U.S. v. Heathershaw, 95-2571

Decision Date17 April 1996
Docket NumberNo. 95-2571,95-2571
PartiesUNITED STATES of America, Appellee, v. Patrick L. HEATHERSHAW, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the District of South Dakota; Richard H. Battey, Judge.

Robin L. Zephier, Rapid City, SD, argued, for appellant.

Karen E. Schreier, U.S. Atty., argued (Robert A. Mandel, First Asst. U.S. Atty., on brief), for appellee.

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Patrick Heathershaw appeals his conviction of theft of government property in excess of $100 value, 18 U.S.C. § 641 (1994). Heathershaw was convicted of stealing posts and barbed wire from a fence belonging to the Air Force and using the materials to build a fence on land he leased. Heathershaw claims that the Air Force built its fence on land he leased, that the Air Force fence was a hazard to his livestock, and that he had a right to move it to make it safe. At trial, the district court excluded evidence that the fence was on Heathershaw's leasehold, instructed the jury that ownership of the land was irrelevant to Heathershaw's intent to steal, and refused Heathershaw's requested claim-of-right instruction. We reverse.

Heathershaw is a rancher in the Badlands of South Dakota, whose ranch abuts an old Air Force bombing range. 1 He is an enrolled member of the Oglala Sioux Tribe. His ranch is on the Pine Ridge Indian Reservation, and he leases the land from the Bureau of Indian Affairs and the Oglala Sioux Tribe. The bombing range is no longer in use, but it contains unexploded ordnance, and so the Air Force has posted warning signs to keep the public off the land. In 1992, the Air Force built a fence around the perimeter of the bombing range. In 1993, the Air Force received an anonymous tip that someone was stealing the fence. Investigators followed up on the tip and found that there were many places where the fence was missing. While the investigators were inspecting the fence on June 29, 1993, they encountered Heathershaw, who was building a new fence in the area. 2

The investigators asked Heathershaw if he knew anything about the fence and he replied that he was part of their fence problem. Heathershaw told the inspectors about problems the Air Force fence was causing him. He admitted he had used metal poles from the Air Force fence to build his fence and that he had about twenty wooden posts from the Air Force fence in his pickup truck. He denied taking any barbed wire, but the investigators noticed that wire they had seen at the site recently was no longer there. Heathershaw later told an FBI agent that he had used two strands of Air Force barbed wire in building one-half mile of fence.

Heathershaw told the agent that he had lost four calves because they had wandered onto the bombing range through gaps in the Air Force fence and had been unable to rejoin their mothers. He also said that he had lost one of his horses, which became tangled in loose wire from the government fence and had to be killed.

The government indicted Heathershaw under 18 U.S.C. § 641, which provides that "[w]hoever embezzles, steals, purloins, or knowingly converts to his use ... any record, voucher, money, or thing of value of the United States ... Shall be fined under this title or imprisoned not more than ten years, or both...."

Heathershaw's defense at trial was that the Air Force fence had been allowed to fall into disrepair, and that much of it had been knocked down by hunters trying to gain entrance to the bombing range and by natural forces. He said that the hunters cut the fence and that loose wire and posts were strewn on the ground. According to Heathershaw, the poor condition of the fence rendered it a hazard to Heathershaw's livestock. Heathershaw testified that he had picked up posts and wire off the ground and used them in building the new fence.

Heathershaw attempted to develop a related defense that the Air Force erroneously located part of the fence on land Heathershaw leased from the BIA, and that he had simply relocated the fence on his leased property. Heathershaw called as a witness a BIA official who administers the land Heathershaw leases. He offered to prove that the official found "leasehold interests in Mr. Patrick Heathershaw within the retained area." The court excluded the evidence, saying that even if the fence was on Heathershaw's leasehold, it was not relevant to his intent to steal.

The court also denied Heathershaw's request for a claim-of-right instruction that if Heathershaw had a right to dispose of the fence as he did, he lacked intent to steal. The court rejected the instruction, stating, "The Court rules as a matter of law that the defendant did not have a right to dispose of the property as he did."

During deliberations, the jury asked a question about the ownership of the land: "Is BIA land Government land if so the fence was not stolen from the United States Government. It was just moved? [sic]." The court responded: "You are instructed that the ownership of the land to which the fence may have been moved is immaterial on whether or not the government has proved beyond a reasonable doubt the elements set forth [in the instruction stating the elements of section 641]." The jury sent back another note to the court: "We agree to the testimony of Mr. Heathershaw that he said yes re stealing the poles from the gov't. There are some jurors that believe that he did not intend to deprive the owner of the use and benefit of the thing of value or property so taken. We are having a hard time dirtiming [sic] what Mr. Heathershaw's intent was when he stole the poles." The court responded in part: "The intent which is required to constitute a violation of the law charged is the intent to take property to a use inconsistent with the government's rights and benefits. The government has the right to determine the use to which it puts its property."

The jury then returned a verdict of guilty.

On appeal Heathershaw argues that the court erred in excluding his evidence that the Air Force fence was on his leasehold and that the court directed a verdict on the element of intent by its responses to the jury's notes. He also claims that the court erred in denying his requested claim-of-right instruction.

We must first decide whether the court erred in excluding evidence that the fence was on Heathershaw's leasehold. 3 We review the district court's evidentiary rulings for abuse of discretion. See United States v. Coney, 51 F.3d 164, 165 (8th Cir.1995).

Heathershaw contends that evidence the Air Force fence was on his leasehold is relevant to his claim of right. Heathershaw cites Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), arguing that facts showing he had a claim of right negate the element of intent to steal. In Morissette, the defendant took shell casings from a government bombing range and sold them. He was prosecuted under section 641. Morissette claimed he believed the casings were abandoned property. The district court instructed that if Morissette took the casings off government property without permission, he was guilty, and that his claim of abandonment was no defense. Id. at 249, 72 S.Ct. at 242. The Supreme Court reversed, holding that criminal intent is an element of section 641, id. at 273, 72 S.Ct. at 255, and that Morissette had the right to a jury determination of whether he acted with wrongful intent or in the belief that the property was abandoned. Id. at 276, 72 S.Ct. at 256.

The district court stated in excluding Heathershaw's evidence about ownership of the property:

Let's assume without necessarily conceding that [Heathershaw leased] that whole bombing area, what right does he have, then, to remove the fence put there by the owner of the land? What right do you have to remove that fence and take the fence for his own purposes? Now, there's such things as self-abatement of a nuisance under South Dakota law, but that doesn't give you a right to steal the property, take the property for your own use and benefit.

The district court thus acknowledged the existence of a right of...

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