The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
On September 13, 2006, this matter was tried before the Court. Both sides were given an opportunity to submit a post-trial memorandum, and they did so. Dkt. Nos. 12 and 13. The following constitutes the Court's verdict.
Count I of the Information charges the Defendant with a violation of Title 18, United States Code, Section 641. Intent is an element of this crime: "The third element the government must prove beyond a reasonable doubt is that the defendant acted knowingly and willfully with the intent to deprive the government of the use and benefit of its property." 1 Hon. Leonard Sand, John S. Siffert, Walter P. Loughlin, & Steven A. Reiss, Modern Federal Jury Instructions -- Criminal § 23A.01, Form Instr. 23A-5 (2005). I have not been persuaded beyond a reasonable doubt that the Defendant intended to deprive the Government of the use and benefit of the hatch doors, and therefore I find him not guilty of the charge contained in Count I.
The closest the Government comes to proving the intent element is its argument that the Defendant "attempt[ed] to push [the first door he removed] over the military vehicle and into the flat bed of the defendant's pick up truck." Dkt. No. 12 at 3.*fn1 If, in fact, the Defendant had placed one or more of the doors in his truck, I would find him guilty of the charge. However, to use the Government's phraseology, "the door missed the bed of his truck." Id. I am not persuaded, beyond a reasonable doubt, that there was a "miss." If the Defendant truly intended to push this heavy hatch door from the personnel carrier onto the bed of his truck, he surely would have positioned his truck closer to the personnel carrier. The proximity of the Defendant's truck to the personnel carrier, as shown in Exhibits 1 and 2, which was a distance of two to three feet according to the trial testimony, at a minimum creates a reasonable doubt as to his intent. In addition, if, according to the Government's theory, the Defendant was trying to push the first door he had removed onto the flat bed of his truck, why would he have pushed the second door in the opposite direction, away from his truck, as was testified to by Government witnesses?
In its post-trial memorandum, when addressing Count I, the Government refers to the Defendant "flagrantly violating Ft. Drum Regulation 420-3, §(6)(p), Page 6." Id. Subparagraph "p" prohibits "Picking up, disturbing, or taking Government equipment, ordnance, munitions or parts of the same." I do not understand how this argument advances the Government's cause with respect to Count I. I will assume arguendo that the Defendant did "disturb" Government equipment, but he is not charged in the pending Information with having done so.*fn2
In the "Conclusion" to its post-trial memorandum the Government urges the Court not to "reward [the Defendant] for not completing his intended crimes before being apprehended by police" and for not being "afforded an opportunity to complete his crime." Id. at 4-5. It is possible that if the authorities had continued their surveillance longer the Defendant would have committed acts from which it could be inferred, beyond a reasonable doubt, that he intended to deprive the Government of the use and benefit of the doors, and that he therefore would have been guilty of an attempt*fn3 to violate 18 U.S.C. § 641. However, this did not occur,*fn4 and in this country a person cannot be convicted on a possibility.*fn5
Count II of the Information charges as follows:
On or about March 20, 2006 in the Northern District of New York, within the special maritime and territorial jurisdiction of the United State, that is, Fort Drum, the Defendant did enter, and was found within, a United States military reservation, Fort Drum, New York, for a purpose prohibited by law or lawful regulation. All in violation of Title 18, United States Code, Section 1382.
Initially, the Court notes that the "was found within" language of Count II is not applicable in this case because it applies, according to § 1382, only to one who "is found within any such . . . fort . . . after having been removed therefrom or ordered not to re-enter . . . ." No evidence was offered that the Defendant had been removed from Fort Drum or ordered not to re-enter it. Thus the only issue before the Court is whether the Defendant "did enter" Fort Drum on March 20, 2006 "for a purpose prohibited by law or lawful regulation."
The Court finds that there is little evidence, if any, to support this charge. I easily conclude that the Defendant's guilt has not been proven beyond a reasonable doubt, and therefore I find him not guilty of the charge contained in Count II.
It is undisputed that the Defendant possessed a Firewood Permit, valid for the period March 18-25, 2006, authorizing him to enter Fort Drum "to gather firewood." Government Ex. 16. In addition, the Government offered no evidence to contradict the Defendant's testimony, which I find credible in this regard, that on March 20, 2006, he entered Fort Drum, cut firewood, removed some of it, and was in the process of returning to recover the remainder of the cut firewood when the incidents concerning the personnel carrier hatch doors occurred. This testimony was implicitly ...