United States v. Karl Sennert , 712 F. App'x 597 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10333
Plaintiff-Appellee, D.C. No.
1:16-cr-00013-LJO
v.
KARL SENNERT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted October 17, 2017
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and MCSHANE,** District
Judge.
Karl Sennert appeals his misdemeanor convictions following a bench trial
for improper disposal of human waste in violation of 36 C.F.R. § 2.14(a)(8) and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
disorderly conduct in violation of 36 C.F.R. § 2.34(a)(4). We have jurisdiction
under 28 U.S.C. §1291 and affirm.
At trial, Sennert argued that the witnesses misidentified him as the
individual responsible for disposing of sewage from a recreational vehicle onto a
roadway. He did not argue that the sewage was disposed of accidently or
inadvertently. On appeal, he argued for the first time that the magistrate judge
erred by failing to make a specific finding as to whether Sennert had the
appropriate mens rea to support the convictions. This argument fails because
Sennert did not request that the magistrate judge make specific findings of fact
under Federal Rule of Criminal Procedure 23(c). It is presumed from a general
finding of guilt that the trial court found each element satisfied. United States v.
Pace, 454 F.2d 351, 356-57 (9th Cir. 1972); Lustiger v. United States, 386 F.2d
132, 135-36 (9th Cir. 1967).
Substantial evidence in the record supports the convictions. See United
States v. Bibbins, 637 F.3d 1087, 1094-95 (9th Cir. 2011).1 The statements of the
magistrate judge cited by Sennert were preliminary views of the evidence offered
before closing arguments, not findings of fact. In his ultimate order, the magistrate
1
We need not decide whether a violation of 36 C.F.R. § 2.14(a)(8) is a strict
liability offense. By finding Sennert guilty of disorderly conduct in violation of 36
C.F.R. § 2.34(a)(4), the magistrate judge necessarily found that Sennert acted
knowingly or recklessly.
2
judge noted questions surrounding Sennert’s credibility and specifically rejected
Sennert’s mistaken identity defense.
Sennert also argues the magistrate judge erred in determining the amount of
restitution. “A restitution order is reviewed for an abuse of discretion, provided
that it is within the bounds of the statutory framework. Factual findings supporting
an order of restitution are reviewed for clear error. The legality of an order of
restitution is reviewed de novo.” United States v. Gordon, 393 F.3d 1044, 1051
(9th Cir. 2004) (citation omitted). The magistrate judge adequately set forth his
reasoning in evaluating the submissions and determined that the detailed
accounting found in the billing records was likely more accurate than an initial
estimate of cleanup costs. The two submissions were not drastically different and
the spreadsheet contained no “clear inconsistencies” or “pronounced red flags.”
United States v. Brock-Davis, 504 F.3d 991, 1002 (9th Cir. 2007). Adequate
evidence in the record supported the restitution order. United States v. Tsosie, 639
F.3d 1213, 1222 (9th Cir. 2011).
AFFIRMED.
3