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No. 95-2571

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United States of America, *

*

 Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Patrick L. Heathershaw, *

*

 Appellant. *

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 Submitted: December 12, 1995

 Filed: April 17, 1996

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

___________

JOHN R. GIBSON, Circuit Judge.

Patrick Heathershaw appeals his conviction of theft of government

property in excess of $100 value, 18 U.S.C. § 641 (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 fence 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 jury

that ownership of the land was irrelevant to Heathershaw's intent to steal,

and refused Heathershaw's requested claim-of-right instruction. We

reverse.

Heathershaw is a rancher in the Badlands of South Dakota,
 In fact, the land condemned for the bombing range was

1

originally part of Heathershaw's ranch. 

 All our references to the location of the new fence and the 2

old fence must be extremely general because of a defect in the

record. The government and Heathershaw made almost continuous use

of a map at trial and most of the testimony refers to colored lines

and marks on this map. However, no one introduced the map into

evidence. Heathershaw has appended a black and white copy of the

map onto his brief, but the copy does not show the colored lines

and is of such poor quality that it is useless to this court. 

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whose ranch abuts an old Air Force bombing range. He is an enrolled

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member of the Oglala Sioux Tribe. His ranch is on the Pine Ridge Indian

Reservation, and he leases the land from the Bureau of Indian Affairs and

the Oglala Sioux Tribe. The bombing range is no longer in use, but it

contains unexploded ordnance, and so the Air Force has posted warning signs

to keep the public off the land. In 1992, the Air Force built a fence

around the perimeter of the bombing range. In 1993, the Air Force received

an anonymous tip that someone was stealing the fence. Investigators

followed up on the tip and found that there were many places where the

fence was missing. While the investigators were inspecting the fence on

June 29, 1993, they encountered Heathershaw, who was building a new fence

in the area. 

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The investigators asked Heathershaw if he knew anything about the

fence and he replied that he was part of their fence problem. Heathershaw

told the inspectors about problems the Air Force fence was causing him.

He admitted he had used 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 pickup truck. He denied taking any barbed wire, but the

investigators noticed that wire they had seen at the site recently was no

longer there. Heathershaw later told an FBI agent that he had used two

strands of Air Force barbed wire in building one-half mile of fence. 

Heathershaw told the agent that he had lost four calves
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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 that

he had lost one of his horses, which became tangled in loose wire from the

government fence and had to be killed. 

The government indicted Heathershaw under 18 U.S.C. § 641, which

provides that "[w]hoever embezzles, steals, purloins, or knowingly converts

to his use . . . any record, voucher, money, or thing of value of the

United States . . . Shall be fined under this title or imprisoned not more

than ten years, or both . . . ."

Heathershaw's defense at trial was that the Air Force fence had been

allowed to fall into disrepair, and that much of it had been knocked down

by hunters trying to gain entrance to the bombing range and by natural

forces. He said that the hunters cut the fence and that loose wire and

posts were strewn on the ground. According to Heathershaw, the poor

condition of the fence rendered it a hazard to Heathershaw's livestock.

Heathershaw testified that 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 part 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 land

Heathershaw leases. He offered to prove that the official found "leasehold

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-right

instruction that if Heathershaw had a right to dispose of the fence as he

did, he lacked intent to steal. The court rejected the
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instruction, stating, "The Court rules as a matter of law that the

defendant did not have a right to dispose of the property as he did." 

During deliberations, 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 States Government. it was just moved? [sic]." The court

responded: "You are instructed that the ownership of the land to which the

fence may have been moved is immaterial on whether or not the government

has proved beyond a reasonable doubt the elements set forth [in the

instruction stating the elements of section 641]." The jury sent back

another note to the court: "We agree to the testimony of Mr. Heathershaw

that he said yes re stealing the poles from the gov't. There are some

jurors that believe that he did not intend to deprive 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 property

to a use inconsistent with the government's rights and benefits. The

government has the right to determine the use to which it puts its

property." 

The jury then returned a verdict of guilty.

On appeal Heathershaw argues that the court erred in excluding his

evidence that the Air Force fence was on his leasehold and that the court

directed a verdict on the element of intent by its responses to the jury's

notes. He also claims that the court erred in denying his requested claimof-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 separate

issue; however, we believe the issue is fairly preserved by his

argument: "The court's ruling to exclude the evidence and

testimony regarding Heathershaw's leasehold interest in areas of

the TIA [Target Impact Area] fenced-in parcels, unfairly denied

Heathershaw the opportunity to present his defense of claim of

right to do what he did . . . ." 

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evidence that the fence was on Heathershaw's leasehold. We review the

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district court's evidentiary rulings for abuse of discretion. See United

States v. Coney, 51 F.3d 164, 165 (8th Cir. 1995).

Heathershaw contends that evidence the Air Force fence was on his

leasehold is relevant to his claim of right. Heathershaw 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, the

defendant took shell casings from a government bombing range and sold them.

He was prosecuted under section 641. Morissette claimed he believed the

casings were abandoned property. The district court instructed that if

Morissette took the casings off government property without permission, he

was guilty, and that his claim of abandonment was no defense. Id. at 249.

The Supreme Court reversed, holding that criminal intent is an element of

section 641, id. at 273, and that Morissette had the right to a jury

determination of whether he acted with wrongful intent or in the belief

that the property was abandoned. Id. at 276.

The district court stated in excluding Heathershaw's evidence about

ownership of the property: 

Let's assume without necessarily conceding that [Heathershaw

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 doesn't give you

a right to
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steal the property, take the property for your own use and

benefit. 

The district court thus acknowledged the existence of a right of

self-help to abate a nuisance. Under South Dakota law, the right is

codified: 

Any private person may . . . abate . . . any private nuisance

injurious to him in any manner by removing, or, if necessary,

destroying that which constitutes the nuisance, without

committing a breach of the peace or doing unnecessary injury.

If a private nuisance results from a mere omission of the

wrongdoer, and cannot be abated without entering upon his land,

reasonable notice shall be given to him before entering to

abate it.

S.D. Codified Laws Ann. § 21-10-6 (Supp. 1995).

Under this statute it was relevant to Heathershaw's claim of right

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 without

curtailing his rightful use of his leasehold; this would certainly bear on

whether the fence was "injurious" to Heathershaw.

According to Heathershaw's testimony, it was not only necessary to

get the old fence out of the way, but also to close off his cattle from the

danger posed by gaps in the government fence. Heathershaw testified that

the Air Force fence was down in many places and the posts "were scattered

in so many directions that I just went around and picked them up so the

cattle wouldn't get caught in them anymore." Heathershaw also testified

that his purpose in building the new fence was to protect his livestock

from the hazard created by the Air Force:
 Our research has unearthed several state cases in which a

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defendant's claim of right based on abatement of a nuisance was

offered as a defense to criminal charges. In Holleman v. City of

Tulsa, 155 P.2d 254 (Okla. Crim. App. 1945), a defendant was

charged with malicious mischief because he walked up to his

neighbor's house and tore up a sign which he alleged to be a

nuisance. His defense was that he was abating a nuisance, under a

statute similar to the South Dakota nuisance statute. The court

rejected his claim-of-right defense because there was no evidence

he gave any notice before entering on the neighbor's property. In

Moran v. State, 316 P.2d 876 (Okla. Crim. App. 1957), a defendant

successfully interposed a claim-of-right defense to malicious

mischief charges where he removed a fence his neighbor placed on

the defendant's property. The Oklahoma Court of Criminal Appeals

overruled Moran in McDaris v. State, 505 P.2d 502 (Okla. Crim. App.

1973). It is unclear whether McDaris meant to do away with the

requirement of specific intent to harm the property owner in

malicious mischief cases or to do away with the claim-of-right

defense. If it is the former, McDaris has no bearing on this case,

because the specific intent for malicious mischief is irrelevant to

section 641 theft. If it is the 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 criminal trespass for driving his truck

through a gate that he claimed wrongfully closed off his right-ofway. The Georgia Supreme Court held that the Georgia statute

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.

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My purpose in building that fence was that the government

created traps that my cattle and horses were caught in every

day. I had to construct that fence so that my cattle and

horses weren't caught in a terrible, terrible trap without

water. 

Thus, according to Heathershaw, he used the government property only to

abate the nuisance created by the Air Force. On this record, whether

Heathershaw acted to abate the nuisance or to steal the materials was an

issue of intent for the jury. Therefore, the court erred in concluding

that as a matter of law Heathershaw's claim of right under South Dakota law

was not relevant to the issue of criminal intent. 

4
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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 discretion. The ruling prevented

Heathershaw from presenting his theory of defense and so was harmful to his

case.

By the same token, it was error for the court to instruct the jury

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 partial

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 exist which would give him the right

to dispose of the property negates intent to steal 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 to

Heathershaw's claim of right, the court wrongfully denied Heathershaw the

chance to have the jury decide his guilt. See Morissette, 342 U.S. at 274

("When intent is an ingredient of the crime charged, its existence is a

question of fact which must be submitted to the jury.").

On the same reasoning, it was error to deny Heathershaw's claim-ofright instruction. A defendant is entitled to an instruction on any

recognized defense on which there is sufficient evidence for a jury to find

in his favor. United States v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994).

Since we must reverse on the grounds discussed above, we need not

consider Heathershaw's additional claims of trial error.
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A true copy.

Attest:

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