___________ No. 95-2571

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Patrick L. Heathershaw, * * Appellant. *

___________ Submitted: December 12, 1995 Filed: April 17, 1996

___________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Patri ck Heathershaw appeals his conviction of theft of governmen t property in excess of $100 value, 18 U.S.C. § 64 1 (1994). Heathershaw was convicted of stealing posts and barbed wire from a fence belonging to the Air Force and using the materials to build a fence on land he leased

. Heathershaw claims that the Air Force built its fence on land he leased, that the Air Force fe nce was a hazard to his livestock, and that he had a right to move it to make it safe. At trial, the district court excluded evidence that the fence was on Heathershaw's leasehold, instructed the jur y that ownership of the land was irrelevant to Heathershaw's intent to steal , and refused Heathershaw's requested claim-of-right instruction. W e
reverse.
Heathershaw is a rancher in the Badlands of South Dakota,

### In fact, the land condemned for the bombing range wa s 1 

### originally part of Heathershaw's ranch. All our references to the location of the new fence and the 2 

### ol d fence must be extremely general because of a defect in th e record. The government and He athershaw made almost continuous use of a map at trial and most of the testimony refers to colore d lines and marks on this map. However, no one introduced the map int o evidence. Heathershaw has appended a black and white copy of the map on to his brief, but the copy does not show the colored line s and is of such poor quality that it is useless to this court.
-2- whose r anch abuts an old Air Force bombing range. He is an enrolle d 1 member of the Oglala Sioux Tribe. His ranch is on the Pine Ridge Indian Reservation, and he l eases the land from the Bureau of Indian Affairs and the Oglala Sioux Tribe. The bombing range is no longer in use, but i t contains unexploded ordnance, and so the Air Force has posted warning sign s to keep the public off the land. In 1992, the Air Force built a fenc e around the perimeter of the bombing range. In 1993, the Air Force receive d
an a nonymous tip that someone was stealing the fence. Investigator s followed up on the tip and found that there were many places where th e fence was missing. While the investigators were inspecting the fence on June 29, 1993, they e ncountered Heathershaw, who was building a new fence in the area. 2

The investigators asked Heathershaw if he knew anything about th e fence and he replied that he was part of their f ence problem. Heathershaw told the inspectors about problems the Air Force fence was causing him

. He admitted he had us ed metal poles from the Air Force fence to build his fence and that he had about twenty wooden posts from the Air Force fence in his pi ckup truck. He denied taking any barbed wire, but th e investigators noticedthat wire they had seen at the site recently was no longer there. Heathershaw later told an FBI agent that he had used tw o strands of Air Force barbed wire in building one-half mile of fence.

Heathershaw told the agent that he had lost four calves

### -3-

because they had wandered onto the bombing range through gaps in the Air Force fence and had been unable to rejoin their mothers. He also said tha t he had lost one of his horses, which became tang led in loose wire from the government fence and had to be killed.

The government indicted Heathershaw under 18 U.S.C. § 641, whic h provides that "[w]hoever embezzles, steals, purloins, or knowingly convert s to his use . . . any record, voucher, money, or thing of value of th e United States . . . Shall be fined under this ti tle or imprisoned not more than ten years, or both . . . ."

Heathershaw's defense at trial was t hat the Air Force fence had been allowed to fall into disrepair, and that much of it had been knocked down byhunters trying to gain entrance to the bombing range and by natura l force s. He said that the hunters cut the fence and that loose wire an d post s were strewn on the ground. According to Heathershaw, the poo r
con dition of the fence rendered it a hazard to Heathershaw's livestock

. Heathershaw testifiedthat he had picked up posts and wire off the ground and used them in building the new fence.
Heathershaw attempted to develop a related defense that the Air Force erroneously located p art of the fence on land Heathershaw leased from the BIA, and that he had simply relocated the fence on his leased property

. Heathershaw called as a witness a BIA official who administers the lan d Heathershaw leases. He offered to prove that the official found "leasehol d interests in Mr. Patrick Heathershaw within the retained area." The court excluded the evidence , saying that even if the fence was on Heathershaw's leasehold, it was not relevant to his intent to steal.

The court also denied Heathershaw's request for a claim-of-righ t instruction that if H eathershaw had a right to dispose of the fence as he did, he lacked intent to steal. The court rejected the

### -4-

ins truction, stating, "The Court rules as a matter of law that th e defendant did not have a right to dispose of the property as he did."
During de liberations, the jury asked a question about the ownership of the land: "Is BIA land Government land if so the fence was not stolen from the United State s Government. it was just moved? [sic]." The court responded: "You are instructed that the ownershi p of the land to which the fence may have been moved is immaterial on whether or not the government has prove d beyond a reasonable doubt the elements set forth [in th e instr uction stating the elements of section 641]." The jury sent bac k another note to the c ourt: "We agree to the testimony of Mr. Heathershaw that he said yes re stealing the poles from the gov't. There are som e jurors that believe that he did not intend to de prive the owner of the use and benefit of the thing of value or property so taken. We are having a hard time dirtiming [ sic] what Mr. Heathershaw's intent was when he stole the poles." The court responded in part: "The intent which is required to constitute a violation of the law charged is the intent to take propert y to a use i nconsistent with the government's rights and benefits. Th e government has the right to determine the use to which it puts it s property."
The jury then returned a verdict of guilty.

On appea l Heathershaw argues that the court erred in excluding hi s evidence that the Air Force fence was on his leasehold and that the court directed a verdict on the element of intent by i ts responses to the jury's notes. He also claims that the court erred in denying his requested claim

of-right instruction.
We must first decide whether the court erred in excluding

### Heathershaw 's brief raises this evidentiary question only as 3 

### a part of his objection to the instructions, not as a separat e issue; however, we believe the issue is fairly preserved by hi s arg ument: "The court's ruling to exclude the evidence an d te stimonyregarding Heathershaw's leasehold interest in areas o f the TIA [Target Impact Area] fenced-in parcels, unfairly denie d Heathershaw the opportunity to present his defense of claim o f right to do what he did . . . ."
-5- evidence that the fence was on Heathershaw's leasehold. We review th e 3 district court's evid entiary rulings for abuse of discretion. See United States v. Coney , 51 F.3d 164, 165 (8th Cir. 1995).

Heath ershaw contends that evidence the Air Force fence was on hi s leasehold is relevant to his claim of right. He athershaw cites Morissette

v. United States , 342 U.S. 246 (1952), arguing that facts showing he had
a claim of right negate the element of intent to steal. In Morissette , th e defendant took shell casings from a government bombing range and sold them

. He was prosecuted under section 641. Morissette claimed he believed the
cas ings were abandoned property. The district court instructed that i f Morissette took the casings off government prope rty without permission, he was guilty, and that his claim of abandonment wa s no defense. Id. at 249. The Supreme Court rev ersed, holding that criminal intent is an element of section 64 1, id. at 273, and that Morissette had the right to a jur y determination of whether he acted with wrongful intent or in the belie f that the property was abandoned. Id. at 276.

The distr ict court stated in excluding Heathershaw's evidence about ownership of the property:

Let's assume without necessarily conceding that [Heathersha w leased] that whole bombing area, what right does he have, then, to remove the fence put there by the owner of the land? What right do you have to remove that fence and take the fence for his own purposes? Now, there's such things as self-abatement of a nuisance under South Dakota law, but that does n't give you a right to

### -6- stea l the property, take the property for your own use an d benefit.

Th e district court thus acknowledged the existence of a right o f self-h elp to abate a nuisance. Under South Dakota law, the right i s codified:

Anyprivate person may . . . abate . . . any private nuisance injurious to him in any manner by removing, or, if necessary, des troying that which constitutes the nuisance, withou t committing a breach of the peace or doing unnecessary injury. If a private nuisance results from a mere omission of th e wrongdoer, and cannot be abated without entering up on his land, rea sonable notice shall be given to him before entering t o abate it.
S.D. Codified Laws Ann. § 21-10-6 (Supp. 1995).

Under th is statute it was relevant to Heathershaw's claim of righ t whether the land on which the fence was situated was his land or the Air Force's land, because if it was his, he could resort to self-help without first giving notice. Further, if the fence was on Heathershaw's land, it would be impossible for Heathershaw to avoid the nuisance withou t curtailing his rightful use of his leasehold; th is would certainly bear on whether the fence was "injurious" to Heathershaw.
According to Heathershaw's testimony, it was not only necessary t o get the old fence out of the way, but also to close off his cattle from th e danger posed by gaps in the government fence. Heathershaw testified that the Air Force fence w as down in many places and the posts "were scattered in so many directions that I just went around and picked them up so th e cattle wouldn't get caught in them anymore." Heathershaw also testified that his purpose in building the new fence was to protect his livestoc k from the hazard created by the Air Force:

### Our research has unearthed several state cases in which a 4 

### defendant's claim of right based on abatement of a nuisance wa s offered as a defense to criminal charges. In Holleman v. City of Tulsa , 155 P.2d 254 (Okla. Crim. App. 1945), a defendant wa s charged with malicious mischief because he walked up to hi s neighb or's house and tore up a sign which he alleged to be a nuisance. His defense was tha t he was abating a nuisance, under a statute similar to the South Dakota nuisance statute. The cour t rejected his claim-of-right defense because there was no evidence he gave any notice before ente ring on the neighbor's property. In Moran v. State , 316 P.2d 876 (Okla. Crim. App. 1957), a defendant successfullyinterposed a claim-of-right defense to maliciou s mischief charges where he removed a fence his neighbor placed o n the defendant's property. The Oklahoma Court of Criminal Appeals overruled Moranin McDaris v. State , 505 P.2d 502 (Okla. Cri m. App. 1973). It is unclear whether McDaris meant to do away with th e requir ement of specific intent to harm the property owner i n malicious mischief cases or to do away with the claim-of-righ t defense. If it is the former, McDaris has no bearing on thi s case, because the specific intent for malicious mischief is irrele vant to section 641 theft. If it is t he latter, McDaris would be contrary to Morisette v. United States , 342 U.S. 246 (1952), which permits a claim-of-right defense to section 641 theft. Finally, in State v. Moore , 255 S.E.2d 709 (Ga. 1979), a defendant was convicted of cri minal trespass for driving his truck through a gate that he claimedwrongfully closed off his right-ofway. The Georgia Supreme Court held that the Georgia statut e authorizing use of force to defend one's property only authorized use of force against other people and not against their property
. This statute is entirely different from the South Dakota nuisance statute, and so Moore is not pertinent.
-7- My purpose in building that fence was that the governmen t created traps that my cattle and horses were caught in ever y day

. I had to construct that fence so that my cattle an d hors es weren't caught in a terrible, terrible trap withou t water.

Thu s, according to Heathershaw, he used the government property only t o aba te the nuisance created by the Air Force. On this record, whethe r Heathershaw acted to abate the nuisance or to steal the materials was an issue of intent for the jury. Therefore, the court erred in concludin g that as a matter of law Heathershaw's claim of right under South Dakota la w was not relevant to the issue of criminal intent. 4

### -8- Consequently, the court's exclusion of the evidence of ownership was based on an erroneous conclusion about the validity of Heathershaw' s defense, and was, therefore, an abuse of discret ion. The ruling prevented Heathershaw from presenting his theory of defense and so was harmful to hi s
case.

By th e same token, it was error for the court to instruct the jur y that ownership of the land was immaterial. "An instruction that decides
a material issue of fact as a matter of law is regarded as a partia l instructed verdict of guilt and is prohibited." United States v. Dakota Cheese, Inc. , 906 F.2d 335, 338 (8th Cir. 1990) (citations omitted), cert. denied , 498 U.S. 1083 (1991).

A defendant's belief that facts exis t which would give him the right to dispose of the property negates intent to ste al under section 641. See Morissette , 342 U.S. at 275-76. Therefore, by instructing the jury that it could not consider ownership of the land, which was relevant t o Heathershaw's claim o f right, the court wrongfully denied Heathershaw the chance to have the jury decide his guilt. See M orissette , 342 U.S. at 274 ("When in tent is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury.").

On the sa me reasoning, it was error to deny Heathershaw's claim-ofrigh t instruction. A defendant is entitled to an instruction on an y recognized defense on which there is sufficient evidence for a jury to fin d in his favor. United States v. Brown , 33 F.3d 1 002, 1004 (8th Cir. 1994).

Since we must reverse on the grounds discussed above, we need no t consider Heathershaw's additional claims of trial error.

### -9- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.