___________

                                   No. 95-2571
                                   ___________

United States of America,              *
                                       *
                       Appellee,       *
                                       *    Appeal from the United States
      v.                               *    District Court for the
                                       *    District of South Dakota.
Patrick L. Heathershaw,                *
                                       *
                       Appellant.      *

                                   ___________

                     Submitted:    December 12, 1995

                          Filed:   April 17, 1996
                                   ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.


      Patrick Heathershaw appeals his conviction of theft of government
property in excess of $100 value, 18 U.S.C. § 641 (1994).      Heathershaw was
convicted of stealing posts and barbed wire from a fence belonging to the
Air Force and using the materials to build a fence on land he leased.
Heathershaw claims that the Air Force built its fence on land he leased,
that the Air Force fence was a hazard to his livestock, and that he had a
right to move it to make it safe.      At trial, the district court excluded
evidence that the fence was on Heathershaw's leasehold, instructed the jury
that ownership of the land was irrelevant to Heathershaw's intent to steal,
and   refused   Heathershaw's   requested   claim-of-right   instruction.   We
reverse.


      Heathershaw is a rancher in the Badlands of South Dakota,
whose ranch abuts an old Air Force bombing range.1             He is an enrolled
member of the Oglala Sioux Tribe.       His ranch is on the Pine Ridge Indian
Reservation, and he leases the land from the Bureau of Indian Affairs and
the Oglala Sioux Tribe.       The bombing range is no longer in use, but it
contains unexploded ordnance, and so the Air Force has posted warning signs
to keep the public off the land.        In 1992, the Air Force built a fence
around the perimeter of the bombing range.      In 1993, the Air Force received
an anonymous tip that someone was stealing the fence.                Investigators
followed up on the tip and found that there were many places where the
fence was missing.      While the investigators were inspecting the fence on
June 29, 1993, they encountered Heathershaw, who was building a new fence
in the area.2


      The investigators asked Heathershaw if he knew anything about the
fence and he replied that he was part of their fence problem.          Heathershaw
told the inspectors about problems the Air Force fence was causing him.
He admitted he had used metal poles from the Air Force fence to build his
fence and that he had about twenty wooden posts from the Air Force fence
in   his   pickup    truck.   He   denied   taking   any   barbed   wire,   but   the
investigators noticed that wire they had seen at the site recently was no
longer there.       Heathershaw later told an FBI agent that he had used two
strands of Air Force barbed wire in building one-half mile of fence.


      Heathershaw told the agent that he had lost four calves




           1
        In fact, the land condemned for the bombing range was
originally part of Heathershaw's ranch.
      2
      All our references to the location of the new fence and the
old fence must be extremely general because of a defect in the
record. The government and Heathershaw made almost continuous use
of a map at trial and most of the testimony refers to colored lines
and marks on this map. However, no one introduced the map into
evidence. Heathershaw has appended a black and white copy of the
map onto his brief, but the copy does not show the colored lines
and is of such poor quality that it is useless to this court.

                                       -2-
because they had wandered onto the bombing range through gaps in the Air
Force fence and had been unable to rejoin their mothers.    He also said that
he had lost one of his horses, which became tangled in loose wire from the
government fence and had to be killed.


     The government indicted Heathershaw under 18 U.S.C. § 641, which
provides that "[w]hoever embezzles, steals, purloins, or knowingly converts
to his use . . . any record, voucher, money, or thing of value of the
United States . . . Shall be fined under this title or imprisoned not more
than ten years, or both . . . ."


     Heathershaw's defense at trial was that the Air Force fence had been
allowed to fall into disrepair, and that much of it had been knocked down
by hunters trying to gain entrance to the bombing range and by natural
forces.   He said that the hunters cut the fence and that loose wire and
posts were strewn on the ground.       According to Heathershaw, the poor
condition of the fence rendered it a hazard to Heathershaw's livestock.
Heathershaw testified that he had picked up posts and wire off the ground
and used them in building the new fence.


     Heathershaw attempted to develop a related defense that the Air Force
erroneously located part of the fence on land Heathershaw leased from the
BIA, and that he had simply relocated the fence on his leased property.
Heathershaw called as a witness a BIA official who administers the land
Heathershaw leases.   He offered to prove that the official found "leasehold
interests in Mr. Patrick Heathershaw within the retained area."    The court
excluded the evidence, saying that even if the fence was on Heathershaw's
leasehold, it was not relevant to his intent to steal.


     The court also denied Heathershaw's request for a claim-of-right
instruction that if Heathershaw had a right to dispose of the fence as he
did, he lacked intent to steal.    The court rejected the




                                    -3-
instruction, stating, "The Court rules as a matter of law that the
defendant did not have a right to dispose of the property as he did."


     During deliberations, the jury asked a question about the ownership
of the land:   "Is BIA land Government land if so the fence was not stolen
from the United States Government.   it was just moved? [sic]."   The court
responded: "You are instructed that the ownership of the land to which the
fence may have been moved is immaterial on whether or not the government
has proved beyond a reasonable doubt the elements set forth [in the
instruction stating the elements of section 641]."      The jury sent back
another note to the court:   "We agree to the testimony of Mr. Heathershaw
that he said yes re stealing the poles from the gov't.       There are some
jurors that believe that he did not intend to deprive the owner of the use
and benefit of the thing of value or property so taken.     We are having a
hard time dirtiming [sic] what Mr. Heathershaw's intent was when he stole
the poles."    The court responded in part:   "The intent which is required
to constitute a violation of the law charged is the intent to take property
to a use inconsistent with the government's rights and benefits.        The
government has the right to determine the use to which it puts its
property."


     The jury then returned a verdict of guilty.


     On appeal Heathershaw argues that the court erred in excluding his
evidence that the Air Force fence was on his leasehold and that the court
directed a verdict on the element of intent by its responses to the jury's
notes.   He also claims that the court erred in denying his requested claim-
of-right instruction.


     We must first decide whether the court erred in excluding




                                     -4-
evidence that the fence was on Heathershaw's leasehold.3      We review the
district court's evidentiary rulings for abuse of discretion.    See United
States v. Coney, 

, 165 (8th Cir. 1995).


     Heathershaw contends that evidence the Air Force fence was on his
leasehold is relevant to his claim of right.   Heathershaw cites Morissette
v. United States, 

(1952), arguing that facts showing he had
a claim of right negate the element of intent to steal.   In Morissette, the
defendant took shell casings from a government bombing range and sold them.
He was prosecuted under section 641.     Morissette claimed he believed the
casings were abandoned property.   The district court instructed that if
Morissette took the casings off government property without permission, he
was guilty, and that his claim of abandonment was no defense.   

The Supreme Court reversed, holding that criminal intent is an element of
section 641, 

and that Morissette had the right to a jury
determination of whether he acted with wrongful intent or in the belief
that the property was abandoned.   

     The district court stated in excluding Heathershaw's evidence about
ownership of the property:


     Let's assume without necessarily conceding that [Heathershaw
     leased] that whole bombing area, what right does he have, then,
     to remove the fence put there by the owner of the land? What
     right do you have to remove that fence and take the fence for
     his own purposes? Now, there's such things as self-abatement
     of a nuisance under South Dakota law, but that doesn't give you
     a right to




     3
     Heathershaw's brief raises this evidentiary question only as
a part of his objection to the instructions, not as a separate
issue; however, we believe the issue is fairly preserved by his
argument:    "The court's ruling to exclude the evidence and
testimony regarding Heathershaw's leasehold interest in areas of
the TIA [Target Impact Area] fenced-in parcels, unfairly denied
Heathershaw the opportunity to present his defense of claim of
right to do what he did . . . ."

                                   -5-
        steal the property, take the property for your own use and
        benefit.


        The district court thus acknowledged the existence of a right of
self-help to abate a nuisance.          Under South Dakota law, the right is
codified:


        Any private person may . . . abate . . . any private nuisance
        injurious to him in any manner by removing, or, if necessary,
        destroying that which constitutes the nuisance, without
        committing a breach of the peace or doing unnecessary injury.
        If a private nuisance results from a mere omission of the
        wrongdoer, and cannot be abated without entering upon his land,
        reasonable notice shall be given to him before entering to
        abate it.


S.D. Codified Laws Ann. § 21-10-6 (Supp. 1995).


        Under this statute it was relevant to Heathershaw's claim of right
whether the land on which the fence was situated was his land or the Air
Force's land, because if it was his, he could resort to self-help without
first giving notice.       Further, if the fence was on Heathershaw's land, it
would    be   impossible    for   Heathershaw   to   avoid   the   nuisance   without
curtailing his rightful use of his leasehold; this would certainly bear on
whether the fence was "injurious" to Heathershaw.


        According to Heathershaw's testimony, it was not only necessary to
get the old fence out of the way, but also to close off his cattle from the
danger posed by gaps in the government fence.          Heathershaw testified that
the Air Force fence was down in many places and the posts "were scattered
in so many directions that I just went around and picked them up so the
cattle wouldn't get caught in them anymore."           Heathershaw also testified
that his purpose in building the new fence was to protect his livestock
from the hazard created by the Air Force:




                                         -6-
     My purpose in building that fence was that the government
     created traps that my cattle and horses were caught in every
     day.   I had to construct that fence so that my cattle and
     horses weren't caught in a terrible, terrible trap without
     water.


Thus, according to Heathershaw, he used the government property only to
abate the nuisance created by the Air Force.      On this record, whether
Heathershaw acted to abate the nuisance or to steal the materials was an
issue of intent for the jury.    Therefore, the court erred in concluding
that as a matter of law Heathershaw's claim of right under South Dakota law
was not relevant to the issue of criminal intent.4



      4
       Our research has unearthed several state cases in which a
defendant's claim of right based on abatement of a nuisance was
offered as a defense to criminal charges. In Holleman v. City of
Tulsa, 

(Okla. Crim. App. 1945), a defendant was
charged with malicious mischief because he walked up to his
neighbor's house and tore up a sign which he alleged to be a
nuisance. His defense was that he was abating a nuisance, under a
statute similar to the South Dakota nuisance statute. The court
rejected his claim-of-right defense because there was no evidence
he gave any notice before entering on the neighbor's property. In
Moran v. State, 

(Okla. Crim. App. 1957), a defendant
successfully interposed a claim-of-right defense to malicious
mischief charges where he removed a fence his neighbor placed on
the defendant's property. The Oklahoma Court of Criminal Appeals
overruled Moran in McDaris v. State, 

(Okla. Crim. App.
1973). It is unclear whether McDaris meant to do away with the
requirement of specific intent to harm the property owner in
malicious mischief cases or to do away with the claim-of-right
defense. If it is the former, McDaris has no bearing on this case,
because the specific intent for malicious mischief is irrelevant to
section 641 theft. If it is the latter, McDaris would be contrary
to Morisette v. United States, 

(1952), which permits
a claim-of-right defense to section 641 theft.

     Finally, in State v. Moore, 

(Ga. 1979), a
defendant was convicted of criminal trespass for driving his truck
through a gate that he claimed wrongfully closed off his right-of-
way.   The Georgia Supreme Court held that the Georgia statute
authorizing use of force to defend one's property only authorized
use of force against other people and not against their property.
This statute is entirely different from the South Dakota nuisance
statute, and so Moore is not pertinent.

                                   -7-
        Consequently, the court's exclusion of the evidence of ownership was
based on an erroneous conclusion about the validity of Heathershaw's
defense, and was, therefore, an abuse of discretion.   The ruling prevented
Heathershaw from presenting his theory of defense and so was harmful to his
case.


        By the same token, it was error for the court to instruct the jury
that ownership of the land was immaterial.     "An instruction that decides
a material issue of fact as a matter of law is regarded as a partial
instructed verdict of guilt and is prohibited."     United States v. Dakota
Cheese, Inc., 

, 338 (8th Cir. 1990) (citations omitted), cert.
denied, 

(1991).


        A defendant's belief that facts exist which would give him the right
to dispose of the property negates intent to steal under section 641.   See

.     Therefore, by instructing the jury that
it could not consider ownership of the land, which was relevant to
Heathershaw's claim of right, the court wrongfully denied Heathershaw the
chance to have the jury decide his guilt.   See 

("When intent is an ingredient of the crime charged, its existence is a
question of fact which must be submitted to the jury.").


        On the same reasoning, it was error to deny Heathershaw's claim-of-
right instruction.      A defendant is entitled to an instruction on any
recognized defense on which there is sufficient evidence for a jury to find
in his favor.    United States v. Brown, 

, 1004 (8th Cir. 1994).


        Since we must reverse on the grounds discussed above, we need not
consider Heathershaw's additional claims of trial error.




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A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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