United States v. McPhilomy

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Patrick J. Fisher, Jr. Jane B. Howell
Clerk Chief Deputy Clerk

November 27, 2001

TO: ALL RECIPIENTS OF THE OPINION
RE: 00-4141, 00-4144; United States v. McPhilomy
Filed November 9, 2001

Please be advised of the following correction to the captioned decision. On
page 7, second paragraph, fourth sentence should read, “Although we review the
trial court record de novo, id., we do not reverse if. . .”.
A copy of the corrected opinion is attached for your convenience.

Sincerely,
Patrick Fisher, Clerk of Court

By:
Deputy Clerk
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 9 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 00-4141 and 00-4144

MICHAEL McPHILOMY, SR., and
MICHAEL McPHILOMY, JR.,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. Nos. 99-CR-555-01 & 99-CR-555-02)

Submitted on the briefs:

Herschel Bullen and Edwin Stanton Wall, Salt Lake City, Utah, for Appellants.

Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United
States Attorney, Salt Lake City, Utah, for Appellee.

Before TACHA, Chief Judge, BALDOCK and HENRY, Circuit Judges.

TACHA, Chief Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

A jury found Michael McPhilomy, Sr., (“Senior”) and Michael McPhilomy,

Jr., (“Junior”) guilty of two felony counts of aiding and abetting each other in the

theft of government property in violation of 18 U.S.C. §§ 2 and 641. The jury

also found Junior guilty of one misdemeanor count of depredation of government

property in violation of 18 U.S.C. § 1361. The defendants appealed. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Background

The convictions arise from the McPhilomys’ activities in and removal of

materials from the Red Mountain Community Pit near Wendover, Utah. In 1995,

the Bureau of Land Management (“BLM”) designated the area a community pit.

Federal mining regulations define a community pit as follows: “Community pit

means a site from which nonexclusive disposals of mineral materials can be made.

The establishment of a community pit, when noted on the appropriate Bureau of

Land Management records or posted on the ground, constitutes a superior right to

remove material as against any subsequent claim or entry of the lands.” 43 C.F.R.

§ 3600.0-5(g). The BLM issues permits for the removal of stone from a

community pit, and permittees pay fair market value for the stone. 43 C.F.R.

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§ 3604.1(d).

The McPhilomys met with an attorney in late April or early May of 1999

regarding rights to remove materials from the Red Mountain Community Pit. The

attorney advised them that they should stake (or “locate”) a mining claim, which

would entitle them to valuable materials on the site of location, and obtain a

permit to remove and purchase common materials from the pit. The permit,

advised the attorney, would protect them from theft charges in the event that the

materials turned out to be common variety stone, which cannot be the subject of a

mining claim.

On May 6, 1999, the McPhilomys met with a BLM official who informed

them that they could not obtain a permit to remove stone from the community pit

because of unsettled trespass violations in the pit. A trespass notice dated May 6

described the past violations. On July 8, Junior again sought a permit, and BLM

officials again informed him and Senior that they could not obtain one. That

same day, the McPhilomys returned to the BLM office with another individual,

who requested a permit to remove 25 tons of stone from the community pit. The

BLM issued him a permit that was valid for 15 days and limited to 5 tons. The

permit made clear that stone was available only for noncommercial use and could

be extracted only with hand tools. The McPhilomys paid for the permit.

On July 14, 1999, Junior filed a notice of location with the BLM, asserting

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that he and others had located a deposit of valuable minerals. 1 A BLM land law

examiner notified the McPhilomys by letter, dated July 26, that their alleged

mining claim was within the Red Mountain Community Pit and that they should

therefore contact the field office before starting operations.

Also on July 14, 1999, Junior filed a notice of intent to commence mining

operations on the mining claim on July 29. Under the mining regulations, a notice

must include certain information, and a mining claimant must file a notice of

intent at least 15 days prior to commencing operations on a claim. 43 C.F.R.

§ 3809.1-3. A BLM official notified Junior by letter, dated July 20, that the

notice of intent was inadequate, that he should complete and submit the enclosed

form within 30 days, and that failure to submit the form within that time frame

would cause the BLM to treat the notice of intent as withdrawn. The BLM

received the form, partially completed, on August 5.

According to the evidence, however, the McPhilomys began mining

operations prior to filing the additional information required for a notice of intent.

1
The locators had filed the claim with the appropriate Utah authority on
May 7, 1999. The notice of location lists 8 locators, including Michael J.
McPhilomy, whose name appears without a “Sr.” or “Jr.” designation, although
Michael J. McPhilomy, Jr., appears on the document as the person filing the
claim. This case does not involve charges against the other locators. According
to the record, both McPhilomys were involved in mining operations and asserted
the mining claim as a defense. For these reasons, and for simplicity’s sake, we
refer to the claim as the McPhilomys’.

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Sometime prior to July 23, 1999, they removed and sold a large amount of stone

from the pit. 2 This removal of stone constitutes the basis for the first count of

theft of government property. The events in July are also the basis for the charge

against Junior for depredation of government property.

On August 3, 1999, a “Notice of Noncompliance for Failing to File a

Complete Notice for Mining Activities in the Red Mountain Area” informed the

McPhilomys that they had violated the mining regulations by conducting

operations prior to submission of a complete notice of operations. The notice also

advised them that their activities had caused unnecessary and undue degradation

of public land and that they must cease operations, remove all mining equipment

from the Red Mountain area, and perform reclamation on the disturbed sites. The

notice informed them that future unauthorized operations could result in citation

and/or arrest. The McPhilomys appealed the notice of noncompliance through the

administrative process. The Utah State Director of the BLM upheld the notice.

On September 1, 1999, the McPhilomys forfeited their mining claim

because they had failed to pay the $100 annual maintenance fee. 43 C.F.R.

2
The purchaser of the stone testified that the McPhilomys or their
employees delivered stone to his home sometime prior to July 23. He said that,
according to the invoice, McPhilomy Trucking Co. delivered 57.25 tons of stone
to his home, for a price of $17,175. A BLM expert who examined the stone at the
purchaser’s home, however, estimated the weight at 77.15 tons with a retail value
of $9,258.

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§ 3833.4(a)(2). The BLM mailed a letter confirming the forfeiture on September

22.

On September 8, 1999, the BLM discovered that the McPhilomys were

conducting mining operations without a permit or a mining claim. Later that day,

a deputy sheriff instructed the McPhilomys to cease operations, but the

McPhilomys ignored his instruction. On September 11, a security guard found a

truck loaded with stone abandoned at the side of the road. Two days later the

deputy sheriff inspected the truck, which he recognized from his earlier encounter

with the McPhilomys, in part from the writing on the door of the truck that said

“McPhilomy Trucking.” The September removal of stone constitutes the basis

for the second count of theft of government property.

The United States charged Junior with depredation of government property

in violation of 18 U.S.C. § 1361. 3 In addition, the United States charged both

McPhilomys with aiding and abetting each other in the theft of government

property with a value exceeding $1,000, in violation of 18 U.S.C. §§ 2 and 641.

At trial, the McPhilomys’ defended themselves on the ground that they had acted

either pursuant to a valid mining claim or in good faith pursuit of a mining claim.

3
The depredation of government property charge in the Superceding
Indictment alleged that Junior had caused damage exceeding $1,000. The district
court found insufficient evidence of damage exceeding $1,000, however, and
submitted to the jury only the misdemeanor charge of depredation causing damage
of less than $1,000.

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A jury returned guilty verdicts on all charges.

II. Discussion

The McPhilomys appeal their convictions on the following four grounds:

(A) insufficiency of the evidence; (B) denial of due process; (C) improper jury

instructions; and (D) improper admission of expert testimony.

A. Sufficiency of the Evidence

First, we address the McPhilomys’ claim that the government failed to

produce sufficient evidence to support a conviction. The standard of review

makes it difficult to prevail on a sufficiency of the evidence claim. United States

v. Wilson, 244 F.3d 1208, 1219 (10th Cir.), cert. denied, 121 S. Ct. 2619 (2001).

Although we review the trial record de novo, id. , we do not reverse if, “after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979).

The McPhilomys argue that the district court erred in failing to grant their

motions to dismiss and for judgment of acquittal, because the evidence cannot

support two findings: first, that the United States owned the property; and second,

that the McPhilomys were not engaged in good faith mining activities.

Insufficient evidence of either finding would require reversal for both crimes, as

government ownership is an element of each, and good faith is an affirmative

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defense that would negate the required mental state for each crime. 18 U.S.C.

§§ 641, 1361. After reviewing the record, we find that sufficient evidence

supported findings of both government ownership and bad faith.

1. Ownership

Several pieces of evidence support the finding of government ownership.

At trial, the government showed that: (1) the United States owns the land from

which the McPhilomys took the property; (2) the McPhilomys took property that

was common material, which necessarily belongs to the government; and (3) the

McPhilomys took the materials without proper authorization.

First, the government demonstrated ownership of the land through the

testimony of Michael Ford, a BLM employee. Ford testified that he had assisted

in the preparations for creating the Red Mountain Community Pit. Based on

personal knowledge from this experience, he testified that the United States owns

the land on which the pit is located.

Second, there was sufficient evidence for the jury to conclude that the stone

that the McPhilomys removed from the pit was of a common variety, which would

make it government property until paid for by someone with a valid permit.

Deposits of common varieties of stone are not subject to mining claims, unless a

deposit is valuable because “it has some property giving it distinct and special

value.” 30 U.S.C. § 611. Moreover, “[t]he establishment of a community pit . . .

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constitutes a superior right to remove material as against any subsequent claim or

entry of the lands.” 43 C.F.R. § 3600.0-5(g). Thus, even if the McPhilomys had

a mining claim, it would only have provided the right to remove valuable mineral

deposits from the Red Mountain Community Pit, not common variety materials. 4

A government witness, Ford, testified that he had examined the stone that the

McPhilomys sold in July and the stone found on the McPhilomys’ abandoned

truck in September. After comparing their stone with similar materials, Ford

identified the McPhilomys’ stone as common variety. From this testimony, the

jury could rationally have concluded that the McPhilomys removed common

variety materials, which the government owned.

Third, there was sufficient evidence to show that the McPhilomys removed

materials without proper authorization. Even if the McPhilomys’ notice of intent

4
Mining claimants, “so long as they comply with the laws of the United
States . . . have the exclusive right of possession and enjoyment of all the surface
included within the lines of their locations” and of the valuable mineral deposits
within their locations. 30 U.S.C. § 26. To establish a valid mining claim, a
claimant must, in addition to complying with state law requirements, mark the
boundaries of the area, record the claim with the BLM, and perform at least $100
worth of labor per year until a patent has been obtained. Id. § 28. As a general
rule, “all valuable mineral deposits in lands belonging to the United States . . .
[are] free and open to exploration and purchase, by citizens of the United States .
. . under regulations prescribed by law.” Id. § 22. According to BLM officials’
testimony and documents that the BLM provided to the McPhilomys, a community
pit remains open for the location of valuable minerals. The Interior Board of
Land Appeals has also taken this position. Mid-Continent Resources, Inc. and
Pitkin Iron Corp., 148 I.B.L.A. 370, 379 (May 14, 1999).

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to commence mining operations had been valid, it would not have allowed them

to begin mining until July 29. Nor could the McPhilomys have mined after

September 1, because they forfeited any mining claim they had when they failed

to pay the required maintenance fee. The McPhilomys therefore did not have the

right to remove stone before July 29 or after September 1, but the purchaser of

stone testified that he took delivery prior to July 23 and officials observed the

McPhilomys removing stone on September 8. Thus, a rational jury could have

concluded that neither the July nor the September removal of materials

constituted authorized activity under a mining claim. Nor did the McPhilomys

ever have a valid permit to remove materials from the community pit. Their

removal of materials in both July and September therefore took place without

authorization.

2. Good Faith

The evidence at trial was also sufficient to support a finding beyond a

reasonable doubt that the McPhilomys were not engaged in good faith pursuit of a

mining claim. Evidence showed that the BLM repeatedly put the McPhilomys on

notice that their claims were unlawful. For example, the BLM informed the

McPhilomys that they could not obtain a permit the day before Junior filed a

notice of location with state authorities. Only after Junior had again attempted,

without success, to obtain a permit did the McPhilomys file a mining claim with

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the BLM. A BLM land law examiner testified that she had advised the

McPhilomys that the mining claim was located in a community pit and purported

to claim nonlocatable (common) materials and that a mining claim only entitles

the claimant to remove locatable (valuable) materials. Other evidence showed

that the McPhilomys mined without waiting the required 15 days after filing a

notice of intent to commence mining operations, that they continued mining

operations and removed materials after the BLM had posted on equipment at the

site a notice directing them to cease, and that they continued mining operations

and removed materials in September even after officials had approached them and

directed them to cease operations. A BLM employee testified that Senior refused

to provide the BLM with documentation of his asserted right to remove materials

from the pit, that he stated his intention to be on the land “whether the paperwork

was done or not,” and that he informed her and another BLM official that they

“better have a whole bunch of rangers out there to drag him away because one

wasn’t going to do it.” This witness also testified that Junior was present during

these conversations. The other BLM official present provided similar testimony

as to Senior’s statements. In addition, evidence showed that the McPhilomys

delivered stone to a purchaser in the middle of the night. Collectively, this

evidence provided a sufficient basis for a jury to find beyond a reasonable doubt

that the McPhilomys acted with criminal intent and were not engaged in good

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faith pursuit of a mining claim.

B. Due Process

The McPhilomys next assert that their convictions violate due process.

First, they argue that the government improperly used the criminal process to

resolve the validity of a mining claim. Second, they argue that they never

received an administrative hearing to determine whether they had located valuable

mineral materials. Both arguments fail.

1. Abuse of Process

“[I]t is an abuse of process when a legal procedure is perverted to

accomplish an ulterior purpose for which it was not designed.” United States v.

Miller , 659 F.2d 1029, 1033 (10th Cir. 1981). We find no ulterior purpose in the

prosecution of the McPhilomys for theft and depredation of government property.

One ulterior purpose that has been recognized by this court in a somewhat

similar context is the use of criminal proceedings to settle a property dispute. Id.

In Miller , this court found an abuse of process where a criminal trespass

prosecution was brought to settle a good faith property dispute. Unlike in Miller ,

however, the McPhilomys’ prosecution was not a means to resolving a property

dispute based on a mining claim. Resolution of the case did not turn on the

validity of the mining claim. Rather, the key inquiry was whether, in these

particular instances, the McPhilomys’ actions constituted either lawful pursuit of

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a mining claim or good faith efforts to pursue a mining claim.

We also note that federal statutes and regulations warn individuals who fail

to comply with regulations that they may face criminal sanctions. Under the

regulations, removing materials “except when authorized by law and the

regulations of the Department [of the Interior], is an act of trespass. Trespassers .

. . will be subject to prosecution for such unlawful acts.” 43 C.F.R. § 9239.0-7.

In addition, “persons responsible for such trespass may be prosecuted criminally

under any applicable Federal law.” Id. § 9239.0-3(b). Moreover, the regulations

specify that “[r]ecordation or application involving an unpatented mining claim . .

. by itself . . . does not give the owner any rights he is not otherwise entitled to by

law.” Id. § 3833.5(a). In light of these and other statutes and regulations, 5 the

McPhilomys’ suggestion that the filing of a mining claim entitled them to

disregard federal regulations without risk of criminal sanctions is untenable.

2. Lack of an Administrative Hearing

An administrative hearing on whether the McPhilomys had located valuable

minerals was not a prerequisite to a criminal action, because the criminal verdict

did not depend upon the validity of the mining claim. The McPhilomys presented

a defense based on their good faith pursuit of a mining claim, and this defense did

not require that their claim be valid. The jury received instructions that discovery

5
See, e.g., 43 U.S.C. § 1733(a); 43 C.F.R. §§ 2800.0-5, 2801.3, 9262.1.

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and location of a valuable mineral supports a mining claim, that good faith

constituted a complete defense to the charges, and that the government bore the

burden of proving criminal intent beyond a reasonable doubt. The verdict reflects

the jury’s findings that the McPhilomys removed common materials from the

community pit, acted with criminal intent, and were not engaged in good faith

pursuit of a mining claim.

C. Jury Instructions

The McPhilomys argue that the district court gave defective jury

instructions regarding: (1) the community pit designation and other elements of

mining law; (2) the measure of the value of the stone; and (3) the government’s

burden of proof on the issue of good faith.

“We review the district court’s decision to give a particular jury instruction

for abuse of discretion and consider the instructions as a whole de novo to

determine whether they accurately informed the jury of the governing law.”

United States v. Cerrato-Reyes, 176 F.3d 1253, 1262 (10th Cir. 1999) (citation

omitted). After examining the record and the jury instructions under this

standard, we find no abuse of discretion in the district court’s instructions to the

jury.

1. Instruction on the Community Pit

The McPhilomys argue that the district court’s instructions misled the jury

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regarding the legal effect of the community pit. More specifically, the defendants

argue that the instruction that the government had “superior rights” over the

community pit misled the jury. After reviewing the instructions as a whole, we

cannot agree.

The disputed jury instruction stated, in relevant part:

“Community pit” means a site from which nonexclusive disposals of
mineral materials can be made. The establishment of a community
pit, when noted on the appropriate Bureau of Land Management
records or posted on the ground, constitutes a superior right to
remove material as against any subsequent claim or entry of the
lands.

The district court took this passage from the regulation verbatim, 43 C.F.R.

§ 3600.0-5(g), making it an accurate statement of the law. The prior paragraph of

the instruction also informed the jury that “[s]ome types of designations do not

preclude the staking and location of a mining claim.”

The court also gave instructions about prospecting, discovery, location, and

the requirement that a claimant locate valuable minerals in order to establish a

mining claim. The court specifically instructed the members of the jury that they

were to decide “[w]hether a particular defendant was attempting to establish a

mining claim, that is, whether his activities were prospecting, discovery, or

location.” These instructions about mining claims would have been wholly

irrelevant if the community pit designation precluded new mining claims as a

matter of law. While the instruction might have been clearer if it had stated

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explicitly that location of a mining claim may occur in a community pit, on the

whole, the instructions adequately informed the jury of the relevant law governing

mining claims and the effect of the community pit designation.

2. Instruction on the Value of the Stone

The McPhilomys argue that the district court erred in refusing to instruct

the jury that the BLM’s value of the stone, $7.50 per ton, controls the

determination of value. 6
We cannot agree.

The stone’s value is important because the theft charge carries a penalty of

a fine and up to ten years’ imprisonment only if the value of the stolen property

exceeds $1,000. 18 U.S.C. § 641. For this purpose, “‘value’ means face, par, or

market value, or cost price, either wholesale or retail, whichever is greater.” Id.

The jury instructions quoted this definition of value, and, based on this

instruction, the jury found that the value of the stolen property on each count of

theft exceeded $1,000.

The evidence showed that the BLM charges permittees $7.50 per ton to

remove common variety stone from the Red Mountain Community Pit. The price

that the BLM charges permittees for the stone, however, is not definitive. The

6
Applying this price to the highest estimate of tonnage in evidence, the
value would not exceed $1,000 on either count. The prosecution’s expert
estimated the tonnage in July at 77.15 (77.15 x $7.50 = $578.63) and the tonnage
in September at 36 (36 x $7.50 = $270).

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phrase “either wholesale or retail, whichever is greater” plainly contemplates a

comparison of wholesale and retail prices and does not limit the value to the

amount that the BLM would have charged an individual who purchased it through

proper procedures. An expert testified that the retail value was $120 or $280 per

ton, depending on the size of the particular pieces of stone. The McPhilomys sold

the stone for $300 per ton. Using the lowest figure of these figures, $120 per ton,

both the value of the stone taken in July (an estimated 77 tons) and the value of

the stone taken in September (an estimated 36 tons) would clearly exceed the

$1,000 statutory requirement.

We see no reason that someone who removes material from a community

pit without authorization should receive the benefit of the government’s price for

purposes of determining the severity of the crime. The McPhilomys did not

comply with the requirements for obtaining stone at the $7.50 a ton price. They

employed heavy machinery and removed materials for a commercial purpose,

although stipulations for the community pit allow removal only by hand tools and

for noncommercial purposes. In other words, even if the McPhilomys had been

able to obtain a permit, it would not have allowed them to remove the materials

they removed in the manner they removed them at a price of $7.50 per ton.

This holding does not conflict with our previous decisions in United States

v. Williams , 50 F.3d 863, 864 (10th Cir. 1995), and United States v. Alberico ,

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604 F.2d 1315 (10th Cir. 1979). In Williams , we calculated market value based

on the value to the victim. That case, however, required assessing “loss” under

the Sentencing Guidelines, not “value” under 18 U.S.C. § 641. Moreover, the

issue in Williams was limited to determining “market value,” while here the value

we are seeking could be “either wholesale or retail, whichever is greater.”

In Alberico , we affirmed a felony conviction under section 641, because the

face value of checks the defendant had stolen clearly exceeded the statutory

requirement, and “[e]vidence of value in a thieves’ market is unnecessary when

face value is available.” Id. at 1321. Alberico does not stand for the proposition

that a predetermined value must always control, but rather for the proposition that

a face value that exceeds the statutory minimum suffices to demonstrate that value

exceeds the statutory minimum. As such, the case has no application here.

The defendants ask us to follow the Ninth Circuit’s decision in United

States v. Seaman , 18 F.3d 649, 651 (9th Cir. 1994), in which that court held that

evidence of the price at which the defendants offered to sell firewood did not

prove the retail value of the timber the defendants stole, because “the finished

cords of wood offered for sale represented a different product with a greatly

enhanced value from the logs as originally removed.” The Ninth Circuit itself,

however, has restricted the applicability of this principle to cases involving a

“commercial modification” of the stolen goods, and no commercial modification

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occurred here. United States v. Campbell , 42 F.3d 1199, 1205 (9th Cir. 1994).

Moreover, that court has specifically declined to deduct a thief’s expenses for

purposes of determining the value of stolen property, id. , which is precisely what

the McPhilomys ask us to do here. Seaman , then, even if it were binding on this

court, would not support the defendants’ argument.

We therefore hold that the district court did not abuse its discretion and that

its jury instruction properly stated the law.

3. Instruction on Burden of Proof on Good Faith

The McPhilomys also argue that the district court’s jury instructions were

erroneous in not requiring the government to prove affirmatively that the

defendants were pursuing their mining claims in bad faith. After considering the

jury instructions as a whole, however, we find no merit in this argument, as the

court explicitly placed the burden of proof on the government. The court

instructed:

If you find that a particular defendant did not have the legal right to
do what he did, you must consider whether that particular defendant
had a good faith belief that he was engaged in a bona fide genuine
effort to establish a mining claim, and thus, that he was not acting
with the mental state that the United States is required to prove
beyond a reasonable doubt.

The instruction went on to state that good faith constitutes a “complete defense to

each charge.” The instruction immediately following this one reiterated the

government’s burden:

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 I want to remind you that a defendant does not have any obligation to
prove anything in this case. It is the government’s burden to prove to
you, beyond a reasonable doubt, that the particular defendant was
engaged in the criminal acts charged, that in Count I that Michael
McPhilomy, Jr.’s actions were willful, and that in Counts II and III
that the particular defendant acted knowingly, with the intention of
depriving the United States of the use or benefit of the property
taken.

Taken together, these instructions provided the jury with an accurate statement of

the law, as did the jury instructions on the other issues challenged by the

McPhilomys.

D. Expert Testimony

The McPhilomys argue that the trial court abused its discretion when it

allowed the prosecution’s expert, Ford, to provide expert testimony on the quality,

quantity, and value of the stone. We review the district court’s decision to admit

expert testimony for abuse of discretion, and we reverse a decision only if it is

“manifestly erroneous.” General Elec. Co. v. Joiner , 522 U.S. 136, 141-42 (1997)

(citations omitted).

Rule 702 of the Federal Rules of Evidence governs the admissibility of

expert testimony:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and

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 methods reliably to the facts of the case.

The trial court must “ ensure that any and all scientific testimony or evidence

admitted is not only relevant, but reliable,” Daubert v. Merrill Dow

Pharmaceuticals , 509 U.S. 579, 589 (1993). In performing this gatekeeping

function, the court’s task “is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152

(1999). In determining reliability, the district court may take into account the

expert’s personal knowledge and experience. Id. at 150. The trial court has

broad discretion to determine whether particular expert testimony is reliable. Id.

1. Quality of the Stone

The McPhilomys specifically challenge the second prong of the test in Rule

702, asserting that Ford did not use sufficiently reliable methodology in

determining whether the stone was common variety material.

Ford testified that he held bachelor’s and master’s degrees in geology and

that he had worked for the BLM for 11 years, during which time he had received

specialized training in the identification of common and uncommon materials. He

stated that he had experience in evaluating mineral materials, including specific

experience in evaluating the materials at Red Mountain Community Pit, that his

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job required him to decide whether minerals are common or valuable, that he had

prepared 30 reports making such determinations, and that the BLM relies on these

reports. In reaching his conclusion, Ford personally inspected the material that

the McPhilomys removed from Red Mountain Community Pit and considered its

physical properties. While Ford’s opinion would have been more reliable had he

employed more costly and extensive tests, his opinion was sufficiently reliable to

be admissible. Given his considerable experience and expertise, his use of the

same methodology that he uses as a certified mineral examiner for the BLM, and

his firsthand observations, it was not manifestly erroneous for the district court to

admit his expert testimony as to the quality of the stone.

2. Quantity of the Stone

In addition to the above qualifications, Ford explained that he had viewed

the stone and that he had employed a common method of estimating the tonnage,

by estimating the stone’s physical volume and then calculating its weight based

on data provided for that purpose in a standard BLM publication. Based on this

testimony at the Daubert hearing, the district court did not abuse its discretion in

finding Ford’s testimony as to the quantity of the stone sufficiently relevant and

reliable to be admissible.

3. Value of the Stone

Ford testified that, in his capacity as a geologist and certified mineral

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examiner for the BLM, he estimated that the retail price for the stone the

defendants took was $120 or $280 per ton, depending on the size and shape of the

pieces. Ford testified that, in his job, he typically used retail prices for

comparable stone from nearby stone yards as a starting point for determining the

value of unmined stone on government lands, and he used the same method to

estimate the retail value of the stone the defendants removed from Red Mountain

Community Pit. He inquired at several stone yards about stone with similar

properties and uses as the stone the McPhilomys took from the community pit,

examined the comparable stone at the stone yards, and learned prices by asking

retailers. Based on Ford’s background and application of a standard method, the

district court admitted his testimony.

The district court considered Ford’s testimony carefully in the Daubert

hearing. The court noted that Ford’s value figure, though based in part on

hearsay, was based on evidence “that reasonably is relied upon by the experts in

Mr. Ford’s field,” making it admissible under Rule 703 of the Federal Rules of

Evidence. The court observed that Mr. Ford’s training and job responsibilities

“focus on the economics of mining,” that he had performed a comparison of the

different types of stone and their uses, that he had in fact viewed the stones that

he used for price comparisons, and that he had found uniform prices. We hold

that the district court did not abuse its discretion in admitting the evidence.

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 III. Conclusion

In conclusion, we emphasize that this case was a criminal prosecution, not

a suit to resolve the validity of a mining claim. Mining law was relevant because

the defendants argued that their actions constituted good faith pursuit of a mining

claim. Ultimately, however, the case turned on rather straightforward inquiries:

Did the defendants knowingly aid and abet each other in the theft of government

property with a value exceeding $1,000, and did Junior wilfully cause depredation

of government property? Having carefully reviewed the record, we conclude, for

the reasons stated above, that the evidence was sufficient to support the jury’s

affirmative answers to these questions, that no violation of due process occurred,

that the court’s instructions provided the jury with an accurate statement of the

law, and that the district court did not abuse its discretion in admitting expert

testimony.

We therefore affirm the convictions.

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