NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 6 2021

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 19-30052 Plaintiff-Appellee, D.C. No. 3:17-cr-00369-SI-1

v.

MEMORANDUM*

JOHN M. WASSON,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding Submitted June 4, 2020** Portland, Oregon

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge. John Wasson appeals his conviction, after a jury trial, on a single count of

willful depredation of government property, with damage exceeding $1,000, in

violation of 18 U.S.C. § 1361. We affirm.

1. Reviewing de novo, we agree with the district court’s conclusion that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. evidence was sufficient to permit a rational jury to find the elements of the charged

offense beyond a reasonable doubt. United States v. Sandoval-Gonzalez, 642 F.3d

717, 727 (9th Cir. 2011).

a. Asserting that the jury instructions’ very specific definition of willfulness

improperly raised its burden of proof, the Government argues that we must

disregard that instruction and instead evaluate the sufficiency of the evidence of

willfulness under what it contends is the correct legal standard. See Musacchio v.

United States, 136 S. Ct. 709, 715 (2016). We need not resolve this issue because,

even assuming that the instruction was correct (as Wasson contends), the

Government’s evidence of willfulness was sufficient.

To show willfulness under the jury instructions, the Government had to

prove beyond a reasonable doubt that (1) “Wasson knew that he had a duty to

submit a notice of intent or a plan of operations to the United States Forest Service

District Ranger for any operations that might cause significant disturbance of

surface resources”; (2) “Wasson intentionally and voluntarily violated that duty”;

and (3) Wasson “did not have a good[-]faith belief that he was complying with the

law.” The Government therefore had to show, inter alia, that Wasson did not have

a good-faith belief that he was not required to submit a notice of intent in

connection with his mining activities on land managed by the U.S. Forest Service

(“USFS”). The trial record contains ample evidence to permit a rational jury to

2 find, beyond a reasonable doubt, that Wasson had not acted in good faith in failing

to submit a notice of intent.

Wasson was well aware from his prior legal conflicts with the USFS that

extended maintenance of a campsite could lead to degradation of the surface

resources by killing the vegetation in the immediate area. Wasson had been

convicted of unlawful occupancy of USFS land in 2013, and his conviction was

affirmed by the district court and by this court. In 2014, a USFS special agent

reiterated to Wasson that the USFS was concerned about the “level of his

occupancy,” which USFS thought “was causing significant damage to the surface

resources.” The special agent referenced Wasson’s prior conviction of unlawful

occupancy, and Wasson responded that the judges “got it wrong.”

Thereafter, in 2017, the special agent noticed that digging, as well as

removal of grass and trees, had been used to create a new road to Wasson’s then-

campsite. The special agent also testified that Wasson had “cleared a bunch of

vegetation” to create this new campsite, including cutting trees to fit a camper and

laying a wood foundation for the tent. A search of the campsite revealed two five-

gallon containers that were leaking vegetable oil, as well as a document about

making “biodiesel” fuel. Wasson also had at the campsite a USFS flyer stating that

a “14-day stay limit” was enforced to protect resources.

Moreover, a USFS employee named Travis Whitman testified that, after

3 viewing Wasson’s campsite and being told by Wasson that he intended to stay

“through the season and into the fall,” Whitman personally told Wasson in July

2017 that he needed to submit a notice of intent. Wasson’s response was not that

his activities did not entail the level of surface-resource disturbance required to

trigger the need to submit a notice of intent. Rather, Wasson’s response was that—

despite his prior conviction—the “Forest Service regulations didn’t cover

occupancy” and that the National Environmental Policy Act (“NEPA”) process

that might result “was too long and time-consuming.” Whitman testified that

Wasson’s reference to NEPA was notable because the USFS does not “initiate

NEPA on a notice[] of intent unless that activity may have some sort of significant

impact to surface resources.”

In light of this evidence—all of which was presented in the Government’s

case-in-chief—a reasonable jury could find that Wasson knew that his activities

involved a significant disturbance of surface resources; that he knew that he

therefore had to submit a notice of intent; and that he acted in bad faith in failing to

do so. The evidence was therefore sufficient to establish willful depredation of

government property.

b. The evidence was likewise sufficient to prove that Wasson’s depredation

caused more than $1,000 in damage to government property. Contrary to what

Wasson contends, our decision in United States v. Seaman, 18 F.3d 649 (9th Cir.

4 1994), does not hold that, in a damage-to-government-land case, the sole measure

of damage under § 1361 is the difference in the value of that land before and after

the damage. Although we noted that no such difference-in-value evidence had

been introduced in Seaman, we made that observation only after also noting that

the Government’s photographic evidence was insufficient to provide “any basis for

evaluating damage in monetary terms” and that the record as a whole contained

“no evidence whatsoever” of the requisite amount of damage. Id. at 651. Here, by

contrast, the Government did present evidence of valuation in the form of

reasonable remediation costs to repair the damage Wasson had caused. These

included estimated future costs to remediate the road as well as already-incurred

costs to remove the vegetable oil and contaminated soil. Either of these measures

is sufficient to permit a reasonable jury to find more than $1,000 in damage beyond

a reasonable doubt.

2. The district court did not abuse its discretion by excluding photographs

proffered by Wasson concerning neighboring campsites. See United States v.

Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016). Even assuming that these 2018

photographs depicted the way these other campsites “looked to Mr. Wasson in

2017,” the district court properly excluded them on the ground that there was an

insufficient foundation to tie them to Wasson’s willfulness or good faith. As the

Government explained, and the district court agreed, there was no evidence as to

5 whether a notice of intent or plan of operations existed for those sites or whether

the individuals involved had been warned as Wasson had. To the extent that the

photographs would have impeached the testimony that a USFS ranger had offered

concerning other sites, the district court properly noted that Wasson had failed to

use the photographs during that cross examination and that admission of the

photographs after-the-fact was inconsistent with Federal Rule of Evidence 608(b).

See Ortiz v. Yates, 704 F.3d 1026, 1038 (9th Cir. 2012) (“As a general matter, a

witness may not be contradicted by extrinsic evidence on a collateral matter.”).

AFFIRMED.

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