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United States v. Henderson

ELR Citation: 31 ELR 20538
Nos. No. 00-10168, 243 F.3d 1168/(9th Cir., 03/22/2001)

The court upholds an individual's conviction for digging a trench and maintaining barriers on public land and for failing to comply with a Bureau of Land Management (BLM) notice of immediate suspension, in violation of BLM's use and occupancy regulations, ordering him to remove the barriers and to fill the trench. The court first holds that the magistrate judge erred when he failed to instruct the jury that the government was required to prove that the individual was aware of the unlawfulness of his conduct in order to convict him under 43 U.S.C. §1733. The statute clearly states that the government must show that violations of BLM regulations were committed knowingly and willfully, and Congress' use of the word "willfully" compels the prosecution to establish that the individual was aware that the conduct in question was unlawful. The court next holds, however, that the magistrate judge's error was harmless. No reasonable jury could have found that the individual lacked knowledge that his conduct was unlawful after he received BLM's notice. The conviction, therefore, is affirmed.

Counsel for Plaintiff
Linda C. Boone, Ass't U.S. Attorney
U.S. Attorney's Office
4000 U.S. CtHse.
230 N. First Ave., Phoenix AZ 85025
(602) 514-7500

Counsel for Defendant
Monique Branscomb
Law Offices of Monique Branscomb
Phoenix AZ 85034
(602) 273-9002/265-5002

Graber, J. Before Sneed and Paez, JJ.