U.S. v. Ellison, CRIM.A.99-CR-341.

Decision Date19 September 2000
Docket NumberNo. CRIM.A.99-CR-341.,CRIM.A.99-CR-341.
Citation112 F.Supp.2d 1234
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kirk A. ELLISON, Defendant-Appellant.
CourtU.S. District Court — District of Colorado

Robert T. Kennedy, Assistant U.S. Attorney, Durango, CO, for Plaintiff.

Castelar M. Garcia, Alamosa, CO, for Defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Defendant Kirk Ellison was charged under 16 U.S.C. § 551, 18 U.S.C. § 2, and 36 C.F.R. § 261.10(1) with three counts of violating the terms and conditions of a Department of Agriculture special use permit. Mr. Ellison consented to a trial before Magistrate Judge Watanabe, and was convicted of all three counts. Mr. Ellison appeals that conviction. Jurisdiction is proper pursuant to 18 U.S.C. § 3402. I affirm.

I. Facts

The Magistrate Judge found, and the parties do not dispute, the following. Mr. Ellison and his company, Lazy Double FF Outfitting, were issued a temporary special use permit by the United States Department of Agriculture. Mr. Ellison was the holder of the permit. The permit is not assignable or transferable, and states, "The holder, in exercising the uses authorized by this permit, will assume responsibility for compliance with the regulations of the Department of Agriculture and all Federal, State, county, and municipal laws, ordinances, or regulations which are applicable to the area or operations covered by this permit." The permit was signed by Mr. Ellison. The permit required that Mr. Ellison keep and file an approved itinerary for all outfitting trips, as well as an annual operating plan and a trip log. Mr. Ellison was also required to provide the Department with a list of Lazy Double FF Outfitting's employees and vehicles. Mr. Ellison did so, listing among others an employee named Lucas McLarty and a 1994 GMC Pickup.

The permit did not include an area known as Trout Creek in the Rio Grande National Forest in Colorado. However, on July 16-17, 1997 Lucas McLarty took four people by horseback to Trout Creek for a fishing trip. The trip was booked on July 15, 1997 by Mr. Ellison's father, and used Lazy Double FF Outfitting's GMC truck, horses, and tack. At the conclusion of the fishing trip, the customer gave a check for $397.50 to Mr. McLarty. The memo on the check read "trout creek (5) horses." The check was endorsed by Mr. Ellison and deposited into Lazy Double FF Outfitting's bank account. At no time did the customers receive a written contract as required by Colorado law. See Colo.Rev. Stat. § 12-55.5-109(1). At no time was the check returned or a refund offered to the customers. Although Mr. Ellison filed trip itinerary documents for other trips, none were filed for Trout Creek. Additionally, no log sheets exist for the trip.

Mr. Ellison maintained at trial that he had no knowledge of the Trout Creek trip. He testified that he was in Oklahoma purchasing a horse at the time, and he neither booked nor approved the trip. Although he endorsed the check, Mr. Ellison testified that he did not know what it was for. The Magistrate Judge did not find this testimony credible. Mr. Ellison's father and sister (the company's book keeper) testified that they were unaware that the special use permit excluded Trout Creek.

Mr. Ellison was charged with three counts of violating the terms and conditions of his special use permit: operating in an unauthorized location, keeping an inaccurate trip log, and failing to provide a written contract. The Magistrate Judge concluded that Mr. Ellison's employees were acting within the scope of their employment and with an intent to benefit Mr. Ellison and his company in planning and executing the Trout Creek trip, and Mr. Ellison ratified their actions by endorsing and depositing the check. He also concluded that the three charged counts were strict liability offenses, requiring no mens rea. He found that Mr. Ellison violated terms and conditions of the special use permit by keeping an inaccurate trip log and by failing to provide the Trout Creek customers with a written contract. Mr. Ellison was sentenced to pay a fine of $397.50 ($132.50 for each count) and an assessment of $30.00. The Department of Agriculture subsequently declined to reissue Mr. Ellison a permit.

II. Appeal

Post-conviction review of a magistrate judge's judgment is governed by same standards as appeal from judgment of a federal district court to the court of appeals. See United States v. Ramirez, 555 F.Supp. 736 (E.D.Cal.1983); United States v. Welsh, 384 F.Supp. 531 (D.C.Kan. 1974). I review the Magistrate Judge's conclusions of law de novo, applying the same standard used by the Magistrate Judge in making his initial ruling. See Naimie v. Cytozyme Labs., Inc., 174 F.3d 1104, 1108 (10th Cir.1999); Olguin v. Lucero, 87 F.3d 401, 403 (10th Cir.), cert. denied, 519 U.S. 982, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996). I review the Magistrate Judge's fact findings for clear error. See Naimie, 174 F.3d at 1108. "A finding of fact is `clearly erroneous' if it is without factual support in the record or if the appellate court, after reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made." Manning v. United States, 146 F.3d 808, 812 (10th Cir.1998) (citation and quotation omitted).

Mr. Ellison first argues that the Magistrate Judge erroneously relied on a complicitor theory. I find no indication in the Magistrate Judge's Memorandum Opinion and Order that Mr. Ellison was convicted as a complicitor, aider, or abettor. I therefore conclude that the Magistrate Judge did not err in this regard.

Mr. Ellison next argues that the Magistrate Judge erred in holding that the three charged offenses were strict liability offenses. I disagree.

Congress has authorized the Secretary of Agriculture to "make such rules and regulations and establish such service as will insure the objects of [public and national forest] reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of ... such rules and regulations shall be punished by a fine of not more than $500 or imprisonment for not more than six months, or both. Any person charged with the violation of such rules and regulations may be tried and sentenced by any United States magistrate specially designated for that purpose by the court by which he was appointed ...." 16 U.S.C. § 551. Pursuant to this authority, the Secretary of Agriculture has prohibited "[v]iolating any term or condition of a special-use authorization, contract or approved operating plan." 36 C.F.R. § 261.10(1).

All three counts alleged violations of the special use permit in violation of 16 U.S.C. § 551 and 36 C.F.R. § 261.10(1). The language of those sections does not, however, indicate the applicable mens rea. When assigning a mens rea as an element of a crime, courts must follow congressional intent. See United States v. Bailey, 444 U.S. 394, 406, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). The language of the statute is the starting place of an inquiry. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). "Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal." Staples v. United States, 511 U.S. 600, 604-606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); see also United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922) (traditionally, "scienter" was a necessary element in every crime). "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (internal quotation marks omitted). Offenses that require no mens rea are generally disfavored. See Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); accord Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. Cf. United States Gypsum, 438 U.S. at 438, 98 S.Ct. 2864; Morissette, 342 U.S. at 263, 72 S.Ct. 240.

However, "the general presumption that some guilty purpose is required is not applicable to what have been termed public welfare offenses, which typically impose penalties to serve as an effective means of regulation." United States v. Unser, 165 F.3d 755 (10th Cir.1999) (citing Morissette). The Tenth Circuit recently addressed this issue in the context of unlawful possession and operation of a motor vehicle within a National Forest Wilderness Area in violation of 16 U.S.C. § 551 and 36 C.F.R. § 261.16(a). See id. The Court held that the violation was a public welfare offense and, thus, required no mens rea for conviction. In reaching this conclusion, the Court adopted a multi-part test, looking to whether the "federal criminal statute omits mention of intent[,] where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where the conviction does not gravely besmirch [the reputation], where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting...." Id. at 762 (citing Holdridge v. United States, 282 F.2d 302, 310 (8th Cir.1960) (Blackmun, J.)). "Additionally, the Supreme Court has indicated that most public welfare offenses involve situations where a reasonable person should know that the conduct is subject to stringent regulation and may seriously threaten a community's health or safety." Id. (citing Liparota v. United States, 471 U.S. 419, 433, 105 S.Ct. 2084, 85...

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