United States v. Tijerina

• Decision Date: 04 August 1971
• Docket Number: No. 138-70.,138-70.
• Citation: 446 F.2d 675
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reies Lopez TIJERINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.2d 675 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Reies Lopez TIJERINA, Defendant-Appellant.

No. 138-70.

United States Court of Appeals, Tenth Circuit.

August 4, 1971.

John A. Babington, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., and Michael P. Watkins, Asst. U. S. Atty., were with him on the brief), for plaintiff-appellee.

Leonard E. Davies, Denver, Colo., for defendant-appellant.

Before LEWIS, Chief Judge, and JOHNSEN,^* and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This appeal is taken from a judgment of conviction of three offenses charged in connection with a demonstration at which two United States Forest Service signs were burned in the Santa Fe National Forest. The convictions were based on an indictment charging (1) that appellant and his wife willfully injured a Forest Service sign near Gallina, New Mexico, causing damage in excess of $100 in violation of 18 U.S.C. § 1361 (prohibiting willful injury of Government property) and 18 U.S.C. § 2 (making one aiding and abetting commission of an offense punishable as a principal); (2) that appellant and his wife willfully injured a Forest Service sign near Coyote, New Mexico, causing damage in excess of $100 in violation of the same statutes; and (3) that appellant willfully did forcibly assault, resist, oppose, impede, intimidate and interfere with James Evans, a Forest Service Officer engaged in the performance of his official duties, in violation of 18 U.S.C. § 111. Appellant was found guilty by the jury on all three counts and received concurrent three-year sentences on each conviction, to be served after sentences for convictions affirmed in United States v. Tijerina, 407 F.2d 349 (10th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 76, 24 L.Ed.2d 93. We will deal with the facts in discussing the issues raised on the appeal.

First, we turn to appellant's argument that his convictions for aiding and abetting injury to the Forest Service signs were not supported by the proof. Primarily he says he was merely present as a bystander while his wife burned the signs and that such proof is insufficient, relying on United States v. Milby, 400 F.2d 702 (6th Cir.); and United States v. Garguilo, 310 F.2d 249 (2d Cir.).

There was proof submitted tending to show these facts. Members of the Alianza Federal de Mercedes, an organization concerned with the rights of Spanish American citizens, encamped near Coyote, New Mexico, from June 5 to June 8, 1969. Appellant was president of the organization and was present at the encampment with his wife. The encampment was near a tract of land in the Santa Fe National Forest which is said to have composed the San Joaquin Del Rio de Chama Spanish land grant. It is claimed that heirs of that grant rightfully owned the tract and that it is not Government property.

Appellant was present at the camp sight on the morning of June 8 when his wife announced her intention to burn a Forest Service sign and invited others to accompany her. Shortly thereafter appellant drove his station wagon as the lead vehicle, in which his wife rode, at the head of a line of several cars. They drove about twelve miles to the location of a Forest Service sign near Gallina. There Mrs. Tijerina placed objects around the base of the sign, walked away and returned toward the sign with some glass containers, and then the sign started burning fast. There was proof that the original cost of the wooden portions of both signs and what the repairs would cost were over $100.

The cars then proceeded to the site of the second sign at Coyote, New Mexico. Again appellant drove the lead vehicle in which his wife rode. On the way he stopped his car and pointed to a dead tree from which Mrs. Tijerina obtained some wood. He stopped again and bought gasoline for his car. Some gasoline was put in bottles by another man and this was in the car then with Mrs. Tijerina. There was proof that this gasoline was used by Mrs. Tijerina in burning the second sign. Proof for the appellant was that he came along to the demonstration reluctantly; that he did not start out driving and was not in the lead vehicle to the Gallina sign; that he did not lead the cars toward the Coyote sign; that he attempted to dissuade Mrs. Tijerina from the project; that the gasoline and wood were intended for a bonfire only; and that appellant was shocked when he saw the fire.

The conflicting versions of the facts were for the jury and its verdict was against appellant. On appeal we must consider the evidence in the light most favorable to the Government, together with any inferences which may be fairly drawn therefrom, to determine whether there was substantial evidence from which the jury could properly find the accused guilty beyond a reasonable doubt. Mason v. United States, 408 F. 2d 903 (10th Cir.), cert. denied, 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441; Nickles v. United States, 381 F.2d 258 (10th Cir.). The prosecution did not show any participation by appellant in the actual burning of the signs, but did demonstrate his knowledge, his driving the lead vehicle and other acts recited. See Simon v. United States, 78 F.2d 454 (6th Cir.); and Pinkney v. United States, 380 F.2d 882 (5th Cir.), cert. denied, 390 U.S. 908, 88 S.Ct. 831, 19 L. Ed.2d 876. The proof favorable to the prosecution showed more than mere presence and knowledge that the offenses were being committed, as it must to convict one for aiding and abetting. See King v. United States, 402 F.2d 289 (10th Cir.); and United States v. Milby, supra.¹ The Milby and Garguilo cases, relied on by appellant, do not support his challenges to the evidence. We are satisfied the proof amply supports the convictions on counts one and two.

Second, as to the conviction on count three charging that appellant did forcibly assault, resist and oppose the Forest Service Officer, appellant again says the proof was insufficient. The gist of his argument is that there was no felony committed in the presence of Officer Evans; that he lacked authority to arrest appellant; and that appellant was entitled to use reasonable force to resist the unlawful arrest, which is all he did.

Mr. Evans was Chief of the Law Enforcement Branch of the Forest Service for the Southwest region. He was authorized by the Forest Service Manual to make arrests without a warrant for violations of law and regulations relating to the National Forest in his presence. See Forest Service Manual, Title 5300, Chapter 5314.1; 36 C.F.R. § 261.4(c); 16 U.S.C.A. § 559; and Weissman v. United States, 387 F.2d 271 (10th Cir.).² He was authorized to make the arrest if he had reasonable grounds to believe appellant had committed a felony or was committing one in his presence, as the instructions stated. See note 3, infra.

There was proof that Evans had been in radio contact with the State Police Officers. He had learned of the burning of the first sign by Mrs. Tijerina. He was told that appellant was driving the car in which she was riding. When he arrived at the Coyote Ranger Station that sign was still burning. Evans said there was a crowd of some 50 to 75 persons that rushed toward him, and appellant was at the front of the group. Evans identified himself as a Federal Officer and told appellant he was under arrest for destruction of Government property. Evans was wearing khaki-colored clothes and a Forest Service badge.

There was proof by the prosecution that Tijerina then attempted a "citizen's" arrest of Evans for conspiracy against the poor; that during pushing and shoving with the crowd, Evans grabbed appellant's belt but appellant was pulled loose; and that appellant then walked to his car and pulled out a carbine and aimed it at Evans. When he was getting the rifle from the car, appellant had operated the slide to cock it. After two warnings by Evans that he would kill appellant, appellant allowed himself to be taken in custody by the State officers. Again conflicting versions of the facts were offered, appellant contending that a threatening move by another officer and his fear for a child in his car caused appellant to reach for his gun.

The jury resolved the conflicts in the proof against appellant under proper instructions which are not challenged.³ Probable cause for the arrest was to be evaluated on the collective information from the officers. See Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833, 835, cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448; and Wood v. Crouse, 436 F.2d 1077 (10th Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2193, 29 L.Ed.2d 432. Evans had probable cause to believe the offense of aiding and abetting the destruction of Government property was being committed in his presence by appellant, or had been committed by him, based on all his information. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L. Ed. 1879. We are satisfied there was a showing of probable cause and resistance, assault and interference with Evans sufficient to sustain the conviction on count three. See United States v. Latimer, 415 F.2d 1288 (6th Cir.), and Yates v. United States, 384 F.2d 586 (5th Cir.).

Third, we turn to appellant's argument that testimony concerning the San Joaquin Grant was erroneously excluded. It is argued that by so doing the trial court improperly rejected appellant's proof of his intent, relying on Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465; and Collazo v. United States, 90 U.S.App.D.C. 241, 196 F.2d 573, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364.

During appellant's testimony he was permitted to make a lengthy explanation of the purposes of the encampment, including the signing of a petition to be sent to the President, Congress and the Supreme Court and matters to be voted on by the group. When he made a statement that "at no time has Congress or the legislature of New Mexico dissolved San Joaquin," a Government...