Unpublished Disposition, 916 F.2d 717 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 916 F.2d 717 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.John PAROCHELLI, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Theodore Cecil THOMAS, Defendant-Appellant.

Nos. 90-10043, 90-10089.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1990.Decided Oct. 17, 1990.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.


MEMORANDUM* 

Defendants-Appellants John Parochelli and Theodore Cecil Thomas appeal their convictions following a jury trial of one count of trespass on Bureau of Land Management ("BLM") land, a violation of 43 U.S.C. § 1733(g) and 43 C.F.R. Secs. 2920.1-2(a) and (e), and 9262.1. We affirm.

In March 1989, U.S. District Court Judge McKibben issued an oral order announcing that occupants of the "permanent peace camp" in Nye County, Nevada needed a permit to continue their occupancy of the site. The following month, BLM officials visited the camp and notified those present of the need for a permit pursuant to Judge McKibben's order. Charles Ward, a Supervisory Ranger for BLM Law Enforcement, testified that he instructed Parochelli and others how to obtain the necessary permits to remain on the land, and that Parochelli said he intended to leave the site in early May.

On June 21, the BLM posted notices giving camp occupants twenty-four hours to vacate the site or apply for the necessary permits to remain on the premises. Ward testified that these notices were placed on the sign posts at the camp entrance and on the doors of campers parked at the site. Ward further testified that when he read the order to vacate the site, Thomas refused to abandon the premises and said he would rather receive a citation than leave the camp.

BLM Special Agent James Rogers testified that he made an announcement to Parochelli, Thomas, and others that they needed to leave the camp. When asked, Thomas stated that although his belongings were packed, he had no intention of vacating the premises. Thomas was then arrested.

As Thomas was being arrested, Parochelli re-entered the camp and stated: "If you're taking him, you're taking me too. I want to be arrested too." Parochelli was then arrested.

Parochelli and Thomas argue that the evidence presented at trial was insufficient to support their conviction because the Government failed to prove beyond a reasonable doubt that they engaged in the non-casual use of BLM lands. The jury was instructed that the essential elements of trespass were: 1) appellants engaged in non-casual use of public lands;1  2) appellants did so knowingly and willfully; 3) public lands occupied by appellants were under BLM administration; and 4) appellants used these lands without BLM permission. There was abundant evidence to support their conviction.

On June 22, 1989, both Parochelli and Thomas were at the peace camp. Judge McKibben had determined earlier that the peace camp was a non-casual use of BLM property. In addition, the testimony of Steven Kilpatrick that appellants were present at the camp when the notices were posted and ample warnings given demonstrates that appellants were knowingly involved in continuous and non-casual use of public land. When Parochelli and Thomas refused to vacate the premises on June 22, 1989, or obtain a permit, their actions were not undertaken with BLM permission. Thomas was arrested only after he refused to leave the camp. Parochelli's insistence on being arrested with Thomas suggests that he was not merely engaging in temporary, casual use of BLM land.

In view of the evidence presented, a rational jury could conclude that Parochelli and Thomas were guilty beyond a reasonable doubt. See United States v. Loya, 807 F.2d 1483, 1489 (9th Cir. 1987). Accordingly, the sufficiency of evidence argument is rejected.

As a defense to the specific intent element of trespass, Parochelli and Thomas were prepared to introduce at trial a permit issued by the Western Shoshone National Council "to Gather, Go and Come" on the land upon which the peace camp was built. The Government correctly argued the "permit" was insufficient as a matter of law to establish a defense to the intent requirement because the aboriginal title of the Shoshone had been extinguished. See United States v. Dann, 470 U.S. 39 (1985) (holding Shoshone tribal rights extinguished). Accordingly, the district court found Parochelli and Thomas's reliance on the permit "to be frivolous under the circumstances" and legally insufficient with respect to intent.

Parochelli and Thomas argue that mistake of fact concerning the legality of their activity is a valid defense to a specific intent crime, and they rely on United States v. Fierros, 692 F.2d 1291 (9th Cir. 1982), cert. denied, 462 U.S. 1120 (1983). In Fierros, this court observed that "where the defendant is ignorant of an independently determined legal status or condition that is one of the operative facts of the crime" a defense of ignorance is permitted. Id. at 1294. Appellants could avail themselves of this defense, however, only by demonstrating that they did not know that the BLM controlled the land where the camp was located and truly believed the Shoshones had the legal authority to sanction their presence at the site. Not only did authorities post Judge McKibben's order stating that occupants of the camp were in trespass of federal land managed by the BLM, but authorities also informed camp occupants they needed to obtain a permit from BLM or leave the premises.

A district court does not abuse its discretion by limiting evidence to proof that is legally relevant. Fed.R.Evid. 402; United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988). Furthermore, this court has held "that evidence may be excluded following an in limine hearing if the evidence described in the defendant's offer of proof is insufficient as a matter of law to establish a defense." United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989). As Judge Pro's order states, the Shoshone have no legally cognizable claim to the land occupied by the peace camp. See Dann, 470 U.S. 39. Accordingly, appellants' permit could not serve to establish a defense because they did not have a good faith belief in the Shoshone's rights to the land. See United States v. Kelley, 539 F.2d 1199, 1204 n. 9 (9th Cir.) ("Neither civil disobedience nor unreasonable and bad faith mistakes of law should constitute a defense to a prosecution."), cert. denied, 429 U.S. 963 (1976).

Affirmed.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

"Casual use" is defined as "any short term non-commercial activity which does not cause appreciable damage or disturbance to the public lands, their resources or improvements, and which is not prohibited by closure of the lands to such activities." 43 C.F.R. Sec. 2920.0-5(k)

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.