wild animals support the conclusion that wild horses are not the property of the federal government.

Hughes relies in part on statements which he believes indicate that Congress' intent was not to claim federal title to wild horses, but only to place them "under the jurisdiction of the Secretary (of the Interior) for the purpose of management and protection." 16 U.S.C. § 1333(a) (emphasis added). See Kleppe v. New Mexico, supra, 426 U.S. at 541, 96 S.Ct. at 2292 (upholding Congress' "power to regulate and protect the wildlife (on public lands)") (emphasis added). He also argues that the Act's definition of wild horses, which includes "all unbranded and unclaimed horses" on the nation's public lands, 16 U.S.C. § 1332(b) (emphasis added), precludes a finding that the government has "claimed" the wild horses as its own. 1 This view is lent additional support, according to Hughes, by the statement in Kleppe indicating that the Secretary of the Interior made "no claim . . . that the United States owns the wild free-roaming horses and burros found on public land." 426 U.S. at 537 n.8, 96 S.Ct. at 2290 n.8.

In addition to the statutory history and language, Hughes relies on cases stating that wild animals are owned by the states in trust for the people, subject to the paramount regulatory power of the federal government. New Mexico v. Morton, 406 F.Supp. 1237, 1238 (D.N.M.1975), rev'd on other grounds sub nom., Kleppe v. New Mexico, supra, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34; Missouri v. Holland, 252 U.S. 416, 432-34, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920); Geer v. Connecticut, 161 U.S. 519, 527-28, 16 S.Ct. 600, 603-604, 40 L.Ed. 793 (1896). Hughes contends that these cases limit the sovereign's role to that of a trustee, and imply that the government cannot enjoy a true personal property interest in wild animals.

We need not reach the question, however, whether Congress intended to assert a property interest in all the wild horses on public lands, nor whether the government could validly prosecute a person pursuant to section 641 for "converting" horses from the

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public lands of the United States. 2 Instead, we address the narrower issue: whether the United States had acquired a property interest in the horses which it captured, corralled, and loaned to Hughes pursuant to the Act. Several factors lead us to conclude that the government possessed a property interest in the loaned horses. First, there is substantial authority that a "sufficient federal interest" to satisfy the elements of section 641 is present when the government has "title to, possession of, or control over" the object in question. United States v. Evans, 572 F.2d 455, 471 (5th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). See also Fowler v. United States, 273 F. 15, 16-17 (9th Cir. 1921); Kambeitz v. United States, 262 F. 378, 380 (2d Cir. 1919). While the mere regulation and protection of the horses on the public lands may not constitute the requisite "possession" or "control" for the purposes of this rule, a question we need not reach, the governmental decision to take some horses out of the public domain and exercise complete control and dominion over them amounts to asserting a property interest in those horses.

Second, this view receives additional support from the traditional common law rule that a person who removes an animal from its natural liberty and places it in confinement becomes its owner. See Geer v. Connecticut, supra, 161 U.S. at 526, 16 S.Ct. at 603; Koop v. United States, 296 F.2d 53, 59 (8th Cir. 1961). Although Hughes contends that this rule has no application unless the animal is reduced to private possession, no authority has been cited to us, nor have we found any, which purports to hold that the sovereign may not acquire a property interest in the same manner.

Finally, we believe that this holding is the most consistent with the purposes and approach of Congress. As initially enacted, the Act granted the Secretary of the Interior authority to have "excess wild free-roaming horses . . . captured and removed for private maintenance under humane conditions and care." 16 U.S.C. § 1333(b) (amended 1978). It appears that from the beginning of the Adopt-a-Horse program the government has taken the view that when it loans these animals to private parties, it retains an ownership interest as the means for retaining the ability to control the use made of the horses. In its dealings with Hughes, for example, the government had Hughes sign an agreement in which he acknowledged that the adopted horses remained the property of the United States. While the view of the administering agency is not necessarily conclusive on congressional intent, its view is lent strong support by recent amendments to the Act. The new provision authorizes the Secretary of the Interior "to grant title" to individuals who demonstrate that they have "provided humane conditions, treatment and care." 16 U.S.C. § 1333(c) (1978). The Secretary's statutory authority to grant title reflects our conclusion that the government claims an interest in the horses when it captures them.

Hughes argues that our conclusion is foreclosed by the statutory language providing that adopted horses retain their status as "wild free-roaming horses" until title passes pursuant to the Act. 16 U.S.C. § 1333(d) (1978). Hughes claims that since the Act limits the definition of wild horses to "unclaimed" horses, 16 U.S.C. § 1332(b), section 1333(d) implies that adopted horses remain "unclaimed" until title passes to the individual owner. We disagree. Even if the language defining wild horses was intended to have the significance which

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Hughes attaches to it, see note 1 supra, it does not foreclose the conclusion that the government claims an interest in the horses when it captures them. The statutory definition of wild horses is limited to those "on public lands of...

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1 practice notes
  • The Wild Free-Roaming Horses and Burros Act of 1971.
    • United States
    • Environmental Law Vol. 35 Nbr. 4, September 2005
    • September 22, 2005
    ...339-40 (9th Cir. 1982) (rejecting challenges that the Act is unconstitutionally vague and overbroad). (158) See United States v. Hughes, 626 F.2d 619, 621-23 (9th Cir. 1980) (holding that the government possessed a property interest in wild horses); United States v. Tomlinson, 574 F. Supp. ......
1 books & journal articles
  • The Wild Free-Roaming Horses and Burros Act of 1971.
    • United States
    • Environmental Law Vol. 35 Nbr. 4, September 2005
    • September 22, 2005
    ...339-40 (9th Cir. 1982) (rejecting challenges that the Act is unconstitutionally vague and overbroad). (158) See United States v. Hughes, 626 F.2d 619, 621-23 (9th Cir. 1980) (holding that the government possessed a property interest in wild horses); United States v. Tomlinson, 574 F. Supp. ......

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