United States v. Jay Baron Kaisserman ( 1996 )

105 F.3d 667

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jay Baron KAISSERMAN, Defendant-Appellant.

No. 96-10171.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 9, 1996.*
Decided Dec. 18, 1996.

1

Before: BROWNING, SKOPIL, and BRUNETTI, Circuit Judges

2

MEMORANDUM**

3

We affirm the conviction of Jay Kaiserman for residing in the Coronado National Forest without special use authorization in violation of 36 C.F.R. § 261.10(b).

4

Kaiserman was required to abide by 36 C.F.R. § 261.10(b) whether or not he was engaged in prospecting or mining activities. As this court held in United States v. Doremus, 888 F.2d 630, 632 (9th Cir.1989), "s 261.1(b) is merely a recognition that mining operations 'may not be prohibited nor so unreasonably circumscribed as to amount to a prohibition.' " Section 478 of 16 U.S.C., which Kaiserman argues gives him the right to enter the national forest to engage in prospecting, states "[s]uch persons must comply with the rules and regulations covering such national forests." The common law doctrine to which Kaiserman refers does not override the explicit mandates of the U.S. Code.

5

The evidence was sufficient to convict Kaiserman of residing on a national forest without permission in violation of 36 C.F.R. § 261.10(b). Two witnesses testified Kaiserman admitted he was living in the Coronado National Forest. Two witnesses testified he was living elsewhere, but "[i]n cases of conflicting testimony where credibility is necessarily at issue, we must be 'especially reluctant' to set aside the findings of the trial court." Gibbs v. Pierce County Law Enforcement Support, 785 F.2d 1396, 1402 (9th Cir.1986).

6

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3