U.S. v. Quarrell
| Citation | 310 F.3d 664 |
| Decision Date | 05 November 2002 |
| Docket Number | No. 01-2286.,No. 01-2293.,01-2286.,01-2293. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James L. QUARRELL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Michael Quarrell, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert E. Kinney, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, and Shari Lynn Allison, Research and Writing Specialist, with him on the brief), Las Cruces, NM, for the Defendant-Appellant James L. Quarrell.
Angela Arellanes, Albuquerque, NM, for the Defendant-Appellant Michael Quarrell.
Peter M. Ossorio, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Las Cruces, NM, for the Plaintiff-Appellee.
Before BRISCOE, McWILLIAMS and McKAY, Circuit Judges.
James L. Quarrell and Michael Quarrell appeal their convictions of violating the Archaeological Resources Protection Act (ARPA), 16 U.S.C. §§ 470aa et seq., and conspiring to violate ARPA pursuant to 18 U.S.C. § 371, and the sentences imposed. The Quarrells argue (1) the district court erred in not requiring the government to prove the Quarrells knew they were excavating on public land; (2) the court erred in not allowing the Quarrells to present a defense based upon their belief that they were excavating on private land; and (3) the court did not have authority to order restitution and, alternatively, the amount awarded was an abuse of discretion. In addition, James argues the court erred in enhancing his sentence for obstruction of justice, and Michael argues the court should have granted him credit for acceptance of responsibility. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm the Quarrells' convictions, but remand to the district court for resentencing in accordance with this opinion.
James Quarrell, his brother Michael Quarrell, and their cousin, Aaron Sera, were arrested for vandalizing an archaeological site in the Gila National Forest in southern New Mexico. The site where they were apprehended has been public property since 1967 and is known as the East Fork site, a Mimbres-Mogollon ruin that covers approximately 2.7 acres. Prior to the arrest, a forest service officer had installed a remote sensor at the road closest to the site after she noticed boot tracks and fresh holes at the site. When the sensor was activated a few weeks later, officers found the Quarrells and Sera excavating the site. Among their possessions were backpacks and sleeping bags, a specialized probe used to determine the alignment of rock walls, shovels, a firearm, and pieces of Mimbres pottery. In addition, the tread on James' boots matched the tracks the officer previously had seen at the site. Sera pleaded guilty to a misdemeanor violation of ARPA.
The Quarrells stipulated that they were familiar with Mimbres archaeology and art; they knew they were digging in a prehistoric Mimbres Pueblo; they intended to excavate and remove Mimbres artifacts; and they had not received or applied for a permit from the Forest Service to excavate the site. Prior to trial, the government filed a motion to preclude the Quarrells from presenting evidence and arguing as a defense that they did not know they were excavating on public land. The court ruled that the government was not required to prove the Quarrells knew they were on public land, but opined that the Quarrells could present evidence that they thought they were lawfully excavating private land. The Quarrells presented no evidence to support a mistake of fact defense, and the only issue at trial was whether they caused damage over the felony threshold amount of $500. The jury found that the Quarrells caused damages in excess of $500 and found them guilty of excavating in violation of ARPA, and guilty of conspiring to excavate in violation of ARPA.
The district court sentenced the Quarrells to concurrent terms of twelve months and one day, followed by one year of supervised release. The court enhanced their sentences for obstruction of justice because they perjured themselves at trial, and denied a sentence reduction for acceptance of responsibility. The Quarrells were each ordered to pay restitution in the amount of $4,362 for repair and restoration of the site and $15,253 for archaeological damage of the site. Their sentences have been stayed pending the outcome of this appeal.
The Quarrells contend the district court erred in its reading of ARPA because it did not require the government to prove the Quarrells knew they were excavating on public land. We review the district court's interpretation of a federal statute de novo. United States v. Fillman, 162 F.3d 1055, 1056 (10th Cir.1998). When interpreting the language of a statute, the starting point is always the language of the statute itself. In re Geneva Steel Co., 281 F.3d 1173, 1178 (10th Cir. 2002). If the language is clear and unambiguous, the plain meaning of the statute controls. Id. A statute is ambiguous when it is "capable of being understood by reasonably well-informed persons in two or more different senses." Id. (internal quotations omitted). If an ambiguity is found, "a court may seek guidance from Congress's intent, a task aided by reviewing the legislative history." Id. A court can also resolve ambiguities by looking at the purpose behind the statute. Id.
Whether the government must prove as an element of 16 U.S.C. § 470ee(a) that a defendant knew he or she was excavating on public land is an issue of first impression. The relevant section of ARPA states:
(a) Unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources
No person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit....
(b) Trafficking in archaeological resources the excavation or removal of which was wrongful under Federal law
No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of —
(1) the prohibition contained in subsection (a) of this section, or
(2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.
(c) Trafficking in interstate or foreign commerce in archaeological resources the excavation, removal, sale, purchase, exchange, transportation or receipt of which was wrongful under State or local law
No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.
(d) Penalties
Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined ... or imprisoned ... or both.
16 U.S.C. § 470ee(a)-(d) (2002). The Quarrells were convicted of violating subsection (a). The mens rea for this section is provided in subsection (d). Thus, to be convicted, the Quarrells must have "knowingly" violated subsection (a). The parties disagree as to whether "knowingly" extends to each element of subsection (a), including the requirement that the archaeological resource be located on public or Indian lands. The Quarrells argue that "knowingly" refers to each element of subsection (a), including the "located on public lands" requirement. The government argues that "knowingly" does not extend to the "located on public lands" requirement because the location of the charged acts is a jurisdictional element.
The government contends that if it is required to show a defendant knew that he or she was on public land under subsection (a), it follows that the government would be required to establish knowledge of the interstate or foreign commerce element in subsection (c). However, establishing a defendant's knowledge of the interstate or foreign commerce element is generally not required. See, e.g., United States v. Levine, 41 F.3d 607, 617 n. 12 (10th Cir.1994) (). Because reasonable arguments can be made supporting each interpretation of the statute, the statute is ambiguous.
In enacting ARPA, Congress stated that archaeological resources on public lands are "irreplaceable part[s] of the Nation's heritage," and "these resources are increasingly endangered because of their commercial attractiveness." 16 U.S.C. § 470aa(a)(1)-(2). In addition, Congress found that "existing Federal laws do not provide adequate protection to prevent the loss and destruction of these archaeological resources and sites resulting from uncontrolled excavations and pillage." Id. § 470aa(a)(3). Congress' explicit purpose in enacting ARPA was to "secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands." Id. § 470aa(b). In addition, Congress encouraged federal land managers "to carry out an active public information program and to publish the appropriate prohibitions and warnings in their respective brochures, maps, visitor guides, and to post signs at entrances to public lands." H.R. Rep. No. 96-311, at 1711, U.S.Code Cong. & Admin.News 1979, p. 1709 (1979). However, Congress explicitly authorized land managers...
To continue reading
Request your trial
-
Schmidt v. Int'l Playthings LLC
...be read to refer to either the three-factor § 1501.2(b) test, or the non-exhaustive § 1501.2(a) list. See United States v. Quarrell, 310 F.3d 664, 669 (10th Cir. 2002) ("A statute is ambiguous when it is ‘capable of being understood by reasonably well-informed persons in two or more differe......
-
United States v. Wells, 16-4006
...U.S.C. § 3663A(a)-(c). No party disputes that the United States can constitute a "victim" under the MVRA. See United States v. Quarrell, 310 F.3d 664, 677 (10th Cir. 2002) ("[T]he government can be a 'victim' under the MVRA."). However, the question here is for what alleged harms can the Un......
-
U.S. v. Hinckley
...persons in two or more different senses." McGraw v. Barnhart, 450 F.3d 493, 498 (10th Cir.2006) (quoting United States v. Quarrell, 310 F.3d 664, 669 (10th Cir.2002)). If the court finds the statute ambiguous, the court then looks beyond the plain text to resolve the ambiguity, examining le......
-
United States v. Emor
...v. Alston-Graves, 435 F.3d 331, 337 (D.C. Cir. 2006)). 9. "[T]he government can be a 'victim' under the MVRA." United States v. Quarrell, 310 F.3d 664, 677 (10th Cir. 2002); see United States v. Ekanem, 383 F.3d 40, 43 (2d Cir. 2004) (holding that the government or a governmental entity may......
-
Sentencing
...2016) (obstruction enhancement not applied because district court did not make express factual findings of perjury); U.S. v. Quarrell, 310 F.3d 664, 681-82 (10th Cir. 2002) (obstruction enhancement not applied because defendant’s false testimony was not found to be material or willful). Al......
-
Chapter 5 Historic and Cultural Resources Management on Federal Public Land
..."because these activities are not intentional excavation of human remains").[99] 18 U.S.C. § 470ee(d).[100] 100. U.S. v. Quarrell, 310 F. 3d 664, 674 (10 Cir. 2002).[101] 16 U.S.C. § 470ff(a)(1); 43 C.F.R. § 7.15.[102] 43 C.F.R. § 7.16.[103] 43 C.F.R. § 7.14.[104] See 16 § 470gg(b); 43 C.F.......
-
CHAPTER 6 MAN OVER MATTER--ARPA, PRPA, AND SOME KEY DIFFERENCES BETWEEN THEM
...36 C.F.R. Part 79. [11] 16 U.S.C. 470dd. [12] 16 U.S.C. 470cc(f). [13] 16 U.S.C. 470ee [14] See, for instance, United States v. Quarrell, 310 F.3d 664 (10th Cir. 2002). [15] See United States v. Lynch, 233 F.3d 1139 (9th Cir. 2000) ("We hold that under 16 U.S.C. § 470ee(a), the Government m......