The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
STATEMENT OF DECISION AND ORDER REGARDING APPEAL FROM MAGISTRATE JUDGE DECISION
Lorenzo Baca ("Appellant" or "Baca") appeals his convictions following a bench trial by a magistrate judge for (1) engaging in a business in a national park in violation of 36 C.F.R. § 5.3; and (2) for traversing a cultural resource in violation of 36 C.F.R. § 2.1(a)(5). Baca raises three issues on appeal: (1) that the magistrate judge abused his discretion in refusing to recuse himself for creating the appearance of a lack of impartiality; (2) that there was insufficient evidence to support either conviction; and (3) an affirmative defense to the § 2.1(a)(5) charge, established under the American Indian Religious Freedom Act, 42 U.S.C.A. § 1996, applies because as a spiritual leader, he was entitled to enter the cultural resource. Appellee, the United States of America ("Government"), opposes the appeal.
The Government charged Baca with violating (1) 36 C.F.R. § 2.1(a)(5), trespassing on a cultural resource, (2) 36 C.F.R. § 5.5(a), filming a motion picture in a national park without a permit, and (3) 36 C.F.R. § 5.3, engaging in or soliciting business in a national park. On December 13, 2005, Baca moved to disqualify the magistrate judge and the motion was denied. The bench trial began August 15, 2007 and continued through August 17, 2007. After the Government rested its case, August 17, 2007, Baca's motion for judgment of acquittal was denied. On August 20, 2007, Baca was out of the court due to illness, and the court adjourned until November 14, 2007. At this time, Baca again moved to disqualify the magistrate judge on different grounds based on information Baca learned from an August 10, 2007 newspaper article, which Baca had occasion to read during the recess. In that article, the magistrate judge was photographed in his chambers standing next to a hangman's noose. The motion was denied and trial resumed. On November 16, 2007, Baca was found guilty of engaging in or soliciting business in a national park in violation of 36 C.F.R. § 5.3 and trespassing on a cultural resource in violation of 36 C.F.R. § 2.15(a)(5). Baca was acquitted of the charged violation of filming a motion picture in a national park without a permit, 36 C.F.R. § 5.5(a).
Baca was sentenced to 198 hours of community service, payment of a statutory assessment in the amount of $20, unsupervised probation for 12 months, and ordered to post-conviction booking. (Doc. 41.) On March 14, 2008, Baca moved to stay his sentence pending appeal. (Doc. 43.) On March 24, 2008, the magistrate judge granted the stay of Baca's sentence as to his community service, payment of the statutory assessment, and probation. (Doc. 48.) The magistrate judge denied staying the post-conviction booking order. (Doc. 48.) On September 1, 2008, Baca moved to stay his sentence and order to present himself for post-conviction booking. (Doc. 85.) On September 9, 2008, the district court granted Baca's motion to stay the magistrate's order to present himself for post-conviction booking pending appeal. (Doc. 88.)
Baca filed a notice of appeal on March 20, 2008, and his opening brief on September 9, 2008. The Government filed opposition on January 13, 2009, and Baca replied on February 6, 2009. Oral argument was heard March 9, 2009, and the appeal was submitted for decision.
Baca is part Mescalero Apache and part Pueblo Indian. (Doc. 76 at 13.) Baca is a Native American spiritual leader who earned a master's degree in American Indian Studies from the University of California, Los Angeles with his thesis: "Song, Dances, and Tribal Traditions of the Tuolumne Band of California Miwok." (Doc. 76 at 17.) Baca seeks to preserve the cultural traditions, ceremonies, music and dances of the California Miwok tribe. (Doc. 76 at 24-27.) He shares the Miwok tradition through lectures, performances, videos, recordings, manuscripts and photography. (Id.) The California Miwok are largely based on oral tradition and do not record their traditions in writing or on film. (Doc. 70 at 65.)
In June 2002, Baca attended the Yosemite Big Time, which is held in the Indian Cultural Village within Yosemite National Park ("YNP"). (Doc. 76 at 31, Doc. 70 at 14.) The Yosemite Big Time ("Big Time") is similar to a powwow; it is a social gathering where the Indian community comes together and performs various ceremonies and dances. (Doc. 70 at 13-14.) Local and native vendors are also invited to set up a table and sell their arts and crafts. (Doc. 70 at 67, 109.) The Big Time coordinator, a park employee who co-ordinates the event on her or his own time, determines what items vendors may or may not sell at Big Time. (Doc. 70 at 109-110.) Native vendors are permitted to sell their items without a permit and without paying a fee, however, they are encouraged to donate a fee if they can afford to do so. (Doc. 70 at 110.) Baca was not a vendor at this event.
With the exception of certain ceremonies, Big Time is generally open to the public. (Doc. 70 at 92, Doc. 75 at 65.) While attending the June 2002 Big Time, Baca along with Richard Robinson, filmed dances, songs, and interviewed native artisans. (Doc. 76 at 27, 30.) Richard Robinson is a photography teacher who also studies Native American culture; he aided Baca in recording and editing the film footage at issue. (Doc. 75 at 8-10, 30.) Baca obtained permission from the persons he filmed prior to putting them on camera. (Doc. 76 at 28-29.) Baca testified that his intent was to preserve and educate others on Miwok tradition and culture. (Doc. 76 at 26-28.)
Baca edited this footage, with Richard Robinson, into "Native America - Lorenzo Presents Big Time at Yosemite, 2003, Lorenzo" ("video"). (Doc. 70 at 41.) During certain portions of the film, a roundhouse and sweat lodge located behind the YNP museum appear in the video. (Doc. 70 at 43-44.) These scenes show the outside and inside of the roundhouse while Baca narrates its purpose. (Doc. 72 at 110, 112.) The roundhouse and sweat lodge sit in an enclosed area, known as the Ahwahnee Indian Village, behind the YNP museum. (Doc. 70 at 28, Doc. 73 at 76, Doc. 75 at 29, 30.)
The entrance to the roundhouse is blocked by a bar and a sign which reads:
This is the ceremonial roundhouse or "hangie", the center of village religious activity. Because this house is being used in the old way, we ask that you stay behind the barrier and off the roof. Thank You. Government Exhibit 7.
The entrance to the sweat house is also blocked and has a sign which reads:
This is the sweat house, used for cleansing and religious purposes. Because of the usage of this house in the old ways, we ask that you stay behind the barrier. Thank You. (Doc. 70 at 35, 22, Government's Exhibit 9.) Written or oral permission to enter the roundhouse may be given by the Miwok tribal council or park staff who conduct tours. (Doc. 70 at 27.) Filming within the roundhouse is not permitted by the tribal council as it is contrary to their traditional beliefs and deemed "taboo." (Doc. 70 at 49, 79.)
The video appears to show Baca going underneath the barrier and walking into the roundhouse. (Doc. 70 at 48, Doc. 72 at 110.) After the video was released, an investigation was commenced by park authorities. (Doc. 72 at 109-110.) When confronted by Park Ranger Todd Bruno, Baca stated that he had permission to enter the roundhouse, but did not have permission to shoot the video in the roundhouse. (Doc. 72 at 118.) However, after further investigation, Bruno discovered that neither the staff nor the tribal council had given Baca permission to enter the roundhouse or film inside of it. (Doc. 72 at 120, Doc. 70 at 79, Doc. 73 at 70.) At trial, no staff or tribal council member testified that Baca had been granted permission to enter the roundhouse.*fn1 Baca testified that he saw the barrier, but viewed the barrier as a "suggestion" rather than as a restriction. (Doc. 76 at 34.) Baca does not dispute that he entered and filmed in the roundhouse, however, he maintains that he believed he had permission to enter because he had permission to enter in the past.*fn2 (Doc. 76 at 21, 33.)
The roundhouse, built in 1974, is a spiritual and cultural center for the California Miwok and Paiute people. (Doc. 73 at 71, Doc. 75 at 74, Doc. 82 at 12.) Jeannette Simons is YNP's historic preservation officer and Native American liaison, she holds a master's degree in anthropology. (Doc. 82 at 12.) Simons testified that the roundhouse was a resource with "traditional and cultural significance to American Indian tribes." (Doc. 76 at 8.) The roundhouse is distinguishable from the cedar bark houses, which are small "traditional" structures located throughout the Indian Village. (Doc. 76 at 6.) The cedar bark houses do not have barriers across the doors, as the roundhouse does, because "they don't hold the cultural or religious significance that the roundhouse" does. (Id.) Simons also testified as to her opinion of what constitutes a cultural resource:
A cultural resource would be a representation of are less than 50 years old that have cultural places, materials, building, structures, artifacts that significance. (Doc. 82 at 17.)
Generally, permits are required to film commercial productions within YNP. (Doc. 73 at 19.) Permits are granted after YNP considers the impact on the resource during the filming. (Doc. 73 at 19, 23, 43.) Park ranger and film coordinator, Susan Schultz Clark ("Clark"), testified that certain permit exceptions exist, including exceptions for visitors coming into the park and filming YNP scenery with a hand-held or personal camera. (Doc. 73 at 31.) Clark also testified that permits are not required for artists who take photos and use the photos for their art portfolios. (Id.) Permits are also not required when visitors take "beauty shots" of the park with their hand-held camera, go home, and then decide to sell the footage at a later date. (Doc. 73 at 32.)
Four months after his filming, during October 2003, Baca sold ten copies of his video to the YNP museum gift shop, located in YNP. (Doc. 70 at 133-134.) Baca also sold two videos to Herb Puffer, owner of Pacific Western Traders, a Native American art and educational supply store located in Folsom, California. (Doc. 72 at 84, 90.) To sell items within YNP, a person is required to obtain a permit from the park service. (Doc. 73 at 96.) Baca did not have a permit to sell items within the national park. (Doc. 76 at 41.) However, prior to the sale of the ten videos to the YNP museum gift shop, Baca has sold handmade jewelry to the museum gift shop, and was never required to have a permit. (Doc. 76 at 43-44.) The Yosemite Association ("YA") decides what items to sell in the museum gift shop and generally does not require its vendors to have a permit. (Doc. 73 at 96.) YA has an agreement with YNP's park service to allow outside vendors to do business with YA without a permit because YA holds the requisite permit to sell items within YNP. (Id.)
A district court has jurisdiction over an appeal from a conviction before a magistrate judge pursuant to 18 U.S.C. § 3402.
A district court reviews a denial of a recusal motion for abuse of discretion. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citing Jorgensen v. Cassiday, 320 F.3d 906, 911 (9th Cir. 2003)); Mangini v. United States, 314 F.3d 1158, 1161 (9th Cir. 2003).
A claim of insufficient evidence is reviewed de novo. United States v. Hernandez-Orellana, 539 F.3d 994, 1002 (9th Cir. 2008); United States v. Carranza, 289 F.3d 634, 641 (9th Cir. 2002). A court must determine "whether, after reviewing 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).*fn3
Otherwise, a district court reviews a magistrate's factual findings for clear error and legal conclusions de novo. Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986). Mixed questions of law and fact are subject to de novo review; however, the factual findings that underlie the application of the law are reviewed for clear error. Id.; United States v. Prieto-Villa, 910 F.2d 601, 604 (9th Cir. 1990). Additionally, a "reviewing court must respect the exclusive province of the fact finder to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts." United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996).
A. Motion to Disqualify Magistrate Judge Appellant argues that the magistrate judge abused his discretion in denying the recusal motion. (Doc. 86 at 13.) See Pesnell, 543 F.3d at 1043 (denial of recusal reviewed for abuse of discretion).
On November 14, 2007, Appellant moved to disqualify the magistrate judge. (Doc. 75 at 4.) The motion was based on a newspaper article in the Fresno Bee, a newspaper of general circulation, observed by Appellant on the internet, about Magistrate Judge Wunderlich's role and caseload at the Yosemite courthouse. The article includes an interview with and a photograph of the Magistrate Judge putting on his robe in his chambers. To the right of the Judge is a hangman's noose hanging from a coat rack. A second photo in the article depicts the hangman's noose in a close-up shot, with the magistrate judge's silhouette in the background. The article does not discuss the hangman's noose.
The article was released a few days before Appellant's bench trial began. Appellant found the article and was offended by the presence of the hangman's noose. (Doc. 75 at 3.) Appellant moved to recuse based on what the "hangman's noose represents... is threatening, intimidating, offensive, and [that] he [felt] prejudiced and that he would not be able to receive a fair trial." (Doc. 75 at 3-4.)
In addressing recusal, the Judge admitted that the hangman's noose appeared in the photo and that it was hanging on a coatrack in plain view in his chambers. (Doc. 75 at 5.) The Judge explained that the noose was given to him as "sort of a memento" and as a "joke" by his former colleagues at the District Attorney's office when he left in 1985 to take the state bench. (Id.) The noose came with a note that said "don't forget where you came from." (Id.) The Judge further explained that the noose has "nothing to do with my personal philosophy" and that he is "not known as a 'hanging judge.'" (Id.) The Judge denied the recusal motion, finding he could do a "fair job of presiding over this trial." (Id.) He did not discuss or analyze any adverse appearance created by the presence and his authorized public display in the newspaper of his hangman's noose.
Section 28 U.S.C.A. § 455(a) reads:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
The purpose of § 455 is "to avoid even the appearance of partiality." Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988) (quoting Liljeberg v. Health Serv. Acquisition Corp., 796 F.2d 796, 802 (5th Cir. 1986)). Section 455 "does not depend upon whether or not the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew." Id.
The Ninth Circuit test is:
[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality ...