United States v. Tomlinson

• Decision Date: 17 November 1983
• Docket Number: No. CR83-0053-B.,CR83-0053-B.
• Citation: 574 F. Supp. 1531
• Parties: UNITED STATES of America, Plaintiff, v. Bud TOMLINSON and Thomas Seewald, Defendants.
• Court: U.S. District Court — District of Wyoming

574 F. Supp. 1531

UNITED STATES of America, Plaintiff, v. Bud TOMLINSON and Thomas Seewald, Defendants.

No. CR83-0053-B.

United States District Court, D. Wyoming.

November 17, 1983.

David A. Kern, Asst. U.S. Atty., D. Wyo., Cheyenne, Wyo., for plaintiff.

Robert W. Tiedeken, Cheyenne, Wyo., for Tomlinson.

George A. Zunker, Cheyenne, Wyo., Stanley F. Johnson, Boulder, Colo., for Seewald.

MEMORANDUM OPINION

BRIMMER, District Judge.

This matter came on for hearing on October 13, 1983 before the United States District Court for the District of Wyoming, upon Defendants' motions to dismiss. Counsel present were David A. Kern, Esq., Assistant United States Attorney for the United States of America, Robert W. Tiedeken, Esq., for Defendant Tomlinson, and George A. Zunker, Esq., and Stanley F. Johnson, Esq., for Defendant Seewald. The Court having reviewed the pleadings, having considered the arguments of counsel, and being otherwise advised in the premises, finds as follows:

The Indictment charges that the Defendants removed wild and free-roaming horses from federal public lands located in the State of Wyoming, transported the horses in interstate commerce, and sold them to a slaughterhouse located in New Mexico. The Defendants allegedly realized over $5,000 on such transactions. Count I (1) charges that the Defendants conspired under 18 U.S.C. § 371 to violate 16 U.S.C. § 1338, which prohibits removal of wild and free-roaming horses from federal public lands without prior notification to, and approval by, the Secretary of Interior. Counts II, III, and IV of the Indictment charge the Defendants with violations of 18 U.S.C. § 2314 through interstate transportation of stolen property. Count I (2) of the Indictment charges the Defendants violated 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 2314. The Defendants, seek dismissal of Counts I(2), II, III, and IV of the Indictment, alleging generally that 18 U.S.C. § 2314 is not applicable to the facts alleged in the Indictment.

The Defendants allege that 16 U.S.C. § 1338 was intended to be the exclusive criminal provision applicable to violations of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340 (Burros Act). Where the same factual allegations support charges under two or more criminal provisions, those provisions which more specifically apply to the allegations contained in the Indictment will govern, to the exclusion of other more general provisions. United States v. Grenagle, 588 F.2d 87 (4th Cir.1978), cert. den., 440 U.S. 927, 99 S.Ct. 1260, 59 L.Ed.2d 482 (1979); United States v. Frakes, 563 F.2d 803 (6th Cir.1977), vacated on other grounds, 435 U.S. 911, 98 S.Ct. 1464, 55 L.Ed.2d 503 (1978). However, it is also "equally well established that where two statutes, each proscribing some conduct not covered by the other, overlap, a single act may violate both, at least where there is some distinction between the elements of each offense, and the violator may be prosecuted under either." United States v. Hughes, 626 F.2d 619, 623 (9th Cir.1980); United States v. Lamb, 150 F.Supp. 310, 312 (N.D.Cal. 1957). See e.g. United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 78, 97 L.Ed. 61 (1952), United States v. Noveck, 273 U.S. 202, 206, 47 S.Ct. 341, 341-42, 71 L.Ed. 610 (1927). The primary question is whether both offenses are proven by the same set of facts. Id.

The government must, in order to obtain a conviction under 18 U.S.C. § 2314, show that the horses in question were "stolen property", that they were worth at least $5,000, that the Defendants herein knew that the horses were stolen, and that the horses were transported in interstate commerce. United States v. Tannuzzo, 174 F.2d 177 (2d Cir.1949), cert. den., 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493 (1949), reh. den., 338 U.S. 896, 70 S.Ct. 233, 94 L.Ed. 551 (1949). In substance the offense under the NSPA is the polluting of interstate commerce with stolen property rather than the underlying theft. United States v. Lemons, 67 F.Supp. 985 (W.D.Mo.1946); United States v. Marzano, 537 F.2d 257 (7th Cir.1976), cert. den., 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); Lyda v. United States, 279 F.2d 461 (5th Cir.1960); United States v. Vicars, 465 F.2d 720 (6th Cir.1972). By its terms, 16 U.S.C. § 1338 does not require scienter, interstate transportation, or any minimum value be involved. Thus, two separate charges have been asserted by the Indictment.

Defendants contend that a conviction under 16 U.S.C. § 1338 is a misdemeanor, with a maximum penalty of 1 year imprisonment and/or a $2,000 fine, while a conviction under 18 U.S.C. § 2314 is a felony, with a maximum penalty of 10 years imprisonment and/or a $10,000 fine. Defendants, relying on the decision in United States v. Jones, 432 F.Supp. 801 (E.D.Pa. 1977), aff'd, 571 F.2d 154 (3rd Cir.1978), cert. den., 435 U.S. 956, 98 S.Ct. 1589, 55 L.Ed.2d 808 (1978), argue that the distinction in maximum penalties should preclude prosecution under 16 U.S.C. § 1338. The Court in United States v. Jones refused to disturb a jury verdict convicting the defendant for violating the NSPA and stated that the $5,000 minimum value requirement is designed to prevent use of the NSPA to prosecute petty offenses. The Defendants don't deny that the $5,000 requirement would easily be met should the government prove the allegations contained in the Indictment. A conviction under 18 U.S.C. § 2314 may be sustained notwithstanding the fact that the means by which the Defendant obtained possession of the property was only a misdemeanor under applicable state or federal laws. United States v. Sam Goody, Inc., 506 F.Supp. 380 (E.D.N. Y.1981); United States v. Plott, 345 F.Supp. 1229 (S.D.N.Y.1972). In fact a conviction under 18 U.S.C. § 2314 may be obtained though the defendant is guilty of no underlying offenses through which he obtained possession, if the requisite elements are proven. Johnson v. United States, 207 F.2d 314 (5th Cir.1953), cert. den., 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087 (1954). It is not unreasonable to conclude that theft involving interstate commerce is generally more heinous than theft which does not. Thus the misdemeanor/felony distinction is not well-founded.

Finally, neither the provisions nor the legislative history of the Burros Act indicate that Congress intended to displace the applicability of 18 U.S.C. § 2314 whenever 16 U.S.C. § 1338 was applicable. Since the Burros Act was enacted after the NSPA, it is reasonable to assume that Congress was aware of 18 U.S.C. § 2314 when it enacted the Burros Act, and therefore felt there was no need to enact a parallel provision. Thus the absence of any mention of interstate commerce in the Burros Act is a non sequitur and does not logically lead the Court to conclude that Congress did not intend for the provisions of 18 U.S.C. § 2314 to apply to proceedings involving violations of 16 U.S.C. § 1338.

Next the Defendants allege that 18 U.S.C. § 2314 is not applicable to these proceedings since wild and free-roaming horses are not "property" of anyone until they are reduced to actual possession or control. Defendants further argue that Congress did not intend to acquire a "property" interest in wild and free-roaming horses and burros by enacting the Burros Act. The Defendants conclude, that since the horses were no one's property at the time that they were captured and removed from the federal public lands, they could not be "stolen" as that term is defined at common law. Therefore these horses were not "stolen property" and could not be transported in violation of the NSPA.

Whether or not Congress intended to assert a proprietary interest over wild and free-roaming horses by enacting the Burros Act is a question left undecided by the Supreme Court in Kleppe v. New Mexico, 426 U.S. 529, 537, 96 S.Ct. 2285, 2290, 49 L.Ed.2d 34 (1976). The Ninth Circuit Court of Appeals in United States v. Hughes, 626 F.2d 619 (9th Cir.1980), determined that wild and free-roaming horses which had been captured and leased under the "adopt a horse" program of the Burros Act, 16 U.S.C. § 1333(b), were property of the United States for the purpose of the general conversion provision of 18 U.S.C. § 641. However, the Court also stated "we need not reach the question ... whether Congress intended to assert a property interest in all wild horses on public lands, nor whether the government could validly prosecute a person pursuant to 18 U.S.C. § 641 ... for `converting' horses from the public lands of the United States." Id. at pp. 621-622. Thus the question raised by the Defendants has not been clearly decided heretofore.

The Court believes, however, that the United States has asserted an interest in these wild and free-roaming horses and burros such that the conduct alleged in the Indictment is sufficient to constitute a violation of 18 U.S.C. § 2314. The legislative history of the Burros Act indicates that Congress intended to assert a "proprietary" interest over such animals. The Senate Report accompanying the bill declares that wild and free-roaming horses and burros inhabiting federal public lands are "national esthetic resources"; that they belong to no one person, but rather belong to "all of the American people", and that they are a "component of the public lands and an integral part of the multiple use management system", or of the "natural ecological system of the public lands." P.L. 92-195, S.Rept. No. 92-242, June 25, 1971, republished at U.S.Code, Cong. and Admin.News, 92nd Cong. 1st Sess., (1971), at pp. 2149-2158.

While neither the Burros Act, nor its legislative history, succinctly state that wild and free-roaming horses and burros are "property of the Nation", it is abundantly clear that Congress, through the Secretary of Interior, and the Secretary of Agriculture intended to exercise substantial dominion and control over such animals to the exclusion of private parties. All...