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United States v. Sennert

United States District Court, E.D. California

July 22, 2016

UNITED STATES OF AMERICA, Appellee-Plaintiff,
v.
KARL SENNERT, Appellant-Defendant.

          ORDER DENYING APPEAL OF CONVICTION (DOC. 35)

          LAWRENCE J. O’NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         INTRODUCTION

         On August 6, 2015, following a bench trial, Magistrate Judge Seng found Appellant Karl Sennert (“Sennert”) guilty of violating 36 C.F.R. § 2.14(a)(8), disposing of human body waste (Count One) and 36 C.F.R. § 2.34(a)(4), disorderly conduct by creating a hazardous and physically offensive condition (Count Two). At the January 26, 2016 sentencing hearing, Magistrate Judge Seng sentenced Sennert to twelve months of unsupervised probation, with the condition that he pay a $1, 000 fine and $822.80 in restitution to the government. Sennert now appeals his convictions on the grounds that (1) the Magistrate Judge improperly denied his Federal Rule of Criminal Procedure 29 (“Rule 29”) motion and (2) there was insufficient evidence to sustain his convictions. In the alternative, Sennert seeks remand for a new hearing on the issue of the Magistrate Judge’s order of restitution for lost employee time. For the reasons that follow, the Court will affirm Sennert’s convictions and sentence.

         BACKGROUND

         I. Undisputed Facts

         On October 8, 2014, at approximately 5:00 PM, Sennert was driving alone, eastbound on Tioga Road, Highway 120, in Yosemite National Park. Stipulated Facts for Trial (Doc. 14)[1] at 1. He was driving a Ford F250 pickup truck, which was towing a 45-foot Voltage “fifth wheel” trailer/recreational vehicle (“RV”). Id. The trailer was equipped with a built-in 175-gallon fresh water holding tank and a 100-gallon blackwater holding tank for the accumulation of waste from the RV’s toilets. Id. at 2.

         While Sennert was stopped on the north side of Tioga Road, an automobile in which Bradley Fox (“Fox”) and Kathy Camp (“Camp”) were passengers pulled in behind Sennert’s RV. Id. Sennert then entered his pickup and drove away. Id. Fox and Camp noticed liquid on the ground under Sennert’s RV. Id. Upon observing the liquid more closely and smelling its odor, Fox and Camp concluded the liquid was human waste. Id. Subsequent inspection of the liquid led investigating National Park Service Enforcement Rangers Rebecca Church (“Ranger Church”) and Sally Sprouse (“Ranger Sprouse”) to conclude that it was human waste covering an area approximately 50 feet long and 10 feet wide. Id.

         On January 23, 2015, the government filed the initial complaint in this case, alleging that Sennert violated 36 C.F.R. § 2.14(a)(8) and 36 C.F.R. § 2.34(a)(4). Doc. 1. Sennert entered a plea of not guilty to both charges on March 17, 2015. Doc. 7. Following a status conference on May 19, 2015, the case was set for a bench trial on August 6, 2015 before Magistrate Judge Seng. Doc. 10.

         II. August 6, 2015 Trial Proceedings

         On August 6, 2015, a bench trial convened. Trial Transcript (Doc. 16) at 1. The government called as witnesses Ranger Church, Camp, Fox, and Ranger Sprouse, in that order. Id. at 21-91. At the close of the government’s evidence, the defense moved for a judgment of acquittal under Rule 29. Id. at 91. The Magistrate Judge denied the motion. Id. at 95. The defense then called Sennert as its only witness. Id. After Sennert’s testimony and closing arguments, the Magistrate Judge found Sennert guilty of both counts. Id. at 165.

         A. Government’s Evidence

         1. Ranger Church Testimony

         On October 8, 2014, Ranger Church was a seasonal park ranger assigned to the Tuolumne Meadows Subdistrict, a position she held periodically since June of 2013. Id. at 22-23. Ranger Church had previously received “extensive” investigative training at Southwestern Community College in Franklin, North Carolina. Id. at 30. However, she had never investigated an improper sewage disposal case before October 8, 2014. Id. at 24. From her experience as a park ranger, she was very familiar with Tioga Road, having traveled down the road every day she worked. Id. at 24. She described the turn-out as “on a slope.” Id. at 25. Based on her experience, she estimated that over a hundred vehicles traveled down Tioga Road during the fall months on a given day, of which only a “small percentage” were RVs. Id. at 30-31.

         On October 8, 2014, Ranger Church received a call from Ranger Sprouse, who requested that Ranger Church meet with a party who had witnessed someone dump sewage from an RV on the side of the road near May Lake. Id. at 23-24. Ranger Church responded to the reporting party’s location, where she spoke with Fox. Id. at 31. Ranger Church testified that Fox was upset and eager to talk to her. Id. at 31-32. Fox showed Ranger Church photos he had taken of Sennert’s RV farther down the road from the scene of the incident. Id. at 32. After speaking with Fox, Ranger Church left to assist Ranger Sprouse with the stop of Sennert’s vehicle. Id. There, Ranger Church stood next to Sennert’s RV, though she did not examine the trailer for signs of sewage. Id. at 33. However, she asserted that she was only there to watch out for the safety of Ranger Sprouse, whom Ranger Church described as the “main investigator” in the case, and thus Ranger Church was not looking for signs of sewage. Id. After the encounter with Sennert, Ranger Church traveled to the scene of the incident. Id. at 34.

         Ranger Church testified that the turn-out was a public area, as it was on the side of the road and accessible to the public. Id. at 25. In describing the turn-out, Ranger Church stated, “[i]t’s a large, paved pullout. You could probably fit five or six normal cars parked end to end.” Id. Ranger Church observed a “large spill of brown fecal matter” that “covered a large chunk of [the pullout], maybe approximately 50- by 10-feet.” Id. The fecal matter looked “wet” to Ranger Church. Id. at 27. She did not collect a sample of the fecal matter, though she admitted it would have helped in the investigation. Id. at 34-35.

         After inspecting the scene of the incident, Ranger Church drove to a ranger station to retrieve supplies to cordon off the spill area because “it was human waste and that’s hazardous.” Id. 28-29. In addition to cordoning off the area, Ranger Church shoveled dirt into a culvert at the bottom of the pullout in order to prevent the waste from running down the culvert and under the road. Id. at 29.

         2. Camp Testimony

         Camp testified that on October 8, 2014, she and Fox had finished hiking at May Lake when the car in which she was a passenger pulled into a turn-out so the passengers could look at a map. Id. at 39. Camp was located in the back seat of the car behind the driver with her window cracked. Id. at 40. The car stopped behind and to the right of what Camp described as a Voltage fifth-wheel trailer being pulled by a “big white, looked like a diesel-type truck.” Id. at 45. As they pulled into the turn-out, Camp stated, “I smelled feces. I smelled something, smelled like sewage.” Id. at 49. She rolled down her window farther, and observed “some kind of brown-looking, dirty stream flowing and then I realized that there was an RV, or what looked like an RV. It said Voltage on it and … there was [a] stream flowing.” Id. 40-41. Camp saw “what appeared to be feces” flowing from the left side and underneath the RV. Id. 42-43. There were no other RVs between Camp and the RV she believed dumped the sewage. Id. at 44-45. After Sennert left the turn-out, Camp observed a “pile of feces” where the RV had been parked.[2] Id. at 42. However, she never actually saw sewage flowing directly from the RV or Sennert actually dumping the sewage. Id. at 51. Further, Camp never spoke with Sennert to confirm her suspicions about what he had done. Id. at 55.

         When the RV started to pull away, Camp “discussed in the car that [her group] believed that this person was trying to leave the site. So we wanted to follow him and at least take a picture of the plates … to just let somebody else know. So we wanted to follow him, or follow the vehicle.” Id. at 43. She additionally testified that she observed “a pile of what appeared to be feces” when the RV pulled away. Id. at 42. The RV pulled out of the turn-out “awfully fast, ” seeming “like it was in a hurry to get out of that spot.” Id. 55. Camp’s car followed the RV for “quite some time.” Id. at 44. When close enough to the RV, Fox took a picture of the plates. Id. They continued to follow the RV for “a little bit, ” until it pulled over a second time. Id. They passed the RV, and when they spotted a ranger parked on the side of the road near a ranger station, they stopped to report the incident. Id. at 45. As they were talking to the ranger, the RV passed by and they pointed it out as the RV that had dumped the sewage. Id. Camp and Fox made written statements and provided the rangers with a copy of the pictures Fox had taken of the RV. Id. at 46.

         3. Fox Testimony

         Fox testified that, shortly after he and his group left May Lake after a hike, the driver of the car in which Fox was a front-seat passenger pulled into a turn-out to look at a map. Id. at 59-60. There, Fox smelled a strong, distinct smell of sewage. Id. at 60. Fox’s car was behind an RV that said “Voltage” on the back. Id. at 62. The RV was being pulled by a “light-colored” Ford truck. Id. at 63. The RV was at the turn-out for less than two minutes. Id. at 69. As the RV started to pull away, Fox saw “sewage on the ground flowing that would appear to be coming from out from underneath the RV.” Id. at 61. Fox did not actually see sewage flowing directly from the RV, nor did he see Sennert outside of the vehicle. Id. at 68. Fox never spoke to Sennert to confirm his suspicions. Id. at 69.

         After the trailer left the turn-out, Fox testified that once he and his group “realized what was happening … [they] wanted to get the license plates from the trailer.” Id. at 62. There were no other RVs between Fox’s car and the RV Fox believed had dumped the sewage, only passenger cars. Id. When Fox was close enough, he took pictures of the RV and its license plate. Id. After Fox’s group passed the RV several miles down the road from the site of the incident, they spotted a ranger parked near a ranger station and stopped to report the incident. Id. at 64. While speaking with the ranger, an RV passed by and Fox’s group pointed it out as the vehicle they had seen dumping sewage. Id. Fox filled out a witness report and gave the ranger his memory card containing the pictures he took of the RV. Id. After reporting the incident, Fox’s group drove to their campsite. Id. at 66. On their way, they passed the site of the incident, and noticed the area had been roped off with caution tape. Id.

         4. Ranger Sprouse Testimony

         At the time of her testimony, Ranger Sprouse had been a supervisory park ranger since 2007. Id. at 76. She was trained at a seasonal law enforcement academy in 1995 and the Federal Law Enforcement Training Center in 2001. Id. She was trained in investigating improper sewage disposal cases and had investigated “several” such cases. Id. at 82-83. In her experience investigating these cases, the sewage was “usually either on the road or at a campsite, or something.” Id. at 82. She had never collected samples of sewage. Id. at 83.

         Ranger Sprouse was normally assigned to duty in Tuolomne Meadows. Id. She was familiar with Tioga Road, and estimated that “probably a couple thousand, or maybe over a thousand” vehicles traveled down the road during the fall on a given day. Id. Ranger Sprouse estimated that a “small percentage” of these vehicles were RVs. Id.

         On October 8, 2014, while parked on the side of the road, Ranger Sprouse was approached by Fox, who told her that an RV had dumped sewage at a turn-out just east of May Lake Junction. Id. Fox appeared “eager” to speak with Ranger Sprouse. Id. at 84. He told Ranger Sprouse that the RV left the turn-out after dumping sewage and pulled over again at Tenaya Lake. Id. at 77-78. Fox showed Ranger Sprouse pictures he took of the RV. Id. at 78. During this encounter an RV passed by, and Fox pointed it out as the RV that had dumped sewage. Id. Ranger Sprouse then followed and stopped the RV. Id. At trial, Ranger Sprouse identified the operator of the RV as Defendant Sennert. Id.

         Ranger Sprouse told Sennert that someone had seen him dump sewage. Id. at 79. Sennert denied the allegation. Id. Sennert explained that water was leaking from his RV from a “pea hole, ” which Ranger Sprouse estimated to be “about, a little bigger than a quarter, I guess.” Id. Sennert showed Ranger Sprouse the RV’s water draining system. Id. at 85. In doing so, Sennert crawled under the RV on his hands and knees. Id. at 86. Ranger Sprouse did not observe any signs of sewage on or around the RV, though she did not inspect the RV for sewage. Id. at 86-87. She testified that, when investigating sewage dumped from an RV, she would not necessarily inspect the RV for sewage, noting that Sennert had “driven quite a ways from where he had dumped the sewage at that point.” Id. at 87. While Ranger Sprouse found no evidence of sewage, she noticed a puddle of water on the ground. Id. at 87-88. Sennert was cooperative during the stop, and Ranger Sprouse believed that Sennert’s explanation that water was leaking from the RV made sense at that time. Id. at 85 & 88-89. After completing her contact with Sennert, Ranger Sprouse thanked him and let him go on his way. Id. at 79-80.[3]

         Ranger Sprouse then went to the turn-out to investigate. Id. at 80. There, she found “a stream of sewage that was just undeniably human sewage.” Id. The sewage “smelled horrible.” Id. Ranger Sprouse described the sewage as a 50-foot long stream of “solid” sewage that looked wet, but was not flowing at the time she saw it. Id. at 80-82. She then formed the opinion that Sennert was responsible for the sewage. Id. at 80. She clarified during re-direct examination that she had not seen the dump site before she conducted the traffic stop of Sennert, when she had momentarily accepted his proffered explanation that Camp and Fox had mistaken the water leaking from his RV for sewage. Id. at 89.

         B. Rule 29 Motion

         At the close of the government’s evidence and prior to Sennert’s testimony, Sennert moved for acquittal pursuant to Rule 29. Id. at 91. The Magistrate Judge denied the motion because, viewing the evidence in the light most favorable to the government, a “reasonable person could find beyond a reasonable doubt that [Sennert] was guilty.” Id. at 94.

         C. Defense’s Evidence

         1. ...


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