743 F.2d 686 (9th Cir. 1984), 83-1291, United States v. Launder

Docket Nº:83-1291.
Citation:743 F.2d 686
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert W. LAUNDER, Defendant-Appellant.
Case Date:September 25, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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743 F.2d 686 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,


Robert W. LAUNDER, Defendant-Appellant.

No. 83-1291.

United States Court of Appeals, Ninth Circuit

September 25, 1984

Argued and Submitted May 15, 1984.

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Bruce R. Heurlin, Rhonda L. Repp, Tucson, Ariz., for plaintiff-appellee.

Francisco Leon, Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona (Tucson)

Before CHOY, PREGERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant Robert W. Launder was convicted of violating 18 U.S.C. Sec. 1856 (1982). That section provides that

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[w]hoever, having kindled ... a fire in or near any forest ... upon any lands ... of the United States, ... leaves said fire without totally extinguishing the same, or permits or suffers said fire to burn or spread beyond his control, or leaves or suffers said fire to burn unattended, shall be fined not more than $500 or imprisoned not more than six months, or both.

Launder was sentenced by the district court to three years probation and was ordered to perform 400 hours of community service at Coronado National Forest. Because the district court incorrectly held that criminal intent is not a necessary element of an offense under 18 U.S.C. Sec. 1856, we reverse.

The facts in this appeal are not disputed. Launder and two friends traveled from Tucson, Arizona, to Mount Lemmon, a recreational area in the nearby Coronado National Forest. They camped overnight in the Spencer Canyon Campground.

The next day, at approximately 1:00 p.m., Launder decided to hike around the campground area. Unable to persuade either of his friends to accompany him, he left his campsite intending to hike for one or two hours prior to returning to the campground. He took no food, water, or camping gear with him.

Launder soon found himself in a very rough area with which he was unfamiliar. He lost track of time and distance. At approximately 6:00 p.m. he realized that he was unable to find his way back to either his campsite or Tucson. In order to attract attention, he decided to light a signal fire. He cleared an area on a rock ledge approximately five to ten feet across and, using small twigs, leaves and grass as fuel, lit a signal fire.

The risk of fire danger in the Coronado National Forest was significant on the day in question. Notices of this hazardous fire condition had been posted on the highway at the base of Mount Lemmon. However, the Forest Service had not taken the step of prohibiting campers from lighting campfires, although it may do so when there is a high fire hazard.

Shortly after Launder lit his signal fire, a gust of wind spread the fire and ignited four smaller fires in the area around him. He attempted to extinguish these smaller fires but was unable to do so and the fire escaped his control. The fire spread quickly and became a wild fire which came rapidly toward him. In an effort to avoid personal injury, he ran from the fire northward along a ridge, approximately 1,000 yards.

Approximately twenty minutes later, Launder saw a helicopter circling the fire below. He attempted to attract the attention of the helicopter's occupants by waving his shirt and arms. When this failed, he cleared an area and ignited a second fire. He was sighted by the helicopter crew and the helicopter landed nearby to rescue him. Upon rescue he readily admitted to the helicopter operators and later to the fire suppression specialist of the United States Forest Service that he had set the first fire as a signal fire when he became lost.

The United States filed an information charging Launder with violating 18 U.S.C. Sec. 1856 (1982); the information related to the first fire only. Launder elected to proceed to trial before the United States District Court. He argued at the beginning of the trial that the evidence would show that he had no criminal intent in leaving the first fire and that he did everything possible to extinguish it. The United States argued that the statute did not require proof of criminal intent.

After requesting and considering trial briefs on the issue of whether criminal intent is an element of the offense under 18 U.S.C. Sec. 1856, the district court ultimately entered a verdict of guilty. The district court agreed with the United States that the offense set forth in 18 U.S.C. Sec. 1856 is a regulatory offense which does not, under Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), require a showing of criminal intent. We review the district court's statutory interpretation de

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novo. United States v. Mehrmanesh, 689 F.2d 822, 827 (9th Cir.1982).

As the Supreme Court stated in Morissette v. United States, 342 U.S. at 250, 72 S.Ct. at 243, "[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." The Morissette court made clear that strict liability crimes are an exception in our legal system and are restricted to crimes which can be termed "public welfare offenses," i.e., statutes whose purpose is regulation of "industries, trades, properties or activities that affect public health, safety or welfare." Id. at 254, 72 S.Ct. at 245. But the Morissette court further emphasized that courts should be most reluctant when interpreting statutes to dispense with a mens rea requirement absent a clear legislative intention to do so:

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute.

Id. at 263, 72 S.Ct. at 249 (footnote omitted).

The language of 18 U.S.C. Sec. 1856 in no way suggests that Congress intended to impose strict criminal liability. It is significant that in section 1856 Congress did not choose to make the act of lighting a fire in United States forest land per se illegal. Rather, in that statute Congress chose to impose liability when an individual...

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