United States District Court, E.D. California
ORDER DENYING APPEAL OF CONVICTION (DOC. 35)
LAWRENCE J. O’NEILL UNITED STATES CHIEF DISTRICT JUDGE.
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.
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.
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.
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.
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.
August 6, 2015 Trial Proceedings
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.
Ranger Church Testimony
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.
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.
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.
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.
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. 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.
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.
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.
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.
Ranger Sprouse Testimony
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.
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
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.
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.
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.
Rule 29 Motion
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.