U.S. v. Murdock, 87-5001

• Citation: 826 F.2d 771
• Decision Date: 17 September 1987
• Docket Number: No. 87-5001,87-5001
• Parties: UNITED STATES of America, Appellee, v. Bruce Putnam MURDOCK, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 771

826 F.2d 771

UNITED STATES of America, Appellee, v. Bruce Putnam MURDOCK, Appellant.

No. 87-5001.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1987.

Decided Aug. 19, 1987.

Rehearing Denied Sept. 17, 1987.

Rodney C. Lefholz, Rapid City, S.D., for appellant.

Ted L. McBride, Asst. U.S. Atty., Rapid City, S.D., for appellee.

Before ARNOLD, Circuit Judge, WRIGHT, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

ARNOLD, Circuit Judge.

This is a criminal prosecution by the United States against Bruce Putnam Murdock for violating 18 U.S.C. Sec. 111. The indictment alleged that Murdock forcibly impeded and interfered with Elizabeth Gross, a Range Conservationist with the United States Forest Service, while she was performing her official duties. Murdock was convicted and sentenced to one year's imprisonment and payment of $50.00 to the Special Victim's Assistance Fund. The District Court ¹ suspended the jail term and placed Murdock on probation for two years. For reversal, Murdock argues (1) that he was denied a fair trial because he was prevented from interviewing Gross before trial and (2) that the Court erred in refusing to admit evidence or to propound a jury instruction on Murdock's theory that Gross was trespassing when the incident occurred. We affirm.

The Forest Service manages the Elk Mountain Ranger District, which covers a large area of federal land in Wyoming and South Dakota, primarily on the west side of South Dakota's Black Hills. Private ranchers can obtain permits from the Forest Service to graze their cattle on this land, and one of Gross's duties as a Range Conservationist was to enforce the permits. One way this is done is to "count on" cattle when they are moved from private to government land; this ensures that the number of cattle put onto government pastures is within permit limits.

In the summer of 1986, Murdock had leased some private land adjacent to the Basin Allotment of the Elk Mountain District, on which he kept some cattle (which he did not own). There apparently was no water available on his land, and it was necessary for the cows to be able to graze in the public land to reach water. There was also some confusion about whether he had a right to pasture the cattle on public land, because his permit, which was for 36 head of cattle, had expired at the end of 1985, and was in the process of being renewed. Gross was in charge of enforcing permits on the public land next to Murdock's pasture.

On June 25, 1986, before the permit was renewed, Gross found a large percentage of the permitted cattle on the Basin Allotment. After consulting with her supervisor, she informed Murdock on June 27 that the cattle on the Basin Allotment were in trespass and must be removed. They agreed that he would have the cattle off the Allotment by July 3. Then, on July 2, Gross received a note from Murdock that he wanted to put the cattle back onto the Allotment on July 6, which was a Sunday, at 6:00 a.m. Gross agreed, and arranged to be there then to count the cattle on.

In the afternoon of July 5, 1986, Gross went to the Allotment and found that 27 head of cattle were on public land. Because there were so many cattle already on the property, she could not be sure that the proper number of cattle would be counted on the next morning, and she decided to cancel the count-on. She was unable to contact Murdock that night to cancel the meeting, so she went to the Basin Allotment the next morning, arriving there at about 5:55 a.m. She saw Murdock on a motorcycle in his leased pasture, driving cattle towards an open gate at the boundary of the public land. The lead cows were close to the gate, so Gross drove her Forest Service jeep up to the fence, blocked off the gate, and jumped out of the jeep to wave the cows away and close the gate. Murdock drove up on his motorcycle, got into the jeep, and drove it away from the gate. While this was happening, Gross ran to the passenger side of the jeep and leaned in through the open window to try to pull the keys out of the ignition. Murdock resisted her and tried to roll up the window in the passenger door. At some point Gross jumped away from the jeep, and Murdock brought it to a stop about 150 feet away from the gate. He turned the engine off, opened the hood, and pulled the distributor wire off the distributor to disable the vehicle. Then he walked back towards the gate.

Gross ran to the jeep and, seeing the hood unlatched, opened it and saw the loose distributor wire. She reattached the wire and started the jeep. By this time, Murdock had returned to the jeep and, when Gross backed it up, she grazed Murdock's heel with a tire. Then she drove away from the scene.

On the next day, Gross filed a report with the Forest Service about the incident. On the day after that, July 8, 1986, a Forest Service investigator interviewed Murdock, and he filed a report on the following day. Murdock was indicted on July 16, 1986.

While preparing for trial, Murdock's attorney drove from Rapid City, South Dakota, to Newcastle, Wyoming on October 15, 1986, to interview Gross. He did not have an appointment. When Gross learned that he wished to interview her, she told him she was not sure she should talk to him and wanted to ask her superiors. They told her to call the Assistant United States Attorney (AUSA) who was handling the case. Gross told Murdock's counsel this, and he placed the call to the prosecutor from her office and asked him to tell Gross that it was all right to speak to him. The AUSA replied that whether Gross consented to the interview was her own decision and that he would not advise her one way or the other. Murdock's lawyer then asked the AUSA whether he would advise Gross to talk to him if the AUSA could be present at the interview, and the AUSA said he would. They then scheduled an interview for the next week, and Murdock's attorney left.

On the day before the scheduled interview, Gross showed the AUSA and her superior, Phil James, the place on the Basin Allotment where the altercation had occurred. There she expressed some hesitation about speaking with Murdock's lawyer, and the AUSA told her that whether she did so was her decision, and he would cancel the meeting if she wished. This was the first time that Gross understood that it was her privilege not to talk to defense counsel, and she decided to exercise that privilege.

After the interview was cancelled, Murdock moved to dismiss the indictment, claiming that the government had interfered with his ability to interview Gross and prepare his defense. The District Court conducted a hearing, at which Gross testified, and found that Gross did not understand that she had a personal privilege to refuse to talk to defense counsel until the discussion on the Basin Allotment, and, when she learned of her privilege, she opted--for purely personal reasons--not to talk to the lawyer.

Murdock's first argument before us is simply a renewal of that motion for dismissal....