The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REVERSING CONVICTION AND AFFIRMING DENIAL OF RECUSAL OF ENTIRE U.S. ATTORNEY'S OFFICE
This matter is before the Court on the appeal by Darden Bauman from his conviction for three counts of violation of 36 C.F.R. § 260, which prohibits running at large of livestock in a National Park area. The case was tried before the Magistrate Judge on May 23, 2006. On June 22, 2006, Defendant filed a motion to determine whether the United States had to prove beyond a reasonable doubt that the Defendant willfully and intentionally violated the relevant regulation. The Court denied the motion to dismiss August 1, 2006 and found Defendant guilty of all three counts charged.
Defendant timely filed a motion for new trial and for judgment of acquittal on August 8, 2006. Those motions were denied October 11, 2006.
Defendant was sentenced on November 8, 2006, to one year supervised probation, a $2,400.00 fine, and three $10.00 assessments, totaling $30.00.
A timely notice of appeal was filed November 20, 2006.
Defendant held a grazing permit issued by the United States Forest Service to Defendant for the Buck Rock Allotment. Defendant's family had been operating cattle in Sequoia National Forest since 1925. Defendant also was entitled to use a right of way to herd cattle through Kings Canyon National Park along Redwood Canyon Road (also known as the Redwood Saddle Road). The right-of-way included passage across the General's Highway onto Redwood Canyon Road. A separate statute, 36 C.F.R. § 7.8(d)(1) required that cattle be under control and on the roadbed at all times.
Evidence was adduced that trespassing cattle damaged park resources and presented a danger to Park visitors, including vehicular traffic. The National Park Service had been working historically to reduce the number of cattle incidents in the Park.
On September 1, 2004, Defendant was sent a letter referencing some 20 incidents of cattle trespass in the Grant's Grove subdivision of Kings Canyon National Park, 15 of which included cattle identified as belonging to Defendant. The letter stated that this number of trespass incidents was unacceptable, presented a danger to Park visitors, and that future violations would cause the issuance of citations.
Prior to the citations, an illegal marijuana garden was discovered in the forest which had caused gates to be opened and cattle to be disrupted. The Forest Service notified the Park Service that some of the cattle trespass incidents had been caused by individuals operating the marijuana gardens. The marijuana gardens were eradicated during the week of September 15, 2004.
The three citations at issue concerned:
1. September 27, 2004 four head of cattle with Defendant's Rafter D brand on their hip, were observed walking northbound on General's Highway approximately one mile south of the Wye within Kings Canyon National Park.
2. October 11, 2004 eleven head of cattle, six bearing Defendant's Rafter D brand on their hips were observed approximately .9 miles south of the Wye in Kings Canyon National Park.
3. October 22, 2004 cattle tracks leaving the General's Highway and traversing through upper Redwood Canyon Meadow resulted in eight cattle located at the turnoff for the Redwood Canyon trailhead in Kings Canyon National Park. Of these eight cattle, a number had Defendant's brand on their hip.
These three incidents formed the basis for Bauman's convictions.
Evidence did not establish the personal participation in, presence at, direction by, or knowledge of Defendant as to any of the charged incidents. The only evidence showed Defendant's agent, Kathy Williams, drove cited cattle on two occasions. The evidence established that on the three citation dates, some cattle bearing Defendant's Rafter D brand on the right hip were found off the roadway in the Park.
Upon appeal from the decision of a Magistrate Judge and a challenge to the sufficiency of the evidence to sustain a conviction, the Court considers the trial evidence in the light most favorable to the government to determine whether any reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1983). The District Court's review of the decision of a Magistrate Judge in a criminal case "is the same as in an appeal to the Court of Appeals from a judgment entered by a District Judge."
Fed.R.Crim.P. 58(g)(2)(D). Claims of insufficient evidence are reviewed de novo. United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004).
The standard of review in determining substantial evidence for a conviction is deferential, protecting the trier of fact's responsibility to resolve conflicting testimony, weigh the evidence, and argument presented. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court must respect the province of the trier of fact by considering all evidence in the light most favorable to the prosecution and drawing all reasonable inferences in favor of the prosecution. Wright v. West, 505 U.S. 277, 296-97 (1992). "A reviewing court faced with a record of historical facts that support the conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact ...