Tait v. U.S.

• Decision Date: 11 January 2011
• Docket Number: Criminal Action No. 2:10cr104.
• Citation: 763 F.Supp.2d 786
• Parties: Diane J. TAIT, Appellantv.UNITED STATES of America, Appellee.
• Court: U.S. District Court — Eastern District of Virginia

763 F.Supp.2d 786

Diane J. TAIT, Appellant

v.UNITED STATES of America, Appellee.

Criminal Action No. 2:10cr104.

United States District Court, E.D. Virginia,Norfolk Division.

Jan. 11, 2011.

Rodolfo Cejas, II, Federal Public Defender's Office, Norfolk, VA, for Appellant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

Diane J. Tait (“Tait” or “Appellant”) appeals her March 12, 2010 petty offense conviction, which occurred after a bench trial before a United States Magistrate Judge for the District of Maryland. That court convicted Tait of removing private property from federal land in violation of Title 50 of the Code of Federal Regulations, Section 27.61, an administrative regulation that prohibits the removal of public or private property from certain federal lands. The principal questions on appeal are: 1) whether the regulation requires the Government to affirmatively prove, beyond a reasonable doubt, the specific type of property the Appellant allegedly removed; and if so, 2) whether the Government introduced sufficient evidence to meet its burden in the present case. For the reasons set forth below, Tait's conviction is REVERSED and REMANDED for entry of JUDGMENT OF ACQUITTAL.

I. Facts, Procedural History, and Magistrate Judge's Opinion

A. Facts

On September 5, 2009, Tait was on the beach in the “off-road zone” of the federally-owned Chincoteague National Wildlife Refuge (“Refuge”) when she and her boyfriend came upon a large fishing boat that had run aground on the beach. The beached vessel was named the Freda Marie,¹ Tr. 39, and at the time it was half in the water and half on the sand. Tr. 26. When Tait and her boyfriend came upon the Freda Marie, there were already a number of people playing either around or on board the vessel. Tr. 20–21, 25. While milling around the boat, Tait decided to cut a portion of rope, one end of which was protruding from the sand next to the boat, and the other end of which was “washing around in the surf.” Tr. 61. Tait testified that she cut and retrieved a portion of the rope that extended into the water and sand with her pocket knife because she thought it would make a “cool decoration for her camper.” Tr. 62. Tait admitted at trial that the rope did not belong to her, but stated that at the time she believed it was “just beach junk.” Tr. 63. She also admitted at trial that she picked up a “buoy” that was “floating in the water, also not attached to the boat,” before she drove away. Tr. 62.

These events were seen by two of the Government's witnesses, Timothy Farrell (“Farrell”) and Jennifer Kyle (“Kyle”). According to Farrell, on September 5, 2009, he was enjoying a day on the beach with his wife and children when he observed a “large fishing boat that had run aground.” Tr. 20. He saw people playing around the boat and taking pictures. Tr. 21. Farrell also observed a woman pick up a life preserver/life ring lying next to the boat and place it in the back of her pickup truck. Tr. 21, 23. According to his testimony, that same woman was trying to cut the boat's anchor rope, which he guessed was approximately four or five inches around. Id. He never actually saw the woman successfully cut the rope, but when he returned later in the afternoon, the rope was gone. Tr. 24. Farrell also testified that the crew of the boat was nowhere to be seen. Tr. 28.

Kyle testified as to a similar experience that day. During direct examination, the Government asked Kyle if she observed an “abandoned boat” on September 5th, to which she replied “Yes.” Tr. 30. Like Farrell, she observed “someone trying to cut the rope, which [she] believe[s] was attached to the anchor.” Id. She also testified that the “boat had been there a long time” “[b]ecause [she] had been there a couple weeks before and had seen it.” Tr. 35.

The Government also called National Park Service Ranger Brian Richardson (“Richardson”), the officer that issued the Violation Notice to Tait. Richardson testified that he was called by dispatch after the fact and did not witness Tait remove anything from the boat. He was tasked with investigating the possible “theft” of private property and to be on the lookout for a silver Toyota pickup truck. Tr. 37–38. When he saw a truck matching that description at the air station pumps in a beachside parking lot, he initiated a conversation with Tait, the driver of the vehicle. Tr. 38. According to his testimony, he asked Tait whether she had taken anything off the beach that day, to which she replied “No.” ² Id. Tait then allowed him to look in the bed of her truck. Id. While doing so, the Ranger discovered an “orange life saving ring with Freda Marie stenciled on it in black letters, and a white, three-inch braided cotton, about a 30–foot anchor line.” Tr. 39. According to the Ranger, the Freda Marie was a vessel that had run aground on the Tom's Cove Hook beach about a month prior to this incident. Tr. 39–41. The Ranger testified that the vessel did not belong to the National Park Service or the “Fish and Wildlife [Service],” but he did not know the identity of the owner. Tr. 40. Further, Richardson noted that Tait told him she had picked the items in her truck up off the beach, but she never said the items belonged to her. Tr. 41–42.

On cross examination, Richardson stated that there were no signs posted around the boat saying anything to the effect of “stay off,” “no trespass[ing],” “private,” or “under salvage.” Tr. 44–45. Nor did the crew take any steps to secure items from the boat. Tr. 48. However, Richardson did testify that at some point he told Tait that the items in question were private property. Tr. 47.

As a result of Richardson's encounter with Tait, he seized the life ring and rope from her and wrote her a “United States District Court Violation Notice” for “Remov[al] Private Property” in violation of 50 C.F.R. § 27.61. See Fed.R.Crim.P. 58(b)(1) (“The trial of a petty offense may ... proceed on a ... violation notice.”) That regulation states that “[t]he destruction, injury, defacement, disturbance, or the unauthorized removal of any public property including natural objects or private property on or from any national wildlife refuge is prohibited.” 50 C.F.R. § 27.61. “Knowing violations” of this regulation may be punished by a fine and/or imprisonment for not more than one year; while all “[o]ther violations” may be punished by a fine and/or imprisonment not more than 180 days. 16 U.S.C. § 668dd(f). Tait was tried for “removing private property,” not “knowing” removal. Tr. 3.

B. Procedural History

On March 12, 2010, Tait was convicted of “unauthorized removal” of private property at the conclusion of a bench trial. Tr. 83. Tait appealed her conviction on the ground that the Government failed to introduce sufficient evidence to meet its burden of proving that the property in question was privately owned. The appeal was initially filed in the District Court for the District of Maryland. However, the Government moved to dismiss the appeal, arguing that because the offense occurred on that portion of the Refuge that was in Virginia, the appeal properly lay in the United States District Court for the Eastern District of Virginia. As a result, on May 14, 2010, the District Court for the District of Maryland, pursuant to a Joint Order of the Chief Judges of the District of Maryland and the Eastern District of Virginia, ³ transferred the appeal to the Eastern District of Virginia. United States v. Tait, Crim. No. WDQ–10–0194, 2010 WL 1956863, 2010 U.S. Dist. LEXIS 47637 (D.Md. May 14, 2010).

C. Magistrate Judge's Opinion

While the Magistrate Judge concluded that the Government proved all of the elements of the offense beyond a reasonable doubt, this appeal only focuses on one element, the status of the property in question. On that issue, the Magistrate Judge found beyond a reasonable doubt that Tait removed private property from the Refuge. In doing so, the Magistrate Judge stated that the rope and the life preserver/ring had not been abandoned. Tr. 82.

The Magistrate Judge determined that the items in question were private property, though he did so through two different lines of reasoning. He first concluded that the vessel was private property by focusing on the obvious valuable nature of the fishing boat and the length of time it had remained on the beach. In the Magistrate Judge's analysis, he stated that “you have to take the nature of the property into account. This is a valuable fishing boat that ran aground on Assateague Island sometime in the month preceding September of last year.” Tr. 82. “If this had been a cheap, plastic dory that a kid left on the beach, [the court] thinks we'd have a different situation, you might be able to presume that that [sic] is abandoned and that somebody else could pick it up just like they could pick up refuse.” However, given the value of the boat, the Magistrate Judge stated that he had “little difficulty in concluding that this was private property.” Tr. 82. Although the Magistrate Judge ultimately found Tait guilty of unauthorized removal of private property, rather than knowing removal of private property, he also stated that his finding that this was private property was bolstered by the fact that the vessel and its equipment were not “intended to be abandoned property,” and Tait “knew that this was something that she wasn't entitled to.” ⁴ Tr. 83. This conclusion was supported, in the court's eyes, by the fact that Tait did not protest or tell Richardson that the property was abandoned when he seized it from her after writing the Violation Notice. Tr. 83.

However, in the second line of reasoning, the Magistrate Judge seemed to indicate that the Government had also proved that the vessel and accompanying equipment were private property through a process of elimination. The court stated that “[i]n any event, [the vessel] is not public property, and [the court] looks at the statute as creating two categories of...