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September 2, 2010

Notable Ninth Circuit ruling concerning garbage and the rule of lenity

Though not a sentencing case, I could not resist posting about an interesting split criminal statutory law ruling from the Ninth Circuit today in US v. Millis, No. 09-10134 (9th Cir. Sept. 2, 2010) (available here). The start of the dissent by Judge Bybee highlights the legal issue and should provide a sense for why the case is interesting:

Daniel Millis, motivated by humanitarian concerns, scattered plastic gallon-size water bottles with bright blue caps throughout the Buenos Aires National Wildlife Refuge in southern Arizona. When Millis failed to pick up all of the bottles after Fish and Wildlife Service employees asked him to do so, he was cited for littering on a national wildlife refuge. 50 C.F.R. § 27.94(a).  After a bench trial, a magistrate judge found Millis guilty of the charge, and the district court affirmed his conviction. The majority overturns his conviction on the grounds that the common meaning of the term “garbage” is “sufficiently ambiguous” to require invocation of the rule of lenity.  I believe that the rule of lenity does not apply here because leaving plastic bottles in a wildlife refuge is littering under any ordinary, common meaning of the word.

September 2, 2010 at 02:02 PM | Permalink


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Bybee should know; he is an expert on large quantities of water.

Posted by: . | Sep 2, 2010 2:12:19 PM

I am shocked, shocked, to learn that Bybee believes the rule of lenity does not apply!

Posted by: Fortunatus | Sep 2, 2010 6:08:35 PM

The watchword in the Ninth Circuit is: Garbage in, garbage out.

Posted by: Bill Otis | Sep 3, 2010 10:48:55 PM

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