United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief Judge.
Defendant Thomas P. McDill, Jr., timely filed an appeal from a decision of United States Magistrate Judge Veronica L. Duffy. (Docket 1). See 18 U.S.C. §§ 3402 & 3742 (e) & (h). Mr. McDill appeals from the judgment in a criminal case for petty offenses in which the magistrate judge found Mr. McDill guilty of two counts of threatening, resisting, intimidating, or interfering with a Forest Officer while engaged in, or on account of, the performance of duties for the National Forest System in violation of 36 CFR § 261.3(c). (Docket 1-1). The magistrate judge imposed fines of $600 and processing fees of $50 for a total of $650. Id. at p. 2. "Upon review of the record, the [district court] shall determine whether the sentence... was imposed in violation of law...." 18 U.S.C. § 3742(e)(1). For the reasons stated below, the decision of the magistrate judge is affirmed.
Mr. McDill was convicted of two violations of § 261.3(c) on June 11, 2013. That section provides:
The following are prohibited:... [t]hreatening, intimidating, or intentionally interfering with any Forest officer... while engaged in, or on account of, the performance of duties for the protection, improvement, or administration of the National Forest System or other duties assigned by the Forest Service.
36 CFR § 261.3(c). The terms "threatening, " "intimidating" and "intentionally interfering" are independent of each other and are separate offenses. United States v. Willfong, 274 F.3d 1297, 1303 (9th Cir. 2001) (referencing United States v. Hoff, 22 F.3d 222 (9th Cir. 1994)); see also United States v. Scarborough, 2014 WL 2615824 *4 (M.D. Tenn. 2014) (the terms "are stated disjunctively so that proof of any one of the acts alone constitutes an offense.") (internal citation omitted).
"The defendant is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(2)(D). The court must "view the evidence in the light most favorable to the guilty verdict and accept all reasonable inferences that may be drawn from the evidence." United States v. Rojas, 356 F.3d 876, 878 (8th Cir. 2004). The court is limited to asking whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks and citation omitted) (emphasis in original). Viewed in the light most favorable to the verdict, the evidence presented at the court trial was as follows.
On May 20, 2013, Mr. McDill visited the Forest Service Offices in Custer, South Dakota. (Docket 6 at p. 10). Initially, Mr. McDill visited with Forest Service employee Todd Gohl. Id. When Mr. Gohl was unable to answer all of Mr. McDill's questions, it was suggested that he submit a Freedom of Information Act (FOIA) request. Id. at p. 13. Mr. McDill was not pleased with that answer. Id. Mr. McDill became more impatient, so Mr. Gohl referred him to Pat Hudson. Id. at pp. 14-15.
Ms. Hudson is the main supervisor for the timber program on the Hell Canyon Ranger District. Id. at p. 95. Ms. Hudson talked with Mr. McDill for about 45 minutes that day. Id. at p. 100. She became uncomfortable because Mr. McDill's approach or demeanor was odd and their conversation was going in circles. Id. When their conversation ended she did not feel threatened but concluded that if she talked to Mr. McDill again, she would want another person present. Id. at p. 101.
On June 11, 2013, Mr. McDill returned to the Forest Service Offices. He met with Gregory McGranahan at about 10:45 a.m. or 11 a.m. Id. at pp. 74-75. Mr. McGranahan's conversation with Mr. McDill started at the front desk of the supervisor's office. Id. at p. 74. Because Mr. McDill was becoming adversarial and a bit irrational, Mr. McGranahan moved the meeting into his personal office. Id. at p. 76. As the Forest Service permit process was being explained, Mr. McDill became more adversarial indicating he wanted nothing to do with permits because they were a "bunch of hooey." Id. at p. 77. Mr. McDill declared he did not like the Forest Service rules and he was going to do whatever he wanted. Id. On the suggestion that conduct might result in a citation, Mr. McDill said "that's good, just arrest me, it's just fun getting arrested." Id. at p. 79. Arrangements were made for Mr. McDill to meet Ms. Hudson at 1:30 p.m. that afternoon. Id.
Mr. McDill went instead to Ms. Hudson's building at about 11:30 a.m., once again meeting with Mr. Gohl. Id. at pp. 18-19. Mr. Gohl described Mr. McDill as agitated, impatient, appearing to be in a hurry and not getting the right answers. Id. at p. 19. When the suggestion was made that Mr. McDill should return at 1 p.m. so someone could help him, Mr. McDill was not happy. Id. at p. 24. He insisted on knowing why no one else was in the building at that moment to help him. Id. Mr. Gohl indicated the other employees were at an internal district safety meeting over at the Custer High School. Id. at pp. 25 & 27. Mr. McDill said he would return at 1 p.m. Id. at p. 27.
As the Forest Service meeting at the Custer High School was breaking up at about noon, Ms. Hudson observed Mr. McDill in the sitting area outside the auditorium. Id. at p. 102. He immediately got up, cut through the crowd and approached her. Id. Mr. McDill wanted more information about cutting Forest Service trees which were bug infested. Id. Ms. Hudson indicated she would be back in her office around 1:30 or 2 p.m. that afternoon if he wanted to visit. Id. In Ms. Hudson's words, Mr. McDill became "very forceful, " saying "no I want to talk to you now, I don't want to wait." Id. at pp. 102-03. His tone was "direct, " he would not take no for an answer and he insisted on talking to her right then. Id. at p. 103. Ms. Hudson described him as being aggressive, intimidating, and moving into her personal space where she felt uncomfortable. Id. at p. 105. She described Mr. McDill as "kind of pushing forward, " moving in towards her and into her personal space. Id. Mr. McDill was raising his voice and insisting he wanted trees cut and removed. Id. at p. 106. He stated that if Ms. Hudson did not allow him to remove the trees, he would do it anyway and asked what she would do about it. Id.
Ms. Hudson was getting upset and angry and raised her voice. Id. at pp. 106-07. Ms. Hudson felt threatened, intimidated and frightened by Mr. McDill. Id. at pp. 107, 109 & 110. Mr. McDill is 6'3" and weighs 240 pounds. Id. at pp. 207-08. He was taller than Ms. Hudson. Id. at p. 105. Even though Mr. McDill was within a foot and a half from her body when he was speaking, it was more his demeanor which caused her concern. Id. at p. 108. Finally, Ms. Hudson insisted the discussion was over, she was going to leave and Mr. McDill also ...