United States v. Shawn Parker , 761 F.3d 986 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30157
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-02089-WFN-1
SHAWN S. PARKER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted
June 4, 2014—Seattle, Washington
Filed July 31, 2014
Before: M. Margaret McKeown and Paul J. Watford,
Circuit Judges, and Barbara Jacobs Rothstein, Senior
District Judge.*
Opinion by Judge McKeown
*
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by
designation.
2 UNITED STATES V. PARKER
SUMMARY**
Criminal Law
The panel affirmed a commercial snowmobile operator’s
conviction on two counts of conducting a “work activity or
service” on United States Forest Service land without a
special use authorization and one count of interfering with a
Forest Service officer engaged in the performance of his
official duties.
The panel held that although the defendant’s clients
congregated on a county road subject to an easement, the
Forest Service had jurisdiction over his activities because,
under 36 C.F.R. § 261.1(a)(2), they “affect[ed], threaten[ed],
or endanger[ed] property of the United States administered
by the Forest Service,” and because, under § 261.1(a)(1), they
took place “in the National Forest System.”
The panel rejected the defendant’s contention that the
regulatory framework governing Forest Service control over
roads is unconstitutionally vague.
The panel held that a Forest Service officer’s testimony
regarding the absence of a special use authorization was
properly admitted under Fed. R. Evid. 803(10).
The panel rejected the defendant’s sufficiency-of-
evidence challenge to his conviction on one of the unlawful-
work-activity counts.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. PARKER 3
COUNSEL
Kraig Robert Gardner (argued), Kirkham Law Office,
Ellensburg, Washington, for Defendant-Appellant.
Tyler H.L. Tornabene (argued), Assistant United States
Attorney, Michael C. Ormsby, United States Attorney,
Russell E. Smoot, Assistant United States Attorney,
Katharine Brereton, United States Attorney Law Clerk,
Spokane, Washington, for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
Shawn Parker, a commercial snowmobile operator, was
convicted on two counts of conducting a “work activity or
service” on United States Forest Service land without a
special use authorization and one count of interfering with a
Forest Service officer engaged in the performance of his
official duties, both violations of 36 C.F.R. Part 261. We
affirm his conviction. Special use permits are required for
certain activities, such as commercial ventures, that occur on
Forest Service lands or affect such property. Although
Parker’s clients congregated on a county road subject to an
easement, the Forest Service had jurisdiction over his
activities because they “affect[ed], threaten[ed], or
endanger[ed] property of the United States administered by
the Forest Service,” id. § 261.1(a)(2), and because they took
place “in the National Forest System.” Id. § 261.1(a)(1). We
reject Parker’s claim that the regulatory framework governing
Forest Service control over roads is unconstitutionally vague.
4 UNITED STATES V. PARKER
BACKGROUND
This case focuses on two separate incidents involving
Forest Service Road 4300, also known as Salmon la Sac
Highway (“the Highway”), in the Okanogan–Wenatchee
National Forest (the “Forest”) in Washington State. In
February 2011, Forest Service Officer Steve Roberson was
patrolling a stretch of the Highway just north of Cooper River
Junction, where he encountered trucks, trailers, and
snowmobile equipment belonging to Parker, whom he had
known for fifteen years. The Highway itself was bare,
without snow, but snowmobilers often used the adjacent
groomed trails for recreational purposes.
Roberson, who arrived in a marked Forest Service vehicle
and wearing his duty gear, saw Parker talking with about
twelve people, dressed in snowmobile clothing, standing near
fourteen snowmobiles. Roberson reminded Parker, as he had
in the past, that Parker had no special use authorization, and
told Parker that he was in violation of Forest Service
regulations and should turn his equipment around. Parker
refused to do so, and told Roberson that his clients “had
rented and paid for [the snowmobiles],” and that they “were
going to ride and he [woul]d take the ticket.” Parker had
previously been cited for violations of the same regulations,
but Roberson did not arrest Parker on this occasion because
Parker was hostile. Roberson watched as the snowmobiles
drove away.
Later that year, in mid-December, Roberson again
encountered Parker near the Cooper River Junction. A truck
from Parker’s company, Cascade Playtime Rentals, was
parked along the Highway, and Roberson saw Parker talking
with a group of about fifteen people surrounded by a large
UNITED STATES V. PARKER 5
number of snowmobiles. Parker looked at Roberson, pulled
his helmet on, and led all but two of the snowmobilers into
the National Forest on snowmobiles, including onto Forest
Service Road 4600, also known as Cooper Lake Road. Parker
did not display a special use authorization to Roberson during
this encounter. On this day, as before, the Highway had been
cleared of snow.
After a bench trial before a magistrate judge, Parker was
found guilty of two misdemeanor counts of “conducting any
kind of work activity or service” on National Forest land
without a special use authorization in violation of 36 C.F.R.
§ 261.10(c), and one misdemeanor count of threatening,
resisting, intimidating, or interfering with a Forest Service
officer engaged in the performance of his official duties in the
protection or administration of National Forest land in
violation of 36 C.F.R. § 261.3(a). The district court affirmed
the decision of the magistrate judge and sentenced Parker to
two years’ probation and a fine.
ANALYSIS
I. FOREST SERVICE JURISDICTION OVER ACTIVITIES
AFFECTING FOREST SERVICE LAND
Parker’s principal argument is that his actions took place
on Salmon la Sac road—a Kittitas County road authorized by
an easement from Plum Creek Timber Company to the
county—and that the Forest Service’s own regulations
explicitly exempt such a road from the operation of 36 C.F.R.
Part 261. The flaw in this reasoning is that Parker cites only
part of the relevant regulation and overlooks the Forest
Service’s broad authority to regulate activities “affecting”
Forest Service land.
6 UNITED STATES V. PARKER
Part 261 prohibits certain activities in and around Forest
Service property, including, as relevant here, selling
merchandise or conducting work activities or services not
authorized by federal law, regulation, or special-use
authorization. 36 C.F.R. § 261.10(c). The prohibitions of Part
261 apply when an act or omission “occurs in the National
Forest System or on a National Forest System road or trail,”
id. § 261.1(a)(1), or when the act or omission “affects,
threatens, or endangers property of the United States
administered by the Forest Service.” Id. § 261.1(a)(2). Parker
conveniently skips over the proviso in (a)(2).
The regulation defines “National Forest System” to
include “all national forest lands and waters reserved or
withdrawn from the public domain of the United States [or]
. . . acquired . . . .” Id. § 261.2. A “[f]orest road or trail” is
defined as
[a] road or trail wholly or partly within or
adjacent to and serving the National Forest
System that the Forest Service determines is
necessary for the protection, administration,
and utilization of the National Forest System
and the use and development of its
resources[,]
and “National Forest System road” is defined as a subset of
the above, namely
[a] forest road other than a road which has
been authorized by a legally documented
UNITED STATES V. PARKER 7
right-of-way held by a State, county, or other
local public road authority.
Id. (emphasis added).
It appears that the Highway at issue here was not a
“National Forest System road,” because that term is reserved
for forest roads not subject to easements held by public
entities, id., and Kittitas County had been granted an
easement over the Highway “for public road purposes.”1
Although the existence of a right-of-way or an easement may
remove a road from the definition of “National Forest System
road,” it does not deprive the Forest Service of authority over
the road.
To begin, exempting roads subject to an easement from
the definition of “National Forest System road or trail” was
expressly meant not to “in any way affect the Forest Service’s
jurisdiction to enforce traffic laws, to protect NFS lands
underlying routes, or to regulate use, including use on valid
rights-of-way.” Travel Management; Designated Routes and
Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264, 68,275
(Nov. 9, 2005); see also id. at 68,283 (“Part 261–
Prohibitions,” paragraph 2) (noting that the comments at
68,275 applied to both § 261 and § 212). Although Parker
cites language, drafted for inclusion in the rule, that may have
suggested that the Forest Service was ceding all authority
1
The magistrate judge found that the easement did not create exclusive
rights in Kittitas County; that it permitted Kittitas County to “extend rights
and privileges for use . . . to other governmental agencies”; and that it was
“never intended to deprive any other governmental agency of the ability
or jurisdiction to regulate conduct on the highway or within its described
easement.”
8 UNITED STATES V. PARKER
over roads with rights-of-way, the language Parker references
was deleted from the final rule. Id. at 68,275. Because the
Forest Service’s enforcement actions in Parker’s case related
to the “protect[ion of] NFS lands underlying routes” or the
“regula[tion of] use,” the Forest Service retained jurisdiction
over those activities whether or not the road is not a National
Forest System road.
Recognizing the Forest Service’s broad authority to
protect its lands, we turn to the specific authority granted
under § 261.1(a)(2), which covers acts or omissions that
“affect[], threaten[], or endanger[] property of the United
States administered by the Forest Service.” “It is well
established that [the Property Clause of the Constitution2]
grants to the United States power to regulate conduct on non-
federal land when reasonably necessary to protect adjacent
federal property. . . .” United States v. Lindsey, 595 F.2d 5, 6
(9th Cir. 1979) (per curiam). Lindsey, like Parker’s case,
involved regulations issued pursuant to 16 U.S.C. § 551 and
encompassing activities that “affect[], threaten[] or
endanger[]” Forest Service property. Two people were
charged with violating Department of Agriculture regulations
prohibiting the use of campfires without a permit. Id. at 6,
n.1. We held that the federal government had jurisdiction to
regulate the building of campfires on land “legally on the
river bed, title to which is held by the State,” in order to
protect the surrounding National Forests, because the
government retained jurisdiction under the Property Clause.
Id. at 6–7. Accord United States v. Alford, 274 U.S. 264, 267
2
The Property Clause provides that “Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States.” U.S. Const.
art. IV.
UNITED STATES V. PARKER 9
(1927) (holding that Congress could “prohibit the doing of
acts upon privately owned lands that imperil the publicly
owned forests,” in a case involving the building of fires);
United States v. Anglin, 438 F.3d 1229, 1230 (10th Cir. 2006)
(holding that it was “irrelevant” that defendants were
presented while off public land with a notice that they had
violated Part 261 while on public land); Free Enter. Canoe
Renters Ass’n of Missouri v. Watt, 711 F.2d 852, 856 (8th Cir.
1983) (noting, in a case involving permit requirements for
canoe outfitters whose commercial activities took place on
public roads within a National Scenic Riverway, that
Congress can regulate conduct not on federal land that would
threaten federal land).
The commercial activity here, like building a fire or
launching a canoe, is one that has implications for National
Forest land even if commenced on property adjacent to the
forest. As the magistrate judge noted, “[r]enting snowmobiles
to multiple individuals untrained or inexperienced in their
operation might cause fire, safety or environmental hazards
within the National Forest.” Indeed, the Forest Service
regulations specifically provide for certain restrictions and
prohibitions on use by over-snow vehicles. 36 C.F.R.
§ 212.81. But more importantly, Parker was running a
commercial operation that was predicated on dispatching
snowmobiles into the National Forest, and he did so without
obtaining the required special use permit. That this activity
“affect[ed], threaten[ed], or endanger[ed]” National Forest
lands is beyond argument. Id. § 261.1(a)(2).
The Forest Service also had jurisdiction over Parker’s
activities because they took place “in the National Forest
System” for the purposes of § 261.1(a)(1). Roberson
encountered Parker on the Highway, but Parker led a group
10 UNITED STATES V. PARKER
of his clients “further into the National Forest on
snowmobiles.” The district court adopted the finding of the
magistrate judge that Parker’s “commercial or work activity”
was “done by the delivery of multiple customers and
snowmobiles to National Forest land at the side of the
Salmon la Sac highway.” Photographic evidence admitted at
trial showed that the Highway itself had been cleared of snow
on the dates of the encounters, and as such was unsuitable for
snowmobiling, indicating that Parker’s clients were destined
for the Forest.
In other words, Parker’s activities both took place “in the
National Forest System” and “affect[ed], threaten[ed], or
endanger[ed] National Forest land.” For these reasons, we
hold that the Forest Service had jurisdiction over Parker’s
activities on the Highway under both § 261.1(a)(1) and (a)(2).
II. VAGUENESS CHALLENGE TO PART 261
We next consider whether Part 261 is unconstitutionally
vague because § 261.2, which defines “National Forest
System road or trail,” “exempt[s] . . . county roads from the
prohibitions of part 261.”3 Although Parker did not raise the
constitutionality of Part 261 before the district court, we
permit the as-applied challenge because a person may “attack
the constitutionality of the law under which he is charged for
the first time on appeal.” United States v. Tabacca, 924 F.2d
906, 912 (9th Cir. 1991) (citing United States v. Gilbert,
813 F.2d 1523, 1528–29 (9th Cir. 1987) (noting that “[s]uch
3
We construe Parker’s argument in the reply brief as reiterating that his
challenge to the regulations on vagueness grounds is an as-applied, rather
than a facial, challenge.
UNITED STATES V. PARKER 11
claims are attacks on the sufficiency of the information to
charge an offense”)).
Laws are void for vagueness if they “fail[] to give
adequate notice to people of ordinary intelligence of what
conduct is prohibited.” Id. Because Parker’s challenge does
not involve the First Amendment, we “need only examine the
vagueness challenge under the facts of the particular case,”
and need not “address whether the statute is vague as to its
other potential applications.” Id. (internal quotation marks
omitted). We must “decide whether, under a reasonable
construction of the statute, the conduct in question is
prohibited.” Id. (internal quotation marks omitted); see also
Ass’n des Eleveurs de Canards et d’Oies du Quebec v.
Harris, 729 F.3d 937, 946 (9th Cir. 2013).
Part 261 has several sections, and a fair reading of the
regulation as a whole reveals that the definition of “National
Forest System road” is only one avenue for determining
prohibited conduct under the regulation. As discussed above,
the prohibitions extend not only to National Forest System
roads (which exempt public rights-of-way) but also to
activities that “occur” in the national forest or “affect”
property administered by the Forest Service. 36 C.F.R.
§§ 261.1(a)(1)–(2); cf. United States v. Vasarajs, 908 F.2d
443, 449 (9th Cir. 1990) (noting that “it would seem fair to
charge the individual with such knowledge of a statute’s
meaning and applicability as he could obtain through
competent legal advice”) (internal quotation marks omitted).
Not surprisingly, Parker does not suggest that the overall
requirement for a special use permit is unclear. Instead he
takes aim at the narrow issue of the categorization of the
county road. However, in keeping with the principles
12 UNITED STATES V. PARKER
described above, a person of ordinary intelligence would be
aware that dispatching snowmobiles from a road into a
National Forest is an activity that both occurs in, and affects,
property administered by the Forest Service. Of particular
significance in Parker’s situation, where a defendant’s
conduct demonstrates that he was on notice that the conduct
was proscribed by a statute, we have held that the person’s
conduct will defeat, or contribute to the defeat of, an as-
applied challenge. See United States v. Kilbride, 584 F.3d
1240, 1257 (9th Cir. 2009). Parker knew that he needed a
special use permit to operate his snowmobile business from
the Salmon la Sac road. Roberson told him so before these
incidents, Parker was previously cited for the same violation,
and when Roberson confronted him in February, Parker said
he would “take the ticket,” thus acknowledging that he knew
“the rules of the road,” so to speak. Parker’s vagueness
challenge to Part 261 is without merit.
III. EVIDENCE REGARDING NON-EXISTENCE OF A
RECORD
Parker does not claim that he had a special use
authorization. He does, however, challenge whether the
magistrate judge abused his discretion in admitting
Roberson’s testimony regarding the absence of such
authorization.
Federal Rule of Evidence 803(10) permits a court to
admit “[t]estimony—or a certification under Rule 902—that
a diligent search failed to disclose a public record or
statement” where “the testimony or certification is admitted
to prove that the record or statement does not exist” or that “a
matter did not occur or exist, if a public office regularly kept
UNITED STATES V. PARKER 13
a record or statement for a matter of that kind.” Fed. R. Evid.
803(10)(A).
Unlike Rule 803(6), which governs the admissibility of
business records, Rule 803(10) does not specify “the
testimony of the custodian or another qualified witness.”
Fed.R.Evid. 803(6)(D). Rather, Rule 803(10) simply requires
“testimony” that a diligent search did not turn up a public
record. See United States v. McDonald, 905 F.2d 871, 875
(5th Cir. 1990) (holding that “[t]he government need not have
produced the custodian of the records” to establish the
absence of a record under Rule 803(10)). We have held that,
“[f]or purposes of establishing foundation, it [i]s sufficient
that the agent testified that he was familiar with both the
process of searching the records and the government’s
recordkeeping practices with regard to the database.” United
States v. Diaz-Lopez, 625 F.3d 1198, 1200 (9th Cir. 2010)
(noting that an agent testified about his experience and
personal use of the database and his knowledge of its
maintenance).
Roberson testified that the Forest Service maintained a
register of people who have special use permits; that he had
knowledge of how the register was maintained; that he had
access to the register as part of his duties; that as part of his
duties he knew where people could obtain special use
permits; that he used the register to keep track of people who
have special use permits and of activities taking place on
National Forest land; and that he reviewed those records as
part of his duties. Roberson further testified that he had
checked the Forest Service register to see whether Parker had
a special use permit, and that he knew “of [his] own personal
knowledge” that neither Parker nor his company had a special
use permit.
14 UNITED STATES V. PARKER
The foundation established by Roberson was extensive.
Not only did he detail substantial knowledge of the permit
system and his regular use of the system, he described how
the register was maintained and how he undertook his search.
Roberson’s testimony was properly admitted to prove that his
“diligent search failed to disclose a public record” of the
permit under Rule 803(10).
IV. SUFFICIENCY OF EVIDENCE AS TO COUNT FIVE
Finally, we consider whether there was sufficient
evidence to support Parker’s conviction on Count 5, which
stemmed from the activities of December 2011 and formed
the basis for one of the two counts relating to conducting
unlawful work activity on lands encompassed by Part 261.
“Evidence is sufficient to support a conviction unless,
viewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Doe, 136 F.3d 631, 636 (9th Cir. 1998).
Section 261.10(c) prohibits, in relevant part and as charged in
Count 5, (1) “conducting any kind of work activity or
service”; (2) on lands encompassed by the regulation;
(3) without a special use authorization. 36 C.F.R. § 261.10(c).
Taken in the light most favorable to the prosecution, the
evidence easily satisfies the sufficiency standard. As to
Element 1 (“work activity or service”), Roberson testified
that he observed Parker on the Highway with fifteen
customers and snowmobiles; identified a truck with a trailer
belonging to Cascade Playtime Rentals, Parker’s business;
and watched Parker flee the scene when Roberson attempted
to make contact with him. Parker’s view that Roberson failed
to provide a link between Parker and commercial activity is
UNITED STATES V. PARKER 15
belied by common sense. In light of the truck adorned with
Parker’s business name, the snowmobiles, people standing in
the road ready for snowmobiling, and Parker’s flight, the
magistrate judge was entitled to credit the objective evidence
and draw reasonable inferences from the circumstantial
evidence. See United States v. Jackson, 72 F.3d 1370, 1381
(9th Cir. 1995).
Parker does not seriously contest the other elements, nor
could he. For Element 2 (lands encompassed by the
regulation), Roberson testified that he observed Parker at
points of the Highway entirely surrounded by the National
Forest and that he watched Roberson lead all but two of the
snowmobilers into the forest. For Element 3 (special use
authorization), Roberson testified that Parker did not have or
display a special use authorization, and that a search of the
database revealed that Parker had no authorization. Because
a “rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt,” Doe,
136 F.3d at 636, sufficient evidence supported Parker’s
conviction on Count 5.
AFFIRMED.