# Opposition Brief — Unser v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 809

## Text

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No. 98-1600 | hee

Ss ea NRE RRR RE SMRSR R

a

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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I PITTTIITT sitsicttcicevscimninosehntisunchsnshtosbiovssedessbonaccrensgnemensamenieseecanigecces.. 1
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IIIT estan hashes shacihehicostosceeccndoneanccdesséasie-oais:ie cc, 16

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:
Re ce Ne Ce Gs ED dertiteccenennierieasabadasetinaiteintaasdiititian 13
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
FFs IEICE, CITI Hivcdesheubsasibsbsiidastsdtcnemnitiobabeedenisbasmniaiatantonit 9
OE Ee sissies cep sccedsineslt ecient 2,5, 6, 11, 13
He "Serio: EIT coilicieesikasiscascielasisilssdsiiasieiedcnsailaaebesdeemmaaniniatiiaaeaninad 3
Ba Fhe WIE a? Snccitvuskasdicesehtiesisnnanietnintdaaliareanaiahiieieseatabeiatiaks 15
ae haere III pesieibctestnchclncdaccansseieane iandeclieadapaanimeandiiaiaian iiaaaeauiaiine 14
Bae Pannen bi SUIT nies eltnssiicsincnitctnothnininiainchseebicdidtans natabtetiainaiidOlaanias 12
Be ee IEE cecehninsiccrinsbsessssieienessatiblesemaniaateanpeanliieeamabes 3
Be Ri PILED sicnseslsnisindeeincsiiontntalipbadelaneiataudiubbbiitainnsiats
Be ae MITE ricncbistiabesbeblisticnbnieneliptibdamdsshitabidiataiiaassetecatas 11
36 C.F.R.:
SESE: SUIT; THEIIE: nssieisuiceceuhestesnbisebinientenninstdetaitcsigtebniaintiaoaes anata 12
SERIE ‘SUL CIPUITED . snscissstrenseilcadianclliniaanseieninaaiaiessinaaneniensineauiain 13
OEIOIE: TRIO cecepisnsstsceninntninennesincnnnninciesnscinnietantaninieiionnels 3,5
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1545%3A4. Public record. Not legal advice.