                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                             May 10, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-1262
                                                  (D.C. No. 1:14-CR-00271-REB-1)
DAVID JUSTICE, a/k/a Stanley Hugh                             (D. Colo.)
Anderson,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

      David Justice, proceeding pro se, appeals his conviction for willfully

damaging United States property in violation of 18 U.S.C. §§ 1361 & 2. On appeal,

he argues (1) the indictment was insufficient in several respects, (2) the district court

erroneously instructed the jury, (3) he received ineffective assistance from his trial

counsel, and (4) the prosecution committed misconduct during the grand jury

proceedings. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    Background

      In July 2013, Mr. Justice and twenty-two other people engaged in a protest at

the Cushman Creek Trail by removing traffic-limiting devices, rocks, and boulders

and by pruning trees and shrubs. The stated purpose of these acts was not to

“destroy[] federal government property, but rather to remove . . . illegal

enhancements on a public highway within the State of Colorado.” Aplt. Opening Br.

at 2. The United States Bureau of Land Management (BLM) had installed the

enhancements years earlier to prevent full-sized motor vehicles from accessing the

trail, after previously allowing such access.

II.   Indictment

      Mr. Justice argues that the indictment is insufficient to confer jurisdiction on

the district court, insufficient to inform him of the nature and cause of the accusation

against him, and constructively amended. We reject these arguments.

      We review de novo the sufficiency of an indictment. United States v.

Edwards, 782 F.3d 554, 562 (10th Cir. 2015). “An indictment is sufficient if it sets

forth the elements of the offense charged, puts the defendant on fair notice of the

charges against which he must defend, and enables the defendant to assert a double

jeopardy defense.” Id. “The test of the validity of the indictment is not whether the

indictment could have been framed in a more satisfactory manner, but whether it

conforms to minimal constitutional standards.” United States v. Gama-Bastidas,

222 F.3d 779, 785 (10th Cir. 2000). Our evaluation of the indictment is governed by

practical rather than technical considerations. Edwards, 782 F.3d at 562.

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      To secure a conviction for willfully damaging United States property under the

applicable provisions of 18 U.S.C. § 1361, the government must prove the following

elements: (1) willfully, (2) injuring or committing any depredation against, (3) any

property of the United States, (4) that exceeds the sum of $1,000. By 18 U.S.C. § 2,

one who “aids, abets, counsels, commands, induces, or procures” the commission of

an offense against the United States is punishable as a principal.

      The indictment contains a single count, alleging:

      On or about July 21, 2013, in the State and District of Colorado, the
      defendant, David Justice, a/k/a Stanley Hugh Anderson, did willfully
      injure and commit a depredation against property of the United States,
      and did aid, abet, counsel, command, induce and procure its
      commission, on lands administered by the Bureau of Land Management,
      specifically, at a location known as Cushman Creek Trail, and such
      damage exceeded the sum of $1,000.00.

      All in violation of Title 18, United States Code, Sections 1361 & 2.

R. Vol. 1 at 13-14. As a threshold matter, we conclude these allegations are

sufficient to invoke the district court’s jurisdiction. See United States v. Jackson,

313 F.3d 231, 233 (5th Cir. 2002) (“To confer subject matter jurisdiction upon a

federal court, an indictment need only charge a defendant with an offense against the

United States in language similar to that used by the relevant statute.”).

      Moreover, the indictment sets forth all the elements of the alleged offense. It

alleges the date and place of the alleged offense and the putative amount of damage

involved. This sufficiently apprised Mr. Justice of the accusations he needed to be

prepared to meet in court. See United States v. Washington, 653 F.3d 1251, 1259

(10th Cir. 2011). Indeed, Mr. Justice concedes having committed the acts underlying

                                            3
the charge. Thus, we reject his contention that the indictment lacked enough

specificity to fairly notify him of the charge against him.

       Nor are we persuaded by his contention that the government constructively

amended the indictment.

       A constructive amendment results when the terms of an indictment are
       in effect altered by the presentation of evidence and jury instructions
       which so modify essential elements of the offense charged that there is a
       substantial likelihood that the defendant may have been convicted of an
       offense other than the one charged in the indictment.

Edwards, 782 F.3d at 561. Here, the indictment, jury instructions, verdict form, and

judgment state that Mr. Justice committed the offense against “property of the United

States.” R. Vol. 1 at 13, 265, 272, 504. The other elements listed in the indictment

and the jury instructions are identical for all practical purposes. Mr. Justice’s attempt

to glean a meaningful distinction between the phrases describing the damage to

government property “at” and “to” the Cushman Creek Trail is unavailing because

damage “at” the trail necessarily includes damage “to” it. We do not see the jury

instructions expanding the offense charged in the indictment under these

circumstances, and we discern no substantial likelihood that Mr. Justice was

convicted of an offense other than the one charged in the indictment.

III.   Jury Instructions

       Mr. Justice argues the district court erred by refusing to give his proposed jury

instruction defining the meaning of highway under Colorado law and by erroneously

giving another instruction on rights of way. We disagree.



                                            4
      We review for abuse of discretion a district court’s denial of a request for a

particular jury instruction. United States v. Williamson, 746 F.3d 987, 990 (10th Cir.

2014). We review de novo whether the instructions as a whole accurately informed

the jury of the governing law. Id.

      The gist of Mr. Justice’s defense at trial was that any property damaged in the

protest belonged to the State of Colorado. Although he concedes that the

surrounding land is property of the federal government, he still contends that the

Cushman Creek Trail itself (along with any fixtures on it) is property of the State of

Colorado under a statute known as “R.S. 2477.” R. Vol. 1 at 94. Passed in 1866,

that statute granted “the right of way for the construction of highways over public

lands, not reserved for public uses.” Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251,

253 (1866) (codified at 43 U.S.C. § 932), repealed by Federal Land Policy and

Management Act of 1976 (FLPMA), Pub. L. No. 94-579, § 706(a), 90 Stat. 2743,

2793; see generally Kane Cty. v. United States, 772 F.3d 1205, 1209 (10th Cir.

2014), cert. denied, 136 S. Ct. 318, 319 (2015). Although the FLPMA repealed

R.S. 2477, existing R.S. 2477 rights were preserved as they existed in 1976. S. Utah

Wilderness All. (SUWA) v. Bureau of Land Mgmt., 425 F.3d 735, 741 (10th Cir.

2005). But Mr. Justice cites no authority, and we are aware of none, for the

proposition that R.S. 2477 rights of way are to be treated differently from other rights

of way in the context of a case like this one.

      “A right of way is not tantamount to fee simple ownership of a defined parcel

of territory. Rather, it is an entitlement to use certain land in a particular way.”

                                            5
SUWA, 425 F.3d at 747; see also Barnard v. Gaumer, 361 P.2d 778, 780

(Colo. 1961) (“An easement does not carry any title to the land over which it is

exercised and the easement does not work a dispossession of the landowner.”).

Mr. Justice’s defense is based on the false premise that the grant of a right of way

under R.S. 2477 conveys an interest akin to an ownership interest in the underlying

estate. We disagree. Thus, whether the Cushman Creek Trail meets the definition of

a highway is irrelevant here. Even assuming Colorado has a right of way to the

Cushman Creek Trail and that it qualifies as a highway under state law, the property

remains owned by the federal government. Again, Mr. Justice cites no authority to

the contrary.

      The district court gave the following instruction about rights of way: “A

‘right-of-way’ includes an easement, lease, permit, or license to occupy, use, or

traverse public or private lands.” R. Vol. 1 at 264. The district court further

instructed the jury:

             In considering whether any property is property of the United
      States . . . you must determine whether the property which was placed
      on the Cushman Creek Trail by the Bureau of Land Management was a
      “fixture” of the real property on which it was placed:

            An object placed on real property is a fixture if each of the
      following three (3) things have been proved beyond a reasonable doubt:

                1. That the object is annexed to the real property; and

                2. That it is adapted to the use of the real property; and

                3. That it is intended that the object become a permanent part of
                the real property.


                                              6
              Any property you determine to be a fixture is property of the
       United States, if you also determine by proof beyond a reasonable doubt
       that the underlying real property is owned or titled in the name of the
       United States, the United States Department of the Interior, or the
       Bureau of Land Management.

Id. at 265. Mr. Justice does not contest the accuracy of these statements of law.

       Taken as a whole, the jury instructions adequately informed the jury of the

relevant law, and the district court did not abuse its discretion by declining to give

Mr. Justice’s tendered instruction on Colorado highways.

IV.   Ineffective Assistance of Counsel

       Mr. Justice makes several arguments about his trial counsel’s ineffectiveness.

But we see no special circumstance that would justify addressing them in this direct

appeal. See United States v. Banuelos-Barraza, 639 F.3d 1262, 1263 (10th Cir.

2011) (“[E]xcept in extraordinary circumstances claims of ineffective assistance of

counsel should be brought in collateral proceedings rather than on direct appeal from

a conviction.” (quotation marks omitted)). We dismiss these arguments without

prejudice. See United States v. Trestyn, 646 F.3d 732, 741 (10th Cir. 2011)

(dismissing when the record is “insufficient to enable meaningful appellate review of

these claims”).

V.    Prosecutorial Misconduct

       Mr. Justice argues that the prosecutor committed misconduct in the grand-jury

proceedings, yet he failed to raise these arguments in the district court. “Whether to

address [an] argument despite the litigant’s failure to raise it below is subject to this

court’s discretion based on the circumstances of the individual case.” United States

                                            7
v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007); see also United States v. Lamirand,

669 F.3d 1091, 1099 n.7 (10th Cir. 2012). We decline to do so here.

VI.   Conclusion

      We affirm the district court’s judgment and dismiss without prejudice

Mr. Justice’s ineffective-assistance-of-counsel claim. Mr. Justice’s motion for leave

to file a second superseding reply brief is granted.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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