The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
George Cramer appeals his conviction of three counts in a superseding information of willfully allowing his cattle and horses to graze without a permit or lease on Bureau of Land Management ("BLM") administered lands, in violation of 43 C.F.R. §§ 4140.1(b)(1)(i) and 4170.2-1, which prohibit livestock running at large on BLM administered lands. The case was tried before the Magistrate Judge.
The followings issues are presented for review: 1) whether the magistrate court improperly admitted evidence of alleged other acts by Cramer, in violation of Federal Rule of Evidence 404(b), and 2) whether the government failed to prove that Cramer willfully allowed his livestock to graze on BLM land?
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." U.S. v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008)(quotations and citation omitted). "This court must consider the evidence in the light most favorable to the Government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This court must draw all reasonable inferences from the evidence in reviewing the sufficiency of the evidence." U.S. v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1983).
The reviewing court reviews the trial court's findings of fact for clear error. A finding of fact is deemed clearly erroneous when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Conclusions of law are reviewed de novo. Unless a mixed question of fact and law is primarily factual, mixed questions are reviewed de novo.
U.S. v. Lex, 300 F. Supp. 2d 951, 956 (E.D. Cal. 2003)(citations and quotations omitted). The trial court's decision to admit evidence is reviewed "for abuse of discretion." U.S. v. Wright, 215 F.3d 1020, 1025 (9th Cir.2000).
The magistrate judge found that the evidence showed Cramer willfully allowed his livestock to graze on BLM land as charged in the superceding information. The magistrate judge relied in part on evidence proving this grazing, and evidence showing that Cramer had allowed similar trespasses in the past seven years. The trial record shows Cramer had previously been told that his livestock trespassed on BLM land, and that the BLM impounded Cramer's livestock on previous occasions because of the unauthorized presence of Cramer's livestock on BLM land. Further, Cramer testified that although it was feasible for him to maintain his livestock on a small piece of land close to his home, he did not do what was possible. The magistrate judge found it was possible for Cramer to either fence his land or "work out some sort of economic arrangement" that could have authorized him to graze his livestock in a place or places other than on BLM land, but he failed to pursue those opportunities.
Cramer argues the magistrate judge's ruling that the prior evidence concerning Cramer's livestock grazing on BLM lands was not "other acts" evidence under federal rule of Evidence 404(b) is erroneous. "[T]he question of whether the evidence was within the scope of Rule 404(b) [is reviewed de novo]." U.S. v. Curtin, 443 F.3d 1084, 1091 (9th Cir. 2006). The parties dispute whether this evidence was properly categorized by the magistrate judge as inextricably intertwined with the counts of conviction.
Two categories of evidence may be considered "inextricably intertwined" with a charged offense and therefore admitted without regard to Rule 404(b). First, evidence of prior acts may be admitted if the evidence constitutes a part of the transaction that serves as the basis for the criminal charge. Second, prior act evidence may be admitted without regard to Rule 404(b) when it is necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.
Id. (citations and quotations omitted). The magistrate judge did not err in admitting this intrinsic evidence since it was part of the story showing that Cramer allowed his livestock to trespass on BLM land.
The magistrate judge's factual findings were not clearly erroneous. Therefore, the decision is affirmed.
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