Opposition Brief — Unser v. United States

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No. 98-1600 | hee

Ss ea NRE RRR RE SMRSR R

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Jn the Supreme Court of the Gnited States

ROBERT W. “BOBBY” UNSER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

RICHARD A. FRIEDMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTIONS PRESENTED

1. Whether the regulatory offense of operating a

snowmobile in a National Forest Wilderness Area, in

violation of 16 U.S.C. 551 and 36 C.F.R. 261.16(a), re-

quires proof that the defendant knew he was in such a

wilderness area.

2. Whether, assuming that a defense of necessity is

permitted for the regulatory offense in this case, the

burden of proof for that defense may be placed on the

defendant.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Commonwealth v. Raymond, 97 Mass. 567

SPE eahelarhiisnetcilaiistanbathnasihisonsctiatbendiisonestiansnseainassesecscsccs:, 11

Holdridge v. United States, 282 F.2d 302

SUNN MUDD sacelelsitdibbcishansicsesisssnselansssinmsinsssertosocetiincce ace. 14

Liparota v. United States, 471 U.S. 419 (1985) ................ 9, 10

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

7, 8,9

Neder v. United States, No. 97-1985 (June 10,

an Sistresiadesetitabdiartathtidecenanendotpastpicceteneehomnanianaanesosenseecec. 9

Patterson v. New York, 482 U.S. 197 |), Seana 14

Staples v. United States, 511 U.S. 600 (1994) ............. 11, 13

Tenement House Dep’t v. McDevitt, 109 N.E. 8

oo a Le ET TE 7

United States v. Dotterweich, 320 U.S. 277 ( 1948) ..cccccooee 7

United States v. Feola, 420 U.S. 671 (1975) cecseeccscoe---....... 8, 10

United States v. Kent, 945 F.2d 1441 (9th Cir

UI aan lbidecsninonadinisoionedbassobervccaehintecnnsticarsseccsne se. 5, 13

United States v. Larson, 746 F.2d 455 (8th Cir

NOI <aisdiinielstintasinrisedetnchccnemsasonsbabiuesasicimnaciassineassicieeccacee.cs 5

United States v. Launder, 743 F.2d 686 (1984) .............. 12, 13

United States v. Northwest Pine Products, Inc.,

914 F. Supp. 404 (D. Or. 1996) ....ccssssssscccsssessscsssssssssesessssseees 5

United States v. Semenza, 835 F.2d 223 (1987) .............. 12, 13

United States v. Talbott, 78 F.3d 1183 (7th Cir.

PUN verte aitec scpcenseseaaip sabia saoiaisnedeacnsmssoupnannsetoscaacec 15

(III)

IV

Cases—Continued: Page

United States v. Wilson:

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Se ae ee UE GE: TED. benictisicssnisensnubasinieniaciiiiiamsintedaniee 5, 13

Constitution, statutes and regulations:

U.S. Const. Amend. XIV (Due Process Clause) ................. 14

Clean Water Act, 33 U.S.C. 1819(a)(2)(A) oo... cccseeeseeees 13

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OE Ee sissies cep sccedsineslt ecient 2,5, 6, 11, 13

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ae haere III pesieibctestnchclncdaccansseieane iandeclieadapaanimeandiiaiaian iiaaaeauiaiine 14

Bae Pannen bi SUIT nies eltnssiicsincnitctnothnininiainchseebicdidtans natabtetiainaiidOlaanias 12

Be ee IEE cecehninsiccrinsbsessssieienessatiblesemaniaateanpeanliieeamabes 3

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Be ae MITE ricncbistiabesbeblisticnbnieneliptibdamdsshitabidiataiiaassetecatas 11

36 C.F.R.:

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EIR - ED ncstinerisennesssirensittiiassnisicenbaineananabsainiaiiiitiannaes 2,12

Miscellaneous:

Francis B. Sayre, Public Welfare Offenses, 33 Colum

Rs PRU, ED CRED scrienstsncentnidenaisennsaiiemsnabiomaninie 10

Jn the Supreme Court of the Anited States

No. 98-1600

ROBERT W. “BOBBY” UNSER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-29) is

reported at 165 F.3d 755.

JURISDICTION

The judgment of the court of appeals was entered on

January 4, 1999. The petition for a writ of certiorari

was filed on April 5, 1999. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a bench trial in the United States District

Court for the District of Colorado, petitioner was con-

victed of unlawful operation of a snowmobile within a

National Forest Wilderness Area, in violation of

16 U.S.C. 551 and 36 C.F.R. 261.16(a). He was fined

(1)

arrears

2

$75.00. Pet. App. 32-34. The court of appeals affirmed.

Pet. App. 1-29.

1. On December 20, 1996, petitioner and a friend,

Robert Gayton, were operating their snowmobiles in

the San Juan Range of the Rocky Mountains near La

Manga Pass in southern Colorado. Pet. App. 3. Mr.

Gayton was a completely inexperienced snowmobiler,

who relied upon petitioner and followed his lead. hid.

The men drove their snowmobiles into a National

Forest Wilderness Area, where Mr. Gayton’s snow-

mobile became stuck in a small ravine and had to be

abandoned. /d. at 3, 18. After Mr. Gayton’s snowmo-

bile became stuck, strong winds whipped the snow on

the ground into a “ground blizzard” that created a

hazardous situation for the men. Jd. at 4. They sought

to find the way back to safety on the remaining snow-

mobile until it became inoperable. Jbid. They contin-

ued traveling on foot. By fortune and fortitude, they

survived two nights in the wilderness before finding

safety in a barn, from which they were rescued. /bid.

2. Petitioner was charged under 16 U.S.C. 551 with

violating 36 C.F.R. 261.16(a). Section 551 authorizes

the Secretary of Agriculture to promulgate regulations

for public forests and national forests “to regulate their

occupancy and use” and makes a violation of any such

regulation a Class B misdemeanor punishable by im-

prisonment up to six months and a fine up to $5,000.’

1 Section 551 provides:

The Secretary of Agriculture shall make provisions for the

protection against destruction by fire and depredations upon

the public forests and national forests which may have been

set aside or which may be hereafter set aside * * * and he

may make such rules and regulations and establish such

service as will insure the objects of such reservations, namely,

to regulate their occupancy and use and to preserve the

3

See 18 U.S.C. 3571(b)(6), 3581(b)(7). A statute specifi-

cally dealing with federal wilderness areas provides

that “there shall be * * * no use of motor vehicles,

motorized equipment or motorboats, no landing of

aircraft, [and] no other form of mechanical transport” in

wilderness areas. 16 U.S.C. 1133(c). The pertinent re-

gulatory provision, 36 C.F.R. 261.16, provides that

“(t]he following are prohibited in a National Forest

Wilderness: (a) Possessing or using a motor vehicle,

motorboat or motorized equipment except as author-

ized by Federal Law or regulation.”

Petitioner argued that, in order to convict him, the

government had to prove not only that he was operat-

ing a snowmobile in a National Forest Wilderness, but

also that he knew that he was operating it in a National

Forest Wilderness. The district court rejected that

argument, ruling that “there is no mens rea element to

the offense.” Pet. App. 35; see also id. at 41. The dis-

trict court ruled, however, that it would recognize a

defense of necessity, if “there was no legal alternative

of which the defendant knew or should have known at

the time to violating the law,” if “the harm to be

prevented was imminent,” and if “a direct causal

relationship is reasonably anticipated to exist between

defendant’s actions and avoidance of the harm.” Id. at

43. The court stated that, because “there is no mens

rea element to the government’s burden of proof * * *,

the burden of establishing this [necessity] defense by a

forests thereon from destruction; and any violation of the

provisions of this section * * * or such rules and regulations

shall be punished by a fine of not more than $500 or

imprisonment for not more than six months, or both.

The maximum fine has been increased to $5,000 by 18 U.S.C.

3571(b)(6).

4

preponderance of the evidence falls to [petitioner].” Jd.

at 41.

The trial court made detailed findings of fact. Pet.

App. 35-44. The court found that Mr. Gayton’s

snowmobile—the first snowmobile lost—was found

“well within the boundary of the wilderness area.” Pet.

App. 37. The court also found that petitioner had aban-

doned his own snowmobile, an “Arctic Cat” model, “well

within the boundary of the wilderness area,” ibid., re-

jecting petitioner’s argument that someone had moved

it from the place where he had abandoned it. See also

id. at 40 (“I conclude that the government has estab-

lished beyond a reasonable doubt that * * * [peti-

tioner] operated a motor vehicle within the boundaries

of the San Juan Wilderness area without authorization

by federal law or regulation.”).

With respect to petitioner’s necessity defense, the

court found that petitioner and Gayton entered the

wilderness area while they were still engaged in

recreational use of their snowmobiles and before the

storm arose. Pet. App. 42. The court was “not satisfied

that a true emergency arose until [the] time either just

before or just after Mr. Gayton’s machine got stuck.”

Ibid. Since that machine was abandoned well within

the boundaries of the wilderness area, the court stated

that it “would * * * find and conclude that [the neces-

sity] defense is not available because the offense

charged here was in fact committed before the emer-

gency sufficient to give rise to such a defense occurred.”

Id. at 44. The court added that petitioner himself had

been “responsible for placing [him]self in the position of

violating the criminal statute.” Jbid. The court also

found that maps giving the precise location of the wil-

derness area were readily available “all over the place,”

and that “anybody recreating where there is a wilder-

—

5

ness area nearby simply ought to use one of these

maps.” Ibid. The court stated that “[(cJlearly a use of

[such maps] would have prevented this from happening

at all.” Ibid.

3. The court of appeals affirmed. Pet. App. 1-29.

The court upheld the district court’s determination that

the regulatory violation was a strict-liability offense.

The court first noted that neither 16 U.S.C. 551, the

authorizing legislation, nor 36 C.F.R. 261.16, the regula-

tory prohibition, contains a mens rea requirement. Pet.

App. 14-15. Applying the reasoning of Morissette v.

L’nited States, 342 U.S. 246, 255-256 (1952), the court

ncluded that the regulation described a “public wel-

‘are’ offense for which strict liability was permissible.

} \pp. 15-18. The court was satisfied that, construed

i strict-liability offense, the regulation imposes a

ible duty of compliance, the offense is not one

from a common-law crime, strict liability is

ted by the underlying congressional purpose for

‘egulation, conviction does not impose any signifi-

stigma on the defendant, and the penalty is rela-

nall. Pet. App. 18-20. The court also observed

that s imil: ir Forest Service regulations had been held in

ner cases to proscribe public welfare offenses for

which strict liability was the standard. Pet. App. 18,

citing United States v. Kent, 945 F.2d 1441, 1446 (9th

Cir. 1991) (unauthorized occupancy of National Forest

land); United States v. Larson, 746 F.2d 455, 456 (8th

Cir. 1984) (trespass by cattle); United States v. Wilson,

438 F.2d 525 (9th Cir. 1971) (cutting wood); United

States v. Northwest Pine Products, Inc., 914 F. Supp.

404, 407- 408 (D. Or. 1996) (timber operations).

The court also upheld the district court’s allocation to

petitioner of the burden of proof of his necessity

defense. The court recognized that, “when evidence has

6

been produced of a defense which, if accepted by the

trier of fact, would negate an element of the offense, the

government must bear the ultimate burden of persua-

sion on that element, including disproving the defense.”

Pet. App. 21-22. But the court also recognized that

“(t]he Constitution permits allocation of the burden of

proof to the defendant with respect to a defense which

does not negate an element of the crime.” Jd. at 22.

The court stated that the issue of the burden of proof

with respect to a necessity defense is not directly

addressed by the statutes or regulations at issue. Jd. at

23. The ceurt noted, however, that “it is the defendant

who is most likely to have access to the facts needed to

prove [a necessity] defense” and that “[i]t would be

impractical * * * to impose on the government the

burden of disproving necessity beyond a reasonable

doubt.” Jd. at 23. Accordingly, the court held that the

district court properly ruled that “[petitioner] had the

burden of proving the defense of necessity.” Jd. at 24.

ARGUMENT

1.a. The court of appeals’ holding that Section 551

and the Forest Service regulations permit conviction

without proof of mens rea is correct. In Morissette v.

United States, 342 U.S. 246 (1952), this Court recog-

nized the existence of numerous statutes and adminis-

trative regulations defining what have been called

“public welfare offenses” that impose strict liability

without regard to the intent of the violator:

Many of these offenses are not in the nature of posi-

tive aggressions or invasions, with which the

common law so often dealt, but are in the nature of

neglect where the law requires care, or inaction

where it imposes a duty. Many violations of such

regulations result in no direct or immediate injury

7

to person or property but merely create the danger

or probability of it which the law seeks to minimize.

While such offenses do not threaten the security of

the state in the manner of treason, they may be

regarded as offenses against its authority, for their

occurrence impairs the efficiency of controis

deemed essential to the social order as presently

constituted. In this respect, whatever the intent of

the violator, the injury is the same, and the

consequences are injurious or not according to

fortuity.

342 U.S. at 255-256. Quoting Judge, later Justice,

Cardozo, the Court distinguished such regulatory of-

fenses from “infamous crimes,” which ordinarily require

“[t]he element of conscious wrongdoing, the guilty mind

accompanying the guilty act.” Id. at 257 (quoting from

Tenement House Dep’t v. McDevitt, 109 N.E. 88, 90

(N.Y. 1915)). The Court recognized that, for such regu-

latory offenses, “penalties serve as effective means of

regulation” and such an offense “dispenses with the

conventional requirement for criminal conduct—

awareness of some wrongdoing.” 342 U.S. at 259-260,

(quoting United States v. Dotterweich, 320 U.S. 277,

280-281, 284 (1943)).

In Morissette, the Court noted that public welfare

offenses generally share certain characteristics. First,

“[t]he accused, if he does not will the violation, usually

is in a position to prevent it with no more care than

society might reasonably expect and no more exertion

than it might reasonably exact from one who assumed

his responsibilities.” 342 U.S. at 256. In addition, “pen-

alties [for such offenses] commonly are relatively small,

and conviction does no grave damage to an offender’s

reputation.” Jbid.

8

b. The court of appeals correctly held that operating

a motor vehicle in a designated wilderness area is a

“public welfare offense” that dispenses with the need to

prove mens rea, as explained in Morissette. Indeed, as

the Court noted in United States v. Feola, 420 U.S. 671,

690 (1975), “[t]raffic violations generally fall into that

category of offenses that dispense with a mens rea

requirement.” This offense, like many other motor

vehicle offenses, has all the characteristics of a public

welfare offense identified in Morissette. First, the pro-

hibition merely requires a person operating a motor

vehicle near a designated wilderness area to take care

to ascertain his location and ensure that it is not within

the boundaries of a wilderness area. See Pet. App. 18

(“[T]he duty imposed is reasonable, under the circum-

stances, and adherence is properly expected.’’), 44 (not-

ing that “anybody recreating where there is a wilder-

ness area nearby simply ought to use one of these

[readily available] maps”). Second, like other motor

vehicle offenses, operating a motor vehicle in a desig-

nated wilderness area subjects the offender to a penalty

(a maximum of six months’ imprisonment and a $5,000

fine) that is “relatively small,” especially in comparison

with the “heavier sentences of imprisonment and fines”

that are “common” in today’s criminal codes. Id. at 19-

20. Indeed, petitioner’s actual penalty of a $75 fine and

no imprisonment, which is apparently common in such

cases, see id. at 46-47, emphasizes the modest nature of

the penalty. Third, as the court of appeals noted, “con-

viction does not gravely besmirch one’s reputation.”

Pet. App. 18-19.

2 Petitioner argues (Pet. 28-29) that “the Tenth Circuit erred in

finding that ‘conviction [of operating a snowmobile in a wilderness

area] does not gravely besmirch’ [petitioner’s] reputation.” The

9

In addition to the above facters, the court of appeals

noted that other factors also support classifying the

offense at issue here as a public welfare offense. There

is no mention of intent in the statute or regulations.

See Pet. App. 14-15. In addition, the offense itself does

not employ the terms of, or otherwise derive directly

from, any common law crime that itself requires intent,

and Congress’s purpose to protect wilderness areas

from the irreparable damage that can be caused by

motor vehicles supports construing the offense as a

public welfare offense. See id. at 18 (“[T]he statutory

scheme is not one taken from the common law and

congressional purpose is supportive.”); see also Moris-

sette, 342 U.S. at 261-262; Neder v. United States, No.

97-1985 (June 10, 1999), slip op. 19-20.

2. Contrary to petitioner’s contention (Pet. 11-17),

the court of appeals’ conclusion that the offense at issue

here does not require proof of mens rea does not con-

flict with any decision of this Court.

a. In Liparota v. United States, 471 U.S. 419 (1985),

the Court interpreted a statute proscribing food-stamp

fraud, 7 U.S.C. 2024(b)(1) (1982), which provides that

“whoever knowingly uses * * * [food stamps] in any

manner not authorized by [law]” was guilty of a felony

if the value of the food stamps was $100 or more. The

Court held that the express statutory intent

fact that petitioner’s personal fame as a race car driver made his

efforts to avoid conviction in this case a subject of news reports,

see id. at 29 n.14, is of no relevance to the Tenth Circuit’s state-

ment that the offense itself does not besmirch the character of the

violator in the way that conviction of many much more serious

criminal offenses would. In any event, the headlines quoted by pe-

titioner reflect criticism of petitioner’s refusal to accept responsi-

bility for his conduct; they do not suggest that the infraction itself

reflects poorly on petitioner’s character.

10

requirement (“knowingly”) applies not only to the “use”

of the food stamps, but also to the element that the use

was in a “manner not authorized” by law. 471 U:S. at

423-434. Rejecting the argument that Congress

intended to dispense with a mens rea requirement, the

Court observed that “[iJn most previous instances [of

offenses dispensing with mens rea], Congress has

rendered criminal a type of conduct that a reasonable

person should know is subject to stringent public

regulation and may seriously threaten the community’s

health or safety.” Jd. at 433.

The conclusion that the offense at issue in this case

does not require proof of mens rea is entirely consistent

with the Court’s decision in Liparota. The statute in

Liparota specified that the offense must be committed

“knowingly,” and the Court concluded that the use of

that term indicated a requirement that the violator

know that his use of the food stamps was “in any

manner not authorized by [law].” In this case, by con-

trast, both the statute and the regulation are silent

with respect to intent. Moreover, this statute is unlike

the statute at issue in Liparota in two other critical

respects. First, the penalty for the violation in this case

(a maximum of six months’ imprisonment and a $5,000

fine) is far less than the penalty for food-stamp fraud in

Liparota (a maximum penalty of five years’ imprison-

ment and a $10,000 fine). Second, motor-vehicle of-

fenses such as the one in this case have long been held

to be public-welfare offenses that require no proof of

mens rea, see Feola, 420 U.S. at 690; Francis B. Sayre,

Public Welfare Offenses, 33 Colum. L. Rev. 55, 73, 84

(1933), whereas the food-stamp fraud offense in Lipa-

rota falls within no such generally accepted category of

public welfare offenses.

11

b. The decision of the court of appeals is also entirely

consistent with Staples v. United States, 511 U.S. 600

(199’). In that ease, the Court held that a person may

not be convicted of possessing an unregistered

machinegun, in violation of 26 U.S.C. 5861(d), without

proof that he knew that the weapon he possessed had

the characteristics that brought it within the statutory

definition of a machinegun. 511 U.S. at 604-619. Id. at

616. The Court in Staples specifically noted that “(hlis-

torically, the penalty imposed under a statute has been

a significant consideration in determining whether the

statute should be construed as dispensing with mens

rea.” Id. at 616. The firearms statute at issue in

Staples provides for a maximum penalty of ten years’

imprisonment, see ibid., and that penalty strongly

supported a requirement of mens rea. In this case, by

contrast, the maximum term of imprisonment is six

months and offenders like petitioner are typically

assessed a fine of $75 and no imprisonment.’ Those

penalty provisions point in the opposite direction from

the provision in Staples, supporting the court of

appeals’ conclusion that the offense here is a public

welfare offense that does not require proof of intent. In

addition, as noted above, the motor-vehicle offense at

issue in this case, unlike the firearms offense in Staples,

falls within a well- recognized category of public

welfare offenses that dispense with a mensrea

requirement.

3 The misdemeanor penalties authorized by Section 551 are

roughly equivalent to the penalties that the Court in Staples cited

as being consistent with public welfare offenses that dispense with

a mens rea requirement. See 511 U.S. at 616 (citing Common-

wealth v. Raymond, 97 Mass. 567 (1867) (crime involving a penalty

of a “fine up to $200 or six months in jail, or both”)).

12

3. The holding of the court of appeals regarding the

elements of the offense for which petitioner was con-

victed does not conflict with any decision of any other

court of appeals.

a. Petitioner contends (Pet. 20-24) that the decision

in this case conflicts with the Ninth Circuit’s decisions

in United States v. Semenza, 835 F.2d 223 (1987), and

United States v. Launder, 743 F.2d 686 (1984). That

contention is mistaken.

In Semenza, the defendant was charged under Sec-

tion 551 with “(placing or allowing unauthorized live-

stock to enter or be in the National Forest System,” in

violation of 36 C.F.R. 261.7(a). In Launder, the defen-

dant was charged with violating 18 U.S.C. 1856, which

provides that “[w]Jhoever, having kindled * * * a fire

in or near [federal land] * * * permits or suffers said

fire to burn or spread beyond his control” shall be

subject to six months’ imprisonment and a fine. In each

case, the Ninth Circuit held that the operative terms of

the prohibitions (“placing or allowing” in Semenza,

“permits or suffers” in Lawnder) require “a willful act

or a willful failure to act in the face of a clear opportu-

nity to do so.” Semenza, 835 F.2d at 224; Launder, 743

F.2d at 689.

The prohibition at issue here, by contrast, does not

contain terms like “allow” or “permit,” which may be

construed to require proof of willful action. Instead,

Section 261.16(a) prohibits “[plossessing or using” a

snowmobile or other motorized equipment within a

wilderness area—terms that do not necessarily connote

any mental state other than the voluntariness of

13

possession or use.‘ The Ninth Circuit itself, in United

States v. Kent, supra, held that its holdings in Semenza

and Launder depended on the presence of the particu-

lar terms that defined the offenses in those cases. In

Kent, which involved a prosecution under Section 551

for violating a regulation prohibiting “using National

Forest System lands for residential purposes,” .36

C.F.R. 261.10(b), the court explained that the language

of that regulation, unlike the language of the regula-

tions at issue in Semenza and Launder, “speaks solely

of action, with no reference to volition,” and that it

would therefore be inappropriate to construe the regu-

lation to require proof of mens rea. 945 F.2d at 1446.

The same conclusion follows here. See also United

States v. Wilson, 438 F.2d 525 (9th Cir. 1971).

b. Petitioner also contends (Pet. 24-25) that the

court of appeals’ holding conflicts with the Fourth

Circuit’s decision in United States v. Wilson, 133 F.3d

251 (1997). In that case, the Fourth Circuit interpreted

a provision of the Clean Water Act, 33 U.S.C.

1319(c)(2)(A), which provides that “[a]ny person who

knowingly violates section 1311” commits a felony. The

court held that the explicit statutory intent require-

ment (“knowingly”) applied to all elements of the

offense and required “defendant’s knowledge of facts

meeting each essential element of the substantive

offense.” 133 F.3d at 262 (emphasis omitted). The

offense at issue here differs from that in Wilson in that

the regulation defining the offense here does not use

the term “knowingly,” the offense itself is a misde-

meanor with a relatively short maximum sentence, and

4 As noted above, although the felony firearms offense in Sta-

ples was also a possessory offense, the severe penalties proscribed

for violations suggested that proof of mens rea was necessary.

14

the offense falls within a recognized category of of-

fenses (motor vehicle offenses) that require no mens

rea. The decision of the Tenth Circuit does not conflict

with the Fourth Circuit’s decision in Wilson.’

4. Petitioner argues (Pet. 17-20) that it was uncon-

stitutional for the court of appeals to place upon him the

burden of proving the defense of necessity that the

district court ruled would be available to him. That

argument is mistaken.

In Patterson v. New York, 482 U.S. 197 (1977), this

Court held that it does not violate the Due Process

Clause to impose on a defendant the burden of persua-

sion for a defense that does not negate any element of

the offense. 432 U.S. at 205-211. Petitioner accepts

that proposition, Pet. 18-19, but argues that Patterson

applies only when the defense is specified by statute

and not when it is of judicial creation. Nothing in

Patterson suggests that the source of the defense is

material; the material feature for burden-shifting is

that the defense did not negate any element of the

offense, which is the case here.

5 Petitioner argues (Pet. 25-29) that the court of appeals’

decision in this case is inconsistent with the decision in Holdridge

v. United States, 282 F.2d 302 (8th Cir. 1960) (Blackmun, J.). In

Holdridge, defendants were charged with violating a provision of

18 U.S.C. 1382 providing that “[wJhoever reenters or is found

within any [federal military installation] after having been re-

moved therefrom or ordered not to reenter by any officer or

person in command or charge thereof” is guilty of a misdemeanor.

The Eighth Circuit ruled that Section 1382 defines a strict liability

offense and it would be inappropriate to infer a mens rea require-

ment that was not expressed in the terms of the statutory provi-

sion. 282 F.2d at 308-310. The Tenth Circuit’s decision in this case

reaches the same result, and it accordingly does not conflict with

Holdridge.

15

Petitioner asserts (Pet. 19-20) that the court of

appeals’ holding that petitioner bears the burden of

proving the defense of necessity conflicts with United

States v. Talbott, 78 F.3d 1183 (7th Cir. 1996). In that

case, the Seventh Circuit held that, absent express

statutory direction, ‘the burden of proof presumptively

lies with the government on a defense, even where the

Constitution would permit it to be imposed on defen-

dant. 78 F.3d at’ 1186. Talbott involved the burden of

proof of the defense of self-defense to the charge of

being a felon in possession of a firearm, in violation of

18 U.S.C. 922(g)(1).

The rule of statutory construction applied in Talbott

has been developed and applied only in cases involving

serious felonies. See 78 F.3d at 1186 (citing cases). We

have found no case, and petitioner has not cited any,

applying that rule of construction to defenses to strict-

liability public welfare offenses. With respect to such

offenses, the court of appeals correctly held that the

fact that the defendant “is most likely to have access to

the facts needed to prove [a] defense [of necessity],”

Pet. App. 23, is a sufficient basis to infer that Congress

would not have wanted to place the burden of proof

with respect to that defense on the government.°

6 With respect to the necessity defense, petitioner repeatedly

argues (Pet. 6-7, 15-16) that his control of the snowmobile was

impaired by extreme weather conditions before he entered the

federal wilderness area. The district court, however, made a

factual finding, affirmed by the court of appeals, that the difficult

weather conditions did not arise until after petitioner had entered

the wilderness area, and it rejected petitioner’s necessity defense

on that basis. See Pet. App. 44 (“the offense charged here was in

fact committed before the emergency sufficient to give rise to such

a defense occurred”).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

RICHARD A. FRIEDMAN

Attorney

JULY 1999