The Eighth Circuit Court of Appeals reversed the conviction of Marc Sean Wisecarver for deprecation of government property after he shot a hole through the engine of a government owned vehicle.

Wisecarver owned a one sixth undivided interest in a a piece of land on the Pine Ridge Indian Reservation near Manderson, South Dakota. He reqested permission to rent out his share. The BIA sent Duke Bourne, a soil conservationist to determine the rental value of the property. Wisecarver saw Bourne drive onto the property. He did not recognize Bourne or the government truck he was driving. He yelled and waved at the truck. Bourne continued driving along the interior of the fence, nearly hitting one of Wisecarver’s horses. When Bourne again ignored Wisecarver’s yelling at him, Wisecarver got his gun.

Bourne drove over to Wisecarver, but he refused to identify himself, giving Wisecarver a phone number he could call. Wisecarver ordered Bourne off the property without the government vehicle because he was afraid Bourne would drive the truck into himself or his horses. Bourne refused and Wisecarver shot a bullet into the car’s engine. Bourne then walked off the property.

Wisecarver was charged with assault on a government officer and deprecation of government property. During deliberations the jury requested further instruction on the deprecation charge. The Judge, after conferring with counsel that:

[y]ou are instructed that the shooting of the pickup truck would constitute ‘depredation’ under the statute 18 U.S.C. § 1361, unless you find that the
defendant did not use justifiable force to protect his person or property.

Shortly after the instruction was given the prosecutor pointed out that the instruction had a double negative in it and misstated the law. But the judge decided not to change the instruction.

The jury found him not guilty of assault but guilty of deprevation.

Wisecarver raised three issues on appeal. First he questioned the sufficiency of the evidence. Second, he asked that the conviction be reversed due to the erroneous instruction. Third he challenge his 36 month sentence.

The Eighth Circuit found that the only issue in contention was Wisecarver’s intent when he shot the gun, that is the issue of self defense and that there was insufficient evidence to show self defense as a matter of law. But it reversed the conviction because the jury instruction was clearly wrong and if the jury followed the instruction as given reversal was necessary. After reversing the conviction it did not consider the sentencing errors.