Opinion
Case No. 5:21-cr-00215-JWH-1
2024-01-10
UNITED STATES of America, Plaintiff-Appellee, v. Isaac G. VIEIRA, Defendant-Appellant.
Eli Alan Alcaraz, Cory L. Burleson, Assistant U.S. Attorneys, AUSA — Office of U.S. Attorney Riverside Branch Office, Riverside, CA, for Plaintiff-Appellee. Margaret A. Farrand, Office of the Federal Public Defender, Los Angeles, CA, for Defendant-Appellant.
Eli Alan Alcaraz, Cory L. Burleson, Assistant U.S. Attorneys, AUSA — Office of U.S. Attorney Riverside Branch Office, Riverside, CA, for Plaintiff-Appellee.
Margaret A. Farrand, Office of the Federal Public Defender, Los Angeles, CA, for Defendant-Appellant.
ORDER REGARDING APPEAL OF CONVICTION [ECF No. 1]
John W. Holcomb, UNITED STATES DISTRICT JUDGE.
I. SUMMARY OF DECISION
Before the Court is the appeal of Defendant Isaac G. Vieira of his misdemeanor conviction. Following a two-day trial before a Magistrate Judge in July 2021, a jury convicted Vieira of aiding and abetting and causing the creation of a risk to other persons by creating a hazard or nuisance, in violation of 43 C.F.R. § 8365.1-4(a)(2) and 18 U.S.C. §§ 2(a) & (b). Vieira appealed his conviction to this District Court, which conducted a hearing in February 2023. After considering the papers filed in support and in opposition, as well
Appellant's Opening Br. (the "Appeal Brief") [ECF No. 9].
The Court considered the documents of record, including the following papers: (1) Appeal Brief; (2) Appellee United States' Answering Br. (the "Answering Brief") [ECF No. 17]; (3) Appellant's Reply Br. (the "Reply") [ECF No. 21]; (4) Vieira's Notice of Supplemental Authority (the "Notice") [ECF No. 22]; (5) Vieira's Supplemental Notice (the "Supplemental Notice") [ECF No. 23]; (6) United States' Response to Notice (the "Response") [ECF No. 26]; (7) Vieira's Excerpts of Record (the "ER") [ECF Nos. 9-1, 9-2, 9-3, 9-4, 9-5, & 9-6]; and (8) United States' Supplemental Excerpts of Record (the "SER") [ECF No. 26-1].
as the arguments of counsel at the hearing, the Court orders that Vieira's conviction is REVERSED.
II. BACKGROUND
A. Procedural History
In March 2020, the Government filed a First Superseding Information charging Vieira with a Class A Misdemeanor. Specifically, the Government alleged that Vieira knowingly and willfully caused to be created, and aided and abetted the creation of, a hazard and nuisance on public lands by instructing and assisting another in discharging a firearm, in violation of 43 C.F.R. § 8365.1-4(a)(2) and 18 U.S.C. § 2. Because Vieira was not the actual shooter, the Government proceeded on two theories of vicarious liability: first, that Vieira aided and abetted the offense under 18 U.S.C. § 2(a), and, second, that Vieira caused an act to be done that resulted in the offense under 18 U.S.C. § 2(b).
ER 752-753; see also Answering Brief 4:4-9.
Appeal Brief 3:22-25; see also ER 752-753.
The Magistrate Judge presided over a jury trial on July 15 and 16, 2021. After the Government rested its case, Vieira made an oral motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure with respect to each element of the charged count. Specifically, Vieira argued that the Government had failed to present sufficient evidence to support a jury finding regarding the regulation's "knowing and willful element" because the evidence failed to show that Vieira and his companion acted knowingly and willfully in discharging the firearm. The trial court denied that motion. After the Vieira rested but before the jury began its deliberations, Vieira renewed his Rule 29 motion on the same grounds. The trial court denied that renewed motion.
See generally ER 44-330.
Appeal Brief 15:10-12; ER 128.
Appeal Brief 15:12-15; ER 128-130.
Appeal Brief 15:15-16; ER 132.
Appeal Brief 15:16-18; ER 136.
Id.
The jury convicted Vieira of knowingly and willfully creating a risk by creating a hazard or nuisance in violation of 43 C.F.R. § 8365.1-4(a)(2) and 18 U.S.C. § 2. The verdict form recited that the jury found Vieira guilty on the basis of both creating a hazard and creating a nuisance. After the jury returned its guilty verdict, the trial court sentenced Vieira to three months of probation, a $150 fine, and a $25 mandatory special assessment. Judgment was entered on October 13, 2021, and the instant Appeal followed.
Appeal Brief 15:19-21; ER 181.
Appeal Brief 15:21-22; ER 337.
See Appeal Brief 3:8; see also ER 336-337.
See Appeal Brief 3:8-10; see also ER 331.
See Appeal Brief 3:10-11; see also ER 771.
B. Facts Relevant to Issues on Appeal
The public has historically used the Steele Peak recreational area in Riverside County, California, for recreational target shooting. A private gun club operated adjacent to Steele Peak. Although Steele Peak is near Perris, California, the Steele Peak area itself is uninhabited public land,
See Appeal Brief 4:2-3; ER 281 & 307.
See Response 2:1-2; see also SER 24.
and it is under the control of the Bureau of Land Management (the "BLM").
See Appeal Brief 4:6-8; see also ER 238 & 755-756.
A few months before April 2017, in response to certain complaints, the BLM changed the rules at Steele Peak to prohibit target shooting, even though that activity had historically been permitted there. The BLM posted signs at the entrance, located at Maywood Club Road, to announce the rule change. One of those signs announced: "Safety Zone—No Shooting; Respect Life and Property." Another sign depicted a rifle with a line through it. BLM Ranger Kevin Purdy testified at trial that Vieira and his companion would have passed the kiosk displaying those signs as they traveled through the Steele Peak recreational area.
See Appeal Brief 4:9-11; see also ER 307-308.
See Appeal Brief 4:11-12; see also ER 249, 250 & 308.
See Appeal Brief 4:12-13; Answering Brief 4:20-21; see also ER 250 & 760-762.
See Appeal Brief 4:13-14; Answering Brief 4:21-23; see also ER 761.
See Answering Brief 4:23-25; see also ER 278-280.
On April 1, 2017, Ranger Purdy was patrolling the Steele Peak area in a marked patrol vehicle and uniform. At roughly 200 to 300 feet from the entrance, Ranger Purdy encountered Vieira and his companion setting up equipment for target shooting. Vieira and his companion were the only people in the area. Ranger Purdy approached Vieira and his companion and identified himself as a BLM enforcement officer. Ranger Purdy explained that they were on BLM land, that it was illegal to engage in target shooting there, and that they were permitted to shoot elsewhere on other public lands in Riverside County. Ranger Purdy expressly informed Vieira and his companion that shooting in the Steele Peak area was a citable offense. Vieira and his companion listened and appeared to understand. In fact, there was no indication that Vieira or his companion did not comprehend Ranger Purdy's warnings.
See Appeal Brief 4:15-16; Answering Brief 4:23-25; ER 257.
See Appeal Brief 4:16-18; Answering Brief 4:16-17; ER 251 & 254-255.
Appeal Brief 4:16-18; ER 253.
Appeal Brief 4:19-22; Answering Brief 5:4-7; ER 258-260.
Answering Brief 5:7-9; ER 260.
Appeal Brief 4:22-23; see also Answering Brief 5:10-16; ER 261-263.
See id.
As Ranger Purdy drove away, he heard shots fired behind him from the area where he had encountered Vieira and his companion. Since there was no one else in the vicinity, Ranger Purdy returned to talk to them. Ranger Purdy asked Vieira, "Were you shooting?"; Vieira responded, "Yes." Ranger Purdy then wrote a violation notice. When Ranger Purdy handed the notice to Vieira, Vieira stated that his companion had fired the shots and that he had been instructing his companion on how
Appeal Brief 4:24-25; Answering Brief 5:19-21; ER 264.
Id.
Appeal Brief 4:25-27; Answering Brief 5:24-25; ER 265-266.
Appeal Brief 4:27; Answering Brief 5:25-6:2; ER 266-267.
Appeal Brief 4:28-5:2; Answering Brief 6:2-5; ER 267.
III. STANDARD OF REVIEW
The scope of this appeal from the Magistrate Judge's judgment of conviction of a Class A misdemeanor after a jury trial is the same as an appeal to the Court of Appeals from a judgment entered by a District Judge. See Fed. R. Crim. P. 58(g)(2)(D). Where, as here, Vieira moved for judgment of acquittal below, this Court reviews the sufficiency of the evidence de novo. See United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012). "[T]his inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation and quotation omitted) (emphasis in original). "Instead, the relevant question is whether, 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." Id. The Court resolves any conflicts in the evidence in support of the verdict. See United States v. Hernandez-Quintania, 874 F.3d 1123, 1126 (9th Cir. 2017).
IV. DISCUSSION
Vieira raises four challenges to his conviction:
• First, Vieira argues that the evidence at trial was insufficient to permit the jury to find him guilty of the charged offense.
• Second, Vieira contends that the jury instructions erroneously omitted the mens rea requirement of knowledge and willfulness.
• Third, Vieira avers that the trial court erroneously admitted the expert testimony of witness David Carrera without performing its required gatekeeping duty under the Federal Rules of Evidence.
• Fourth, Vieira asserts that the cumulative effect of those errors warrants reversal.
The regulation that Vieira was convicted of violating provides in relevant part:
No person shall ... create a risk to other persons on public lands by engaging in activities which include: ... (2) Creating a hazard or nuisance.
43 C.F.R. § 8365.1-4(a)(2) (emphasis added). A separate statute, 43 U.S.C. § 1733(a), states:
Any person who knowingly and willfully violates [43 C.F.R. § 8365-1.4(a)(2)]... shall be fined no more than $1,000 or imprisoned no more than twelve months, or both.
43 U.S.C. § 1733(a) (emphasis added).
Vieira argues that this Court should enter a judgment of acquittal because the Government presented no evidence regarding whether Vieira knowingly and willfully created a risk by creating a hazard or a nuisance. In particular, invoking Rehaif v. United States, 588 U.S. 225, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), Vieira urges this Court to extend the statute's requirement of knowledge and willfulness to the regulation's elements of "creat[ing] a risk," as well as "[c]reating a hazard or nuisance." The Government responds to Vieira's statutory-based argument chiefly by arguing that the Court should review Vieira's Rehaif-based challenged
Appeal Brief 18:12-22.
Id. at 19:5-7.
for plain error, because "at trial, everyone agreed that specific intent was not required." Further, the Government contends that even if this Court regards Vieira's argument as a sufficiency challenge, ample sufficient evidence supports Vieira's conviction.
Under plain-error review, a court may reverse only where there is an error (1) that is plain; (2) that affects substantial rights; and (3) that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).
Answering Brief 37:28-38:1.
Id. at 38:12-39:12.
After viewing the evidence in the light most favorable to the Government, the Court concludes that the evidence was indeed insufficient to permit the jury to find Vieira guilty of the charged offense beyond a reasonable doubt. The Court hastens to note that its analysis in this appeal is narrow for two primary reasons: (1) the Government does not explain why, in view of Vieira's two Rule 29 motions for acquittal, the Court should not review the sufficiency of the evidence de novo, see United States v. Naghani, 361 F.3d 1255, 1261 (9th Cir. 2004) (de novo review applies when "a motion for acquittal is made at the close of the evidence"); and (2) the Government does not contest Vieira's argument that the Court should extend the statute's requirement of knowledge and willfulness to the regulation's elements of creating a risk, as well as "creating a hazard or nuisance," thereby waiving any challenges to Vieira's Rehaif-based argument, see United States v. Willis, 795 F.3d 986, 997 n.11 (9th Cir. 2015).
Because the Court reverses Vieira's conviction based upon the insufficiency of the evidence, it does not reach Vieira's arguments regarding the propriety of either the jury instructions given by the trial court or the admission of the testimony of expert witness David Carrera.
A. Plain Error or De Novo Review
As a threshold matter, the Government argues that the Court should review Vieira's sufficiency-of-the-evidence challenge under the plain error standard, rather than de novo. In support, the Government invites the Court's attention to United States v. Johnson, 979 F.3d 632 (9th Cir. 2020), a case in which the Ninth Circuit construed a defendant's Rehaif-based argument as a "legal error" challenge under Rule 52(b) (to be reviewed for plain error), rather than as a sufficiency-of-the-evidence challenge (to be reviewed de novo). See id. at 636. The Government asserts that the Court must apply Johnson in this case because "at trial, everyone agreed that specific intent was not required." For the reasons detailed below, the Court concludes that the Government's argument fails.
See Answering Brief 37:6-38:11.
Appeal Brief 37:11-17.
Answering Brief 37:28-38:3.
In Johnson, the Ninth Circuit held that plain error—not sufficiency of the evidence—is the proper standard to review an unpreserved Rehaif error. See Johnson, 979 F.3d at 636; see also United States v. Door, 996 F.3d 606, 616 (9th Cir. 2021), cert. denied, ___ U.S. ___, 142 S. Ct. 785, 211 L.Ed.2d 489 (2022) (summarizing the holding in Johnson). Johnson was convicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See Johnson, 979 F.3d at 634. After the Ninth
Circuit affirmed Johnson's conviction, the Supreme Court decided Rehaif. See id. Johnson then filed a petition for certiorari, "in which he argued for the first time that the government failed to prove at trial that he knew of his status as a convicted felon." Id. at 635. The Supreme Court granted Johnson's petition, vacated the judgment, and, on remand, the Ninth Circuit analyzed Johnson's Rehaif-based argument as a challenge to the sufficiency of the evidence. See id. However, because Johnson had not raised his sufficiency challenge in the trial court, the Ninth Circuit reviewed Johnson's claim for plain error, finding no manifest injustice. See id.
After Johnson unsuccessfully petitioned for rehearing and rehearing en banc, the Ninth Circuit issued an amended opinion reaffirming its prior conclusion that Rule 52(b)'s plain-error standard governed the analysis, see Johnson, 979 F.3d at 636, but it also supplied additional reasoning. Specifically, the Ninth Circuit explained that "although Johnson has framed his argument as a challenge to the sufficiency of the evidence, that is not in fact the correct way to conceive of it." Id. The Ninth Circuit explained that "a sufficiency challenge must be assessed against the elements that the government was required to prove at the time of trial." Id. (citing United States v. Kim, 65 F.3d 123, 126-27 (9th Cir. 1995); United States v. Weems, 49 F.3d 528, 530-31 (9th Cir. 1995)). Johnson did not dispute that the Government had introduced sufficient evidence at trial under the Ninth Circuit's pre-Rehaif precedent; thus, Johnson's Rehaif challenge was "best understood ... as a claim that the district court applied the wrong legal standard in assessing his guilt—specifically, by omitting the knowledge-of-status element now required under Rehaif." Id. Because a district court's legal error during a bench trial regarding the elements of the offense is reviewed in the same manner as an erroneous jury instruction—plain error where the defendant failed to object—the Ninth Circuit held that Johnson's claim was reviewable for plain error, reaffirming its prior holding. See id. In applying the plain-error standard, the Johnson court also underscored the purpose of that higher standard, which is to "help[] enforce one of Rule 52(b)'s core policies ... to reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error." Id. (citation and quotation omitted).
Here, the Government argues that, as in Johnson, Vieira's "failure to object at trial to the district court's omission of the knowledge-of-status element triggers review under the plain-error standard of Rule 52(b)." Id. In particular, the Government points to a transcript from a July 9, 2021, pre-trial hearing in the trial court. During that hearing, the Magistrate Judge posed questions to both sides regarding the Government's various requests for judicial notice, and, in the exchange set forth below, Vieira's counsel appeared to concede that the statute and regulation at issue did not require specific intent:
THE COURT: This isn't a specific intent crime.
MR. ALCARAZ [counsel for the Government]: Correct.
THE COURT: The knowing and willfully has to be that he knowingly and willfully instructed somebody else to shoot a firearm?
MR. ALCARAZ: Yes.
THE COURT: Right.... But from my understanding—and, Ms. Collins, would you agree that this is not a specific intent crime?
MS. COLLINS [counsel for Vieira]: Correct.
ER 467; see also Answering Brief 37:27-38:5.
Thus, based upon that record, the Government argues that the principles underlying Johnson compel the conclusion that Vieira's sufficiency claim is subject to plain-error review. Further, the Government contends that—if the Court were to rule otherwise—a defendant could conceivably agree to one standard at trial and then, on appeal, seek a higher standard, as appears to be the circumstance here.
Vieira, on the other hand, asserts that his Rule 29 motion at the close of the Government's case in chief requires the Court here to review his sufficiency-of-the-evidence argument de novo. Vieira also distinguishes Johnson on the ground that the defendant in that case did not move for acquittal pursuant to Rule 29. As Vieira argues, "whereas the Johnson defendant never challenged the sufficiency of the evidence at trial, Vieira did." The Court concludes that Vieira's position prevails.
Reply 2:19-20.
In the "sufficiency of the evidence" context, the standard for preserving an argument on a Rule 29 motion is a settled issue in this circuit. As the Ninth Circuit has unequivocally held, "[c]laims of insufficient evidence are reviewed de novo where ... a motion for acquittal is made at the close of the evidence." Naghani, 361 F.3d at 1261; see also United States v. Gonzalez, 528 F.3d 1207, 1210-11 (9th Cir. 2008); United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008); United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200-01 (9th Cir. 2000); United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995). In this case, it is undisputed that Vieira made a Rule 29 motion for acquittal based upon insufficient evidence, specifically arguing "that the [requirement that the] person acted knowingly and willfully has not been met." It is also undisputed that, after the trial court denied that motion, Vieira renewed his Rule 29 motion, on the same grounds and before the case went to the jury.
Reply 2:21-22; ER 128-29; see also ER-136.
Appeal Brief 15:15-18; ER 132 & 136.
The Government's invocation of principles derived from Johnson—a case that entailed a very different procedural posture from the case at bar—does not convince this Court that it must depart from the clear precedent set forth in Naghani and its predecessors. See Naghani, 361 F.3d at 1261. Applying that precedent here, the Court reviews Vieira's sufficiency-of-the-evidence claim de novo, and not for plain error.
The Court also observes that the Government does not make any argument challenging (1) whether Vieira's Rule 29 motion was broad enough in scope to preserve the sufficiency challenge at issue here; or (2) whether Vieira should be judicially estopped from advancing a different argument on appeal.
B. Statutory Analysis
Vieira asserts that the Government presented no evidence on the central question in this case: whether Vieira knowingly and willfully violated the prohibition set forth in 43 C.F.R. § 8365-1.4(a)(2) against creating a risk by creating a hazard or a nuisance. For the reasons stated above, the Court reviews Vieira's challenge to the sufficiency of the evidence de novo. To conduct that review, the Court first addresses the application of Rehaif to 43 C.F.R. § 8365.1-4(a)(2) and 43 U.S.C.
Appeal Brief 18:14-17.
§ 1733(a), then it turns to Vieira's specific claim.
1. Rehaif and the Presumption of Scienter
In Rehaif, the defendant had been charged with unlawful possession due to the prohibited status specified in 18 U.S.C. § 922(g)(5)(A)—that of "a[] [noncitizen]... illegally or unlawfully in the United States." Rehaif, 139 S. Ct. at 2195. The Supreme Court held that the text of the felon-in-possession statute, 18 U.S.C. § 922(g), indicated that scienter was required not only with respect to the element of firearm possession, but also to the "status element" that makes a particular person's firearm possession illegal; in that case, that the defendant was unlawfully in the United States. See Rehaif, 139 S. Ct. at 2200. The Supreme Court noted that the felon-in-possession statute included two parts: (1) 18 U.S.C. § 924(a)(2) states that "'[w]hoever knowingly violates' certain subsections of [18 U.S.C.] § 922, including § 922(g), 'shall be' subject to penalties of up to 10 years' imprisonment," Rehaif, 139 S. Ct. at 2195; and (2) 18 U.S.C. § 922(g) defines the substantive violation by stating that it "'shall be unlawful for any person... being a[] [noncitizen] ... illegally or unlawfully in the United States,' to 'possess in or affecting commerce, any firearm or ammunition,'" Rehaif, 139 S. Ct. at 2195.
In determining Congress's intent and applying the presumption in favor of scienter, the Supreme Court held that the "knowingly violates" language of 18 U.S.C. § 924(a)(2) extended to § 922(g)'s element of being a noncitizen "illegally or unlawfully in the United States," so that, for the defendant to be convicted under that statute, the Government had to prove that he knew that he was illegally in the United States. In reaching that conclusion, the Rehaif Court observed that—as "a matter of ordinary English grammar"—the Court "normally read[s] the statutory term 'knowingly' as applying to all the subsequently listed elements of the crime." Rehaif, 139 S. Ct. at 2196 (quoting Flores-Figueroa v. United States, 556 U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009)); see also Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886 (we "ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word 'knowingly' as applying that word to each element"). The Supreme Court also observed that Rehaif was "not a case where the modifier 'knowingly' introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends." Rehaif, 139 S. Ct. at 2196 (citation and quotation omitted). Accordingly, the Supreme Court reasoned that "by specifying that a defendant may be convicted only if he 'knowingly violates' [18 U.S.C.] § 922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of § 922(g)." Rehaif, 139 S. Ct. at 2196. Further, the Court also opined that "[a]pplying the word 'knowingly' to the defendant's status in [18 U.S.C.] § 922(g) helps advance the purpose of scienter." Rehaif, 139 S. Ct. at 2197. The Court reasoned that the purpose of scienter is to "help[] to separate wrongful from innocent acts." Id.
Vieira argues that the reasoning in Rehaif applies to the companion statute and regulation at issue in this case. For one, Vieira contends that the grammatical structure of the mens rea element at issue in this case—"Anyone who knowingly and willfully violates [43 C.F.R. § 8365-1.4(a)(2)]...," 43 U.S.C. § 1733(a)—mirrors the statute that was implicated in Rehaif—anyone who "knowingly violates"
the first provision, 18 U.S.C. § 924(a). Specifically, "[b]oth [18 U.S.C.] § 924(a) (at issue in Rehaif) and [43 U.S.C.] § 1733(a) (at issue here) have an adverb, 'knowingly' (or 'knowingly and willfully'), that modifies the verb 'violate[],' that refers to a direct object consisting of the substantive offense." Further, while "[18 U.S.C.] § 924(a) penalizes anyone who 'knowingly violates' § 922(g)," "[43 U.S.C.] § 1733(a) penalizes anyone who 'knowingly and willfully violates' [43 C.F.R.] § 8365.1-4(a)(2)." Thus, applying the Supreme Court's reasoning in Rehaif, Vieira urges the Court to read 43 C.F.R. § 8365.1-4(a)(2) and 43 U.S.C. § 1733(a) "to require the Government to establish that the defendant knew he violated the material elements of [43 C.F.R. § 8365.1-4(a)(2)]." Rehaif, 139 S. Ct. at 2196.
See Appeal Brief 21:21-23.
Id. at 21:23-26.
Id. at 21:26-28.
Vieira's reliance on Rehaif is persuasive. But the Government maintains that the Court should rule otherwise.
2. The Government's Position
The Government's arguments to the contrary are unpersuasive for two reasons. First, in its answering brief, the Government does not address Vieira's argument that scienter should be presumed with respect to every element of the statute and regulation at issue. Its failure to so argue in its answering brief waives the issue. See Willis, 795 F.3d at 997 n.11. In addition, although the Government cites Rehaif three times in its brief, it does so only in reference to its own argument regarding the appropriate standard of review. Therefore, because the Government does not address why the Supreme Court's reasoning in Rehaif should not apply to this Court's statutory interpretation of 43 C.F.R. § 8365.1-4(a)(2) in conjunction with 43 U.S.C. § 1733(a), this Court deems Vieira's argument for why Rehaif should apply to be uncontested by the Government.
Answering Brief 37:11-15 & 38:6-9.
Second, even giving the Government the benefit of the doubt, none of the cases that it cites in its answering brief—or to which the Government referred at oral argument—addresses whether the Supreme Court's analysis in Rehaif should apply in this case. Rather than considering "how far down the sentence the word 'knowingly [and willfully]' is intended to travel," Liparota v. United States, 471 U.S. 419, 424 n.7, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), the Government's cases predominantly appear to wrestle with the Supreme Court's interpretation of the meaning of the word "willfully." For instance, in Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), the Supreme Court grappled with the Seventh Circuit's interpretation of the word "willfully" as applied to certain provisions of the tax code. Id. at 199, 111 S.Ct. 604. In Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), the Supreme Court addressed the meaning of the phrase "willfulness" as applied to an anti-structuring law. Id. at 138, 114 S.Ct. 655. Next, in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), the Supreme Court again examined the meaning of "willfulness," this time holding that the heightened willfulness standard that it had applied in cases like Ratzlaf and Cheek should not apply to less technical statutes—like the Firearms Owners' Protection Act at issue there—since that statute did not "present[] the danger
Reply 7:27-8:3.
of ensnaring individuals engaged in apparently innocent conduct." Id. at 194, 118 S.Ct. 1939. However, in none of those cases did the Supreme Court focus on the statutory-interpretation question presented here.
The Government also cites United States v. Henderson, 243 F.3d 1168 (9th Cir. 2001), a case in which the defendant was convicted under 43 U.S.C. § 1733(a)— the same statute at issue in this case—for violations of two subsections of 43 C.F.R. § 3715.6, another regulation promulgated by the BLM. In referencing Henderson, the Government explains that the Ninth Circuit "came close" to addressing the distinction between general intent (clarified in Bryan) and the heightened, specific intent standard (discussed in Cheek and Ratzlaf). Although the Government concedes that Henderson declined to address which standard to apply, it asserts that the Ninth Circuit's invocation of United States v. Santillan, 243 F.3d 1125 (9th Cir. 2001), somehow suggests that the Supreme Court would have adopted the Bryan standard in interpreting "willfully" as applied to 43 U.S.C. § 1733(a) and its companion BLM regulations.
Answering Brief 28:12-15.
Id. at 28:19-24.
Id. at 23:13-20.
The Government's discussion of Henderson is helpful—indeed, Henderson appears to be the only case in which the Ninth Circuit has interpreted the unusual statute at issue here. But Henderson does not address the key question here—to which elements in the regulation at issue "knowingly and willfully" extends—nor does Henderson discuss whether "willfully" requires knowledge of the specific regulation being violated.
See Reply 8:10-20.
In sum, this Court concludes that Rehaif controls its interpretation of the regulation and statute at issue in this case. Therefore, to establish that Vieira "knowingly" violated 43 C.F.R. § 8365.1-4(a)(2), the Government was required to prove that Vieira violated the material elements of 43 C.F.R. § 8365.1-4(a)(2), which in this case means that Vieira knew, or that the person whom he was instructing knew, that their conduct created a risk, hazard, or nuisance.
C. Sufficiency of the Evidence
Having determined that a conviction under 43 C.F.R. § 8365.1-4(a)(2), in conjunction with 43 U.S.C. § 1733(a), requires the Government to prove that Vieira knew that his conduct created a risk, hazard, or nuisance, the Court now turns to Vieira's sufficiency-of-the-evidence argument, and, in particular, Vieira's contention that the Government's evidence was insufficient to establish that Vieira knew that his conduct was creating any risk, hazard, or nuisance.
Viewing the evidence in the light most favorable to the Government, the Court concludes that no rational trier of fact could have determined that Vieira or his companion knew that their act of target shooting in the Steele Peak area created a risk, hazard, or nuisance to anyone. As the evidence presented at trial shows, Vieira and his companion fired a couple of shots in a completely isolated area, in a location where people had engaged in target shooting for years. Further, the evidence shows that most people fired into the hillside nearby—not toward any inhabited area—and Ranger
Appeal Brief 25:17-19.
Id. at 25:21-22.
Id.
Purdy repeatedly testified that Vieira and his companion were the only visitors in the recreational area that day. In addition, while Ranger Purdy did notify Vieira that shooting was prohibited and that it was a citable offense, there is no evidence that Ranger Purdy told Vieira that there were other people nearby who could be bothered or harmed.
Answering Brief 38:24-39:1.
There is also insufficient information in the record to support the argument that Vieira had the requisite mens rea on the theory that he and his companion drove past "no shooting" signs at the entrance of the Maywood Club Road, including one that said "Safety Zone—No Shooting; Respect Life and Property." As the trial record indicates, Ranger Purdy never testified that the Maywood Club Road entrance was the only entrance to the Steele Peak area or that Vieira entered the Steele Peek area via that road. Further, even if Vieira and his companion had in fact driven past those signs, the signs were "20-30 feet from the entry kiosk, unobtrusive, and in small print." Thus, "[w]hether or not Vieira ever laid eyes on [a sign] is 'mere speculation,' which 'cannot be the basis for creation of logical inferences[,]' United States v. Bennett, 621 F.3d 1131,-1139 (9th Cir. 2010)—let alone proof beyond a reasonable doubt." But even if the presence of the signs could form a basis for the creation of logical inferences, neither sign would have apprised Vieira or his companion of a possible risk, hazard, or nuisance under the circumstances here: firing a couple of rounds into a hillside, with no one else around.
Id. at 38:21-39:13; ER 258-60 & 266.
Reply 4:14-17; ER 260-61.
See ER 299-300; ER 760-61.
Reply 4:19-21.
Accordingly, the Court concludes that the Government did not present sufficient evidence for a rational factfinder to determine that Vieira or his companion knew that their act of shooting a gun in the Steele Peak area created a risk, hazard, or nuisance.
V. DISPOSITION
The Government does not contest that Vieira had to have knowledge that his conduct created a risk by creating a hazard or nuisance. In view of this Court's conclusion that no rational juror could find beyond a reasonable doubt that Vieira possessed that intent, Vieira's conviction and sentence must be reversed.
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Vieira's conviction is REVERSED.
2. This case is REMANDED to the trial court with instructions to enter judgment of acquittal.
IT IS SO ORDERED.