The Ninth Circuit affirmed the defendant's conviction for violating a Bureau of Land Management (BLM) regulation prohibiting construction of enclosures, gates, or fences on BLM land without the agency's permission. Although the magistrate judge erred by not instructing the jury on specific intent as requested by the defendant, the Ninth Circuit concluded that the error was harmless beyond a reasonable doubt.
In February 1998, BLM employees discovered Gerald Henderson digging an open trench on BLM land at Farrar Gulch in Arizona. A subsequent site inspection revealed that Henderson also had a travel trailer, heavy equipment, building materials, and barriers constructed from boulders on the public land. BLM agents served Henderson with a Notice of Immediate Suspension, which directed him to remove the materials and fill the open trench. Henderson failed to comply with the suspension notice, prompting BLM to file a misdemeanor complaint alleging multiple violations of BLM regulations,[1] in contravention of the Federal Land Policy and Management Act (FLPMA).[2] At trial, Henderson requested that the magistrate judge instruct the jury that conviction under section 303(a) required proof of "specific intent to do or fail to do what the defendant knows is unlawful."[3] The judge declined the request and instructed the jury that "willfully" means "that a person knowingly and intentionally committed the acts which constitute the offenses charged."[4] The jury found Henderson guilty.
The Ninth Circuit determined that the magistrate judge erred by failing to instruct the jury on "specific intent." Analyzing the language of section 303(a), the court concluded that to impose criminal liability, the government must show that a defendant "knowingly and willfully" violated BLM's regulations. Furthermore, the court concluded that under section 303(a), "knowingly and willfully" means that the prosecution must establish that the defendant "was aware that the conduct in question was unlawful in order to sustain a conviction."[5] The court determined that the statute's use of "willfully" showed congressional intent to require the prosecution to establish that the defendant was aware of the illegality of the conduct in question. The Ninth Circuit analyzed several cases that addressed the use of "willfully" in statutes imposing criminal liability. In Bryan v. United States,[6] the Supreme Court recognized that use of the word "willfully" required "proof of knowledge of unlawfulness . . . when the criminal conduct is contained in a regulation instead of in a statute, and when the conduct punished is not obviously unlawful."[7] A comparison of the use of "willfully" in section 303(a) with the case law revealed that violations of BLM regulations were specific-intent offenses. Henderson's illegal conduct was listed in the administrative regulations, rather than the statute, and the regulations barred conduct that was not obviously illegal.
The court also determined that the instruction given by the magistrate judge rendered the term "willfully" mere surplusage. According to the court, "knowingly" generally means that the prosecution must show that the defendant "possessed knowledge of the facts that constitute the offense."[8] However, the magistrate's instruction on the meaning of the term "willfully" was almost identical to the generally recognized meaning of "knowingly." The Ninth Circuit concluded that the magistrate judge erred by not instructing the jury on "specific intent," as requested by the defendant.
The Ninth Circuit nevertheless affirmed Henderson's conviction. The court reasoned that BLM served Henderson with a detailed, written suspension notice. Henderson failed to remove the barriers or fill in the trench. As a result, the evidence clearly showed that he failed to comply with the suspension notice. The notice also informed Henderson that failure to comply with the requirements would subject him to criminal liability. Because he was aware his conduct was unlawful and no reasonable jury could have found that Henderson lacked knowledge that his conduct was unlawful, the failure to give the requested instruction was harmless error.
[1] 43 C.F.R. § 3715.6(e) (2000) (requiring compliance with the suspension notice); id. § 3715.6(g) (prohibiting "[p]lacing, constructing, or maintaining enclosures, gates, or fences, or signs . . . without BLM's concurrence").
[2] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785, 1733(a) (1994 & Supp. III 1997) (enforcement authority).
[7] 243 F.3d at 1172. The Ninth Circuit also cited another Supreme Court case and a Ninth Circuit case that held that the use of the word "willfully" required "proof of violation of a known legal duty." Ratzlaf v. United States, 510 U.S. 135, 137 (1994) (holding that use of "willfully" in a provision regulating currency reporting required a showing that defendant knew his conduct was illegal); United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828 (9th Cir. 1976) (holding that "willful" violations of regulations governing the import of munitions were specific-intent offenses).
