United States v. Mast

• Decision Date: 16 September 2019
• Docket Number: No. 18-1861,18-1861
• Citation: 938 F.3d 973
• Parties: UNITED STATES of America Plaintiff - Appellee v. Kevin Jay MAST, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

938 F.3d 973

UNITED STATES of America Plaintiff - Appellee

v.Kevin Jay MAST, Defendant - Appellant

No. 18-1861

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2019

Filed: September 16, 2019

Jeffrey C. Clapper, Kevin Koliner, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of South Dakota, Sioux Falls, SD, for Plaintiff - Appellee.

Gary Leistico, RINKE & NOONAN, Saint Cloud, MN, for Defendant - Appellant.

Kevin Jay Mast, Pro Se.

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

In 2010, Kevin Jay Mast came up with a plan to install drain tile to drain water from certain areas of his property in Brookings County, South Dakota, so as to make it more suitable for farming. He requested approval of his drainage project from the U.S. Natural Resources Conservation Service (NRCS). The NRCS noted that Mast’s property was subject to an easement that the U.S. Fish and Wildlife Service (FWS) had acquired from a previous property owner in 1973, and it instructed Mast to seek permission from the FWS for his drainage project. The FWS easement prohibited draining of "small wetland or pothole areas suitable for use as waterfowl production areas." The FWS created a map of the wetland areas on the property and sent it to Mast, explaining that his proposed drainage project would violate the terms of the easement and suggesting alternate locations on the property where drain tile could be installed without interfering with the identified wetland areas. Nearly two years later, in response to Mast’s 2010 request for approval, the NRCS sent Mast another map identifying "wetland locations and setback distances" in which drain tile could not be installed, which differed from the areas identified on the FWS map.

In the fall of 2013, Mast installed drain tile on his property in a manner consistent with the NRCS map but inconsistent with the FWS map. The government charged Mast with knowingly disturbing property within the National Wildlife Refuge System (NWRS), in violation 16 U.S.C. § 668dd(c) and (f)(1). At trial, the district court instructed the jury on both the charged offense and the lesser-included offense of otherwise disturbing NWRS property, in violation of § 668dd(c) and (f)(2). The jury found Mast not guilty of the greater offense but guilty of the lesser offense.

Mast appeals his conviction and sentence. He raises many issues on appeal, but we need address only one: whether the jury was properly instructed on the mental state required by the lesser offense. Jury instructions are usually reviewed for abuse of discretion, but where, as here, "statutory interpretation is required, ‘it is an issue of law that we consider de novo.’ " United States v. Carlson, 810 F.3d 544, 551 (8th Cir. 2016) (quoting United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012) ).

"[D]etermining the mental state required for commission of a federal crime requires construction of the statute and inference of the intent of Congress." Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (cleaned up). We begin with the statute itself. See id. 16 U.S.C. § 668dd(c) prohibits "disturb[ing]" NWRS property, including land subject to easements such as the easement at issue here.¹ Criminal penalties are set out in subsection (f), which provides:

(1) Knowing violations

Any person who knowingly violates or fails to comply with any of the provisions of this Act or any regulations issued thereunder shall be fined under Title 18 or imprisoned for not more than 1 year, or both.

(2) Other violations

Any person who otherwise violates or fails to comply with any of the provisions of this Act (including a regulation issued under this Act) shall be fined under Title 18 or imprisoned not more than 180 days, or both.

Mast was charged with a knowing violation under subsection (f)(1).

When fashioning the jury instructions for Mast’s trial, the district court correctly noted that the sole difference between (f)(1)’s greater offense and (f)(2)’s lesser offense is the requisite mental state. The district court instructed the jury that the greater offense required proof beyond a reasonable doubt "that Mast knew the wetlands at issue were subject to an easement," whereas the lesser offense did not. In other words, it instructed the jury as if subsection (f)(2) were a strict liability offense, one that does not require proof of any kind of mental state.

But our system of law acknowledges the "universal," "persistent" principle that "wrongdoing must be conscious to be criminal." Elonis v. United States, ––– U.S. ––––, 135 S. Ct. 2001, 2009, 192 L.Ed.2d 1 (2015) (quoting Morissette v. United States, 342 U.S. 246, 250, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ). Thus, courts generally interpret criminal statutes to require, at a minimum, proof that the defendant knew "the facts that make his conduct fit the definition of the offense," even when the statute does not explicitly include such a requirement. Id. (quoting Staples, 511 U.S. at 608 n.3, 114 S.Ct. 1793 ). Only when the statute indicates, expressly or through implication, that Congress intended "to dispense with mens rea as an element of a crime" is it appropriate to treat the statute as setting out a strict liability offense.² Staples, 511 U.S. at 606, 114 S.Ct. 1793.

Here, neither subsection (c) nor subsection (f)(2) expressly or implicitly indicates that Congress intended to dispense with a mental state requirement. Subsection (c) does not explicitly refer to any mental state, but "silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element." Id. at 605, 114 S.Ct. 1793. The phrase "otherwise violates" within subsection (f)(2), in combination with its lesser penalties, implicitly requires a less culpable mental state than subsection (f)(1)’s "knowing violations." But because subsection (f)(2)’s penalties are still relatively severe—a fine of up to $5,000 or six months imprisonment, or both, as compared to subsection (f)(1)’s fine of up to $100,000 or 1 year imprisonment, or both—we do not read it to depart so significantly from subsection (f)(1)’s mental state requirement as to abandon the requirement entirely. See id. at 616–19, 114 S.Ct. 1793 ("[A] severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement."). Instead, subsection (f)(2) encompasses violations committed with all "other" mental states. See United States v. Bailey, 444 U.S. 394, 403–04, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (listing "a hierarchy of culpable states of mind ... in descending order of culpability, as purpose, knowledge, recklessness, and negligence").

We next turn to the legislative history. Cf. X-Citement Video, 513 U.S. at 69–72, 115 S.Ct. 464 (reviewing a statute’s legislative history when determining its required mental state). The National Wildlife Refuge System Improvement Act of 1998 amended 16 U.S.C. § 668dd to include subsections (f)(1) and (f)(2). Pub. L. No. 105–312, sec. 206, 112 Stat. 2956. An earlier version of § 668dd provided a single penalty for anyone "who violates or fails to comply with" subsection (c), which at that time prohibited "knowingly disturb[ing]" NWRS property. § 669dd(c) & (e) (1996). The statute was amended two years later to provide for certain penalties for "knowing violations" and lesser penalties for "other violations." National Wildlife Refuge System Improvement Act of 1998 sec. 206. A committee report indicates that the amendment was meant to provide more stringent penalties when "the person acted ‘knowingly,’ that is, acted voluntarily and intentionally, not through ignorance, mistake, or accident," and "lower[ ]" penalties "for unintentional violations (those not ‘knowingly’ committed)." S. Rep. No. 105-310, at 3 (1998), 1998 WL 596837. Just as with the statutory language, the legislative history does not indicate, expressly or implicitly, an intent to dispense with a mental state requirement entirely.

Because neither the statutory language nor the legislative history indicates an intent to dispense with a mental state requirement as an element of § 668dd(f)(2), courts may not treat the statute as setting out a strict liability offense; some mental state is required. As noted, the statute’s language does not identify the precise mental state necessary to sustain a conviction under subsection (f)(2). But the language of the committee report indicates that, in distinguishing between the two types of violations, Congress intended for subsection (f)(2) to proscribe negligent violations.³ See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) (explaining that the words " ‘voluntary,’ ‘deliberate,’ and ‘intentional’ [are] generally understood to refer to conduct that is not merely negligent"). "Negligence requires only that the defendant should have been aware of a substantial and unjustifiable risk ...." Elonis, 135 S. Ct. at 2015 (Alito, J., concurring in part and dissenting in part) (cleaned up) (quoting Model Penal Code § 2.02(2)(d) (Am. Law. Inst. 1985)). Thus, we conclude, based on the statutory language, the legislative history, and the strong preference that criminal statutes require some minimal mens rea , that subsection (f)(2) requires the government to prove beyond a reasonable doubt that Mast should have known that there was a substantial risk that his actions would "violate[ ] or fail[ ] to comply with any of the provisions of th[e] Act or any regulations issued thereunder"—as relevant here, subsection (c).

We find this construction "particularly appropriate" because "to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct." Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). Unless Mast knew or should have known that carrying out a drainage project on his own land would...