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
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