USA v. Wilde

Filing 85

Court Verdict

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,

)
4:10-cr-021-SAO
)
Plaintiff,
)
MEMORANDUM OPINION
)
vs.
)
(Trial by Court)
)
JAMES ALBERT WILDE,
)
)
Defendant.
)
________________________________________________________________

This

case

was

tried

before

the

court

on

a

four

count

information charging James Albert Wilde with Interfering with an
Agency Function in violation of 36 C.F.R. §2.32(a)(1), Violating
a Lawful Order in violation of 36 C.F.R. §2.32(a)(2), Disorderly
Conduct in violation of 36 C.F.R. §2.34(a)(1), and Operating an
Unregistered

Boat,

in

violation

of

36

05.25.055(a) & (d) & AS 05.25.090(b)(2).
alleged

to

occur

on

or

about

September

Yukon-Charley Rivers National Preserve. 1

C.F.R.

§3.2(b),

AS

These offenses were
16,

2010

within

the

Upon due consideration

of the evidence and arguments of the parties, the court finds

1

  Prior to trial, Mr. Wilde filed a Motion to Dismiss All Counts

due to unauthorized and unlawful stop that preceded an
unauthorized and unlawful arrest, at Docket No. 14. The
government filed an Opposition at Docket No. 20. The State of
Alaska was permitted and filed an amicus curiae brief at Docket
No. 21. The State of Alaska filed a Reply of Amicus at Docket
41 and the defendant filed a Reply at Docket 42. Upon due
consideration of the arguments and undisputed facts, the court
denied the Defendant’s motion in a written opinion at Docket 52.

that the government has met its burden of proof as to Counts 1,
2, and 4, but not as to Count 3.
A trial was conducted.

The following government witnesses

provided testimony: National Park Service (NPS) Ranger Andrew
Joseph
Scott

Dallemolle,
Sample,

Ms.

NPS

Ranger

Louis

Benjamin

Flynn,

and

Grodjesk,

Mr.

Joel

NPS

Ranger

Cusick.

The

following defense witnesses provided testimony: Mrs. Hannelore
Wilde, Mr. Fredrick Schenk, NPS Ranger Scott Sample, Mr. Craig
Compeau and Mr. James Wilde.
exhibits

1-18,

20-25,

27,

The court considered government

and

30-34.

The

court

considered

defense exhibits B, C, H, and I.

The court received written

closing

and

arguments

from

government

defense.

Both

sides

provided responses to the opposing arguments.

FINDINGS OF FACT

On
Hannelore

September
Wilde,

16,
and

2010,

mutual

James
friend

Albert
Fredrick

Wilde,
Schenk

his
took

wife
Mr.

Wilde’s 21 foot Woolridge riverboat on the Yukon River for a
hunting trip.

The vessel was heavily loaded with supplies,

including provisions and weapons.

Mrs. Hannelore Wilde and Mr.

Fred Shenk were passengers, while Mr. Wilde piloted the boat.
The group was headed to Slaven’s Cabin at Coal Creek, where they
planned to rest for the evening.

National Park Service Rangers

Andrew Joseph Dallemolle (hereafter Dallemolle), a seasonal U.S.

2

Park Ranger in his first season on the Yukon Charley River, and
Benjamin Brach Grodjesk (hereafter Grodjesk) worked on the Yukon
Charley

River.

uniforms,

On

September

Dallemolle

and

16,

Grodjesk

2010,

wearing

started

out

park

from

ranger

Slaven’s

cabin in their boat at approximately 1:30 pm in the afternoon.
Grodjesk operated his boat on that area of the Yukon River for
the previous two and a half to three months prior to September
16, 2010 and in the previous year, operating a boat patrol.

The

purpose of their trip was to check boats to make sure they were
in

compliance

with

applicable

regulations;

safety, hunting and fishing regulations.

including

boating

Grodjesk was piloting

the Rangers’ boat.
The Rangers contacted one vessel, conducted their check,
and then continued down the river.

They saw another boat coming

towards them from down river (headed up river) at approximately
3:00pm which was later determined as Mr. Wilde’s boat.
still

several

hundred

yards

away,

in

the

main

While

channel,

the

Rangers brought their boat to an idle and let their boat drift
in the river until Mr. Wilde’s boat got closer.

When the boats

were between 200 and 300 yards apart, Dallemolle went on the bow
of his vessel, put out the boat’s bumpers, and signaled to Mr.
Wilde’s boat with his hands for Mr. Wilde’s boat to come toward
the Ranger’s boat.

Mr. Wilde did as instructed and brought his

boat toward the Ranger’s boat until it was within approximately

3

50 yards.

The Ranger then signaled to Mr. Wilde to slow down by

waving his arm downward.

Mr. Wilde’s boat ‘powered down’ and

slowly approached the Rangers’ boat, coming to within 20 to 30
feet from the Rangers’ boat.

Mr. Wilde’s boat was idling at

this time.
Dallemolle yelled to the only person he could clearly see,
a passenger (later identified as Mr. Fred Schenk) on the back of
Mr. Wilde’s boat.

Dallemolle yelled to Mr. Shenk “tell the

driver to come to an idle… National Park Service, we’re going to
do a vehicle inspection.”

Mr. Shenk did not say anything in

response, but just took pictures of the Rangers’ boat. 2

However,

a man, later identified as Mr. Wilde, then opened a front window
hatch

from

the

cabin

on

the

bow

partially onto the bow of his boat.

of

his

boat

and

stepped

Mr. Wilde’s boat coasted

under its own momentum, with its engine idling, towards the
Rangers’ vessel until it was within approximately 20 feet away,
with the Ranger’s boat being pointed straight at Mr. Wilde’s
boat which was approaching. 3

Dallemolle noticed that Mr. Wilde’s

boat did not have proper registration decals on the boat.

Mr.

2

Evidence admitted at trial showed that Mr. Schenk began taking
pictures
when
the
boats
were
still
further
apart,
at
approximately 50 yards.
3

Though Mr. Wilde’s engine was idling, testimony indicated it
was “not very loud at the time.”

4

Wilde said “What the hell do you want?” or words to that effect. 4
Dallemolle responded “National Park Service, we’re going to do a
quick vehicle inspection.
to you.” 5

Shut off your engine and we’ll come

Mr. Wilde yelled back “Like hell”, stepped back into

his cabin, slammed his door shut and immediately walked to the
stern of his boat, where he was fully visible to Dallemolle.
Mr. Wilde then yelled to Dallemolle “You fucking cock suckers.
I’m not stopping.”

Mr. Wilde also said that he was loaded down

and that he would not get back up on step.

Dallemolle responded

“We’ll have you on your way in a few minutes.”
abruptly responded by yelling “Fuck this.”

Mr. Wilde

Mr. Wilde then went

back to his cabin, sat down at the helm, powered up the vehicle
and began moving his boat forward.

Mr. Shenk lost his footing

and nearly fell out of the boat because of the momentum of

4

Mrs. Hannelore Wilde testified that Mr. Wilde asked ‘What’s
going on ?”, not ”What the hell do you want ?”. I did not find
her testimony credible on this point. On cross examination, her
testimony grew to add supporting details uncorroborated by any
other witness for the defense.
In contrast to her earlier
testimony, her testimony on this point was hesitant and she
averted her eyes.
Her testimony was internally inconsistent
because she testified that Mr. Wilde used graphic profanities
when talking to the officers, but when testifying as to his
“exact” language on questioning by Mr. Wilde’s counsel, she
omitted those profanities or, if uncomfortable making them
herself, failed to indicate when they were made by Mr. Wilde.
5

Mrs. Hannelore Wilde testified the Ranger asked to check Mr.
Wilde’s saltwater license in addition to doing the safety check,
however, no other witnesses recalled this request.

5

starting the boat, however Mr. Shenk was able to brace himself
and did not fall out of the boat.
Mr. Wilde’s boat moved faster and within ten seconds was
back on step, continuing moving up river.

The Rangers put power

to their engine to pursue Mr. Wilde’s boat.

The Rangers’ boat

turned behind Mr. Wilde’s boat to draw a parallel course on the
starboard side.

Within approximately ten seconds the Ranger’s

boat was on step and within twenty seconds the Rangers caught up
to Mr. Wilde’s boat.

The Ranger’s boat was approximately ten to

twenty feet off the starboard side of Mr. Wilde’s boat traveling
in a parallel course, heading up river.

On a parallel course,

the Rangers’ boat lined up to Mr. Wilde’s boat so Dallemolle was
in line with the window of Mr. Wilde, sitting while Mr. Wilde
piloted his boat.

Dallemolle gestured several times to Mr.

Wilde, who made eye contact several times with Dallemolle, for
Mr. Wilde to slow down or stop.

Dallemolle yelled repeatedly at

Mr. Wilde “Stop” and “Come down” and attempting alternative hand
gestures

to

indicate

he

wanted

Mr.

Wilde

to

stop.

continued for approximately twenty to thirty seconds.

This
Though

the Rangers’ boat was keeping pace with Mr. Wilde’s boat, the
Rangers’ boat was behind Mr. Wilde’s boat on a parallel course
at approximately a ‘five o’clock’ position.

While Dallemolle

was still continuing the hand gestures and yelling, Mr. Wilde
made eye contact with Dallemolle.

The Rangers perceived that
6

Mr. Wilde’s boat turned abruptly at a shallow angle forcing the
Rangers’ boat to veer away.

However, Grodjesk maneuvered the

Rangers’ boat away from Mr. Wilde’s boat because the Rangers’
boat

was

course. 6

somewhat

behind

During

this

Mr.
time

Wilde’s
the

boat

boats

on

were

that

parallel

traveling

approximately between twenty and thirty miles per hour.

at
The

Ranger brought their boat back to a parallel course with Mr.
Wilde’s
before.

boat,

but

further

away

from

Mr.

Wilde’s

boat

than

Dallemolle again lined up his boat across from Mr.

Wilde, so that Mr. Wilde and Dallemolle could see each other.
Dallemolle continued yelling at Mr. Wilde to stop and made hand
gestures consistent with his request.

The motors were very loud

however Dallemolle again saw Mr. Wilde make eye contact with him
several times.

Dallemolle responded by pulling out his pistol

and pointing it directly at Mr. Wilde through the window. 7

Mr.

Wilde kept driving in the same path for another twenty to thirty
seconds at the same speed.
his

boat

and

obtained

a

Dallemolle then went to the rear of
shotgun

and

charged

it.

With

the

6

Dallemolle and Grodjesk testified it was their perception that
Mr. Wilde’s boat veered abruptly toward their boat. Mr. Schenk,
Mrs. Wilde and Mr. Wilde all testified they had no recollection
of an abrupt turn in the direction of the Ranger’s boat and all
testified that they at no time felt unsafe by Mr. Wilde’s
operation of his boat.
Further discussion of this point is
contained below under Count 3.
7

Testimony at trial revealed that Dallemolle and Mr. Wilde were
approximately 8-10 feet apart when Dallemolle pointed his pistol
at Mr. Wilde.

7

shotgun in hand, Dallemolle went back to the bow of the boat and
raised the shotgun and pointed it directly at Mr. Wilde.

Mr.

Wilde saw Dallemolle raising the shotgun and then turned his
boat very sharply, toward the bank of the river.

Mr. Wilde’s

boat slowed as it approached land and beached on the bank of the
river.

The Rangers’ boat followed and initially turned wide,

making a wide ‘S’ turn, until Mr. Wilde’s boat was beached.

The

Rangers’ boat crossed the wake of Mr. Wilde’s boat, then moved
towards the shore.

As the Rangers’ boat approached the shore,

Dallemolle yelled loudly three times to the occupants of Mr.
Wilde’s boat directions “Leave your firearms in the boat.
your hands up.

Exit the boat and sit down on the bank.”

Keep
The

last time Dallemolle yelled his instructions, the Ranger boat
was within 15 feet of Mr. Wilde’s boat and Mr. Wilde was already
on shore.

The Rangers’ boat landed between ten and twenty feet

up river from Mr. Wilde’s boat approximately ten seconds after
Mr.

Wilde’s

boat

landed

on

the

shore.

Dallemolle

Rangers’ boat as soon as his boat touched land.

left

the

Grodjesk shut

off his motor within a second of landing and then came out of
the helm, through the cabin to set their boat’s anchor.

At this

time, Mr. Wilde was already on land, having exited his boat and
initially put down the anchor.
boat.

Mr. Wilde just began walking toward Dallemolle and the

Rangers’ boat.

Mr. Shenk was in the bow of the

Mr. Wilde walked toward Dallemolle with his arms
8

about six inches out to each side and his fists clenched.

Mr.

Wilde started walking in the direction of the Rangers’ boat when
Dallemolle

was

about

to

land.

Mr.

Wilde

was

yelling

at

Dallemolle “Fucking cock suckers” and “What are you doing?”.
Grodjesk set the anchor for the Ranger’s boat and then came
around to the right side of Dallemolle.

Grodjesk yelled “Stop,

police, stop” or words to that effect several times.

At the

same time, Mr. Shenk exited Mr. Wilde’s boat, went to the anchor
and further secured the anchor to the shoreline.
As

Mr.

Wilde

continued

to

close

the

distance

between

himself and Dallemolle, the Ranger took two steps backward in
order

to

maintain

a

constant

Dallemolle told Mr. Wilde to “Stop.

distance
Police.

from

Mr.

Wilde.

Stop right there.”

Grodjesk yelled to Mr. Wilde to “get on the ground.”

When Mr.

Wilde refused to get on the ground and kept walking toward the
Rangers, Grodjesk tried to restrain Mr. Wilde by grabbing Mr.
Wilde by the arm and taking him to the ground.

Mr. Schenk

started to get up from his seat in the boat, and Dallemolle
instructed him to remain where he was, an order which Mr. Schenk
complied with immediately.

Dallemolle laid his shotgun on the

ground and began to assist Grodjesk.

Grodjesk attempted to grab

Mr. Wilde’s wrists, but Mr. Wilde drew his arms into his chest.
Grodjesk ordered Mr. Wilde to “stop resisting” several times.
Dallemolle sat on Mr. Wilde’s legs to prevent him from kicking

9

Grodjesk.

Mr. Wilde still had his hands underneath his body and

refused to allow himself to be handcuffed.

Grodjesk drew his

taser,

his

and

‘tased’.

ordered

Mr.

Wilde

to

surrender

hands

or

be

Dallemolle stood up, pulled the front probe cartridge

of his taser, and displayed it to Mr. Wilde.

As

soon

as

Mr.

Wilde saw the taser, he stopped resisting and permitted himself
to be handcuffed.

Once Mr. Wilde was handcuffed, Mr. Wilde laid

on his side breathing heavily continuing to swear and repeat
‘you

do

not

have

the

authority

to

do

this‘

several

times.

Grodjesk conducted a search incident to arrest of Mr. Wilde’s
person and asked him medical questions to make sure Mr. Wilde
was all right.
After Mr. Wilde had been arrested, Dallemolle wrote down
the hull identification number from Mr. Wilde’s vessel, and ran
it through the Denali Dispatch Center for the National Park
Service.

The Dispatcher faxed Dallemolle a printout of the

Alaska Public Information Network (ASPIN) records for the hull
number.

The fax report indicated that “no match” was found to

the hull identification number on Mr. Wilde’s boat.

Grodjesk

also conducted a search of Mr. Wilde and verified that he was
not injured.
driving

it

Dallemolle took control of Mr. Wilde’s vessel,
to

Slaven’s

Cabin.

Later,

they

transported

Mr.

Wilde’s vessel, as well as the passengers, to Circle.

10

DISCUSSION
Count 1 (Interfering with Agency Function)
Mr. Wilde is charged with unlawfully interfering with a
government

agent

who

was

engaged

in

an

official

duty

in

violation of 16 U.S.C. § 3 and 36 C.F.R. § 2.32(a)(1).
Title 16 U.S.C. § 3 provides the Secretary of the Interior
with the authority to make regulations that govern lands under
the

jurisdiction

regulations

like

of
36

the
C.F.R.

National

Parks

§2.32(a)(1)

Service

See,

e.g.

(NPS)

–

Clark

v.

Community for Creative Non-Violence, 468 U.S. 288 (1984); United
States v. Nachtigal, 507 U.S. 1 (1993).

In turn, 36 C.F.R. §

2.32(a)(1) prohibits “[t]hreatening, resisting, intimidating, or
intentionally interfering with a government employee or agent
engaged in an official duty, or on account of the performance of
an official duty.”

Although it is not explicitly provided in

the statute, the Ninth Circuit has recently held that the mens
rea

required

under

subsection

§

2.32(a)(1)

is

“willfulness”.

United States v. Bibbins, 637 F.3d 1087 (9thCir. 2011). 8

8

Just five years ago, the Ninth Circuit reached a different
conclusion. See U.S. v. Lin, 191 Fed.Appx. 526 (9th Cir. 2006)
(unpublished).
I find compelling the Court’s reference to
Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“Where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally
presumed
that
Congress
acts
intentionally
and
purposely in the disparate inclusion or exclusions.”) and Carter
v. United States, 530 U.S. 255, 269 (2000) (“[t]he presumption

11

Mr. Wilde is charged with interfering with the Rangers’
attempts

to

whether

Mr.

Wilde

regulations.

Mr.

actions.

carry

out

their

official

in

compliance

was
Wilde

proferred

duty

an

of

with

investigating

boating

explanation

safety
for

his

During cross-examination, Mr. Wilde indicated that he

refused to obey the Rangers’ order to stop because he desired to
protect his dog.

When asked if there were other reasons, he

indicated that he had “no answer for that.”
Mr.

Wilde

testimony

is
he

inconsistent
gave

during

with
the

his

own

trial.

The testimony of
actions

Although

and

other

there

are

significant disputes between the Rangers’ testimony and that of
Mr. Wilde and his witnesses, it is clear that Mr. Wilde was
angry

with

the

Rangers,

and

when

the

Rangers

attempted

to

investigate, Mr. Wilde approached the Rangers and refused their
orders to stop.
There is little question that the Rangers were engaged in
an official duty while investigating Mr. Wilde.

The facts tend

to show that Mr. Wilde interfered with the Rangers’ attempt to
do that duty.
To understand this charge, it is important to consider Mr.
Wilde’s actions in the context of his contact with the Rangers.

in favor of scienter requires
only that mens rea which is
conduct from otherwise innocent
by the decision in Bibbins, and

a court to read into a statute
necessary to separate wrongful
conduct.”). However, I am bound
apply it faithfully here.
12

The evidence presented at trial revealed that Mr. Wilde was
upset with the Rangers and questioned their authority on the
Yukon River.

In this context, it appears likely that Mr. Wilde

beached his boat with the intention to incite a conflict with
the Rangers.

Mr. Wilde approached the Rangers, and when ordered

to stop, Mr. Wilde refused that order.
Accordingly, the final question remains: was Mr. Wilde’s
interference
purposes

of

willful?
36

The

C.F.R.

§

court

defined

2.32(a)(1),

“purposeful” and “intentional.”
3.

has

as

“willful,”
synonymous

for
with

Bibbins, 637 F.3d at 1091 fn.

In the instant case, Mr. Wilde refused to heed the Rangers’

orders

to

stop,

causing

them

to

subdue

him,

he

was

acting

willfully and with sufficient intent to support a conviction.
Mr.

Wilde

argues

that

the

United

States

did

not

sufficiently allege a mens rea in the charging document.

The

Ninth Circuit has recently clarified that 36 C.F.R. § 2.32(a)(1)
requires an intent of “willfulness”.
Mr.

Wilde

include

alleges

the

that

“willful”

the

failure

intent

Bibbins, 637 F.3d at 1091.
of

the

requirement

United
should

State
cause

to
the

charging document be dismissed for failure to state an offense.
See Federal Rules of Criminal Procedure 12(b)(3)(B).
the

language

of

the

information

is

almost

identical

However,
to

the

13

regulation for which Mr. Wilde is charged with violating. 9
United

States

Supreme

Court

has

found

that

such

a

The

charging

document is sufficient if it sets forth “the offense in the
words

of

themselves

the

statute

fully,

itself,

as

directly,

and

long

as

‘those

expressly,

words

without

of
any

uncertainty or ambiguity, set forth all the elements necessary
to constitute the offence intended to be punished.’”
United

States,

omitted).

418

Here,

U.S.

the

87,

117

language

of

(1974)
the

(internal

charging

Hamling v.
citations

document

was

almost identical to the regulation, and was sufficient to inform
Mr. Wilde of the charge against him.

Therefore, the information

properly pled all necessary elements of the offense.
Based on the evidence presented at trial, the United States
has

proven

beyond

a

reasonable

doubt

that

the

Rangers

were

engaged in an official duty at the time of their interaction
with Mr. Wilde and that Mr. Wilde willfully interfered with
their attempt to perform their official duties.

9

Title 36 C.F.R. §2.32(a)(1) states: “(a) The following are
prohibited:
(1)
Interference.
Threatening,
resisting,
intimidating, or intentionally interfering with a government
employee or agent engaged in an official duty, or on account of
the performance of an official duty.”
The charging document
stated that “JAMES ALBERT WILDE did unlawfully threaten, resist,
intimidate and intentionally interfere with a government agent,
to wit, a Park Ranger, who was then and there engaged in an
official duty.”

14

Count 2 (Violating a Lawful Order)
Count 2 alleges that Mr. Wilde violated a lawful order
given by a Park Ranger when he fled after ordered to halt, all
in violation of 16 U.S.C. §3 and 36 C.F.R. § 2.32(a)(2).

Title

36 C.F.R. § 2.32(a)(2) prohibits “violating the lawful order of
a government employee or agent authorized to maintain order and
control

public

access.”

The

subsection

provides

a

list

of

activities during which it is unlawful to violate an order,
including

“law

enforcement

actions,

and

emergency

operations

that involve a threat to public safety or park resources, or
other

activities

where

the

control

of

public

movement

and

activities is necessary to maintain order and public safety.”
36 C.F.R. § 2.32(a)(2).

In this case, Mr. Wilde was charged

with violating a lawful order given during a law enforcement
investigation.
There is no serious dispute that the Rangers’ order was
lawful.

Mr. Wilde contends that it was both unsafe and ill-

advised;

yet,

he

makes

no

showing

that

it

was

“unlawful.”

Furthermore, enforcing regulations that contribute to safety are
actions
United

which
States

(enforcing

are
v.

helmet

covered
Bohn,

622

under
F.3d

regulations).

the

regulation.

1129,
In

1137

the

(9th

instant

See,
Cir.
case,

e.g.
2010)
the

15

Rangers were enforcing boating safety regulations in requesting
that Mr. Wilde submit to a safety inspection.
However, there is some question as to whether Mr. Wilde
heard the Rangers’ instructions.

The Ninth Circuit decided a

case

with

interpreting

§

2.32

(a)(2)

very

similar

facts

in

United States v. Poocha, 259 F.3d 1077, 1083 (9th Cir. 2001).
In Poocha, the defendant was arrested for violating the lawful
order of a Park Ranger.

Mr. Poocha directed obscenities towards

the Ranger, and refused to comply with the Ranger’s orders.

The

Ninth Circuit noted that “Poocha's response to Ranger Lober,
though protected by the First Amendment, indicates that he heard
and understood Lober's order… and willfully disobeyed it.”
F.3d at 1083.

259

In this case, Mr. Wilde’s responses similarly

show that he heard the orders.

The profanity Mr. Wilde used

towards the Rangers indicates that Mr. Wilde heard the Ranger’s
order, understood the order, and then refused to obey the order.
Additionally, Mr. Wilde testified that he told the Rangers “no
way, not out here” when asked to turn off his engine for an
inspection.

Mr. Wilde’s responses indicate that he was fully

capable of conducting a conversation with the Rangers, thereby
negating the argument that Mr. Wilde did not hear the Rangers.
Mr. Wilde argues that the charging document specifically
mentions

“law

enforcement

actions”,

one

when subsection (a)(2) may be enforced.

of

several

instances

Mr. Wilde argues that
16

the fact that he was not suspected of any wrongdoing when he
first encountered the Rangers means that he cannot be convicted
as the charging document describes.

I disagree for two reasons.

First, safety inspections are designed to verify compliance with
boating

regulations,

actions.

Enforcing

including

taking

documentation

necessary

laws

is

corrective

clearly

enforcement function that serves the public interest.
United

States.

v.

Villamonte-Marquez,

462

U.S.

a

law

See, e.g.

579

(1983).

Second, the charging document need not contain the exact legal
theory under which the defendant is charged.

Mr. Wilde was

aware of his actions, and knew the accusations against him.

See

Calderon v. Prunty, 59 F.3d 1005, 1009 (9th Cir. 1995) (“We have
also recognized that a defendant can be adequately notified of
the nature and cause of the accusation against him by means
other than the charging document.”)
During his closing arguments, Defense contended that Mr.
Wilde’s intention was to steer his boat towards a safe place for
an inspection consistent with Alaska law governing the operation
of vehicles and watercraft.
beyond

his

own

intention.
including

testimony

First,
the

fact

Mr.
that

to

However, there is no evidence,
show

Wilde’s
he

that

this

statements

never

told

the

was
to

Mr.
the

Rangers

Wilde’s
Rangers,
of

his

intention to submit to an inspection, show his refusal to comply
with the Rangers’ orders.

Second, the court considered Mr.
17

Wilde’s sudden acceleration of his boat away from the Rangers as
eliminating any doubt regarding the likelihood that Mr. Wilde
intended to comply with the Rangers’ instructions.
The defense offered evidence that Mr. Wilde was part of a
group

in

his

community

designed

to

educate

about

the

relationship between federal and state jurisdiction in Alaska,
and

that

Mr.

Wilde

had

formed

an

opinion

about

federal

jurisdiction over navigable waters based on his participation in
that group.

Mr. Wilde did not contend he did not know the law,

but that he disagreed with whether it was appropriate.

This

testimony was not helpful to the defense, because it supported
an inference that if Mr. Wilde believed that the Rangers should
have

lacked

the

authority

to

inspect

his

vessel,

Mr.

Wilde

planned to refuse to submit to the inspection to make a point.
However,

in

presented

this

here,

case

with

the

court

these

charges

disregards

and
this

the

evidence

evidence

as

irrelevant.
Mr. Wilde alleges that he should be found not guilty based
on the defense of necessity.

Mr. Wilde contends that had he

followed the Rangers’ orders, he would have been exposed to
unacceptable

danger.

In

order

to

prevail

on

a

necessity

defense, Mr. Wilde must show (1) that he was faced with a choice
of evils and chose the lesser evil; (2) that he acted to prevent
imminent

harm;

(3)

that

he

reasonably

anticipated

a

causal
18

relation between his conduct and the harm to be avoided; and (4)
that there were no other legal alternatives to violating the
law. United States v. Arellano–Rivera, 244 F.3d 1119, 1125–26
(9th Cir. 2001).

These elements are stated in the conjunctive,

and all must be shown in order to sustain the defense.
Mr.

Wilde’s

assertion

of

the

necessity

Id.

defense

fails

because he cannot show that the harm was “imminent” and because
there were other legal alternatives to violating the law.

Mr.

Wilde alleges that the existence of hazards in the Yukon River
such as hidden sandbars, gravel bars, deadheads, and sweepers
are “ever present and always imminent.”

Historically, courts

have been reluctant to find all but the most serious emergencies
as presenting imminent danger.

See United States v. Bibbins,

637 F.3d at 1093-1094 (broken leg pain not sufficient danger to
justify

ignoring

Cervantes-Flores,

Park
421

Ranger’s
F.3d

825,

orders);
829

(9th

United
Cir.

States
2005)

v.
(HIV

diagnosis not sufficient to justify illegal border crossing);
United States v. Xian Long Yao, 302 Fed.Appx. 586, 587-588 (9th
Cir.

2008)

(fear

of

persecution

by

Chinese

government

not

sufficient to justify illegal entry into Guam); There are few
cases in the Ninth Circuit where the necessity defense failed
specifically due to a lack of immediacy.

See, e.g. U.S. v.

Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008) (risk created
by high blood sugar caused by diabetes not imminent).

However,
19

the record shows that the dangers facing Mr. Wilde were not
imminent.
again.”

Mr. Wilde testified that his boat “might not start
Mr.

Compeau,

the

expert

witness

for

Mr.

Wilde,

testified that shutting off the engine of Mr. Wilde’s boat would
“increase the risk” of harm.

Mr. Compeau testified that “you

could have a starter could hang up, the engine could not start,
you could have a fuel boil situation in a carburetor, you could
have

a

number

of

things

go

wrong.”

(emphasis

added).

Mr.

Wilde’s own testimony, as well as the testimony of his expert,
concluded that it was not safe to turn off the engine of Mr.
Wilde’s boat because of the possibility that the engine could
fail to restart, allowing his boat to be subject to the mercy of
a swift moving river and all its attendant dangers.

Yet the

testimony of Mr. Wilde and Mr. Compeau fall short of proving
that the risk was imminent.
Imminent

means

“likely

to

happen

without

delay”.

Legislating the Necessity Defense in Criminal Law, 52 Denv. L.J.
839, 845 (1975).
incident;

perhaps

Perhaps Mr. Wilde’s boat would restart without
it

would

drift

down

the

river

without

encountering any of the dangers that concerned Mr. Wilde.

Mr.

Wilde’s testimony, when asked why shutting off his engine is a
dangerous thing to do, replied “[i]t might not start again.”
Mr. Compeau, the expert witness for the defense, states almost
all of his testimony in the conditional, including a consistent

20

use of the word “could” to describe the possibility that Mr.
Wilde may have faced danger.

However, neither Mr. Wilde nor Mr.

Compeau testified to any concrete, specific or imminent danger
had

Mr.

Wilde

complied

with

the

Ranger’s

order.

The

Court

acknowledges Mr. Wilde’s experience on the river, and recognizes
that, in his opinion (and the opinion of his expert witness), it
was unwise to comply with the order.

However, the potential

dangers faced by Mr. Wilde do not rise to the level of an
imminent risk as required by the necessity defense.
Mr. Wilde’s necessity defense also fails because he clearly
had legal alternatives to his course of action.

Although the

parties disagree on whether Mr. Wilde drove his boat away with
the intent to submit to an inspection in a safer area or whether
he sped off in an act of defiance, the facts show that Mr. Wilde
heard the Ranger’s instructions to turn off his boat, he did not
turn off his boat, and drove the boat away without telling the
Rangers where he was going.

Mr. Wilde did not attempt to avail

himself of any other alternatives.

The United States points out

that Mr. Wilde could have attempted to vocalize his concern to
the

Rangers.

foreclose

the

Therefore,

Mr.

defense.
States

Instead,

he

possibility
Wilde

cannot

chose
of

to

taking

avail

ignore

the

order

alternative

himself

of

the

and

action.
necessity

Based on the evidence presented at trial, the United

has

proven

beyond

a

reasonable

doubt

that

Mr.

Wilde
21

violated a lawful order given to him by the Rangers while they
were engaged in a law enforcement action.

Count 3 (Disorderly Conduct)

Count

3

charges

Mr.

Wilde

with

disorderly

conduct

violation of 16 U.S.C. § 3 and 36 C.F.R. § 2.34(a)(1).

in

That

regulation prohibits knowingly and recklessly creating a risk of
public nuisance and violence within areas under the jurisdiction
of the National Park Service. In support of this charge, the
United

States

conduct

when

alleges
he

that

swerved

his

Mr.

Wilde

boat

engaged

within

three

in

disorderly

feet

of

the

Ranger’s vessel, forcing them to take evasive action to avoid a
collision.
One of the threshold questions concerns who was the victim
of the alleged disorderly conduct.
presented

by

the

United

States

The testimony and argument
suggests

that

Mr.

Wilde’s

actions, as testified to by the Rangers, put the Rangers in
danger.

However, risk to National Park Rangers alone is not

sufficient to support a conviction.

In United States v. Taylor,

the Ninth Circuit held that a defendant could not be convicted
under § 2.34(a)(2), which relies on the same operative language
as (a)(1), because the “public” was never threatened.

(“[T]he

disorderly conduct statute requires a public component to the
proscribed behavior.”)

258 F.3d 1065, 1068 (9th Cir. 2001).
22

The defendant in Taylor was intoxicated, and when confronted by
a

National

fashion.

Park

Service

ranger,

responded

in

a

threatening

The court held that because there were no members of

the public in the cabin where the defendant was sleeping, the
“public” element was not satisfied.
At trial in the instant case, the United States introduced
evidence from the Rangers that they felt concerned for their
safety when Mr. Wilde caused his boat to swerve.

In contrast,

both Mr. Schenk and Mrs. Wilde testified that they never felt
concerned for their safety as a result of Mr. Wilde’s operation
of

the

boat.

An

important

inquiry

is

whether

Mr.

Wilde’s

actions, if they created only a threat of harm to the Rangers,
were sufficient to support a conviction.

The court in Taylor

noted an important distinction: “the word “public” was intended
to

modify

not

violence.

only

Congress

alarm,
has

but

already

also

nuisance,

prohibited

jeopardy,

private

and

nuisance

(harassment), private jeopardy (assault), and private violence
(battery).”

258 F.3d at 1068.

Thus, the court appears to

suggest that, if the potential harm were to befall the Rangers,
rather than the “public”, the correct charge would be either
assault or battery.
Another important fact which supported the result in Taylor
was the lack of a “public” in the surrounding vicinity.
258

F.3d

at

1066.

(“The

incident

occurred

totally

Taylor,
within
23

Taylor's cabin. The officer and Taylor were the only people in
the cabin. Although two other officers were outside, no other
civilian was within 100 feet of the cabin.”)

At trial, there

was no evidence introduced by the United States to show that
there were any other members of the “public” in the vicinity of
the

two

boats.

The

United

and

the

passengers

Rangers,

not

States
in

constituted the party at risk of harm.

argued
Mr.

that

Wilde’s

it

was

boat,

the
that

However, even if we go

beyond the United States’ argument to consider Mrs. Wilde and
Mr. Schenk members of the public who were “at risk”, both of
those individuals testified that they do not remember any action
by

Mr.

Wilde

to

“swerve”

at

the

Rangers’

vessel,

and

both

testified that they did not feel in danger at any time based on
Mr. Wilde’s operation of the boat.
This court concludes, there is a lack of evidence, beyond
the testimony of the Rangers, to prove that Mr. Wilde is guilty
of disorderly conduct.

Unlike Count 1, where Mr. Wilde admitted

that he refused the Rangers’ orders to stop, forcing the Rangers
to

subdue

him,

Count

2

where

Mr.

Wilde’s

words

and

actions

showed that he did not follow the Ranger’s instructions, and
Count 4, where Mr. Wilde concedes that he did not have the
registration decals properly displayed, here a reasonable doubt
exists as to whether Mr. Wilde’s actions constituted disorderly
conduct.

24

The United States failed to prove beyond a reasonable doubt
that Mr. Wilde attempted to strike the Rangers’ boat, thereby
placing members of the public at risk for nuisance and violence,
requiring a finding of not guilty on Count 3.

Count 4 (Operating an Unregistered Boat)

Count 4 charges Mr. Wilde with operating an unregistered
boat in violation of 16 U.S.C. §3, and 36 C.F.R. §3.2(b), AS
05.25.055(a) & (d), and AS 05.25.090(b)(2).

During the pre-

trial phase of this case, Mr. Wilde challenged the jurisdiction
of the court to adjudicate this count on the basis that the U.S.
Government has not been granted the authority to enforce noncriminal

state

regulations.

That

challenge

was

denied,

as

described in footnote 1.
Title 36 C.F.R. §3.2(b) provides, in relevant part, that
vessels

and

their

operation

on

all

waters

subject

to

the

jurisdiction of the National Park Service are governed by the
laws

and

regulations

of

the

State

boundaries the park is located.
requires

that

boats

placed

registered and numbered.

in

within

whose

interior

Alaska Statute 05.25.055(a)
the

waters

of

Alaska

must

be

Alaska Statute 05.25.055(d) requires

that all boats on the waters of Alaska must have been awarded a
valid certificate of number by the Department of Administration,
and

must

properly

display

the

identification

number

and

any
25

required decals on the boat.

Alaska Statute 05.25.090(b)(2)

sets the fine for not properly displaying the identification
number

and

required

decals

at

$50,

and

classifies

it

as

a

“violation” pursuant to AS 11.81.900.
At trial, the government presented the testimony of Rangers
Dallemolle and Grodjesk, who both testified that they did not
observe any registration markings on the hull of Mr. Wilde’s
boat.

Dallemolle also indicated that he initiated a record

check on the hull identification number of the boat, and ran the
number

through

(ASPIN)

the

system.

identification

Alaska

The

number

Public

APSIN
was

Safety

report

not

Information

indicated

registered

that

with

Network

the

the

hull

State

of

Alaska.
Mr. Wilde makes no attempt to dispute the facts that would
support

a

continues

guilty
to

challenge

prosecute him.
Act,

18

verdict

U.S.C.

on

the

Count

4.

authority

Instead,
of

the

Mr.

Wilde

Government

to

Mr. Wilde asserts that the Assimilative Crimes
§13,

does

not

provide

jurisdiction

to

the

Government to prosecute non-criminal offenses.

Mr. Wilde also

argues

because

Statute

that

Count

defines

4

the

fails

to

offense

state
alleged

a

crime,
in

Court

4

to

Alaska
be

a

violation, which is a non-criminal offense.
Mr. Wilde’s first contention, that the Assimilative Crimes
Act (ACA) does not apply to non-criminal offenses, fails to

26

recognize that Mr. Wilde is not charged with violating a state
statute assimilated under the ACA.

Rather, Mr. Wilde is charged

with violating the statute pursuant to 36 C.F.R. §3.2(b).

If

Mr. Wilde was charged under the ACA, he would be correct.

See

United

States

v.

Carlson,

900

F.2d

(9th

1346

Cir.

1990).

However, Carlson also makes clear that there are alternative
methods to prosecute individuals for non-criminal acts committed
on federal lands.
violations…

are

Id. at 1349 (“[O]ur conclusion that speeding
not

assimilated

will

not

necessarily

have

a

disruptive effect on the enforcement of speeding laws in federal
enclaves

in

Hawaii.

charged

pursuant

to

In

the

[Title

future,
34

violators

of

the

may

Code

simply
of

be

Federal

Regulations] section 634.4(c)(4) rather than under the Act.”).
In the instant case, Mr. Wilde was charged under one of those
alternative methods.

Thus, his claim that the ACA does not

provide jurisdiction for non-criminal acts is without merit.
Mr. Wilde’s second contention is that Count 4 should be
dismissed because it fails to state a crime.

Rule 12(b)(3)(B)

of the Federal Rules of Criminal Procedure allows a defendant to
raise a motion that the information fails to state an offense at
any time while the case is pending.

In making a determination

as to whether the government has failed to state an offense, the
district court is bound by the four corners of the information.
See United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002).

27

The indictment alleges that Mr. Wilde “did unlawfully operate on
the Yukon River an unregistered boat to which a certificate of
number

had

not

been

awarded

by

the

validation decal was not displayed.”

State

and

on

which

a

In ruling on a motion to

dismiss for failure to state an offense, the court must accept
all of the allegations in the information as true.

Boren, 278

F.3d at 914.
Here, Mr. Wilde does not allege a defect in the drafting of
the complaint; rather, he alleges that the complaint charges him
with a non-criminal offense.

The state statute under which Mr.

Wilde is charged, AS 05.25.055, is listed as a “violation.”
05.25.090(b)(2).

AS

Alaska defines a violation as “a noncriminal

offense punishable only by a fine, but not by imprisonment or
other penalty.”

AS 11.81.900(63) (emphasis mine).

The same

section defines “offense” as “conduct for which a sentence of
imprisonment or fine is authorized; an offense is either a crime
or a violation.” AS 11.81.900(39).

Thus, it is clear that the

violation that Mr. Wilde is charged with is an “offense,” which
was properly charged by the United States.

Therefore, the court

denies Mr. Wilde’s claim that the prosecution failed to state an
“offense.”

28

Additional Arguments Made by the Defense

Mr. Wilde suggests that the Court might employ a “Thorne
Instruction”

to

presume

that,

had

the

tracking

log

in

the

Rangers’ GPS unit been enabled, the evidence would have been
favorable to the defense.

See Thorne v. Department of Public

Safety, 774 P.2d 1326 (Alaska 1989).

However, unlike this case,

in Thorne the evidence that was in dispute was a videotape which
the arresting officer had made, and then later erased.

The

Alaska Supreme Court held that “the state must preserve and make
available to a criminal defendant material evidence gathered in
a

criminal

investigation

which

may

prove

preparation of the accused's defense.”
1330.

important

in

the

Thorne, 774 P.2d at

However, in the instant case there was no “evidence” to

preserve.

Rather, Mr. Wilde alleges that it was the failure of

the Rangers to create the evidence that should give rise to the
Thorne instruction.

Mr. Wilde has not cited any cases that

suggest that the Rangers were under any obligation to create
evidence, nor that they destroyed evidence in existence.

Thus,

the Thorne instruction is inapplicable.
Mr. Wilde also suggests that the United States’ failure to
electronically
rights
1985).

under

record
Stephan

his
v.

statements
State,

711

is
P.2d

a

violation
1156,

1159

of

his

(Alaska

In Stephan, the Alaska Supreme Court held that the Due

29

Process

of

the

Alaska

State

Constitution

requires

“recording

[as] a requirement of state due process when the interrogation
occurs in a place of detention and recording is feasible.”
Mr. Wilde’s reliance on Stephan is misplaced.

Id.

First, the Alaska

Supreme Court made clear that their ruling is based solely on
the

Alaska

Constitution,

not

the

United

States

Constitution.

Id. at 1160 (“It must be emphasized that our holding is based
entirely upon the requirements of article I, section 7, of the
Alaska Constitution, as interpreted by this court.”) (emphasis
original).

Second, the court held that the rule only applies

“to custodial interrogations conducted in a place of detention,
such as a police station or jail, where it is reasonable to
assume that recording equipment is available, or can be made
available with little effort.” Id. at 1165. (emphasis original).
Thus, because the state Supreme Court’s ruling relied on the
Alaska constitution, and because the decision applies only to
interrogations conducted in the place of detention, Mr. Wilde’s
rights were not violated pursuant to Stephan.

CONCLUSION

For the foregoing reasons, the court finds Mr. James Albert
Wilde guilty of Interference with an Agency Function as charged
in Count 1, Violating a Lawful Order as charged in Count 2, and
Operating an Unregistered Boat as charged in Count 4.

The court
30

further finds Mr. James Albert Wilde not guilty of Disorderly
Conduct as charged in Count 3.

Sentencing for Count 1, 2, and 4

shall be set by separate order.
DATED this 11th day of October, 2011, at Fairbanks, Alaska.

/s/ Scott A. Oravec___________
SCOTT A. ORAVEC
United States Magistrate Judge

31