No More Deaths and the Rule of Lenity

October 7, 2010

The Ninth Circuit Court of Appeals recently reversed a conviction for placing water bottles along trails frequently traveled by illegal entrants to the United States (click here to view the opinion, United States v. Millis, on or here to view it on WestlawNext).

Daniel Millis was convicted of violating 50 CFR § 27.94, a United States Fish and Wildlife Service regulation that prohibits:

The littering, disposing, or dumping in any manner of garbage, refuse sewage, sludge, earth, rocks, or other debris on any national wildlife refuge except at points or locations designated by the refuge manager, or the draining or dumping of oil, acids, pesticide wastes, poisons, or any other types of chemical wastes in, or otherwise polluting any waters, water holes, streams or other areas within any national wildlife refuge[.]

Mr. Willis, along with three other members of an organization called “No More Deaths,” had placed gallon-sized jugs of water along trails within the Buenos Aires National Wildlife Refuge in Arizona.  They were spotted in the refuge by Fish and Wildlife Service Officers and, when questioned, admitted leaving the water behind.  Millis was convicted based on the theory that the water jugs constituted “garbage” under the regulation.

The Ninth Circuit ultimately reversed Millis’s conviction after applying the “rule of lenity,” a canon of statutory construction providing that an ambiguity in a criminal statute be construed against the government.  The court held that the term “garbage” as used in the regulation was sufficiently ambiguous to call for the application of the rule of lenity:

[G]iven the common meaning of the term “garbage,” coupled with the regulatory structure, we conclude that § 27.94(a) is sufficiently ambiguous in this context that the rule of lenity should apply. Millis likely could have been charged under a different regulatory section, such as abandonment of property or failure to obtain a special use permit. However, that is not the question presented here. The only question is whether the rule of lenity should be applied to the offense charged. We conclude that it does apply, and we reverse the judgment of the district court.

Given the large amount of media coverage surrounding immigration, I was surprised to have never heard of the “No More Deaths” organization before this decision.  I ran searches through cases, trial court filings and orders, briefs, and dockets on Westlaw for “no more deaths” to see if there existed any other litigation involving the organization.  Those searches turned up a total of 3 relevant documents (two cases and one brief), and each related to the Millis case.  There are several mentions of the organization in the Journals and Law Reviews (JLR) and ALLNEWS databases.  A JLR search for “no more deaths” /200 immigra! returns 8 articles, while the same search in ALLNEWS returns 351 documents.

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