U.S. v. Novotny
| Decision Date | 29 November 1993 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before JOHN P. MOORE, TACHA, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Following a trial to the court, Defendant, appearing pro se, was convicted of removing timber from the San Juan National Forest without authorization, in violation of 36 C.F.R. § 261.6(h), promulgated pursuant to 16 U.S.C. § 551. After a hearing, the district court sentenced Defendant to three months' imprisonment and a fine of $2,500. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.
Colorado State Patrol Trooper Steven Nowlin observed Defendant hauling a trailer load of aspen logs in the San Juan National Forest. Trooper Nowlin stopped Defendant because the lights on his trailer were not working properly. During the stop, Defendant said that he had acquired the aspen logs from the Salter Y area of the San Juan National Forest, and that he did not have a permit authorizing him to remove them from the forest. After Trooper Nowlin informed Defendant that he would advise the Forest Service that Defendant had removed wood from the forest without a permit, Defendant went on his way. A few days later, Trooper Nowlin accompanied Tracey Morse, a law enforcement officer for the Forest Service, to Defendant's residence where she served on Defendant a violation notice for removing wood from the forest without a permit. During that conversation, Defendant again said that he had taken the wood from the forest.
On appeal, Defendant requests reversal of his conviction and sentence on the following grounds: (1) the district court was without personal and subject matter jurisdiction over him, in part because, as a "free citizen," he is not required to abide by 36 C.F.R. § 261.6(h); (2) the law enforcement officers failed to advise him of his Miranda rights; (3) there existed no probable cause for the charges against him because hearsay statements formed the basis of the charges; (4) he was not required to abide by 36 C.F.R. § 261.6(h) because the Code of Federal Regulations is not law and because this case did not involve any injured party, contract, or commerce; (5) 36 C.F.R. § 261.6(h) was not published in the Federal Register so Defendant had no notice that he could violate § 261.6(h); (6) he was denied his right to a jury trial; (7) he was denied his right to counsel; (8) various evidentiary rulings by the district court during trial were erroneous, and the trial court entered a not guilty plea for Defendant over his objection; (9) the evidence was insufficient to sustain the conviction; (10) the district court interrupted Defendant's allocution at the sentencing hearing; (11) the sentence is excessive; and (12) the fine is unauthorized.
Defendant contends that the district court was without personal and subject matter jurisdiction. We review de novo the question of the district court's jurisdiction. United States v. Visman, 919 F.2d 1390, 1392 (9th Cir.1990), cert. denied, 112 S.Ct. 442 (1991); see also United States v. Young, 952 F.2d 1252, 1255 (10th Cir.1991) ().
Subject matter jurisdiction over Defendant is conferred by 16 U.S.C. § 551 () and 18 U.S.C. § 3231 (). Accord United States v. Langley, 587 F.Supp. 1258, 1265 (E.D.Cal.1984) ().
The basis for Defendant's contention that the district court lacked personal jurisdiction is not clear. Defendant's assertion that because he is a "free citizen," he is not required to abide by 36 C.F.R. § 261.6(h), has been rejected as "entirely frivolous." See United States v. Schmitt, 784 F.2d 880, 882 (8th Cir.1986). "In light of the fact that [Defendant was charged by an Information with violating 16 U.S.C. § 551 authorizing 36 C.F.R. § 261.6(h) ], appeared before the district court, and has offered this court no support for his lack-of-personal-jurisdiction contention, we find his argument frivolous." United States v. Masat, 948 F.2d 923, 934 (5th Cir.1991), petition for cert. filed, No. 91-8108 (U.S. April 3, 1992). Defendant was subject to the restrictions imposed by 36 C.F.R. § 261.6(h). We therefore hold that the district court had personal and subject matter jurisdiction.
Defendant asserts that Trooper Nowlin was required to advise him of his Miranda rights prior to asking him where he got the wood. We review for clear error the district court's conclusion that Defendant was not in custody for purposes of Miranda when he admitted that he had removed the trees from the national forest without a permit. Cordoba v. Hanrahan, 910 F.2d 691, 693 (10th Cir.), cert. denied, 111 S.Ct. 585 (1990). Because a routine traffic stop of a motorist does not constitute custodial interrogation, no Miranda advisement was required. Berkemer v. McCarty, 468 U.S. 420, 441 (1984); Cordoba, 910 F.2d at 693. Therefore, we perceive no clear error in the district court's refusal to grant relief based on a lack of Miranda warnings.
Defendant next argues that because the violation notice served by Officer Morse was based on information told her by Trooper Nowlin, there existed no probable cause for bringing the charges. "Under the 'fellow officer' rule, 'probable cause is to be determined by the courts on the basis of the collective information of the police involved in the arrest, rather than exclusively on the extent of the knowledge of the particular officer who may actually make the arrest.' " Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir.1985) (quoting United States v. Troutman, 458 F.2d 217, 220 (10th Cir.1972)). Furthermore, by its verdict of guilty, the district court established not only that there was probable cause to bring the charges against Defendant, but that he was in fact guilty as charged beyond a reasonable doubt. United States v. Mechanik, 475 U.S. 66, 70 (1986). Thus, no error resulted from Officer Morse's reliance on information conveyed by Trooper Nowlin.
Defendant maintains that he was not required to comply with 36 C.F.R. § 261.6(h) because it is a regulation and not a law. He also asserts that he cannot be guilty of violating the regulation because no injured party, contract or commerce was involved.
Defendant's argument that he was not required to abide by the regulation is without merit. 16 U.S.C. § 551 "confers upon the forest service the duty to protect the forests from injury and trespass, and the power to condition their use and prohibit unauthorized uses." City & County of Denver ex rel. Bd. of Water Comm'rs v. Bergland, 695 F.2d 465, 476 (10th Cir.1982); see also United States v. Hymans, 463 F.2d 615, 617 (10th Cir.1972) ().
Likewise, Defendant's claim that he is not culpable due to the absence of an injured party, a contract or commerce is unsupportable. Defendant bases his argument on subsections of 36 C.F.R. § 261.6 other than subsection (h), that refer to timber contracts, e.g., subsections (a), (b), (c), and (e).
We apply the plain and ordinary meaning of the regulations unless legislative intent is to the contrary. See United States v. Eves, 932 F.2d 856, 860 (10th Cir.) (plain meaning of statute), cert. denied, 112 S.Ct. 236 (1991). Violation of the plain meaning of 36 C.F.R. § 261.6(h) requires neither a contract nor commerce.
We also reject Defendant's argument that he was never confronted with an injured party. See United States v. Amon, 669 F.2d 1351, 1355 (10th Cir.1981) (), cert. denied, 459 U.S. 825 (1982). Accordingly, Defendant was subject to the restrictions imposed by 36 C.F.R. § 261.6(h).
Defendant's argument that 36 C.F.R. § 261.6(h) was not published in the Federal Register so he had no prior notice of it is meritless. The applicable regulation was published at 49 Fed.Reg. 25450 (1984). 1 "The statute, [44 U.S.C. § 1507 (formerly 44 U.S.C. § 307) ] makes publication in the Federal Register the basis of the presumption of validity, constructive notice, and judicial notice." United States v. Tijerina, 407 F.2d 349, 354 n. 12 (10th Cir.), cert. denied, 396 U.S. 843 (1969). Therefore, Defendant had the requisite notice of the prohibitions set forth in 36 C.F.R. § 261.6(h) to subject him to penalties for its violation.
Defendant next asserts that he was denied his Sixth Amendment right to be tried by a jury. We review de novo the question of denial of a criminal defendant's right to a jury trial. United States v. Bencheck, 926 F.2d...
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