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.
Nos. 13-30297, 13-30316
United States Court of Appeals, Ninth Circuit
June 8, 2015
1067
Before: JOHΝ Τ. ΝΟΟΝΑΝ, MICHAEL DALY HAWKINS, and RONALD M. GOULD, Circuit Judges.
Argued and Submitted Aug. 29, 2014.
Sherry S. Matteucci, Matteucci Law Firm, PLLC, Billings, MT, for Defendant-Appellant Kenneth G. Shane.
Leif Johnson (argued), Assistant United States Attorney, Billings, MT, for Plaintiff-Appellee.
OPINION
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
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,
On appeal, as at the district court, Defendants argued that the counts to which
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.
A1
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
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
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
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
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 the indictment for failure to state a felony claim.
On October 23, 2013, the district court entered judgment sentencing Crooked Arm to four years of probation and Shane to one year of probation. Crooked Arm appealed his conviction and the district
III
We review de novo a district court‘s decision “whether to dismiss a charge in an indictment based on its interpretation of a federal statute.” United States v. Olander, 572 F.3d 764, 766 (9th Cir. 2009). Similarly, we review de novo questions of statutory interpretation. See United States v. Thompson, 728 F.3d 1011, 1015 (9th Cir. 2013). We normally give deference “to an executive department‘s construction of a statutory scheme it is entrusted to administer” when the statute is ambiguous. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
IV
We begin with an overview of the MBTA. Congress passed the MBTA in 1918 to protect migratory birds, “or any part, nest, or egg of any such bird,” included in the terms of a 1916 treaty between the United States and Great Britain, which was acting on behalf of Canada. See MBTA, ch. 128, § 2, 40 Stat. 755, 755 (1918), now codified as amended at
The conduct proscribed by the MBTA has not changed much since 1918. Today, the statute states that, with certain exceptions not applicable here, “it shall be unlawful at any time, by any means or in any manner, to“:
pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof.
The punishment scheme for violations of the MBTA has changed over time. Originally, all violations were misdemeanors. See MBTA, ch. 128, § 6, 40 Stat. 755, 756 (1918). In 1960, however, Congress amended the MBTA to make it a felony (1) to “take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird,” or (2) to “sell, offer for sale, barter or offer to barter, any migratory bird.” Act of Sept. 8, 1960, Pub.L. No. 86-732, 74 Stat. 866, 866. Congress again amended the MBTA in 1986, this time to add a scienter requirement to the felony provision of § 707. See Emergency Wetlands Resources Act of 1986 § 501, Pub.L. No. 99-645, 100 Stat. 3582, 3590.
Today, then, the MBTA treats some violations as misdemeanors and others as felonies:
(a) Except as otherwise provided in this section, any person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.
(b) Whoever, in violation of this subchapter, shall knowingly—
(1) take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or
(2) sell, offer for sale, barter or offer to barter, any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.
V
We start with Count I. We conclude that this count plainly charged a felony. The felony provisions of
Count I formally charges Defendants with a conspiracy under
Under any reading of the statute, even if Defendants were right that sale of eagle feathers is only a misdemeanor, Count I clearly charges in part a statu-
VI
Before considering challenges to whether Count II alleged facts sufficient to charge a felony, we first ask whether the conclusion that Count I charged a felony renders moot the challenge to whether Count II charged a felony. The challenge to the felony status of Count II is not moot for two reasons.
First, if Defendants prevail on this appeal, we could give relief by vacating their sentences and remanding for resentencing. The District Court sentenced on the basis that Defendants pled guilty to Counts I and II, and thus committed two felony offenses. The district court gave a light sentence of probation—four years for Crooked Arm and one year for Shane. The district court was aiming at giving a light sentence, even for conviction of two felony counts, but it could have given an even lighter sentence, such as less time for probation, if it had concluded that Defendants pled guilty to only one felony and to one misdemeanor, rather than to two felonies.
Second, the fact of conviction for two felonies, rather than one felony and one misdemeanor, has collateral consequences for Defendants. If either is convicted of any other federal offense in the future, his advisory sentencing guidelines range would be affected by criminal history, and that is affected by whether he pled guilty to one felony or two. In general, the greater the criminal history category in which one fits, the greater will be the applicable advisory guidelines sentencing range. We have said: “In this day of federal sentencing guidelines based on prior criminal histories [and] federal career
Having determined that Count I charged a felony, we still must address whether Count II charged a felony. That question is not moot and will affect both whether Defendants are entitled to a resentencing as a result of our appellate decision and whether their criminal histories thereafter will reflect one or two felonies arising from the offenses to which they pled guilty in this case.
VII
Turning to the remainder of the indictment, it is undisputed that Counts II through IV charge criminal conduct. See Andrus v. Allard, 444 U.S. 51, 60 (1979) (“[
A
As with all issues of statutory interpretation, we begin with the text of the MBTA. Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830-31 (9th Cir. 1996). We examine not only
As outlined in Section IV of this opinion, it is a felony: (1) to take any “migratory bird” with the intent to sell, offer for sale, barter, or offer to barter such bird; or (2) to sell, offer for sale, barter, or offer to barter any “migratory bird.”
“Migratory birds,” as the phrase is used in the MBTA, “are those defined as such by the treaty between the United States and Great Britain” and other relevant treaties.
Because the MBTA uses the phrase “migratory birds” in numerous provisions, we endeavor to interpret the phrase in a manner that gives it a consistent meaning throughout the statute. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012). Throughout the broader context of the MBTA, Congress consistently differentiated between “migratory birds” and “parts thereof“:
[I]t shall be unlawful ... [to] take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase ... any migratory bird, any part, nest, or egg of any such bird, or any product ... which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof.
[T]he Secretary of the Interior is authorized and directed ... to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof ....
It shall be unlawful to ship, transport, or carry ... from one State, Territory, or district to or through [another] ... any bird, or any part, nest, or egg thereof .... It shall be unlawful to import any bird, or any part, nest, or egg thereof, captured, killed, taken, shipped, transported, or carried at any time contrary to the laws ... of Canada ....
All birds, or parts, nests, or eggs thereof, captured, killed, taken, sold or offered for sale, bartered or offered for barter, purchased, shipped, transported, carried, imported, exported, or possessed contrary to the provisions of this subchapter ... shall, when found, be seized ....
Whoever, in violation of this subchapter, shall knowingly—(1) take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or (2) sell, offer for sale, barter or offer to barter, any migratory bird shall be guilty of a felony ....
All guns, traps, nets and other equipment ... used by any person when engaged in pursuing, hunting, taking, trapping, ensnaring, capturing, killing or attempting to take, capture, or kill any migratory bird in violation of this subchapter with the intent to offer for sale, or sell or offer for barter, or barter such bird ... may be seized ....
The grammatical composition of these provisions is instructive. See U.S. ex rel. Bly-Magee v. Premo, 470 F.3d 914, 918 (9th Cir. 2006). Importantly, Congress never joined the phrases “migratory birds” and “parts, nests, or eggs thereof” with the word “including,” the use of which may have indicated that the phrase “migratory birds” also encompasses its parts and products. Instead, the MBTA repeatedly separates the phrases “migratory birds” and “parts, nests, or eggs thereof” with the disjunctive “or,” which tells us that the phrases have separate meanings. See Loughrin v. United States, — U.S. —, 134 S.Ct. 2384, 2390 (2014) (use of “or” “is almost always disjunctive, that is, the words it connects are to be given separate meanings” (internal
Interpreting the phrases “migratory birds” and “parts, nests, or eggs thereof” as having distinct meanings comports with other fundamental canons of statutory construction. Indeed, Congress demonstrated time and again that it knew how to specify when a provision of the MBTA applies to “migratory birds“; to “parts, nests, or eggs” of migratory birds; to products consisting of migratory bird parts; or to all three categories. Yet, Congress omitted all language relating to “parts, nests, or eggs” of migratory birds and products from Section
Adhering to the expressio unius canon and interpreting the phrases to have separate meanings further ensures that all words and phrases in the statute have effect. See Corley v. United States, 556 U.S. 303, 314 (2009) (“[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (internal quotation marks and citation omitted)).
The Government‘s interpretation, on the other hand, renders the language “parts, nests, or eggs thereof” superfluous, not only in one instance but in four different provisions of the MBTA—a result that our rules of statutory interpretation strongly disfavor. See United States v. Thum, 749 F.3d 1143, 1147 (9th Cir. 2014) (rejecting broad interpretation of statutory term where interpretation would effectively “leave no work to be done” by preceding phrase); United States v. Wenner, 351 F.3d 969, 974-75 (9th Cir. 2003) (declining to interpret “crime of violence” as including all burglaries because doing so would render separate enhancement for “burglary of a dwelling” mere surplusage).
When read in context and evaluated under traditional canons of construction, the plain meaning of
B
We recognize, however, that our inquiry does not end at the plain meaning of the statute if giving effect to the plain meaning would lead to an absurd result or would be
Most of the cases upon which the Government relies merely state an undisputed principle: It is a crime under the MBTA to traffic in migratory birds, their parts, or products derived from migratory birds or their parts. To the extent those cases suggest that the sale of migratory bird parts or products is a felony, they do so in unexplained dicta. For example, in United States v. Mackie, 681 F.2d 1121, 1122 (9th Cir. 1982), we considered whether the government must prosecute crimes involving the sale of eagles and eagle parts under the Bald and Golden Eagle Protection Act (“BGEPA“) rather than the MBTA. Id. at 1122. We stated, “The MBTA,
In United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985), the Sixth Circuit considered whether the absence of a scienter requirement under
The Third Circuit considered the same due process issue in United States v. Engler, 806 F.2d 425 (3rd Cir. 1986). There, the court explained that the MBTA “presents two factual scenarios for imposing strict liability on those who hunt migratory birds—if the actor hunts for pleasure, it is a misdemeanor; if for commercial purposes it is a felony.” Id. at 431. The court noted in its recitation of facts that the defendant was found guilty of trafficking in migratory birds and migratory bird parts in violation of
The only reported case to directly address the issue before us is an out-of-circuit district court decision, United States v. St. Pierre, 578 F.Supp. 1424 (D.S.D. 1983). St. Pierre held that the sale of an invitation stick containing migratory bird feathers constituted a felony. Id. at 1426. Relying on legislative history, the court reasoned that “[i]t is the commercialization in migratory game birds, of whatever nature, that Congress addressed with the 1960 amendment.” Id. at 1427. Accordingly, the court determined that the “term ‘migratory bird’ in
We disagree. Treating the sale of a fan containing migratory bird feathers as a misdemeanor does not lead to an absurd result under the MBTA. Individuals who kill or take migratory birds with the intent to sell the birds have committed a felony regardless of whether or how they subse-
Nor is the legislative history of
The purpose of the 1960 amendment, as indicated by the statutory text and House and Senate Committee Reports, was to increase available penalties for those who engage in the killing of migratory birds for sale, not necessarily those engaged in the sale of migratory bird parts or products. H.R. REP. NO. 86-1787, at 1 (1960) (“The purpose of this bill is to authorize more severe penalties for persons who engage in the killing of migratory birds for sale.“); S. REP. No. 86-1779, at 1 (“The basic need for this legislation is the necessity to better protect our migratory birds ... This bill would authorize more severe penalties for these market hunters....“).
In a May 1960 hearing on the original bill, subcommittee members and proponents of the bill discussed the killing and sale of whole birds. Increased Penalties for Violations of Migratory Bird Treaty Act: Hearing on H.R. 11430 and H.R. 11674 Before the Subcomm. on Fisheries and Wildlife Conservation of the H. Comm. on Merchant Marine and Fisheries, 86th Cong. 2 (1960). For example, while discussing instances in which harsher penalties were needed, Representative George P. Miller and Charles Lawrence, the Assistant Chief of the Branch of Management Enforcement for the Bureau of Sports Fisheries of the Department of the Interior, had the following exchange:
Representative Miller:
What does the market hunter get for the birds? For what does he sell the birds?
Mr. Lawrence:
Generally for from $1.25 to $2 a bird or a duck and up to $5 for a goose.
Representative Miller:
So that, if he is fined $500, and he takes 100 birds a day, that is about 2 days’ work or 2 1/2 pay days’ work to pay the fine?
Mr. Lawrence:
Yes, sir. In some areas the conditions are such that 500 to 700 birds can be killed in 6 seconds and the sale of those birds at $1.25 or $2 brings him quite a return, sir.
Id. at 5-6. Mr. Lawrence also mentioned that some market hunters in Illinois had informed an undercover agent that they could provide the agent with 10,000 birds per year. Id. at 8.
Hearing attendees expressed doubt, however, about the effectiveness of the amendment to actually deter market hunters for two reasons. First, courts often were not imposing the maximum available
The revised bill made the taking of migratory birds with the intent to sell, the sale of migratory birds, and the purchase of migratory birds felonies. Id. Reports indicate that the revised bill was intended to authorize penalties for market hunters that are more severe than those applicable to sport hunters. Id. Prior to enactment, Congress modified the bill so that the purchase of migratory birds remained a misdemeanor, indicating that the bill did not target all commerce in migratory birds. S. REP. NO. 86-1779, at 2. Indeed, when proposing the final amendment, the Senate Committee Report explained, “[W]e are not convinced that every purchaser of migratory birds should be exposed to such a heavy penalty.” Id.
Congress again amended § 707 in 1986 to add a scienter requirement to the felony provision of
The most recent revision to § 707 occurred in 1998. In part, that amendment increased the available fine for misdemeanor violations from $500 to $15,000.
At best, the legislative history is inconclusive. It is clear that the sponsors of the 1960 amendment were concerned with deterring market hunters, and proponents of the amendment discussed the sale of birds as a whole rather than migratory bird parts or related products. And, by removing the purchase of migratory birds from the scope of
Certainly our goal in interpreting any statute is to give effect to the intent of Congress. United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015). But neither the text of the statute nor the legislative history indicate that Congress intended for the sale of a fan containing migratory bird feathers to constitute a felony rather than a misdemeanor. Given the clarity of the statutory text and the absence of documentation indicating Congress’ intent to act otherwise, we cannot read into
C
Finally, to the extent that ambiguity did exist, the rule of lenity would sup-
While we interpret the plain meaning of
VIII
Count I charged a felony. Count II charged a misdemeanor. The district court should have denied the motion to dismiss, as it did, with regard to Count I. But the district court should have granted the motion to dismiss with regard to Count II. Accordingly, on this appeal pursuant to the conditional guilty plea, we affirm in part, as to Count I, but reverse in part as to Count II. We also vacate the sentence on both Counts, vacate the felony conviction on Count II, and remand for proceedings consistent with this opinion. On remand, the Defendants are given the option to withdraw their guilty pleas with regard to Count II,
AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED.