By Deborah Elkins
Published: February 3, 2011
A Norfolk U.S. District Court reverses a criminal conviction for “unauthorized removal” of personal property, for a woman who cut a length of rope from a beached fishing vessel at Chincoteague National Wildlife Refuge, and took a floating life preserver from the boat, the “Freda Marie.”
This appeal only focuses on one element of the offense, the status of the property in question. The magistrate judge found beyond a reasonable doubt that defendant removed private property from the Refuge, and that the rope and life preserver/ring had not been abandoned.
Defendant was convicted under 50 C.F.R. § 27.61. This court concludes the regulation only prohibits the removal of public property or private property. Consequently, in order to successfully prosecute a defendant for a violation of § 27.61, the government must prove beyond a reasonable doubt that the property in question fits into one of those categories.
Because defendant was charged with removal of private property, and because the facts of this case allowed for the reasonable possibility that the items were abandoned, the government could not merely prove, as it contends, that the property is not public, is not owned by defendant and is therefore private property by default.
Even though the government never offered evidence of the actual owner of the boat, this court finds that the boat’s sheer size and presumed value, coupled with the fact that it was named, is sufficient circumstantial evidence for a reasonable fact finder to conclude beyond a reasonable doubt that at some point in the past some unnamed individual exercised exclusive and absolute rights over the boat and its accompanying equipment.
Abandonment requires an intentional relinquishment of rights in private property with no intention to return to that property at a later time. Further, the amount of time that has passed between the relinquishment and the subsequent discovery of the property by a third party is informative, but not dispositive.
Although it is possible one might conclude by a preponderance of the evidence that the vessel was not abandoned, defendant has certainly raised sufficient arguments such that a reasonable fact finder could not reach that conclusion beyond a reasonable doubt. The trial evidence showed that the boat had been beached in the Refuge for at least several weeks. Witnesses testified that the crew was nowhere in sight of the boat, no signs or ropes were posted to stay away from the boat, and the ranger did not testify as to any information he received regarding ownership of the boat, or that they had even investigated potential ownership of the vessel. Also, the owner had approximately one month to take action to reclaim the boat, but the government presented no evidence of such action or any intent to take such action.
It is true that a “large” vessel was likely valuable and an owner would not lightly abandon such a valuable piece of property. However, that evidence cuts both ways. The government has not presented any evidence to show that any individual has displayed an intention to return to the vessel.
The court holds there was insufficient evidence that the removed items were private property at the time defendant removed such items, as required by 50 C.F.R. § 27.61. Defendant’s conviction is reversed and remanded.
Tait v. U.S. (Davis, J.) No. 2:10cr104, Jan. 11, 2011; USDC at Norfolk, Va.; Rodolfo Cejas II for appellant; Dee M. Sterling for appellee. VLW 011-3-037, 31 pp.