Opinion
Nos. 79-1815 to 79-1817 (Trial Group D).
June 17, 1982. Rehearing Denied August 11, 1982.
John S. Evangelisti of LaFond Evangelisti, Denver, Colo. (Jonathan L. Olom, Denver, Colo., Tim Correll, Denver, Colo., Cathlin Donnell of Kelly, Haglund, Garnsey, Kahn Donnell, and Michael G. Katz, Federal Public Defender, Denver, Colo., on the briefs), for defendants-appellants.
Nancy E. Rice, Asst. U.S. Atty., D. Colo., Denver, Colo. (Joseph F. Dolan, U.S. Atty., Denver, Colo., with her on the brief), for plaintiff-appellee.
Appeals from the United States District Court for the District of Colorado.
Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, McKAY, LOGAN and SEYMOUR, Circuit Judges.
On Petition For Rehearing En Banc
These are part of a series of eighty-six appeals from convictions for violating 42 U.S.C. § 2278a(a) and (b) and 10 C.F.R. §§ 860.3, 860.5(a), and 860.6.
Appellants in Trial Group D were arrested at the east access road. For the facts surrounding the arrests, post-arrest and pretrial matters, see United States v. Seward, 687 F.2d 1270 (10th Cir.), filed this date.
The specific issues raised by these appellants are as follows:
1. The trial judge erred in refusing to allow appellants to present to the jury the defense of "necessity" or "choice of evils."
2. The convictions are invalid because the designation of boundaries in the Federal Register on April 13, 1979 fails to comply with the provisions of 5 U.S.C. § 551 et seq., 42 U.S.C. § 7191 et seq., and 10 C.F.R. §§ 860.1, et seq., as well as internal DOE standards published at 44 Fed. Reg. 1032 (January 3, 1979).
3. The trial court erred in denying appellants' motion to dismiss for failure to state a crime when the publication in the Federal Register required by 10 C.F.R. § 860.7 was defective because it failed to prohibit trespassing.
The first issue is controlled by our decision in United States v. Seward. The second and third issues are controlled by our decision in United States v. Thompson, 687 F.2d 1279 (10th Cir.), filed this date.
For the reasons set forth in those opinions, the judgments are affirmed.
For dissenting opinion of McKay, Circuit Judge, in which Logan and Seymour, Circuit Judges joined, see 687 F.2d 1279, at p. 1286.