881 F2d 1085 United States v. F Scarry

881 F.2d 1085

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony F. SCARRY, Defendant-Appellant.

No. 88-1251.

United States Court of Appeals, Ninth Circuit.

Submitted* June 27, 1989.
Decided Aug. 8, 1989.

Before SNEED, FLETCHER and DAVID R. THOMPSON, Circuit Judges.

1

MEMORANDUM**

2

Anthony Scarry was charged and convicted of cutting and removing trees from Prescott National Forest. Scarry appeals the district court's denial of his motion for judgment of acquittal and his conviction under 18 U.S.C. Secs. 641, 1361 and 1852. He argues there was insufficient proof of the value of the trees to convict him under Sec. 641 or Sec. 1361, and that the counts under these two statutes are multiplicitous. We affirm.

I.

3

In reviewing the denial of a motion for judgment of acquittal, we review the evidence in the light most favorable to the government to determine whether there was sufficient evidence from which a rational trier of fact could find the defendant guilty of each count charged beyond a reasonable doubt. United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir.1987), cert. denied, 108 S.Ct. 1056 (1988). The same standard applies to a challenge to the verdict on the ground of insufficient evidence. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

II.

4

Scarry argues there was insufficient evidence to convict him of a felony under 18 U.S.C. Sec. 641. For theft of government property to be a felony under Sec. 641, the government must prove that the stolen property was worth over $100. Theft of wood cut from live trees growing in a national forest constitutes conversion of personal property of the United States. Magnolia Motor & Logging Co. v. United States, 264 F.2d 950, 954 (9th Cir.1959). Scarry asserts, and the government agrees, that the proper measure of value under Sec. 641 is the value of the timber, not the value of the live trees. Scarry argues that the government failed to prove that the timber he stole was worth over $100.

5

There was evidence that Scarry cut down as many as 59 oak trees, and that the wood from these 59 oak trees amounted to 12.1 cords worth approximately $1,452. Scarry asserts he was convicted of cutting down only one tree, basing this assertion on a note from the jury asking the court whether they needed to "base [their] deliberations on more ... than one tree." IV RT at 656. We conclude there was sufficient evidence from which a reasonable jury could find beyond a resonable doubt that Scarry removed more than $100 worth of timber from Prescott National Forest. There was evidence that Scarry told a forester he had cut down three to four truckloads of live trees, amounting to seven cords of timber at $125 per cord. (II RT at 325-26); that Scarry was seen going in and out of the National Forest with wood in his truck many times during the period when the 59 trees were felled (I RT at 154; II RT at 333-34; III RT at 521-22); and that the 59 trees were all felled in the same manner (II RT at 345).

III.

6

Scarry argues there was insufficient evidence to support his felony conviction under 18 U.S.C. Sec. 1361. Scarry argues that the government may not estimate the value of damaged property under this section by the value of the trees, but only by the decrease in value of the government forest land from which the trees were taken. While it may be true that the government was required to introduce evidence of damage beyond the loss of the timber itself, the government here met that burden by providing expert testimony of the value of the live trees in terms of their lost contribution to the forest ecosystem. This value was estimated at $33,812. II RT at 247-74. The one tree which Scarry was directly observed cutting down was valued alone at $955. II RT at 274.

IV.

7

Scarry's final argument is that the district court should have granted his motion for judgment of acquittal on Count II (Sec. 1361) based on the alleged multiplicity between the charges under Sec. 641 and Sec. 1361.1 The government argues that this objection was waived because Scarry did not raise it before trial, as required by Fed.R.Crim P. 12(b)(2); United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir.1988).

8

Scarry's multiplicity argument would fail in any event. In analyzing a challenge to an indictment on the basis of multiplicity, we consider whether each count requires proof of a fact that the other does not. United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir.1986). Cutting and removing timber are distinct acts. United States v. Gemmill, 535 F.2d 1145, 1150 (9th Cir.1976). In the context of this case, Sec. 641 requires proof that timber was stolen; Sec. 1361 requires proof that live trees were cut or injured.

CONCLUSION

9

There was sufficient evidence of value to convict Scarry of felonies under 18 U.S.C. Secs. 641 and 1361. The indictment was not multiplicitous. Scarry's conviction is affirmed on all counts.

10

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to Fed.R.App.P. 34(a); Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

1

Scarry also appears to argue that Count II based on 18 U.S.C. Sec. 1361 was multiplicitous in light of Count III under 18 U.S.C. Sec. 1853. This argument lacks merit for two reasons. First, Scarry was charged and convicted under 18 U.S.C. Sec. 1852, not Sec. 1853. Second, this claim was never presented to the trial court. Although defense counsel may arguably have raised a multiplicity objection at trial by requesting a jury instruction differentiating between the value of live trees and the value of timber (III RT at 565-66), this request can at most be construed as referring to potential multiplicity between Sec. 641 and Sec. 1361, because conviction under Sec. 1852 does not require evidence of value