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United States v. Arm

United States Court of Appeals, Ninth Circuit

June 8, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DOUGLAS VANCE CROOKED ARM, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KENNETH G. SHANE, Defendant-Appellant

Page 1066

August 29, 2014, Argued and Submitted, Seattle Washington

Appeal from the United States District Court for the District of Montana. D.C. No. 1:13-cr-00018-DWM-1, D.C. No. 1:13-cr-00018-DWM-2. Donald W. Molloy, Senior District Judge, Presiding.

AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED.

SUMMARY[*]

Criminal Law

The panel affirmed in part and reversed in part the district court's denial of a pretrial motion to dismiss for failure to state a felony claim an indictment charging two defendants with violating the Migratory Bird Treaty Act of 1918, vacated the sentences, and remanded.

The defendants argued that the counts to which they conditionally pled guilty were improperly charged as felonies because it is only a misdemeanor under the MBTA to sell migratory bird feathers.

The panel held that even under the defendants' interpretation of the MBTA, Count I, which charges a conspiracy to kill, transport, and offer for sale and sell migratory birds, including bald and golden eagles, charges a felony.

The panel held that in regard to Count II, which charges unlawful trafficking in migratory bird parts, the allegations state a misdemeanor only.

Brian M. Murphy (argued) and Mark D. Parker, Parker, Heitz & Cosgrove, PLLC, Billings, Montana, for Defendant-Appellant Douglas Vance Crooked Arm.

Sherry S. Matteucci, Matteucci Law Firm, PLLC, Billings, Montana, for Defendant-Appellant Kenneth G. Shane.

Leif Johnson (argued), Assistant United States Attorney, Billings, Montana, for Plaintiff-Appellee.

Before: John T. Noonan, Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges.

OPINION

Page 1067

PER CURIAM:

Following conviction and sentencing upon Defendants-Appellants Douglas " Vance" Crooked Arm's and Kenneth Shane's (collectively Defendants) conditional guilty pleas in this case, Defendants appeal the district court's denial of their pretrial Motion to Dismiss Indictment for Failure to State a Felony Claim. We consider the Migratory Bird Treaty Act of 1918 (MBTA). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, vacate Defendants' sentences, and remand.

I

A grand jury indicted Defendants on multiple counts of, among other things, knowingly and willfully conspiring to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles, in violation of the MBTA, 16 U.S.C. § § 703(a) and 707(b) (Count I) and unlawfully trafficking in migratory bird parts, in violation of 16 U.S.C. § § 703(a), 707(b) (Counts II--IV). Defendants admitted selling a fan made of eagle feathers to undercover agents of the United States Fish & Wildlife Service (FWS) and, after the district court denied Defendants' motion to dismiss the indictment, entered a conditional guilty plea on Counts I and II.

On appeal, as at the district court, Defendants argued that the counts to which

Page 1068

they pled guilty were improperly charged as felonies because it is only a misdemeanor under the MBTA to sell migratory bird feathers. We conclude first, that even under Defendants' interpretation of the MBTA, Count I, which charges a conspiracy to kill, transport, and offer for sale and sell migratory birds, including bald and golden eagles, charges a felony; and, second, that in regard to Count II, the allegations state a misdemeanor only, not a felony.

II

We consider in this section, first, the underlying facts revealed by the government's criminal investigation, and then, second, the procedural history leading to this appeal.

A[1]

On August 17, 2008, undercover agents from FWS met Defendants in Crow Agency, Montana, as part of " Operation Hanging Rock," an investigation into the unlawful sale of migratory bird feathers. Shane gave the agents his contact information and invited them to his house.

Seeing two golden eagles flying overhead during a November 2008 meeting with Shane near Garryowen, Montana, one of the undercover agents said to his partner: " There's your tail, Liz." Shane asked whether the agents were " looking for tails," and the female agent said she needed an eagle feather fan for her dress. Shane told her that Crooked Arm " has got some made, beaded and everything. He likes to hunt." Shane said that Crooked Arm caught hawks and eagles by baiting them with deer and elk carcasses.

Shane called Crooked Arm to tell him the agents were interested in eagle feather fans and to ask whether he had any for sale. Crooked Arm came to the meeting, where he showed the agents some deer carcasses in the back of his truck. Upon seeing a golden eagle flying nearby, Shane told Crooked Arm to drop a carcass in the area. Crooked Arm showed the agents two fans--one made from immature golden eagle feathers and one made from magpie feathers--before leaving to drop the deer carcass.

After Crooked Arm left, Shane told the agents that he and Crooked Arm wanted $1,500 for the golden eagle fan and $800 for the magpie fan. The agents bought the eagle fan, paying Shane $1,500 in cash, and placed an order for a magpie fan. The agents later saw Shane give Crooked Arm a part of the $1,500 the agents paid for the eagle fan.

On February 11, 2009, one of the agents drove with Shane to Crooked Arm's residence in Hardin, Montana. The agent told Crooked Arm that he needed another eagle fan and a winter hawk fan. Crooked Arm said he had sold four golden eagle fans and several hawk fans the previous week, but that he still had plenty of tails available. He asked the agent to email him the specifics for the fans and gave the agent his phone number. The agent paid Crooked Arm a $500 deposit for the two fans.

On March 8, 2009, Crooked Arm emailed photographs of a bald eagle fan and a winter hawk tail to one of the agents, and asked if the hawk tail--which he planned to use for the agent's fan--was acceptable. Crooked Arm sent a second email later

Page 1069

that day, explaining that production of the bald eagle fan had been delayed because the eagle was bloody and required special cleaning. On March 9, 2009, Crooked Arm asked the agents what colors they wanted on the fan. He then called to explain that the $500 deposit would be payment for the winter hawk fan, but that the bald eagle fan from the photo would cost $1,000.

On March 11, 2009, FWS agents served a search warrant on Crooked Arm's residence, where they found, among other things, a handwritten note documenting the agents' order for a bald eagle fan and a winter hawk fan. Crooked Arm signed an Advice of Rights Form, agreed to cooperate, and admitted that he knew the undercover agents.

On the same day, FWS agents served a search warrant on Shane's father's residence, where Shane lived. Like Crooked Arm, Shane agreed to cooperate, and he conceded that he knew it was illegal to sell hawk and eagle parts. Shane acknowledged that Crooked Arm sold a golden eagle fan to the undercover agents in November 2008, but he said he never counted the money, all of which he gave to Crooked Arm. Shane also admitted having heard the agents discuss future purchases with Crooked Arm, and he said Crooked Arm called him the previous day to ask for the agents' phone number in connection with the sale of the bald eagle tail fan and the hawk fan.

B

On February 21, 2013, a grand jury indicted Defendants on four criminal counts. Count I charged Defendants with knowingly and willfully conspiring and agreeing together " to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles, in violation of 16 U.S.C. § § 703(a) and 707(b)." Among the overt acts alleged was that Crooked Arm had placed deer carcasses on the land to attract and capture birds of prey including eagles and hawks. The specific conspiracy that Count I charged was the conspiracy defined under 18 U.S.C. § 371. Count II charged that Defendants knowingly sold parts of a golden eagle for $1,500. Count III charged that Defendants offered to sell parts of a Magpie for $800. Count IV alleged that Defendants offered to sell parts of a bald eagle for $1,000.

On April 16, 2013, Defendants filed a motion to dismiss the indictment for failure to state a felony claim. Defendants argued, in essence, that the indictment alleged facts sufficient to support a misdemeanor charge of trafficking in migratory bird parts in violation of 16 U.S.C. § 707(a), but that were insufficient to support a felony charge of trafficking in migratory birds in violation of 16 U.S.C. § 707(b).

The district court denied Defendants' motion on July 8, 2013, and said that Defendants were " misconstru[ing] the statute under which [they] are charged." The district court ruled that the " indictment properly states a felony crime," because 16 U.S.C. § 707(b) " is designed to punish the commercial sale of migratory birds, not to distinguish between birds and bird parts." The district court held that although Defendants " sold parts of birds and not whole birds, it is the commercial sale of the parts that elevates the Defendants['] offense from a misdemeanor to a felony."

On July 22, 2013, Crooked Arm and Shane entered identical conditional guilty pleas to Counts I and II, reserving their right to appeal the district court's denial of their motion to dismiss ...


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