U.S. v. Patrin

• Decision Date: 20 April 1978
• Docket Number: Nos. 77-2191,2175,s. 77-2191
• Citation: 575 F.2d 708
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd Julius PATRIN, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barbara PATRIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 708

575 F.2d 708

UNITED STATES of America, Plaintiff-Appellee, v. Floyd Julius PATRIN, Sr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Barbara PATRIN, Defendant-Appellant.

Nos. 77-2191, 2175.

United States Court of Appeals, Ninth Circuit.

April 20, 1978.

S. David Swayne (argued), Moscow, Idaho, for defendant-appellant.

James Bevis (argued), Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before WALLACE and KENNEDY, Circuit Judges, and GRAY, ^* District Judge.

WALLACE, Circuit Judge:

Floyd Patrin, Sr. and Barbara Patrin were convicted by a jury of assaulting federal officers in violation of 18 U.S.C. § 111. They contend that the trial court was without jurisdiction to try the case because the victims were not protected by the statutory provision under which they were indicted. We reverse.

I

On August 27, 1976, Mackenzie and O'Malley were measuring and cutting selected trees in the Nez Perce National Forest pursuant to their duties as employees in the United States Forest Service. Under the direction of their supervisor, they were assisting in scientific research on the growth patterns of Douglas Fir trees. While taking data and samples at their test site, they were confronted by Floyd Patrin, Sr., his wife Elsie, and his daughter-in-law, Barbara, all of whom were armed. The Patrins said they had an unpatented mining claim where Mackenzie and O'Malley were working, and they told the two men to leave the area.

The three Patrins were subsequently indicted for assaulting federal officers with a deadly weapon. After the jury had been selected, the Patrins unsuccessfully moved to dismiss the indictment on the ground that Mackenzie and O'Malley were not within the protection of 18 U.S.C. § 111, the statute alleged to have been violated. The contention was raised again in a motion for acquittal following the government's case. The district judge rejected the argument once more, but he did dismiss the indictment insofar as it charged assault with a deadly weapon and allowed the case to proceed on the lesser included offense of simple assault upon a federal officer. At the close of evidence, the Patrins renewed their motion for acquittal, and it was again denied.

The jury returned a verdict of not guilty as to Elsie Patrin. Barbara and Floyd Patrin were found guilty, and they appeal.

II

The Patrins' main argument on appeal is that the trial court erred in concluding that Mackenzie and O'Malley were included in the class of federal officers and employees described in 18 U.S.C. § 111. Thus, they contend, their conduct did not constitute an offense "against the laws of the United States," 18 U.S.C. § 3231, and the district court lacked subject matter jurisdiction over the case.

18 U.S.C. § 111 ¹ makes unlawful an assault upon "any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties . . . ." 18 U.S.C. § 1114, in turn, designates several categories of federal officers and employees. Relevant to this case is the following language from section 1114:

any officer or employee of the Department of Agriculture or of the Department of the Interior designated by the Secretary of Agriculture or the Secretary of the Interior to enforce any Act of Congress for the protection, preservation, or restoration of game and other wild birds and animals, any employee of the Department of Agriculture designated by the Secretary of Agriculture to carry out any law or regulation, or to perform any function in connection with any Federal or State program or any program of Puerto Rico, Guam, the Virgin Islands of the United States, or the District of Columbia, for the control or eradication or prevention of the introduction or dissemination of animal diseases . . ..

(Emphasis added).

Here are defined two categories of federal employees. The first consists of those designated by the Secretary of Agriculture or the Secretary of the Interior to enforce federal laws for the protection, etc., of game and other wild birds and animals. We shall refer to this as the "game protection category." The second, which we have set off above by italics, includes those designated by the Secretary of Agriculture "to carry out any law or regulation, or to perform any function in connection with any Federal or State program . . . for the control (etc.) . . . of animal diseases . . .." This we shall refer to as the "animal disease category." ²

In deciding whether the district court had jurisdiction in this case, we are required to make two determinations: (1) Whether, by its indictment and its statements during the prosecution of this case, the government has precluded itself from invoking the court's jurisdiction and proceeding under the game protection category, and (2) if so, whether Mackenzie and O'Malley are within the animal disease category of protected officers and employees.

III

It appears from the record, and it was confirmed at oral argument on appeal, that throughout the trial of this case the government believed it could validly prosecute the Patrins only under the animal disease category. The indictment identifies Mackenzie and O'Malley merely as "(officers) of the Department of Agriculture designated . . . to carry out any law or regulation . . .." (Emphasis added). This language is taken directly from that part of section 1114 defining the animal disease category. In the hearing before the district judge on the Patrins' motion to dismiss, the prosecuting attorney, referring to a notice published by the Secretary of Agriculture in the Federal Register in 1940 designating certain federal employees as within the game protection category of section 1114, ³ said:

The designation of the Federal Register . . . only goes to the wildlife and birds, it appears to me.

I consequently feel that the Government cannot rely upon that designation so far as supporting jurisdiction in this case. Clearly the victims in this matter were not performing any function with regard to wild life and birds (the game protection category), but that does not, the Government submits, mean that the Indictment should be dismissed.

There are two designations in 1114 and one is relating to the protection and preservation of game and other wild birds and animals (the game protection category) . . ..

The second is the . . . designation that any employee designated by the Secretary of Agriculture to perform and carry out any law and regulation (the animal disease category), the Government submits that that, being taken by itself, gives the Government (sic) the jurisdiction to proceed in this case.

(Emphasis added).

The argument before the district court thereafter centered on whether Mackenzie and O'Malley were covered by the animal disease category. The district judge concluded that they were and denied the motion to dismiss.

As it turns out, the case for jurisdiction under the game protection category may not be foreclosed as the government believed at trial. In United States v. Tijerina, 407 F.2d 349 (10th Cir.), cert. denied, 396 U.S. 843 & 867, 90 S.Ct. 76, 24 L.Ed.2d 93 (1969), the Tenth Circuit pointed out that the Federal Register designation that the prosecuting attorney in this case conceded was of no help to him, 5 Fed.Reg. 2,940 (1940), may be interpreted as sweeping very broadly. Id. at 354. Thus, the game protection category, as given content by 5 Fed.Reg. 2,940 (1940), and as interpreted by the Tenth Circuit in Tijerina, could support district court jurisdiction on the facts of this case. The first question before us, therefore, is whether the government, having disavowed any intent to rely upon the game protection category during trial, can now invoke that section for the first time. We hold that it cannot.

As a general rule, "a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). Accord, Bustamante v. Cardwell, 497 F.2d 556, 558-59 (9th Cir. 1974); Roberson v. United States,382 F.2d 714, 718 (9th Cir. 1967); United States v. Waechter, 195 F.2d 963, 964 (9th Cir. 1952). It is immaterial whether the issue was not tried in the district court because it was not raised or because it was raised but conceded by the party seeking to revive it on appeal. Compare United States v. Waechter, supra, 195 F.2d at 964 with Wilson v. Byron Jackson Co., 93 F.2d 572, 573 n.2 (9th Cir. 1937).

This rule is not without its exceptions, however. For example, where a new theory or issue has first come to light during the pendency of the appeal because of a recent change in the law, the appellate court may, in its discretion, Singleton v. Wulff, supra, 428 U.S. at 121, 96 S.Ct. 2868, allow that issue to be raised in the interests of justice. Hormel v. Helvering, 312 U.S. 552, 556-60, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). Accord, Standard Industries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586, 587, 90 S.Ct. 1310, 25 L.Ed.2d 590 (1970) (Black, J., dissenting). In such cases, remand for further findings of fact and to give the parties a chance to develop their arguments in light of a new theory or issue may be required. Hormel v. Helvering, supra, 312 U.S. at 560, 61 S.Ct. 719. Cf. Singleton v. Wulff, supra, 428 U.S. at 120, 96 S.Ct. 2868 (where defendant in trial court had done no more than successfully move to dismiss for lack of standing, and court of appeals reached the merits after reversing the dismissal, defendant was entitled to remand in order to develop his case in district court).

Our circuit has apparently recognized a second, narrow exception to the general rule. When the issue conceded or neglected in the trial court is purely one of law and either does not affect or rely upon the factual record developed by the parties, cf. Golden Gate Bridge & Highway Dist. v. United States, 125 F.2d 872, 875 (9th...