US v. McPhilomy
| Decision Date | 09 November 2001 |
| Docket Number | No. 00-4141 and 00-4144,00-4141 and 00-4144 |
| Citation | 270 F.3d 1302 |
| Parties | (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL McPHILOMY, SR., and MICHAEL McPHILOMY, JR., Defendants - Appellants |
| Court | U.S. Court of Appeals — Tenth Circuit |
[Copyrighted Material Omitted] Herschel Bullen and Edwin Stanton Wall, Salt Lake City, Utah, for Appellants.
Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United States Attorney, Salt Lake City, Utah, for Appellee.
Before TACHA, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
A jury found Michael McPhilomy, Sr., ("Senior") and Michael McPhilomy, Jr., ("Junior") guilty of two felony counts of aiding and abetting each other in the theft of government property in violation of 18 U.S.C. 2 and 641. The jury also found Junior guilty of one misdemeanor count of depredation of government property in violation of 18 U.S.C. 1361. The defendants appealed. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.
The convictions arise from the McPhilomys' activities in and removal of materials from the Red Mountain Community Pit near Wendover, Utah. In 1995, the Bureau of Land Management ("BLM") designated the area a community pit. Federal mining regulations define a community pit as follows: 43 C.F.R. 3600.0-5(g). The BLM issues permits for the removal of stone from a community pit, and permittees pay fair market value for the stone. 43 C.F.R. 3604.1(d).
The McPhilomys met with an attorney in late April or early May of 1999 regarding rights to remove materials from the Red Mountain Community Pit. The attorney advised them that they should stake (or "locate") a mining claim, which would entitle them to valuable materials on the site of location, and obtain a permit to remove and purchase common materials from the pit. The permit, advised the attorney, would protect them from theft charges in the event that the materials turned out to be common variety stone, which cannot be the subject of a mining claim.
On May 6, 1999, the McPhilomys met with a BLM official who informed them that they could not obtain a permit to remove stone from the community pit because of unsettled trespass violations in the pit. A trespass notice dated May 6 described the past violations. On July 8, Junior again sought a permit, and BLM officials again informed him and Senior that they could not obtain one. That same day, the McPhilomys returned to the BLM office with another individual, who requested a permit to remove 25 tons of stone from the community pit. The BLM issued him a permit that was valid for 15 days and limited to 5 tons. The permit made clear that stone was available only for noncommercial use and could be extracted only with hand tools. The McPhilomys paid for the permit.
On July 14, 1999, Junior filed a notice of location with the BLM, asserting that he and others had located a deposit of valuable minerals.1 A BLM land law examiner notified the McPhilomys by letter, dated July 26, that their alleged mining claim was within the Red Mountain Community Pit and that they should therefore contact the field office before starting operations.
Also on July 14, 1999, Junior filed a notice of intent to commence mining operations on the mining claim on July 29.
Under the mining regulations, a notice must include certain information, and a mining claimant must file a notice of intent at least 15 days prior to commencing operations on a claim. 43 C.F.R. 3809.1-3. A BLM official notified Junior by letter, dated July 20, that the notice of intent was inadequate, that he should complete and submit the enclosed form within 30 days, and that failure to submit the form within that time frame would cause the BLM to treat the notice of intent as withdrawn. The BLM received the form, partially completed, on August 5.
According to the evidence, however, the McPhilomys began mining operations prior to filing the additional information required for a notice of intent. Sometime prior to July 23, 1999, they removed and sold a large amount of stone from the pit.2 This removal of stone constitutes the basis for the first count of theft of government property. The events in July are also the basis for the charge against Junior for depredation of government property.
On August 3, 1999, a "Notice of Noncompliance for Failing to File a Complete Notice for Mining Activities in the Red Mountain Area" informed the McPhilomys that they had violated the mining regulations by conducting operations prior to submission of a complete notice of operations. The notice also advised them that their activities had caused unnecessary and undue degradation of public land and that they must cease operations, remove all mining equipment from the Red Mountain area, and perform reclamation on the disturbed sites. The notice informed them that future unauthorized operations could result in citation and/or arrest. The McPhilomys appealed the notice of noncompliance through the administrative process. The Utah State Director of the BLM upheld the notice.
On September 1, 1999, the McPhilomys forfeited their mining claim because they had failed to pay the $100 annual maintenance fee. 43 C.F.R. 3833.4(a)(2). The BLM mailed a letter confirming the forfeiture on September 22.
On September 8, 1999, the BLM discovered that the McPhilomys were conducting mining operations without a permit or a mining claim. Later that day, a deputy sheriff instructed the McPhilomys to cease operations, but the McPhilomys ignored his instruction. On September 11, a security guard found a truck loaded with stone abandoned at the side of the road. Two days later the deputy sheriff inspected the truck, which he recognized from his earlier encounter with the McPhilomys, in part from the writing on the door of the truck that said "McPhilomy Trucking." The September removal of stone constitutes the basis for the second count of theft of government property.
The United States charged Junior with depredation of government property in violation of 18 U.S.C. 1361.3 In addition, the United States charged both McPhilomys with aiding and abetting each other in the theft of government property with a value exceeding $1,000, in violation of 18 U.S.C. 2 and 641. At trial, the McPhilomys' defended themselves on the ground that they had acted either pursuant to a valid mining claim or in good faith pursuit of a mining claim. A jury returned guilty verdicts on all charges.
The McPhilomys appeal their convictions on the following four grounds: (A) insufficiency of the evidence; (B) denial of due process; (C) improper jury instructions; and (D) improper admission of expert testimony.
First, we address the McPhilomys' claim that the government failed to produce sufficient evidence to support a conviction. The standard of review makes it difficult to prevail on a sufficiency of the evidence claim. United States v. Wilson, 244 F.3d 1208, 1219 (10th Cir.), cert. denied, 121 S. Ct. 2619 (2001). Although we review the trial court record de novo, id., we reverse only if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The McPhilomys argue that the district court erred in failing to grant their motions to dismiss and for judgment of acquittal, because the evidence cannot support two findings: first, that the United States owned the property; and second, that the McPhilomys were not engaged in good faith mining activities. Insufficient evidence of either finding would require reversal for both crimes, as government ownership is an element of each, and good faith is an affirmative defense that would negate the required mental state for each crime. 18 U.S.C. 641, 1361. After reviewing the record, we find that sufficient evidence supported findings of both government ownership and bad faith.
Several pieces of evidence support the finding of government ownership. At trial, the government showed that: (1) the United States owns the land from which the McPhilomys took the property; (2) the McPhilomys took property that was common material, which necessarily belongs to the government; and (3) the McPhilomys took the materials without proper authorization.
First, the government demonstrated ownership of the land through the testimony of Michael Ford, a BLM employee. Ford testified that he had assisted in the preparations for creating the Red Mountain Community Pit. Based on personal knowledge from this experience, he testified that the United States owns the land on which the pit is located.
Second, there was sufficient evidence for the jury to conclude that the stone that the McPhilomys removed from the pit was of a common variety, which would make it government property until paid for by someone with a valid permit. Deposits of common varieties of stone are not subject to mining claims, unless a deposit is valuable because "it has some property giving it distinct and special value." 30 U.S.C. 611. Moreover, "[t]he...
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