Argued November 4, 2014.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT.
Appeal from a judgment of the United States District Court for the District of Vermont (Reiss, C.J.), convicting defendant-appellant of conspiring to set fires on public lands. Defendant-appellant contends that (1) the evidence at trial was insufficient to support his conviction because the government failed to prove a specific intent to set fires on federal property, and (2) the district court violated his rights by conducting a jury orientation outside his and his counsel's presence.
WILLIAM B. DARROW, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Eugenia Cowles, Acting United States Attorney for the District of Vermont, Burlington, VT, for Appellee.
MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY, for Defendant-Appellant.
Before: WALKER, LYNCH, and CHIN, Circuit Judges.
Chin, Circuit Judge :
The town of Wallingford, Vermont lies in the Otter Creek Valley, between the Taconic and Green Mountains, at the foot of the Green Mountain National Forest (the " National Forest" ). The National Forest encompasses some 400,000 acres of park land offering scenic natural attractions, including access to the Appalachian Trail and the Long Trail. Defendant-appellant George Allen (" Allen" ), a volunteer firefighter and captain at the Wallingford Volunteer Fire Department (the " WFD" ), appeals from a judgment entered in the United States District Court for the District of Vermont (Reiss, C.J. ) on December 3, 2013, following a jury trial, convicting him of conspiring to set fires on public lands. As the evidence showed at trial, Allen and certain other members of the WFD were " bored," and conspired to set fires because it gave them " something to do" -- they would respond to the calls to extinguish the fires.
On appeal, Allen contends that (1) the evidence at trial was insufficient to convict him of conspiracy to set fires on public lands, in violation of 18 U.S.C. § § 371 and 1855, because the government failed to prove a specific intent to set fires on federal property, and (2) the district court violated his right to be present under Rule 43(a) of the Federal Rules of Criminal Procedure and the Due Process Clause by conducting a jury orientation outside his and his counsel's presence.
STATEMENT OF THE CASE
A. The Facts
Because Allen challenges the sufficiency of the evidence to support his conviction, " we view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks omitted).
In 2008, Allen was a volunteer captain in the WFD with a day job at an automotive tire shop in Rutland, Vermont. His brother, Jeff Allen, was Assistant Chief of the WFD, and their father, Warren Allen, was the Chief. A clique within the " Allen Hose Company," as it was sometimes referred to at the time, had been causing problems within the WFD, with Allen and some of the younger line firefighters " freelancing" at the scene of fires, deviating from standard protocol, disrespecting officers, and throwing " temper tantrums." S. App. at 111-12, 153.
Between January and May of 2008, a number of WFD firefighters became suspicious of the frequency and pattern of calls. There were twenty-four brush grass fires during a period when there might ordinarily be just one or two. Additionally, the fires occurred during damp weather that would not ordinarily be conducive to wildland fires; they were not near roads, where a stray cigarette or other human intervention might have been the cause; certain members of the WFD clique, including Allen, were almost always on the team that responded to the calls; and members of the clique began boasting that they had the fastest response time in the county, and that they were beating everyone else to the scene.
One of the co-conspirators, Matt Burnham, looked up to the Allen brothers and joined the WFD as a junior firefighter at the age of fourteen. He was eighteen or nineteen years old, and already a senior firefighter, when he began setting the fires, admittedly because he was " bored"
and looking for " something to do," id. at 203, and because it was " an adrenaline rush," id. at 206. " [S]tanding around at the fire station it would get mentioned that it would be nice to have a fire call. So we would go out and set a grass fire to get a fire call," he testified. Id. at 203. On at least one occasion after setting a fire, Burnham called 911 using a fake name. The emergency signal -- or " tone" -- would then go out, calling up the volunteer firefighters. Those who knew in advance where and when there would be a fire prided themselves on their quick response time. Afterwards, Allen would occasionally reward Burnham with cigarettes.
Another co-conspirator, Charlie Woods, joined the WFD junior firefighter program when he was fifteen years old, and was seventeen at the time of the 2008 fires. Like Burnham, he looked up to Allen and loved being a firefighter. Woods testified that in early 2008 " it seemed like forever that [they] hadn't had a fire call or anything. And it was mainly like kind of getting boring." Id. at 368. Woods, Burnham, Allen, and Allen's girlfriend decided to start a couple fires, but " it got out of control." Id. According to Woods, during the period in question he would occasionally get text messages from Allen, or Allen's girlfriend, saying that they were bored at work and did not want to be there. Burnham or Woods would start a fire and then go to Rutland or back to their houses to wait. After the tone went out calling up volunteer firefighters, they would occasionally wait another fifteen or twenty minutes before they went to the firehouse so that the firefighters who were not involved would not become suspicious.
Between Burnham and Woods, the firefighters set two fires in January 2008 and one fire in March. Then, in April, they set sixteen fires, including one on April 17 on federal land at the Long Trail and Appalachian Trail parking lot and trail head. In May 2008 they set at least four more fires, including one on federal land at the National Forest White Rocks picnic area near Ice Bed Road. In April and May of 2008, the National Forest fires were investigated by Kim Kinville, a law enforcement officer for the United States Forest Service, who at the time had been stationed in the National Forest for seventeen years.
1. First Federal Fire
On April 17, 2008, Burnham started a brush fire at the Long Trail and Appalachian Trail parking area in the National Forest. At trial, Burnham testified that Allen " named more than one good location" for fires, including specifically telling Burnham that the Long Trail parking lot would be a good place to start a fire. Id. at 207. And so, on April 17, Burnham went up to the Long Trail turnaround and set some leaves on fire. When Burnham was pulling out of the parking lot, Allen was pulling in. They both then returned to their respective homes. Burnham called 911 and reported the fire using a fake name, and thereafter Burnham and Allen responded to the fire with other WFD firefighters.
2. Second Federal Fire
Woods testified that in early May 2008 there was discussion with Allen and Burnham that the White Rocks parking area was one of the places where a fire should be set. Woods and Burnham's initial attempt at starting a fire at White Rocks failed. The two fires they set simultaneously at the picnic area petered out because the grass was too wet, and the fires
were too small to warrant a call. But a couple days later, on May 8, Allen texted Woods saying that he did not want to be at work. Woods then went up alone into the woods near the White Rocks parking lot.
After successfully setting fire to some leaves, Woods drove to the tire shop in Rutland and told Allen that " we're going to get a fire call and it's probably going to be at White Rocks." Id. at 376. Woods then went back to White Rocks, saw how large and volatile the fire was, and called it in himself using his real name because " I wanted to pretty much give myself up. . . . I didn't want to do it anymore. I -- it wasn't me." Id. He then left the scene, went to the firehouse, and responded to the tone with other firefighters, including Allen.
After the fire was extinguished, Burnham, Woods, and Allen rode back to the firehouse together in Engine One. Allen told Burnham and Woods to " shut our mouths and not talk about it," and to " just act like we don't know what happened." Id. at 377.
3. Allen's Confession
On May 20, 2008, in a recorded interview at the WFD with a Vermont State Police detective, Allen stated that at times he was a reluctant participant, telling Burnham by text that he " need[ed] to stop" and that he was an " idiot" for setting the fires. Id. at 293. But they continued to set fires, and as Allen described it, Burnham and Woods were engaged in something of a " pissing match." Id. at 298.
Allen did, however, admit his knowledge of or involvement in as many as sixteen of the fires, though he did not concede that he lit any of them himself. Like Burnham and Woods, he was " [b]ored," and thought " this place, [this] town, is pretty boring around here." Id. at 282. With regards to the May 8 fire at White Rocks, Allen told Detective Williams that Woods " set the federal fire," but said that he did not know why Woods did it. Id. at 298. And as for the April 17 fire, Allen admitted to the detective that he told Burnham to set it near the Long Trail parking area, but contended he picked it simply as a random location where they likely would not be caught.
B. The Proceedings Below
In an indictment filed on September 19, 2012, Allen was charged with knowingly and willfully conspiring with other members of the WFD, including Burnham and Woods, to willfully set on fire underbrush and grass on the public domain, in violation of 18 U.S.C. § 1855.
At a pre-trial conference on June 24, 2013, with Allen in attendance, Chief Judge Reiss reviewed with the parties her trial practices, including jury orientation and selection. " You are welcome to attend jury orientation," she told the parties. " It will be the morning of the jury draw. You do not have to, but I don't see any reasons why you shouldn't be present if you want to." Id. at 8. On July 22, 2013, on the morning of the jury draw, Chief Judge Reiss ...