v.
Allen
United States v. Allen
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
(Argued: November 4, 2014 Decided: June 3, 2015)
Docket No. 13‐4846‐cr
UNITED STATES OF AMERICA,
Appellee, v.
GEORGE ALLEN,
Defendant‐Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
Before:
WALKER, LYNCH, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the
District of Vermont (Reiss, C.J.), convicting defendant‐appellant of conspiring to
set fires on public lands. Defendant‐appellant contends that (1) the evidence at
trial was insufficient to support his conviction because the government failed to
prove a specific intent to set fires on federal property, and (2) the district court
violated his rights by conducting a jury orientation outside his and his counselʹs
presence.
AFFIRMED.
____________________________
WILLIAM B. DARROW, Assistant United States
Attorney (Gregory L. Waples, Assistant
United States Attorney, on the brief), for
Eugenia Cowles, Acting United States
Attorney for the District of Vermont,
Burlington, VT, for Appellee.
MICHAEL K. BACHRACH, Law Office of Michael K.
Bachrach, New York, NY, for Defendant‐
Appellant.
____________________________
CHIN, Circuit Judge:
The town of Wallingford, Vermont lies in the Otter Creek Valley, between the Taconic and Green Mountains, at the foot of the Green Mountain
‐ 2 ‐ National Forest (the ʺNational Forestʺ). The National Forest encompasses some 400,000 acres of park land offering scenic natural attractions, including access to the Appalachian Trail and the Long Trail. Defendant‐appellant George Allen (ʺAllenʺ), a volunteer firefighter and captain at the Wallingford Volunteer Fire Department (the ʺWFDʺ), appeals from a judgment entered in the United States District Court for the District of Vermont (Reiss, C.J.) on December 3, 2013, following a jury trial, convicting him of conspiring to set fires on public lands. As the evidence showed at trial, Allen and certain other members of the WFD were ʺbored,ʺ and conspired to set fires because it gave them ʺsomething to doʺ ‐‐ they would respond to the calls to extinguish the fires. On appeal, Allen contends that (1) the evidence at trial was insufficient to convict him of conspiracy to set fires on public lands, in violation of 18 U.S.C. §§ 371 and 1855, because the government failed to prove a specific intent to set fires on federal property, and (2) the district court violated his right to be present under Rule 43(a) of the Federal Rules of Criminal Procedure and the Due Process Clause by conducting a jury orientation outside his and his counselʹs presence. We affirm. ‐ 3 ‐ STATEMENT OF THE CASE A. The Facts Because Allen challenges the sufficiency of the evidence to support his conviction, ʺwe view the evidence in the light most favorable to the government, drawing all inferences in the governmentʹs favor and deferring to the juryʹs assessments of the witnessesʹ credibility.ʺ United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks omitted). In 2008, Allen was a volunteer captain in the WFD with a day job at an automotive tire shop in Rutland, Vermont. His brother, Jeff Allen, was Assistant Chief of the WFD, and their father, Warren Allen, was the Chief. A clique within the ʺAllen Hose Company,ʺ as it was sometimes referred to at the time, had been causing problems within the WFD, with Allen and some of the younger line firefighters ʺfreelancingʺ at the scene of fires, deviating from standard protocol, disrespecting officers, and throwing ʺtemper tantrums.ʺ S. App. at 111‐12, 153. Between January and May of 2008, a number of WFD firefighters became suspicious of the frequency and pattern of calls. There were twenty‐four brush grass fires during a period when there might ordinarily be just one or two. ‐ 4 ‐ Additionally, the fires occurred during damp weather that would not ordinarily be conducive to wildland fires; they were not near roads, where a stray cigarette or other human intervention might have been the cause; certain members of the WFD clique, including Allen, were almost always on the team that responded to the calls; and members of the clique began boasting that they had the fastest response time in the county, and that they were beating everyone else to the scene. One of the co‐conspirators, Matt Burnham, looked up to the Allen brothers and joined the WFD as a junior firefighter at the age of fourteen. He was eighteen or nineteen years old, and already a senior firefighter, when he began setting the fires, admittedly because he was ʺboredʺ and looking for ʺsomething to do,ʺ id. at 203, and because it was ʺan adrenaline rush,ʺ id. at 206. ʺ[S]tanding around at the fire station it would get mentioned that it would be nice to have a fire call. So we would go out and set a grass fire to get a fire call,ʺ he testified. Id. at 203. On at least one occasion after setting a fire, Burnham called 911 using a fake name. The emergency signal ‐‐ or ʺtoneʺ ‐‐ would then go out, calling up the volunteer firefighters. Those who knew in advance where and ‐ 5 ‐ when there would be a fire prided themselves on their quick response time. Afterwards, Allen would occasionally reward Burnham with cigarettes. Another co‐conspirator, Charlie Woods, joined the WFD junior firefighter program when he was fifteen years old, and was seventeen at the time of the 2008 fires. Like Burnham, he looked up to Allen and loved being a firefighter. Woods testified that in early 2008 ʺit seemed like forever that [they] hadnʹt had a fire call or anything. And it was mainly like kind of getting boring.ʺ Id. at 368. Woods, Burnham, Allen, and Allenʹs girlfriend decided to start a couple fires, but ʺit got out of control.ʺ Id. According to Woods, during the period in question he would occasionally get text messages from Allen, or Allenʹs girlfriend, saying that they were bored at work and did not want to be there. Burnham or Woods would start a fire and then go to Rutland or back to their houses to wait. After the tone went out calling up volunteer firefighters, they would occasionally wait another fifteen or twenty minutes before they went to the firehouse so that the firefighters who were not involved would not become suspicious. Between Burnham and Woods, the firefighters set two fires in January 2008 and one fire in March. Then, in April, they set sixteen fires, ‐ 6 ‐ including one on April 17 on federal land at the Long Trail and Appalachian Trail parking lot and trail head. In May 2008 they set at least four more fires, including one on federal land at the National Forest White Rocks picnic area near Ice Bed Road. In April and May of 2008, the National Forest fires were investigated by Kim Kinville, a law enforcement officer for the United States Forest Service, who at the time had been stationed in the National Forest for seventeen years.
[*1]based on the WFDʹs run sheets ‐‐ Allen and Burnham responded to all of the twenty‐ four suspicious fires. ‐ 8 ‐ want to do it anymore. I ‐‐ it wasnʹt me.ʺ Id. He then left the scene, went to the firehouse, and responded to the tone with other firefighters, including Allen.
After the fire was extinguished, Burnham, Woods, and Allen rode back to the firehouse together in Engine One. Allen told Burnham and Woods to
ʺshut our mouths and not talk about it,ʺ and to ʺjust act like we donʹt know what happened.ʺ Id. at 377.
[*2]and maliciouslyʺ set a fire or ʺcarelessly or negligentlyʺ leave one to burn unattended); Act of May 5, 1900, 31 Stat. 169 (amended, omitting words ʺcarelessly or negligentlyʺ); Act of March 4, 1909, 35 Stat. 1088, 1098 (amended, omitting word ʺmaliciouslyʺ); see also Act of June 25, 1910, 36 Stat. 855, 857 (amended, applying also to Indian tribal lands or Indian allotments while held under restricted or trust patents); Act of November 5, 1941, 55 Stat. 763 (amended, adding ʺand without authorityʺ); Act of June 25, 1948, ch. 645, 62 Stat. 788 (current version at 18 U.S.C. § 1855). ‐ 14 ‐ misfortunes of the country.ʺ United States v. Alford, 274 U.S. 264, 267 (1927)
(interpreting a related statute, Act of June 25, 1910, ch. 431, 36 Stat. 855, that prohibited building a fire in or near any forest and failing to totally extinguish it); see also United States v. Hacker, 73 F. 292, 295 (S.D. Cal. 1896) (ʺThe policy of the government in [making it a misdemeanor to cut timber on public lands] and kindred legislation was to protect the timber on the public domain, except as against certain necessary and specified uses in tillage and mining.ʺ).
The case law pertaining to the elements of timber crimes is similarly thin. Very few cases have dealt with sufficiency of the evidence for a § 1855 conviction, see, e.g., United States v. Velte, 331 F.3d 673 (9th Cir. 2003); United States v. Abner, 35 F.3d 251 (6th Cir. 1994); United States v. Newman, 6 F.3d 623 (9th Cir.
1993), and none has clearly addressed the scope of the willfulness requirement.
Allen relies on the Sixth Circuit case, Abner, to support his assertion that the
ʺwillfulnessʺ element of § 1855 applies not only to setting the fire, but to doing so knowing the lands were federal.
In Abner, the defendant set fire to private land, and the fire spread to federal land ‐‐ the boundary of which was located anywhere from 300 to 1000 feet from the fireʹs origin ‐‐ due to the wind and dry conditions. The government