U.S. v. Smith, s. 87-3020

• Decision Date: 02 November 1987
• Docket Number: Nos. 87-3020,87-3025,s. 87-3020
• Citation: 866 F.2d 1092
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bruce SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roberta BLAIR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1092

866 F.2d 1092

UNITED STATES of America, Plaintiff-Appellee, v. Bruce SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Roberta BLAIR, Defendant-Appellant.

Nos. 87-3020, 87-3025.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 2, 1987. ^*

Submission Vacated Dec. 1, 1987.

Resubmitted Jan. 23, 1989.

Decided Jan. 23, 1989.

Michael G. Karnavas, Federal Public Defender, Anchorage, Alaska and William L. Choquette, Anchorage, Alaska, for defendants-appellants.

Mark R. Davis, Chief Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee.

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

Before NELSON, ^** NORRIS and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellants Bruce Smith and Roberta Blair had an unpatented mining claim consisting of approximately twenty acres, located on lands open for mining in the 6,000,000 acre Chugach National Forest. It is possible to drive a two wheel drive vehicle to within a short walking distance of the claim. The appellants obtained the claim in the winter of 1983-84 and recorded it on May 22, 1984. On several occasions in May and June of 1984, personnel from the United States Forest Service visited the claim, observed the activities conducted there by the appellants, and had several discussions with the appellants and their colleagues. In the opinion of the Forest Service personnel, the appellants were using sound mining and environmental practices in working their claim.

The Forest Service personnel also believed, however, that the appellants' activities were significant enough to require the appellants to file a Plan of Operations with the Forest Service pursuant to 36 C.F.R. Sec. 228.4 (1984) (unless otherwise noted, all citations in this opinion refer to the 1984 version of the Code of Federal Regulations). On several occasions the Forest Service personnel apprised the appellants of the Forest Service Plan of Operations filing requirement. On or about June 22, 1984, the District Ranger showed the appellants a letter of noncompliance addressed to Blair and Elizabeth Smith (who is not a party to this appeal). The appellants never filed a Plan of Operations.

On July 13, 1984, the government filed an information charging the appellants with residing and working on the claim "without having sought, filed for or having obtained a permit (Plan of Operations) from the United Forest Service." The appellants do not dispute that they had resided and conducted certain mining-related activities on the claim without filing a Plan of Operations. After a bench trial before a magistrate, judgments of conviction were entered against the appellants. Smith received a sentence of ten days' imprisonment, and Blair received a sentence of three days' imprisonment and a $250 fine.

The appellants appealed their convictions to the district court, which affirmed by order dated March 9, 1987. The appellants now seek reversal of the district court order, asserting a number of grounds. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291 & 1631, and we reverse.

I

Appellants argue that the Paperwork Reduction Act of 1980 ("PRA") prohibits their prosecutions because the Plan of Operations filing requirement lacks a current control number, and appear to raise an issue of first impression in this circuit. The PRA was enacted "to reduce and minimize the burden Government paperwork imposes on the public." S.Rep. No. 930, 96th Cong., 2d Sess. 2 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 6241, 6242. The PRA requires all agencies to submit all "information collection requests" to the Director (the "Director") of the Office of Management and Budget ("OMB") for review and approval. See 44 U.S.C. Sec. 3507. If the Director approves the information collection request he must ensure that it contains a control number. See 44 U.S.C. Sec. 3504. An agency "shall not conduct or sponsor the collection of information unless" the information collection request has been submitted to and approved by the Director, see 44 U.S.C. Sec. 3507(a), and "shall not engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request," see 44 U.S.C. Sec. 3507(f). "Information collection requests which do not display a current control number or, if not, indicate why not are to be considered 'bootleg' requests and [under PRA section 3512] may be ignored by the public." S.Rep. No. 96-930 at 52, reprinted in 1980 U.S.Code Cong. & Admin.News 6292; see 44 U.S.C. Sec. 3512 (penalties may not be imposed for noncompliance with information collection requests that do not display a current control number).

A

The magistrate rejected appellants' PRA defense, holding that because the defendants "did not rely upon the Paperwork Reduction Act" in refusing to submit a Plan of Operations, they "should not be permitted to rely upon that defense." The district court "concur[red] in and adopt[ed] by reference the Magistrate's disposition of this issue." The magistrate cited no authority for this proposition, and the government does not argue that appellants' ignorance of the PRA frees the government from its requirements. We reverse the magistrate on this ground; just as ignorance of the law is not an excuse for violating it, knowledge and reliance is not a prerequisite for asserting an affirmative defense to a criminal prosecution. See, e.g., 1 C. Torcia, Wharton's Criminal Law Sec. 77 (14th ed. 1978); 1 W. LaFave & A. Scott, Substantive Criminal Law Sec. 5.1(d) (1986).

B

The district court also held, and the government argues, that the appellants "have not preserved this issue for appeal," citing Federal Rule of Criminal Procedure 12(b), (f). Rule 12(b) provides that "defenses, objections, and requests" based on "defects in the institution of the prosecution" or on "defects in the indictment or information" may be raised only by motion before trial. Fed.R.Crim.P. 12(b)(1), (2). ¹ Rule 12(f) then provides that a party's failure to raise such defenses, objections, or requests by the motion date "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." Fed.R.Crim.P. 12(f).

Appellants' PRA contention is waived if subject to Rule 12(f). The magistrate had set November 5, 1984 as the motion date. Appellants first raised the PRA issue on January 28, 1986. Rule 12(f) does not, however, apply to appellants' PRA defense. The defenses for which pretrial assertion is mandatory relate to procedural defects in obtaining the charge and to defects in the information that go to matters of form rather than substance that usually are apparent on the face of the pleading. In contrast, the PRA bar of prosecution is in the nature of an affirmative defense, see Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449, 453-54 (9th Cir.1983), that "is capable of determination without the trial of the general issue," Fed.R.Crim.P. 12(b). As such, it is a defense that "may be raised before trial by motion" but is not waived pursuant to Rule 12(f) if not brought before trial. ²

In reaching this conclusion, we first note that Rule 12 creates three categories of defenses, objections, and requests that "may" be raised before trial: (1) the failure of the indictment or information to show subject matter jurisdiction or to state an offense ("jurisdictional defenses"); (2) the five matters enumerated in Rule 12(b) ("mandatory pretrial matters"), including defenses "based on defects in the institution of the prosecution" and defenses "based on defects in the indictment or information"; and (3) all other matters that are "capable of determination without the trial of the general issue" ("permissive pretrial matters").

Rule 12(b)(2) specifically provides that the jurisdictional defenses "shall be noticed by the court at any time during the pendency of the proceedings." These are the most durable defenses, and may be raised for the first time on appeal. Rule 12(f) provides that matters "which must be made prior to trial" are waived if not raised prior to the motion date. The matters that "must be made prior to trial" under Rule 12(f) are the mandatory pretrial matters described in the five paragraphs of Rule 12(b). Finally, Rule 12 says nothing about the time for asserting permissive pretrial matters, which are "capable of determination without the trial of the general issue." These matters are subject to the general rule that points not raised at trial are waived (with certain exceptions). ³ See, e.g. United States v. Brimberry, 744 F.2d 580, 586-87 (7th Cir.1984) (immunity, a matter that "may" be raised before trial, is properly raised by motion; time for making motion is unclear, but court adopts commentators' view that these defenses may be raised at trial); see also Davis v. United States, 411 U.S. 233, 239-42, 93 S.Ct. 1577, 1581-83, 36 L.Ed.2d 216 (1973) (Rule 12 does not apply to bar defenses initially raised in habeas proceeding but not enumerated by Rule 12(b)) (discussing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (defense based on fourth amendment exclusionary rule; applying older version of Rule 12 not requiring pretrial motion with respect to suppression of evidence)).

The appellants raised the PRA defense after the motion date but no later than at trial. Jurisdictional defenses and permissive pretrial matters are timely if asserted at or before trial. Therefore, appellants' PRA defense was waived pursuant to Rule 12(f) only if it is a mandatory pretrial matter described by Rule 12(b)(1) or (2). ⁴

The cases provide little guidance in formulating a general definition of Rule 12(b)(1) "defects in the institution of the prosecution" or of Rule 12(b)(2) "defects in the indictment or information." ⁵ We observe, however, that courts have addressed under Rule 12(b)(2) such defenses as misnomer, duplicity or...