U.S. v. Velte

• Decision Date: 05 June 2003
• Docket Number: No. 01-50681.,No. 01-50669.,01-50669.,01-50681.
• Citation: 331 F.3d 673
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jack Carl VELTE, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Jack Carl Velte, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

331 F.3d 673

UNITED STATES of America, Plaintiff-Appellant, v. Jack Carl VELTE, Defendant-Appellee.

United States of America, Plaintiff-Appellee, v. Jack Carl Velte, Defendant-Appellant.

No. 01-50669.

No. 01-50681.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2002.

Filed June 5, 2003.

COPYRIGHT MATERIAL OMITTED

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when oral argument was heard and opinion was filed), Steve Miller, Assistant U.S. Attorney, San Diego, CA, for the plaintiff-appellant/cross-appellee.

Vincent J. Brunkow, San Diego, CA, for the defendant-appellee/cross-appellant.

Appeal from the United States District Court for the Southern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CR-00-02698-CRB.

Before: HUG, BRUNETTI and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether an individual who, as determined by a jury, purposefully set fire to a national forest, is nonetheless entitled to acquittal of the offense of setting fire to federal land "without authority."

I

On July 22, 2000, a fire was set in the Cleveland National Forest that consumed a large tract of land before it was finally extinguished. The first officer on the scene was Deputy Sheriff McClendon who testified that he was on patrol nearby when he observed smoke. Upon approaching the scene of the fire, McClendon saw Jack Carl Velte sitting behind the wheel of a vehicle in a clearing near the flames. Based upon its size and the fact that it was still growing, McClendon concluded that the fire had been burning for only a short period of time.

McClendon approached Velte and asked whether he started the fire, to which Velte responded, "I don't think so." Upon further questioning by McClendon, Velte speculated that the fire could have been started by a spark off a rock, by the cigarette that he had been smoking, or by someone else. McClendon, who by this point was already suspicious of Velte, then noticed a dirt or sand substance on the knees of his pants and that fresh ash was near the left front tire of his car. McClendon subsequently recovered lighters, books of matches, boxes of cigarettes, paper napkins, and aerial flares from Velte's car.

Officer Saruedi of the U.S. Forest Service also talked to Velte at the scene of the fire. Velte told Saruedi that prior to the start of the fire he had been in the forest brush looking for Indian artifacts. Velte also informed Saruedi that he had been smoking a cigarette during his foray into the forest. Velte claimed that he first noticed the fire when he saw a helicopter hovering above that drew his attention to smoke. Thinking his car was on fire, Velte told Saruedi that he returned to his car at which point Deputy McClendon arrived. Velte further claimed that he did not purposefully start the fire, and that if his cigarette was indeed the cause of the fire, it was unintentional.

Deputy Sheriff Cruzen was the arson investigator who examined the origin of the fire. As part of his investigation, Cruzen followed the burn indicators and found a small piece of white paper with burnt edges within the area that he ascertained was the point of origin. Cruzen also found two other pieces of white paper located nearby. On the basis of these findings, Cruzen determined that the fire had been intentionally set by human hand. Cruzen subsequently asked Velte to show him where he had been walking in the forest prior to the start of the fire. Cruzen claims that when Velte would lead him near the point of origin, Velte would change the topic and divert his attention away from the area.

Cruzen also recovered white paper napkins from inside Velte's car. Cruzen observed that these napkins, as well as the burnt pieces of paper recovered from the scene of the fire, were similar in texture to napkins that one would find at a fast food restaurant. The recovered napkins and pieces of paper were submitted for scientific analysis, but the results were not available until after trial. The completed test results subsequently revealed that the napkins recovered from Velte's car were dissimilar to the pieces of paper found near the point of origin.

Based in large part on this circumstantial and testimonial evidence, Velte was convicted by a jury of willfully setting fire to federal land without authority, in violation of 18 U.S.C. § 1855. Notwithstanding the jury's determination, the district court subsequently entered an order granting Velte's motion for judgment of acquittal. The district court rejected the government's argument that there was sufficient evidence to support the jury conviction, and concluded that no reasonable trier of fact could find beyond a reasonable doubt that Velte acted "without authority" in setting fire to the forest. In addition, the district court also conditionally rejected Velte's motion for a new trial based on claims of improper jury instructions, failure of the government to disclose exculpatory evidence, and ineffective assistance of counsel. The government timely appeals in No. 01-50669, and Velte timely cross-appeals in No. 01-50681.

II

The government, in its appeal, argues that the district court erred in setting aside Velte's jury conviction. In evaluating the government's claim, we "review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir.2000) (citation and internal quotation marks omitted).

A

Velte was charged under 18 U.S.C. § 1855, which provides:

Whoever, willfully and without authority, sets on fire any timber, underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the partial, concurrent, or exclusive jurisdiction of the United States ... shall be fined under this title or imprisoned not more than five years, or both.

Here, the primary dispute concerns the meaning of "without authority" as this term is used in § 1855. There are only a handful of cases that deal with sufficiency of evidence for a § 1855 violation, see, e.g., United States v. Newman, 6 F.3d 623 (9th Cir.1993); United States v. Abner, 35 F.3d 251 (6th Cir.1994), and none of them addresses the statutory meaning of "without authority." Nor does the statute itself provide a definition.

The Supreme Court has instructed that, "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." F.D.I.C. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Following the Court's lead, our resort to the dictionary informs us that the everyday meaning of "without" is "lacking," and "authority" is "justifying grounds." Webster's Third New International Dictionary 146, 2627 (1986).

Velte construes the ordinary meaning of "without authority" in the context of § 1855 as requiring the government to present evidence of a specific prohibition against the setting of intentional fires to federal lands. Indeed, Velte argues: "An individual does not need permission to set a fire in a National Forest. Everyone has permission to set a fire in a National Forest unless the Forest Service has specifically prohibited the setting of a fire." Brief for Appellee at 11.¹

We reject Velte's baseline proposition that unless otherwise prohibited by Forest Service regulations, individuals have an affirmative right to set fire to federal lands. The clear import of § 1855 is to outlaw the destructive and dangerous activity of setting fire to federal lands, and despite Velte's assertions to the contrary, no further regulatory or statutory enactments are needed to achieve this purpose.

Velte nonetheless contends that the default under § 1855 must be that individuals have an inherent right to set fire to federal lands because to hold otherwise would subject commonplace activities — such as setting a camp fire, lighting a torch, smoking a cigarette or pipe, or striking a match in a national forest — to criminal liability. Velte's concern, however, is unfounded.

In national forests across the country, the government has developed designated areas for campgrounds, and has installed campfire rings and campfire stoves in such areas. By doing so, the government has granted its authority for campfires — subject, of course, to various park rules and regulations — and as a result shielded ordinary campers from the reach of 18 U.S.C. § 1855. And as for lighting a torch, smoking a pipe, or striking a match, these activities, on their face, do not constitute the setting on "fire [of] any timber, underbrush, or grass or other inflammable material upon the public domain," and therefore are not prohibited by § 1855.

Accordingly, Velte's contention that an individual has a right to set fire to a national forest unless specifically prohibited by the Forest Service is incorrect. Properly construed, § 1855 prohibits the setting of fires to federal lands that are done willfully and without either the express or implied authorization of the government.

B

With this background in mind, we now turn to whether the district court erred in granting Velte's motion for acquittal. In setting aside his conviction, the district court left undisturbed the jury's determination that Velte intentionally set fire to the Cleveland National Forest. Therefore, the sole issue before us is whether a rational trier of fact could conclude based on the evidence in the record that Velte acted "without authority" in setting the fire.

That Velte lacked any "justifying grounds" or "authority" to purposefully set fire to the underbrush of the Cleveland National Forest with a cigarette and paper napkin that proceeded to burn 300 acres of land is fairly obvious. Indeed, there...