Calvin Rogers v. United States ( 1966 )

VOGEL, Chief Judge.

Calvin Rogers, the appellant herein, was convicted by a jury on all four counts of an indictment charging unlawful sale or possession of wild ducks and wild geese in violation of 16 U.S.C.A. § 703 and § 704, and §§ 10.4 and 10.53, Title 50, Code of Federal Regulations. Upon conviction, the appellant was sentenced to imprisonment for a period of 90 days on each of the four counts, the sentences to be served concurrently. In addition, appellant was assessed a fine of $500 on Count 1. Following a denial of his motion for judgment notwithstanding the verdict or in the alternative for a new trial, Rogers appealed to this court. We affirm.

Specifically, Count 1 charged that on January 23, 1964, the appellant unlawfully sold four wild ducks. Count 2 charged that on November 23, 1964, the appellant unlawfully sold one wild duck and two wild geese. Count 3 charged that on January 12, 1965, the appellant unlawfully sold 39 wild ducks and 20 wild geese. Count 4 charged that on January 12, 1965, the appellant did knowingly, willfully and unlawfully have in his possession more than the prescribed limit of wild ducks and wild geese, to-wit, 31 wild ducks and 15 wild geese.

Following testimony establishing the sale of the wild ducks and wild geese referred to in Counts 1, 2 and 3 and the possession of the wild ducks and wild geese referred to in Count 4, the appellant took the witness stand and testified in his own behalf. He admitted the sale of the ducks and geese in question and the possession of a “substantial number of wild game” but as a defense claimed unlawful entrapment in that he contended that he was induced to accumulate and to sell the wild game by Luther E. Miller, a criminal investigator employed by the Department of the Interior, Bureau of Sports Fisheries and Wildlife. Appellant claims a number of errors and asks that the conviction be reversed.

Appellant’s first contention is that there was a failure of proof in that the government offered no testimony or evidence of any nature that he did not have a permit to sell wild ducks and geese under the authority of the Migratory Bird Treaty and that it likewise did not establish that the defendant did not have authority to have in his possession more than the prescribed limit of wild ducks and wild geese. Appellant’s contention is not tenable. After establishing the sales and the possession, it was not necessary for the government to prove that Rogers was without authority to make the sales or without authority to have possession of more than the prescribed limits of birds. A prima facie case had been established and no further proof was necessary to sustain a conviction. The sales were established by the government and admitted by the appellant. It was not necessary for the government to prove a negative. The Supreme Court, when faced with a similar evidentiary problem in a criminal prosecution, recognized that:

“The general principle, and we think the correct one, * * * is that it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could be readily disproved by the production of documents or other evidence probably within the defendant’s possession or control. (Cases cited.)” Rossi v. United States, 1933, 289 U.S. 89, 91-92, 53 S.Ct. 532, 533, 77 L.Ed. 1051, 1052.

This fundamental principle has been continually followed. Holland v. United States, 1954, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150; United States v. Fleischman, 1950, 339 U.S. 349, 360-361, 70 S.Ct. 739, 94 L.Ed. 906; United States v. Arnold, 4 Cir., 1966, 358 F.2d 633, 636. The burden is solely upon appellant to prove the affirmative.

Appellant’s claimed errors Nos. 2 and 3 appear to be an attack on the trial court’s instructions to the jury, with particular reference to the court’s definition of the crimes and of the specific intent required for their perpetration. A careful reading of the court’s entire charge herein forces us to the conclusion that appellant had no just grounds for complaint. Judge Duncan instructed the jury that as to Counts 1, 2 and 3 there was no regulation authorizing the appellant to sell wild ducks and wild geese. As to Count 4, he instructed that the total number of wild ducks which a person might have in his possession at that time was eight and the number of wild geese five. The scope of the relevant regulations was thus clearly defined for the jury. By 16 U.S.C.A. § 704 Congress authorized the Secretary of the Interior to adopt regulations with reference to the possession and sale of wild ducks and wild geese. 44 U.S.C.A. § 305 requires that all such regulations be published in the Federal Register. § 307 of the same title provides that the contents of the Federal Register shall be judicially noticed. We find no error in the trial court’s taking judicial notice thereof and instructing the jury with reference to such regulations. See, Caha v. United States, 1894, 152 U.S. 211, 221-222, 14 S.Ct. 513, 38 L.Ed. 415.

As for the claim that the jury was not properly instructed with respect to requisite specific intent, it is clear that the trial court, after directing attention to the first three counts of the indictment and calling attention to the fact that each charged the defendant with a felony, specifically referred to the fact that in each count it was charged that the appellant “did knowingly, willfully, unlawfully and feloniously sell * * He instructed that the word “feloniously” meant “with criminal intent” and that “to do an act feloniously means to do willfully something which the law denounces as a major crime, a felony.” He also instructed as follows:

“Unlawfully means contrary to the law; hence, to do an act unlawfully means to do willfully something which is contrary to law.

“An act is done willfully if done voluntarily and purposely and with specific intent to do that which the law forbids, that is to say, with bad purpose, either to disobey or to disregard the law.

“The word knowingly was used, of course, to insure that no one would be convicted for an act done because of mistake or inadvertence or other innocent reason.”

As to Count 4, a misdemeanor, it was charged that the appellant

“ * * * did knowingly, willfully, and unlawfully have in his possession more than the prescribed limit of said wild ducks and wild geese, * *

It has long been held that under the Migratory Bird Treaty Act, 16 U.S.C.A. §§ 703-711, it is not necessary that the government prove that a defendant violated its provisions with guilty knowledge or specific intent to commit the violation. Nevertheless, the trial court in the instant case did instruct with reference to guilty knowledge and specific intent. We find no error whatsoever in the court’s instructions. Appellant received an instruction more favorable than that to which he was entitled.

Appellant’s fourth point has to do with the question of entrapment. Appellant states:

“The law recognizes two kinds of entrapment, unlawful entrapment and lawful entrapment. Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers to commit a crime, he is entitled to the defense of unlawful entrapment, and the government then has the burden of proving lawful entrapment.”

Unlawful entrapment is the solicitation of an otherwise innocent person to commit a crime solely for the purpose of prosecution, ft arises where the criminal purpose or design originated in the minds of government officials, and such criminal purpose or design is implanted in the mind of an otherwise innocent person, the object being his prosecution. In the much-quoted case of Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, the Supreme Court held that under the evidence in that case the question of entrapment should have been submitted to the jury. Mr. Chief Justice Hughes, speaking for the court, stated at pages 441-442 of 287 U.S., pages 212-213 of 53 S.Ct.:

“It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. Grimm v. United States, 156 U.S. 604, 610, 15 S.Ct. 470, 39 L.Ed. 550; Goode v. United States, 159 U.S. 663, 669, 16 S.Ct. 136, 40 L.Ed. 297; Rosen v. United States, 161 U.S. 29, 42, 16 S.Ct. 434, 40 L.Ed. 606; Andrews v. United States, 162 U.S. 420, 423, 16 S.Ct. 798, 40 L.Ed. 1023; Price v. United States, 165 U.S. 311, 315, 17 S.Ct. 366, 41 L.Ed. 727; Bates v. United States, C.C., 10 F. 92, 94, note, page 97. United States v. Reisenweber, 2 Cir., 288 F. 520, 526; Aultman v. United States, 5 Cir., 289 F. 251. The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.”

Testimony in this case indicates that Luther E. Miller, government investigator, had been sent by the Department of the Interior into certain territory “to make investigation on commercialization of water fowl”; that as the result of his investigation he went into a tavern operated by the appellant Rogers in Rulo, Nebraska. The time was October 25, 1963, the opening day of the hunting season. Miller testified:

“I told him [Rogers] that he had been recommended to me that I could buy some ducks and geese from him and I asked him if he had anything and he said, ‘I don’t have a thing right now,’ that the place is full of game wardens all around the area that day and the ducks and geese hadn’t really moved in and he might be able to fix me up later on. And then I asked him what he got for his ducks and geese and he quoted me a price of two dollars fifty cents for a snow geese [sic] and blue geese and five dollars for Canadas, and then he said, ‘How many do you think you can use ?’ And I said, ‘Well, how do you sell them ?’ He said, ‘I think I can furnish you up to as many as fifty on the blues and snows.’ I said, ‘How about ducks?’ He said, ‘Well, I’ll make them to you right.' And so I told him, I said, ‘Well, if you’ll make them right, I’ll buy quite a few ducks,’ after he had quoted me the price on the geese. And I asked him how I might be able to get in touch with him and let him know when I was going to come back and he said I could just write him in care of Rulo, Nebraska, everybody knew him there and he’d get the letter or what-have-you that I might send to him.

“Q. You didn’t buy any ducks or geese from him at this time ?

“A. No, sir, he said he didn’t have any at that time because game wardens were there and the ducks and geese hadn’t really moved in yet. After the game wardens all moved out, everything would be quiet and he would start having ducks and geese.”

Miller’s testimony established that subsequently and on the dates referred to in the indictment he purchased wild ducks and wild geese, paying the appellant therefor. On one occasion the appellant asked for and received an advance of $100 against the purchase of wild ducks and wild geese to be provided in the future. It is the appellant’s contention that this testimony cast the burden on the government of proving lawful entrapment and that in the absence thereof a verdict should have been directed in appellant’s behalf. Appellant had entered a plea of not guilty. That entrapment was to be used as a defense was not disclosed in the trial of the case until the appellant testified in his own behalf. It would only have been proper for the government to disclose that it had reasonable grounds for believing appellant was in the business of unlawfully selling ducks and geese after the defense of entrapment was interposed. (See, Neill v. United States, 8 Cir., 1955, 225 F.2d 174, 177-178, where this court reversed and directed a new trial where the government was allowed to anticipate an unlawful entrapment defense by introducing testimony to the effect that it had reasonable grounds for believing that the defendant was in the unlawful business of selling narcotics.) Subsequently, in rebuttal, the government was allowed to introduce the testimony of Fred Drummond to the effect that he and another agent for the Missouri Conservation Commission on October 25, 1963, the same date Miller first talked with the appellant, had also talked with the appellant in his tavern in Rulo. Drummond testified that they had told the appellant that they wanted to buy water fowl and that one “Flunk” Dunnigan had vouched for them, in response to which appellant said that if “Flunk” sent them it was all right. They discussed how many water fowl were needed and the price, $2.50 for mallards and $5.00 for Canadian geese. The appellant told them that he had no birds at the time but it would be easier to get them within a week or ten days.

Appellant claims that it was error to admit the testimony of the government witness Fred Drummond. We do not agree. The testimony of Drummond clearly went to the question of intent of the appellant and to his defense that he had been unlawfully entrapped into commission of the offenses charged. We think it was highly pertinent and relevant to the issues and that it assisted the jury in determining whether or not the appellant was the innocent victim of unlawful entrapment. We further hold that under the evidence in this case the question of whether or not the appellant had been unlawfully entrapped was clearly one of fact for the jury. See, Masciale v. United States, 1958, 356 U.S. 386, 388, 78 S.Ct. 827, 2 L.Ed. 2d 859, 861, rehearing denied, 357 U.S. 933, 78 S.Ct. 1367, 2 L.Ed.2d 1375. We have read the court’s instructions in their entirety. The court carefully instructed with reference to lawful and unlawful entrapment and clearly left the question up to the jury, where it was resolved against the appellant.

Appellant lastly complains of the trial court’s summarization of the evidence and his comments thereon. As stated, we have read the charge in its entirety and find that while Judge Duncan did comment on the evidence, as was his right, he carefully and meticulously instructed the jury that theirs was the duty to determine all questions of fact, and that they were not to take his statements as binding or conclusive but that theirs was the sole right to pass upon the facts as they found them from the evidence. We find no error in the court’s instructions. An examination of this entire record indicates that the appellant received a fair and full trial; that the evidence of his guilt was substantial; and that no prejudicial error was committed.

Affirmed.