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U. S. v. Wyatt

 

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Defendants Joel A. Wyatt and Rebecca Kay Smith appealed their convictions for “(1) using, or aiding and abetting the use of, a hazardous or injurious device on federal land with the intent to obstruct a timber harvest; and (2) maintaining an unauthorized structure on National Forest land.”[1] The Ninth Circuit considered whether 18 U.S.C. § 1864(a), which in part prohibits the use of a “hazardous or injurious device on Federal land” when there is “intent to obstruct or harass the harvesting of timber,” was unconstitutionally vague as applied.[2] The Ninth Circuit held that the statute was not unconstitutionally vague as applied to the visible and unmodified ropes that the defendants strung in the trees above a proposed helicopter landing site and affirmed the district court’s ruling.

Wyatt and Smith, members of Wild Rockies Earth First occupied two elevated platforms in trees in the Bitterroot National Forest in Montana as part of a tree-sit. They strung one blue climbing rope between their platforms and four yellow polypropylene ropes which were not suitable for climbing from the trees. All of the ropes were within reach of the platforms and readjusted during the time they occupied the platforms. The platforms were designated as proposed logging helicopter and emergency medical helicopter sites. However, at the time the defendants were protesting, the platforms could not be used as landing sites until five trees were removed. The defendants strung ropes from the trees and stated that they knew the site was chosen to prevent helicopters from landing and that the purpose of the lines was to prevent helicopters from landing. The defendants first climbed onto the platforms on July 8, 2002. Wyatt left on July 29, 2002, and Smith was removed by the United States Forest Service on August 6, 2002. The district court jury found the defendants guilty of “(1) using, or aiding
and abetting the use of, a hazardous or injurious device on federal land with the intent to obstruct a timber harvest; and (2) maintaining an unauthorized structure on National Forest land.”[3]

To determine whether the statute was unconstitutionally vague the Ninth Circuit reviewed the district court’s holding using a de novo standard of review[4]. The defendants argued that 18 U.S.C. § 1864(a) was unconstitutionally vague as applied because the statute did not give adequate notice that it was a crime to hang unmodified and visible ropes between trees because these ropes do not fall within the definition given in the statute of a “hazardous or injurious device.”[5] A hazardous or injurious device is

a device, which when assembled or placed, is capable of causing bodily injury, or damage to property, by the action of any person making contact with such device subsequent to the assembly or placement. Such term includes guns attached to trip wires or other triggering mechanisms, ammunition attached to trip wires or other triggering mechanisms, sharpened stakes, lines or wires, lines or wires with hooks attached, nails placed so that the sharpened ends are position in an upright manner, or tree spiking devices including spikes, nails, or other objects hammered, driven, fastened, or otherwise placed into or on any timber, whether or not severed from the stump.[6]

The Ninth Circuit explained that a statute is vague and thus void and unconstitutional if the statue “(1) does not define the conduct it prohibits with sufficient definiteness and (2) does not establish minimal guidelines to govern law enforcement.”[7] The court also commented that when a statute is ambiguous the “rule of lenity must be applied.”[8]

First, the court determined that the statute provided fair warning to the defendants because unmodified and visible ropes strung above a helicopter landing site meets the definition of a “‘hazardous or injurious device'” because when “‘assembled or placed'” such that they are strung above the helicopter landing site, the ropes are “‘capable of causing bodily injury, or damage to property, by the action of any person making contact with such device subsequent to the assembly or placement'” if the helicopter landed on the ropes or became entangled in them and crashed.[9] Next the court determined that the ropes fell within the “lines or wires” example given in the statute[10] because the definition of a “hazardous or injurious device” includes “sharpened stakes, lines or wires, line or wires with hooks attached”[11] and “lines” are defined in the dictionary as “[a] rope, cord, [or] string.”[12]

Finally, the court turned to congressional intent and explained that the other examples in the “hazardous and injurious device”[13] definition show that Congress’ intent was to prevent interference with logging activities by devices that might cause “bodily injury” or “damage to property” and as an example that the definition of “hazardous or injurious device”[14] includes, inter alia “tree spiking devices.” The court also pointed to Senator McClure’s statement that the statute was meant to stop ecoterrorists from using “‘dangerous and deadly'”[15] methods such as punji sticks (steel bars with sharpened nails that could injure hikers) and tree spikes (spikes driven into trees that shatter saw blades so that they are dangerous).[16]

A scienter requirement, the court explained, can help prevent a vagueness problem in a law[17] so that the offense is not defined in a way that could “encourage arbitrary and discriminatory enforcement.”[18] The statute requires a defendant to use the device “with the intent to obstruct or harass the harvesting of timber”[19] which the court determined limits the discretion of law enforcement and lessens any perceived vagueness.

The Ninth Circuit rejected the defendants’ argument that the statute[20] does not provide adequate notice because “‘unmodified and highly visible ropes'”[21] are not included in the definition of a “‘hazardous and injurious device.'”[22] The list, the court explained, was non-exhaustive because when a definition starts with a general definition and then provides examples “‘include[d]'”[23] in the definition, the use of the word “included” suggests that the list is not exclusive[24].

The court also dismissed the defendants’ argument that in the “hazardous or injurious device” definition,[25] “sharpened” modifies “stakes” and “lines or wires” and thus because the defendants’ ropes were not sharpened they are not included in the definition. The court compares the statute at issue with 21 U.S.C. § 841(d)(3) to show the error in the defendant’s argument. That statute defines “boobytrap” as “‘any concealed or camouflaged device designed to cause bodily injury when triggered by any action of any unsuspecting person making contact with the device. Such term includes guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wires with hooks attached.'”[26] The unmodified term “lines or wires” is absent from the statute which the court suggests means that Congress did not intend to modify “lines and wires” with “sharpened” in the statute at issue. Thus the court held that 18 U.S.C. § 1864(a) provided fair warning to a person of common intelligence that it was a crime to hang ropes over a helicopter
landing site with the intent to prevent the harvesting of timber and therefore the statute was not unconstitutionally void for vagueness as applied here.

The rule of lenity is inapplicable, the court explained, because a statute is only ambiguous and interpreted in favor of the defendant when there is no way to determine what Congress intended.[27] Furthermore, the court reasoned it was not ambiguous because it is clear how the yellow ropes could be hazardous or injurious if a helicopter came into contact with the ropes. In conclusion, the Ninth Circuit held that 18 U.S.C. 1864(a) is not unconstitutionally vague and affirmed the district court’s ruling and the defendant’s conviction.


[1] United States v. Wyatt, 408 F.3d 1257, 1258 (9th Cir. 2005).

[2]  Id. at 1260.

   [3] Id. at 1258.

[4] United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004).

[5] Hazardous or Injurious Devices on Federal Lands, 18 U.S.C. § 1864(d)(3) (2000).

   [6] Id.

   [7] Rodriguez, 360 F.3d at 953. See United States v. Hockings, 129 F.3d 1069, 1072 (9th Cir. 1997). (A criminal statute “cannot be so vague that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application.'” (quoting United States v. Lanier, 520 U.S. 259, 266 (1997)).

   [8] Id. (citation omitted).

[9] United States v. Wyatt, 408 F.3d 1257, 1260-61 (9th Cir. 2005).

[10] 18 U.S.C. § 1864(d)(3) (2000).

[11] Id.

[12] Oxford English Dictionary (2d ed. 1989).

[13] 18 U.S.C. § 1864(d)(3) (2000).

[14] Id.

[15] United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005).

[16] Id.

[17] Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 526 (1994).

[18] Kolender v. Lawson, 461 U.S. 352, 357 (1983).

[19] 18 U.S.C. § 1864(a)(2) (2000).

[20] Id. § 1864(d)(3) (2000).

[21] United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005).

[22] 18 U.S.C. § 1864(d)(3) (2000).

[23] Wyatt, 408 F.3d at 1261.

[24] See Hockings, 129 F.3 at 1071. See also Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“‘[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.'”).

[25] 18 U.S.C. § 1864(d)(3) (2000).

[26] Wyatt, 408 F.3d at 1262 (quoting 21 U.S.C. § 841(d)(3)).

[27] United States v. Phillips, 367 F.3d 846, 857 n.39 (9th Cir. 2004).

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