Opposition Brief — Fogel v. United States

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No. 90-218 * | JOSEPH F. SPANIOL, UR,

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Iu the Supreme Court of the United States

OCTOBER TERM, 1990

IsAAC FOGEL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Acting Assistant Attorney General

JOSEPH C. WYDERKO

Attorney :

Department of Justice

Washington, D.C. 20530

(202) §14-2217

QUESTION PRESENTED

Whether petitioner, who cut down trees on public

lands to improve the view from his property, was

properly convicted of converting to his use a “thing

of value of the United States” under 18 U.S.C. 641.

(1)

TABLE OF CONTENTS

a TE I AST TCO 6 TEE, SOE RON PerO Ot 1

EE TEE EERIE Sn SS RIE Ae RO ae ET 1

a a diipnaanediinaneiasdliavabenencsoens 1

a i tuniabinbbabensetistmubiicasenmiens 4

RAN es TE ER wR ea 9

TABLE OF AUTHORITIES

Cases:

Magnolia Motor & Logging Co. Vv. United States,

264 F.2d 950 (9th Cir.), cert. denied, 361 U.S.

SEE EE RRR SSS ESA AS RO oe a 7

Moore Vv. United States, 160 U.S. 268 (1895)... 5, 6

Morfissette v. United States, 342 U.S. 246 (1952) .. 3, 5,6

United States v. Cedar, 487 F.2d 1033 (9th Cir.

Ne ed cia iaiienaiunn 7

SRA IE AG DAT Em oto nl AR Ni a IR 5

United States v. Gemmill, 5385 F.2d 1145 (9th

Cir.), cert. denied, 429 U.S. 982 (1976) .............. 5, 7,8

United States v. Girard, 601 F.2d 69 (2d Cir.),

cert. denied, 444 U.S. 871 (1979) .......20200020000002... 5

United States v. Hill, 885 F.2d 759 (10th Cir.

SE i ER 5 IP RI 5

United States v. Lamb, 150 F. Supp. 310 (N.D.

a nepnintinocsecmenoes 7

United States v. Larsen, 596 F.2d 410 (10th Cir.

ag HTS Soi RNS FES See, oe 7

United States v. Manes, 420 F. Supp. 1013 (D. Or.

1973), aff’d, 549 F.2d 809 (9th Cir. 1977) ........ 8

United States v. May, 625 F.2d 186 (8th Cir.

a eatinhitnte 5

United States v. Petersen, 777 F.2d 482 (9th Cir.

1985), cert. denied, 479 U.S. 843 (1986) —.......... 8

Statutes :

oa cnesniigienionl 2, 3, 4, 5, 6, 7, 8

esas peciiesioamnigessiastabeneeotinss 2,7

i iateetienminanpibiinann 7

IV

Miscellaneous: Page

2 W. LaFave & A. Scott, Substantive Criminal

Et: ARERR eat noneeerene OS 8

— «Su the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-218

ISAAC FOGEL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1la-

16a) is reported at 901 F.2d 23.

JURISDICTION

The judgment of the court of appeals was entered ~—

on April 4, 1990. A petition for rehearing was de-

nied on May 7, 1990. Pet. App. 17a-18a. The peti-

tion for a writ of certiorari was filed on August 1,

1990. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District

Court for District of Maryland, petitioner was con-

(1)

2

victed of converting government property, in viola-

tion of 18 U.S.C. 641; and cutting timber growing on

the public lands of the United States, in violation of

18 U.S.C. 1852. He was sentenced to 15 days’ con-

finement in a halfway house and ordered to perform

300 hours of community service. He was also fined

$20,000 and ordered to make restitution for the de-

stroyed government property.

1. Petitioner owned a house and surrounding prop-

erty in Maryland’s Potomac River Valley, the value

of which would nearly double if it had an unob-

structed view of the Potomac River. Between peti-

tioner’s property and the river, however, lay the C&O

Canal National Historic Park, created by Congress

in 1971 in order to preserve the wooded area as it

had appeared during the time the C&O Canal Com-

pany operated the canal. In addition, the United

States had obtained in 1977 a scenic easement over

petitioner’s property that restricted the landowner

from cutting down any tree measuring in excess of

six inches in diameter at breast height. Petitioner

and his wife purchased the property, subject to the

easement, in 1982. They were repeatedly informed

by National Park Service officials that it would be

both illegal and a detriment to a unique environment

to cut down trees subject to the easement or within

the C&O National Historic Park. Pet. App. 3a-4a,

12a n.4; Gov’t C.A. Br. 3-5, 9.

To enhance the value of his property, petitioner

nevertheless decided to create a clearing to give the

property a view of the Potomac River. In February

1985, he hired Suburban Tree Service to do the work.

Petitioner did not tell Gary Ralph, the owner of Su-

burban Tree Service, about the scenic easement or

the boundary line of the C&O Canal National His-

toric Park, and Ralph believed that the entire area

3

behind the house belonged to petitioner. Pet. App.

4a-5a; Gov’t C.A. Br. 5-7.

After one day’s work by Ralph and a crew of four

workers, petitioner expressed displeasure because the

area was not adequately cleared. He told Ralph that

he wanted a good view of the river and directed the

crew to cut all the way down to the canal. After pe-

titioner declined to increase his payment for the tree-

cutting service, he and Ralph agreed that the crew

could leave the cut trees where they fell. Pet. App.

5a; Gov’t C.A. Br. 7. Ralph and his crew returned

the next day to complete the job. Following peti-

tioner’s directions, the crew cut down and left ap-

proximately 100 trees within the boundaries of the

C&O Canal National Historic Park. They also cut

down and left 12 trees on petitioner’s property that

were subject to the scenic easement. Pet. App. 5a-6a;

Gov’t C.A. Br. 7-9. An expert witness testified that

the replacement value of the trees was in excess of

$30,000 and that the natural scene destroyed by cut-

ting down the trees would take approximately 35

years to recreate. Gov’t C.A. Br. 9-10.

2. The court of appeals affirmed. Pet. App. 1la-

16a. It rejected petitioner’s contention that the evi-

dence was insufficient to sustain a conviction under

18 U.S.C. 641 because there was no evidence that

petitioner had converted the trees to his own use.

Pet. App. 10a-12a. Relying on Morissette v. United

States, 342 U.S. 246 (1952), the court explained that

“Tejonversion under Section 641 does not require

that the accused actually keep the property for per-

sonal use,” and that conversion includes “intentional

and knowing abuses or unauthorized uses of govern-

ment property.” Pet. App. lla. The court held that

the evidence was sufficient to sustain petitioner’s con-

viction, since “[he] cut down trees valued in excess

4

of $30,000 to enhance his view and hence the value

of his property, substantially and criminally interfer-

ing with the government’s use of that property.”

Pet. App. 12a (footnote omitted) .’

ARGUMENT

Petitioner contends that his conviction under 18

U.S.C. 641 should be reversed because his act of cut-

ting down trees on public lands without depriving the

government of possession of the felled trees does not

constitute an offense under that Section. Pet. 12-30.

1. The court of appeals correctly concluded that

petitioner’s act of cutting down the trees located in

the C&O Canal National Historic Park constituted a

knowing conversion under 18 U.S.C. 641 because it

“substantially and criminally interfered with the gov-

ernment’s use of that property.” Pet. App. 12a. Pe-

- titioner’s contention to the contrary (Pet. 19-23, 27-

30) rests on the premise that the scope of Section 641

is limited by the common law definitions of larceny-

type offenses, which were restricted to the theft of

personal property. This view further depends on a

distinction between standing timber, which the com-

mon law considered real property, and severed tim-

ber, which the common law considered personal prop-

erty. Under petitioner’s theory, since only the former

—standing timber or “reai property”—was at issue

here, Section 641 cannot apply.

Like the difference in offenses that depended on the

determination whether and by whom timber had been

1 We agree with petitioner (Pet. 20 n.3) that the court of

appeals evidently meant that petitioner substantially and

criminally interfered with the government’s use of its own

property.

5

cut, the distinction between the character of timber

as “real” or “personal” property is “subtle and illog-

ical.” United States v. Gemmill, 535 F.2d 1145, 1149-

1150 (9th Cir.), cert. denied, 429 U.S. 982 (1976).

By its plain terms, Section 641 is not limited by such

distinctions. Rather, it broadly punishes “[w]hoever

embezzles, steals, purloins, or knowingly converts to

his use * * *, or without authority * * * disposes of

any * * * thing of value of the United States or any

department or agency thereof.”* The trees growing

in the C&O Canal National Historic Park were

clearly “thing[s] of value” to the United States, not

merely because of the value of the timber, but be-

cause of the wooded scene the trees made possible.

Petitioner’s destruction of those trees fell within the

scope of Section 641.

In accordance with this language, this Court noted

in Morissette v. United States, 342 U.S. 246 (1952),

that “[t]he history of § 641 demonstrates that it was

to apply to acts which constituted larceny or em-

bezzlement at common law and also acts which shade

into those crimes but which, most strictly considered,

might not be found to fit their fixed definitions.” * /d.

2 See, e.g., United States v. Hill, 885 F.2d 759, 768 (10th

Cir. 1987) (Section 641 (“codififed] as one crime with wide

parameters trespass to property of the government”) ; United

States v. Croft, 750 F.2d 1354, 1860 (7th Cir. 1984) (scope

of Section 641 broader than common law tort foundation,

including, e.g., things of intangible value) ; United States v.

May, 625 F.2d 186, 190-192 (8th Cir. 1980) (similar) ; United

States v. Girard, 601 F.2d 69, 70-71 (2d Cir.) (similar),

cert. denied, 444 U.S. 871 (1979).

* Petitioner misplaces his reliance (Pet. 27) on Moore v.

United States, 160 U.S. 268, 273 (1895), for the proposition

that a “thing of value” under Section 641 is narrowly limited

to personal property subject to larcency-type offenses at

6

at 269 n.28. The Court also noted that “[t]he word

‘converts’ does not appear in any of [§ 641’s] pred-

ecessors.” Ibid. Consistently with the district court’s

jury instruction in this case, the Court later ex-

plained (id. at 271-272):

Conversion * * * may be consummated without

any intent to keep and without any wrongful

taking, where the initial possession by the con-

verter was entirely lawful. Conversion may in-

clude misuse or abuse of property. It may reach

use in an unauthorized manner or to an unau-

thorized extent of property placed in one’s cus-

tody for limited use. * * * It is not difficult to

think of intentional and knowing abuses and un-

authorized uses of government property that

might be knowing conversions but which could

not be reached as embezzlement, stealing, or

purloining.

-Petitioner’s act of cutting the trees was a knowing

abuse of the government’s property for his own bene-

fit and therefore amounted to a conversion within the

meaning of Section 641.*

2. Contrary to petitioner’s contention (Pet. 15-

19), the decision of the court of appeals in this case

common law. The Court in Moore was addressing the suffi-

ciency of an indictment charging embezzlement under a pred-

ecessor statute. 160 U.S. at 273-274.

* There is no merit to petitioner’s contention (Pet. 14-15)

that the indictment did not charge the offense of conversion

of government timber. Count 1 of the indictment charged

that petitioner “did knowingly convert, and did without au-

thority, dispose of a thing of value of the United States and

of the National Park Service, a department and agency

thereof, to wit: 126 trees and saplings, more or less, which

had been cut down on lands owned by the United States.”

Pet. App. 23a. :

7

does not conflict with decisions of the Ninth and

Tenth Circuits. In most of the cases on which peti-

tioner relies, the defendants were charged with vio-

lating Section 641 by cutting and removing timber

from public lands. The principal issue was whether

a defendant could be separately charged under 18

U.S.C. 1852 or 1853 for cutting down the timber

without improper merger of the offenses; the courts

determined that a defendant could be so charged.

See United States v. Larsen, 596 F.2d 410, 411-412

(10th Cir. 1979); United States v. Gemmill, 535

F.2d 1145, 1149-1150 (9th Cir.), cert. denied, 429

U.S. 982 (1976); United States v. Cedar, 437 F.2d

1033, 1035-1036 (9th Cir. 1971).°

In Magnolia Motor & Logging Co. v. United States,

264 F.2d 950 (9th Cir.), cert. denied, 361 U.S. 815

(1959), the district court addressed the question

whether the stealing and converting of logs, agreed to

be the property of the United States, could be pun-

ished under Section 641 in light of the fact that it

could also be punished under Sections 1852 and 1853.

The court asserted that one of the elements distin-

guishing a Section 641 from a Section 1852 or 1853

offense was that Section 641 applied to personalty, not

realty. United States v. Lamb, 150 F. Supp. 310,

312-314 (N.D. Cal. 1957). The court of appeals, in

upholding the conviction, stated that “the cutting and

felling of the trees, the making of the logs and the

theft and conversion thereof were distinct, separate

and independent acts.”’ The court therefore concluded

that the logs were personal property. 264 F.2d at

* Although the court in Gemmill assumed that carrying

away timber constituted a separate Section 641 offense, 535

F.2d at 1150, it did not determine that there could be no

Section 641 offense if the timber were not so transported.

8

954. Thus, the court of appeals simply addresed the

sufficiency of the evidence in the context of the com-

mon law rule that it was not larceny to sever trees

from property and carry them away in one continu-

ous act, but it was larceny if the severance of the

trees and their asportation constituted separate acts.

See generally 2 W. LaFave & A. Scott, Substantive

Criminal Law § 8.4, at 349-350 (1986).

While noting that the Magnolia Motor decision

paid “lip service” to the common law treatment of

stolen timber, the Ninth Circuit subsequently has re-

jected the common law distinction between trees that

are severed and carried away in one continuous act

and those that are cut and carried away in separate

steps. See United States v. Gemmill, 535 F.2d at

1150. In addition, the court has since upheld a rul-

ing that a defendant can be charged in separate

counts under Section 641 for cutting down timber

and for removing it, although one of the charges

should be dismissed after conviction to avoid a multi-

plicitous indictment. See United States v. Manes, 420

F. Supp. 1013, 1017-1019 (D. Or. 1973), aff’d with-

out opinion, 549 F.2d 809 (9th Cir. 1977) (Table).

Current Ninth Circuit law therefore suggests that

trees have value in place and that cutting the trees

can be a form of conversion that violates 18 U.S.C.

641.°

The Ninth Circuit has not yet had to define the

scope of Section 641 in a case in which the Section

641 conviction concerns wood that is not removed nor

* The other case upon which petitioner relies, United States

v. Petersen, 777 F.2d 482 (9th Cir. 1985), cert. denied, 479

U.S. 848 (1986), is inapposite. That case involved a defend-

ant convicted under Section 641 who exceeded the scope of a

contract to cut down diseased trees on public lands by cutting

down and removing healthy trees.

~_—-

9

one in which the cutting itself affects a valu. -the

scenic quality of the forest—distinct from the value

of the trees as timber. The Ninth Circuit’s decisions

are therefore not in conflict with the Fourth Circuit’s

decision in this case. In any event, to the extent

there is tension in the analysis of the Fourth and

Ninth Circuit decisions, the infrequency with which

this issue has arisen over the past 30 years demon-

strates that it is not of sufficient recurring impor-

tance to warrant this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Acting Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

OCTOBER 1990

W vu. S. GOVERNMENT PRINTING OFFICE; 1990 262203 20146