F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 29 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-8021
v.
GREGORY J. BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 98-CR-58-J)
Ronald G. Pretty, of Cheyenne, Wyoming, for Appellant.
Lisa E. Leschuck, Assistant United States Attorney, (David D. Freudenthal,
United States Attorney, with her on the brief), of Cheyenne, Wyoming, for
Appellee.
Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
Defendant-Appellant Gregory J. Brown was convicted on two counts of
violating 36 C.F.R. § 261.10(c). Brown challenges the sufficiency of the
evidence on each count. This court concludes there was sufficient evidence on
each count to support the convictions for knowingly conducting a commercial
work activity on Forest Service land without a special use authorization permit.
We also conclude that receiving remuneration and assessing a separate delivery
charge are not required elements of this crime. This court exercises jurisdiction
pursuant to 28 U.S.C. § 1291 and affirms.
II. FACTS AND PROCEDURAL HISTORY
The town of Centennial, Wyoming lies approximately two miles east of the
Medicine Bow National Forest (the “Forest”). The State of Wyoming has an
easement, Wyoming State Highway 130, over the road which runs west from
Centennial through the Forest. This road is also designated as Forest
Development Road 12.
In the winter, Highway 130, or Forest Development Road 12, is closed to
west-bound traffic at a place called Green Rock. Green Rock includes an area
which allows a U-turn where the road ends; snowmobilers traditionally use this
turnaround as a drop-off point for their equipment. There is also a designated
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parking area just east of the turnaround. The Green Rock area is Forest Service
Property and is supervised by the National Forest Service.
During the summer of 1997, Brown inquired at the Forest Service office in
Laramie, Wyoming, about a special use permit application for the outfitting and
guiding of snowmobile tours. 1 Brown asked whether he would need a special use
permit if his operations were not on Forest Service lands but he delivered
equipment into the Forest. Elrand Denson, a lands and special use supervisor for
the U.S. Forest Service, told Brown a permit was needed in those circumstances,
and he gave Brown a permit application. Brown never returned the application.
Responding to Brown’s newspaper advertisement for snowmobile rentals,
Keith Barlow called and made arrangements with Brown to rent a snowmobile for
$200. Brown took Barlow’s credit card number over the phone, but they agreed
Barlow would pay by check when they met. Brown told Barlow to meet him in
the Green Rock parking lot on the morning of February 1, 1998. Brown said he
would take Barlow out, show him where to ride, and explain other things about
snowmobiling.
They met as planned, and Brown provided Barlow and Barlow’s son with a
snowmobile and helmets. Brown went snowmobiling with the Barlows for over
1
The fee for a special use permit is $75 per year, and the Forest Service
collects three percent of the permittee’s gross profits. Permitees must also have a
minimum of $300,000 liability insurance.
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an hour, and then Barlow and his son rode on their own. They agreed to meet
back in the parking lot at Green Rock in the afternoon.
When Barlow returned to the parking lot that afternoon, Curtiss Orde, a
supervisory law enforcement officer for the U.S. Forest Service, stopped him and
asked for the snowmobile registration. Barlow told him the snowmobile was
rented. Orde followed Barlow to where Brown was sitting in the parking lot.
Barlow offered to pay Brown for the snowmobiles, but Brown told Barlow it was
free. Brown never billed Barlow.
Officer Orde believed Brown was operating a business without a special
use authorization permit as required by the regulations and told Brown so. Orde
also told Brown that delivery of goods or services to Forest lands required a
special use permit. He then directed Brown to cease and desist from anything
appearing to be a commercial operation in the Forest.
A day or two later, Brown again went to the Forest Service office in
Laramie to discuss the permit application with Orde and Denson. Brown asked
whether he would need a permit if his operation took place completely outside the
Forest. He again also asked about the need for a permit if he merely delivered the
snowmobiles onto or picked them up from the Forest Service lands. Orde and
Denson again told Brown that if his operation was entirely outside the Forest, he
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would not need a permit. If he delivered goods or services in the National Forest,
however, they indicated he would need a permit.
Brown did not cease doing business on Forest Service lands. In March
1998, Terry Thompson rented snowmobiles from Brown after Thompson called
Brown’s toll-free number. Brown agreed to rent him two snowmobiles, and he
took Thompson’s credit card number over the phone. The day of the Thompson
rental, Brown dropped off the two snowmobiles at Mountain Meadows Cabins
(“Mountain Meadows”). Michelle Borer and her husband run Mountain
Meadows, which is approximately eight miles west of Centennial. Highway 130,
or Forest Service Road 12, is closed about a mile and a half east of the cabins.
Mountain Meadows is thus on Forest Service property.
When he dropped off the snowmobiles, Brown handed Borer a liability
waiver form and asked her to have Thompson sign it. Thompson picked up the
snowmobiles that day, and he signed the liability form. Thompson rode for
several hours and then left the snowmobiles back at Mountain Meadows. Brown
later retrieved the snowmobiles. Thompson was charged $468 on his credit card,
which included the rental of two snowmobiles and the cost of repair for one
snowmobile.
Brown was ultimately convicted following a non-jury trial on two counts of
selling or offering merchandise for sale or conducting a work activity or service
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in the National Forest without a special use authorization permit in violation of 36
C.F.R. § 261.10(c) (the “Regulation”). The Regulation provides:
The following [is] prohibited [on Forest Service Land]:
. . . (c) Selling or offering for sale any merchandise or
conducting any kind of work activity or service unless
authorized by Federal law, regulation, or special-use
authorization.
See also 16 U.S.C. § 551. Brown’s sentence was ninety-days imprisonment, to be
followed by two-years supervised probation, and he was ordered to pay $20 in
special assessments.
III. DISCUSSION
A. Standard of Review
Brown argues there was insufficient evidence to support his convictions. In
reviewing a challenge to the sufficiency of the evidence to support a conviction,
this court must view the evidence in the light most favorable to the government.
We must determine if there is sufficient direct and circumstantial evidence,
together with reasonable inferences to be drawn therefrom, from which a trier of
fact could find the defendant guilty beyond a reasonable doubt. See United States
v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). To the extent Brown challenges
the proper legal interpretation of the Regulation, this court reviews those issues
de novo. See United States v. Phelps, 17 F.3d 1334, 1337 (10th Cir. 1994).
B. Count One: The Barlow Transaction
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Brown’s specific challenge to the sufficiency of the evidence on the Barlow
transaction is twofold. First, Brown argues there was insufficient evidence that
he sold or offered for sale any merchandise or conducted any work activity or
service in the Forest. See 36 C.F.R. § 261.10(c). Second, Brown argues the
receipt of remuneration or pecuniary gain is an element of § 261.10(c), and that
there was no evidence he received remuneration from Barlow.
1) Selling or Offering for Sale Merchandise or Conducting a Work Activity
In this case, Brown agreed to rent a snowmobile to Barlow for $200 and he
delivered the snowmobile on Forest Service property. In a factually similar case,
a defendant operated a recreational campground and a canoe rental service on
private land near a National Forest. United States v. Richard, 636 F.2d 236, 237
(8th Cir. 1980). From that site he transported canoes to the National Forest,
where they were launched from a Forest Service boat ramp. See id. at 238. The
defendant would later transport his customers and the canoes from the National
Forest back to their campsite. See id. The defendant in Richard argued he was
not required to obtain a special use permit because his business was located on
private property and he did not charge a fee for hauling the equipment, but only
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for renting it. See id. at 239. The court, which was interpreting a slightly
different version of the Regulation, 2 stated:
[i]f an interpretation of the regulation were . . . as
restrictive as the defendant urges, the entire purpose of
the regulation would be defeated. An individual could
bypass all the requirements that are part of the special
use permit simply by storing his [equipment] outside the
Forest Service boundaries and hauling them on the
Forest Service after the negotiations had been
completed.
Richard, 636 F.2d at 239 (quoting opinion of magistrate judge). The Richard
court thus held that hauling canoes to a Forest Service boat ramp and picking up
customers from the National Forest violated the Regulation. See id. 3
2
The regulation which the Richard court interpreted prohibited “[s]elling or
offering for sale any merchandise, conducting any kind of business enterprise or
performing any kind of work unless authorized by . . . [a] permit.” United States
v. Richard, 636 F.2d 236, 238 (8th Cir. 1980). “[C]onducting any kind of
business enterprise or performing any kind of work unless authorized” was
amended to read “conducting any kind of work activity or service unless
authorized.” See 46 Fed. Reg. 33518, 33520 (1981). Nothing in the history of
this amendment suggests that the conduct in question in Richard would no longer
violate the regulation here. See 46 Fed. Reg. at 33518-19. In addition, at least
one court since the amendment has relied on Richard to support a conviction for
similar conduct under § 261.10(c). See United States v. Peterson, 897 F. Supp.
499, 500 (D. Colo. 1995).
3
A defendant in another, similar case admitted he had hauled horses onto
Forest Service land without a permit. See Peterson, 897 F. Supp. at 500. The
defendant in Peterson argued he did not violate the Regulation because he had
merely brought in horses for a group which was then self-guided. See id. The
district court nevertheless found that the defendant was carrying on a work
activity and service in violation of § 261.10(c). See id. at 501; see also United
States v. Carter, 339 F. Supp. 1394 (D. Ariz. 1972).
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As in Richard, Brown delivered the snowmobile to Barlow on Forest
Service property, notwithstanding the operations on non-federal land. 4 This was
selling or offering merchandise for sale and conducting a work activity or service
in the Forest, and it requires a special use authorization permit under the
Regulation. See 36 C.F.R. §261.10(c).
2) Remuneration or Pecuniary Gain
Brown argues that in order to find him in violation of the Regulation, the
government must show he actually received remuneration or other gain from
Barlow for delivering goods in the Forest. Brown argues he did not receive any
remuneration or other financial gain from Barlow, and therefore this “element”
was not met.
First, this court notes the Regulation expressly interdicts the sale or offer of
sale of goods. See 36 C.F.R. § 261.10(c). There is evidence of both offer by
Brown and acceptance by Barlow. Brown and Barlow agreed on a price of $200,
and Brown took Barlow’s VISA card number. The final exchange of funds never
took place simply because Brown saw Barlow speaking to Officer Orde prior to
Barlow’s final payment. Receipt of payment, however, is not a required element
under § 261.10(c). The key is whether the sale or offer of sale of merchandise or
Brown ignores that he took the Barlows out for the first few miles to show
4
them which trails to use.
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the work activity or service is a commercial activity. 5 See Richard, 636 F.2d at
240. See also United States v. Strong, 79 F.3d 925, 928-30 (9th Cir. 1996);
United States v. Peterson, 897 F. Supp. 499, 501 (D. Colo. 1995); United States v.
Bartels, No. F053881, 1998 WL 289231, at *2-*4 (D. Colo. 1998). Evidence that
Brown was engaged in exactly the conduct prohibited without a special use
authorization permit is abundant in the instant case. Barlow responded to
Brown’s newspaper advertisement, and he gave Brown his credit card number
over the phone. Barlow thus fully expected to pay for the experience. Brown was
providing a service, as well as goods, by delivering snowmobiles and equipment
5
Separate regulations govern noncommercial activities on Forest Service
lands.
A special use authorization is not required for
noncommercial recreational activities such as camping,
picnicking, hiking, fishing, hunting, horseback riding,
and boating, as well as noncommercial activities
involving the expression of views such as assemblies,
meetings, demonstrations, and parades . . . .
36 C.F.R. § 251.50(c).
There are, however, exceptions to § 251.50(c). Selected Forest
Supervisors, specifically delineated by the regulations, have the authority to issue
orders which close or restrict all use, including noncommercial uses, of roads or
areas over which the supervisor has jurisdiction. See id. § 261.50(a)-(b); id. §
251.50(c)(1). In addition, “the Chief, and each Regional Forester to whom the
Chief has delegated authority, may issue regulations prohibiting acts,” including
noncommercial acts, “within . . . the area over which he has jurisdiction” for
specific purposes such as fire prevention. Id. § 261.70(a); id. § 251.50(c)(2).
Finally, “noncommercial group uses,” activities which involve a group of
seventy-five or more people as either participants or spectators, require a special
use authorization permit. Id. § 251.50(c)(3); id. § 251.51; see also id. §
251.54(d)(2)(i); id. § 251.56(a)(1)(ii)(G) & note.
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onto Forest Service lands, and he was motivated by the prospect of commercial
gain in doing so. This was a commercial activity, and Brown violated the
Regulation by offering merchandise for sale and providing a service without the
permit required.
C. Count 2: The Thompson Transaction
Brown specifically challenges two aspects of his conviction for the
Thompson transaction. Brown argues (1) there must be evidence of a specific
drop-off charge, and there was none here; and 2) there must be evidence he
knowingly, or with specific intent, delivered property to federal land, and there
was no mens rea evidence presented here.
1) No Drop-Off Charge
Brown argues that because the rental agreement was negotiated with
Thompson off federal land, and because he did not charge a specific fee for
hauling the snowmobiles onto federal land, his conviction must be reversed. A
similar argument failed in Richard. See 636 F.2d at 240. Brown delivered the
snowmobile equipment in the Forest and required Thompson to sign a liability
form there. This court will not reverse his conviction simply because he did not
separately itemize the delivery service in Thompson’s payment. Brown’s delivery
service, as well as the actual delivery of goods into the Forest, violated the
Regulation.
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2) “Knowingly” delivered property
Without citation to authority, Brown additionally argues that the
government must show he knew Mountain Meadows was on Forest Service
property. This court need not decide if the Regulation contains a mens rea 6
requirement, however, because the evidence supports an inference Brown knew he
was on Forest Service land. Brown drove to the Green Rock parking lot,
unloaded the snowmobiles, and drove them a mile and a half over the closed road
to Mountain Meadows. 7 In addition, Brown had at least three conversations with
Forest Service personnel regarding the requirements for a special use permit in
the area. This evidence is sufficient to infer Brown knew he was selling or
offering for sale merchandise or conducting a work activity or service on Forest
Service property. See 36 C.F.R. § 261.10(c).
IV. CONCLUSION
For the reasons stated above, this court concludes there was sufficient
evidence to support Brown’s convictions, and AFFIRMS.
6
See, e.g., United States v. Unser, 165 F.3d 755, 761-64 (10th Cir. 1999),
cert. denied, 120 S. Ct. 40 (1999). (The unlawful possession and operation of a
motor vehicle within a National Forest Wilderness Area is an offense with no
mens rea requirement.)
A sign on Highway 130 announces that the traveler is entering the
7
Medicine Bow National Forest.
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