UNITED STATES of America, Plaintiff-Appellee, v. Chad Kirch McKITTRICK, Defendant-Appellant.
No. 97-30090
United States Court of Appeals, Ninth Circuit
Argued and Submitted Feb. 2, 1998. Decided April 28, 1998.
142 F.3d 1170
C. Public Policy Considerations
American Games and the amici caution that vacatur may be used by litigants to manipulate the common law to suit themselves. They describe the paradigm of such abuse as insurers who “buy and bury” decisions unfavorably interpreting standard form policy language widely used by the industry. Cf. Mancinelli v. International Business Machines, 95 F.3d 799, 800 (9th Cir. 1996) (Kleinfeld, J., dissenting) (the loser in litigation normally should not be allowed to “buy an eraser for the public record“). That concern is misplaced on the facts of this case. Stuart did not merely buy Trade Products’ assets. It gave all three Trade Products’ shareholders seats on Stuart‘s board of directors. The district court examined the merger transaction and satisfied itself that it was incidental to the pending case. Such scrutiny is appropriate because, on different facts, a “buy and bury” strategy could easily be disguised as a merger. The incentive to do so might exist whenever the value of erasing an adverse decision amounted to an attractive discount on the purchase of a smaller company with saleable assets. Thus, in cases of merger, the district courts should probably evaluate the economics and incentives of the transaction to smoke out subterfuge.
In this case it seems unlikely that, as Stuart argues, the merger “transaction had nothing to do with the pendency of Stuart Entertainment‘s appeal.” The prospect of mooting the case, and vacating the judgment, especially with the American Games suit pending, presented a possible bonus. The district court, however, properly considered that this was a $37 million merger, entered into partly to avoid the purchase of Trade Products by Stuart‘s competitor. The evidence was that none of the principals even mentioned the relatively trivial pending lawsuit.
Thus, facts support the district court‘s finding that the prospect of vacating the judgment was not the primary motive for the sale, but was instead only incidental to it. The monetary amount involved in the merger appeared to be much more than was involved in the infringement suits and, significantly, Stuart invited all three of Trade Products’ shareholders to join Stuart‘s board of directors. In light of such facts, the district court‘s finding that the merger was incidental to the law suit was not clearly erroneous. Moreover, in the absence of the merger Stuart had maintained its right to appeal the adverse decision. Without the vacatur it would lose the right to have the adverse copyright decision reviewed by an appellate court. We conclude that in balancing the equities, the district court did not abuse its discretion by granting Stuart‘s vacatur motion.
AFFIRMED.
Gilbert U. Burdett, Billings, Montana, for defendant-appellant.
James C. Kilbourne, Dept. of Justice, Washington, DC, for plaintiff-appellee.
Opinion by Judge SKOPIL; Concurrence by Judge O‘SCANNLAIN.
SKOPIL, Senior Circuit Judge:
I.
The gray wolf, or Canis Lupus, is listed as endangered under the Endangered Species Act (ESA) throughout the coterminous United States, except in Minnesota, where it is listed as threatened.
The government charged McKittrick with three counts: one, taking the wolf in violation of
On appeal, McKittrick argues that the wolf he killed was not protected by the ESA, that his separate counts fоr taking and for possessing the wolf were multiplicitous, that his taking of the wolf was not “knowing” because he did not realize what he was shooting, and that the court erred in instructing the jury about the “incidental take exception.” We reject each of these challenges and affirm the conviction. McKittrick also contends, however, that the sentencing magistrate judge should have reduced his offense level by two points for acceptance of responsibility. Because the magistrate judge may have disallowed the reduction on impermissible grounds, we remand for a redetermination of whether McKittrick accepted responsibility under U.S.S.G. § 3E1.1.
II.
A. Validity of the Regulations
McKittrick challenges his conviction by alleging four defects in FWS‘s designation of the gray wolf experimental population in Yellowstone. Specifically, he maintains that (1) FWS may not draw members of an experimental population from an unlisted population, such as Canadian gray wolves; (2) the experimental population is invalid because it is not “wholly separate geographically” from naturally occurring wolves in the release area; (3) the experimental population regulations are invalid because the Secrеtary did not make a finding required by ESA section 4(d); and (4) the regulations are invalid because the Secretary did not comply with ESA section 4(f).
McKittrick‘s challenges raise questions of law that we review de novo. See Torres-Lopez v. May, 111 F.3d 633, 638 (9th Cir. 1997). Because these questions involve FWS‘s interpretation of the ESA and the agency‘s own regulations, however, our review is subject to deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (agency‘s reasonable interpretation of ambiguous statutory provision entitled to deference); Rainsong Co. v. FERC, 106 F.3d 269, 272 (9th Cir. 1997) (agency‘s interpretation of a statute it administers entitled to considerable deferеnce); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 510-12 (1994) (agency‘s interpretation of its own regulations entitled to “broad deference“).
1. The Experimental Population Designation
McKittrick contends that FWS acted improperly in creating an experimental population from members of an unlisted population - that is, Canadian gray wolves. Authority to create experimental populations arises under section 10(j) of the ESA, which provides that “[t]he Secretary may authorize the release ... of any population ... of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.”
First, gray wolves are protected by the ESA based on where they are found, not where they originate. Canadian gray wolves that migrate into the northern United States, for example, assume protected status when they cross the border. See 59 Fed. Reg. at 60,253 (discussing the probable “southern expansion of the Canadian wolf populаtion” into
Second, McKittrick‘s interpretation offends the statute‘s essential purpose, which is the сonservation of species. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978) (noting that ESA‘s purpose is to conserve endangered species at any cost). If McKittrick‘s analysis of section 10(j) were correct, FWS would be forced to create an experimental wolf population only by depleting threatened or endangered populations in the United States. Instead, the agency has interpreted section 10(j) to allow gray wolves to be taken from the healthy Canadian population and reintroduced to an area where wolves had been extirpated. See 59 Fed. Reg. at 60,252 (Because gray wolvеs are common in Canada, “[n]o adverse biological impact is expected from the[ir] removal.“). Neither the ESA nor its implementing regulations expressly permits FWS to obtain experimental populations from unlisted populations, but the agency‘s interpretation of the ESA, which it is charged with administering, is entitled to great deference. See Rainsong, 106 F.3d at 272. In addition, FWS‘s interpretation comports with the ESA‘s purpose, as revealed by legislative history and case law. When section 10(j) was added to the ESA, for example, Congress spoke of the statute‘s broad purpose:
In enacting the Endangered Spеcies Act, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constitutent [sic] element. Although the regulatory mechanisms of the Act focus on species that are formally listed as endangered or threatened, the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species.
H.R. Conf. Rep. No. 97-835, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871 (specifying that conservation plans may include unlisted as well as listed speсies). Congress’ specific purpose in enacting section 10(j) was to “give greater flexibility to the Secretary.” H.R. Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. Thus, each experimental population has its own set of special rules so that the Secretary has more managerial discretion. Id. at 2834; see
The Supreme Court acknowledged the Secretary‘s broad authority when it upheld the regulatory definition of “harm” to include habitat modification, reiterating that “the broad purpose of the ESA supports the Secretary‘s decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698 (1995). Like the regulation at issue in Sweet Home, the agency‘s implementation of section 10(j) in creating the experimental wolf population effectuates the ESA‘s purpose and is within the Secretary‘s authority. FWS‘s designation of the experimental population was proper, and the wolf McKittrick shot fell within the ESA‘s protection.2
2. The “Wholly Separate Geographically” Requirement
McKittrick claims that the reintroduced wolves were not “wholly separate geogrаphically” from wolves already present in Yellowstone, and that the experimental population designation is therefore invalid. In
According to McKittrick, such a loss of experimental status deprives the imported wolves of all ESA protection. We disagree. Because the wolves’ ESA status depends in part on their location, a wolf that had been introduced into Yellowstone from Canada would either be classified as experimental or, if it lost experimental status because of overlap with natural populations, as endangered. See
We need not decide whether McKittrick should have been charged under a different subsection, however, because we hold that FWS‘s regulations for the gray wolf experimental population meet the “wholly separate geographically” requirement. In its rulemaking process, FWS specifically determined that “the experimental population area does not currently support any reproducing pairs of wolves.” 59 Fed. Reg. at 60,256. Although McKittrick points to sporadic sightings of isolated indigenous wolves in the release area, lone wolves, or “dispersers,” do not constitute a population. See
The District of Wyoming reached the opposite conclusion in Wyoming Farm Bureau Federation v. Babbitt, 987 F. Supp. 1349 (D. Wyo. 1997). Although it deferred to FWS‘s definition of “population” as a permissible construction of the ESA within the agency‘s expertise, 987 F. Supp. at 1371, the court nevertheless held the FWS regulations invalid under the “wholly separate geographically” requirement, id. at 1372. Concluding that it was erroneous for FWS to consider populations rather than individual wolves, the court declared the agency‘s determination of geographic separation “insufficient and contrary to law” because the introduced wolves were not geographically separate from “non-introduced specimens of the same species.” Id. at 1372.
We do not agree with the Wyoming District Court‘s analysis that section 10(j) must be read to apply to individual specimens as well as populations. The court based its reading on a House Report containing the word “individuals” once and “specimens” twice. H.R. Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. The quoted section of the report, however, uses the word “population” or “populations” sixteen times, id., and section 10(j) itself refers only to populations,
McKittrick further contends that the regulations he violated were invalid because the Secretary failed to comply with ESA section 4(d). That section authorizes the Secretary to promulgate regulations applicable to threаtened species “as he deems necessary and advisable to provide for the conservation of such species.”
This argument is meritless. Section 10(j) requires two specific findings for regulations pertaining to experimental populations: (1) that the establishment of such a population will further the species’ conservation; and (2) that the population is either essential or nonessential to the species’ conservation.
4. Section 4(f)
McKittrick also challenges the regulations’ validity because the Secretary did not adopt a recovery plan for gray wolves that “give[s] priority to ... species ... most likely to benefit from such plans.”
This argument, too, is without merit. The Secretary has broad discretion to determine what methods to use in species conservation, see Sweet Home, 515 U.S. at 708; adoption of recovery plans is discretionary,
B. Multiplicity
McKittrick challenges Counts I and II of the information for multiplicity. Count I charged him with taking the wolf, and Count II, with possessing it. We review de novo the question whether an indictment or information is multiplicitous and thus violates a defendant‘s double jeopardy rights. United States v. Wolfswinkel, 44 F.3d 782, 784 (9th Cir. 1995).
The test for multiplicity - charging a single offense in more than one count - is whether each separately violated statutory provision “requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932); see Wolfswinkel, 44 F.3d at 784-85. McKittrick violated subsection (3) of the regulations by killing the wolf; he violated subsection (5) by possessing it.
C. Degree of Intent
McKittrick argues that a violation of ESA section 11 requires the government to prove that he knew he was shooting a wolf, and that the jury instructions misled the jury about the requisite intent. We review for an abuse of discretion whether the magistrate judge‘s “precise formulation” of the intent element was sufficient. United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Whether the instructions actually misstated an element of the crime is subject to de novo review. Id.
D. The “Incidental Take” Exception
McKittrick also claims that the jury instructions misrepresented the “incidental take” exception and improperly shifted the burden of proving the exception to McKittrick. As with the instruction on intent, the magistrate judge‘s “precise formulation” of the exception instruction and whether it was adequate are reviewed for an abuse of discretion. Knapp, 120 F.3d at 930. Whether the instructions actually misstated an element of the crime - for example, by inaccurately stating the burden of proof - is subject to de novo review. Id.
McKittrick first asserts that the instruction inaccurately recited the exception. The instruction was not inaccurate, however; on the contrary, it precisely tracked the language of the regulation: “Any person may take a gray wolf ... [p]rovided that the take is incidental to an otherwise lawful activity, accidental, unavoidable, unintentional, not resulting from negligent conduct lacking reasonable due care, and due care was exercised to avoid taking a gray wolf.”
McKittrick‘s second contention is that the instruction shifted the burden of proof from the government to him to prove the applicability or inapplicability of the exception. We disagree. Even if the government did have the burden to prove that the incidental take exсeption did not apply to the taking, which is not clear,5 the instructions in no way suggest otherwise. Viewed as a whole, see United States v. Harrison, 34 F.3d 886, 889 (9th Cir. 1994), the magistrate judge‘s instructions to the jury clearly placed the burden of proof on the government.
Any error in the instructions would be harmless, nonetheless, because McKittrick cannot qualify for the incidental take exception. He deliberately shot the wolf; he did not kill it unintentionally in the course of some other activity. The incidental take exception does not apply to “deliberate action.” See Sweet Home, 515 U.S. at 700-01. Furthermore, the regulatory exception has two requirеments - first, that the take be incidental; second, that it be “reported within 24 hours” to FWS.
Finally, McKittrick argues that, because he admitted shooting the wolf and only contested his guilt based on the applicability and validity of the regulations, the sentencing magistrate judge should have allowed a two-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a).
1. Standard of Review
The magistrate judge‘s findings of fact underlying an application of the Sentencing Guidelines are reviewеd for clear error. See United States v. Thompson, 80 F.3d 368, 370 (9th Cir. 1996). Because “[t]he sentencing judge is in a unique position to evaluate a defendant‘s acceptance of responsibility,” a judge‘s determination under section 3E1.1 is “entitled to great deference on review.” U.S.S.G. § 3E1.1 (Application Note 5).
2. Analysis
The Sentencing Guidelines provide for a two-point decrease in offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). McKittrick contends that because he “truthfully admitt[ed] the conduct comprising the offense(s) of conviction,” U.S.S.G. § 3E1.1 (Application Note 1(a)), he should have been allowed the reduction. McKittrick did not plead guilty, however, and the commentary instructs that the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial,” except in “rare situations.” Id. (Application Note 2). One of those rare situations may occur when the defendant “goes to trial to assert and preserve issues that do not relate to factual guilt ... [such as] a challenge to the applicability of a statute to his conduct.” Id. McKittrick‘s was such a trial - he contended that the regulations were invalid or inapplicable and that they required a level of intent he did not possess. Therefore, McKittrick was eligible for a section 3E1.1 reduction.
In establishing the offense level, the magistrate judge adopted the findings of fact in the presentence report. See United States v. Colussi, 22 F.3d 218, 220 (9th Cir. 1994) (noting that the sentencing judge is not obligated to explain factual findings and is free to “simply adopt the conclusions in the presentence report, or state that the defendant did not meet the requirements“). The report recommended against the reduction because, although McKittrick admitted that he shot an animal that turned out to be a wolf, he “denies possessing intent to kill the wolf, thereby thwarting culpability for committing the criminal act for which he was found guilty.” McKittrick did maintain at trial, in the face of contradictory testimony from a friend who accompanied him, that he thought the animal was a wild dog when he shot it. Because the court followed St. Onge in formulating the jury instructions, however, the jury did not have to decide whether to believe McKittrick.
McKittrick had the burden of demonstrating that he accepted responsibility for his crime. See United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993). He was entitled, however, to challenge the intent requirement of ESA section 11 without forgoing his eligibility for the reduction. It is unclear from the language in the presentence report whether or not the magistrate judge based his denial of a section 3E1.1 adjustment on an impermissible ground. We therefore remand to give Magistrate Judge Anderson the opportunity to reexamine his determination.
III.
We hold that the regulations protecting the gray wolf experimental population are valid and that there was no error in the information or the jury instructions. Accordingly, we affirm McKittrick‘s conviction for taking, possessing, and transporting a gray wolf in violation of the ESA and the Lacey Act. We vacate and remand the sentencе, however, for a redetermination of whether McKittrick satisfied his burden to show acceptance of responsibility under U.S.S.G. § 3E1.1.
AFFIRMED in part, REVERSED in part, and REMANDED.
I concur. I write separately only to emphasize that I find recourse to legislative history and arguments from statutory “purpose,” see Maj. Op. 3956-61, unnecessary to the resolution of this appeal.
McKittrick‘s contention that the Fish and Wildlife Service was not authorized to create an experimental population from an “unlisted” population (i.e., Canadian gray wolves) is, in my view, answered by the plain language of the Endangered Species Act:
The Secretary may authorize the release ... of any population ... of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.
Text alone also suffices, in my mind, to resolve McKittrick‘s claim that the Yellowstone designation violated