United States v. Douglas Crooked Arm

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30297
Plaintiff-Appellee,
D.C. No.
v. 1:13-cr-00018-
DWM-1
DOUGLAS VANCE CROOKED ARM,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 13-30316
Plaintiff-Appellee,
D.C. No.
v. 1:13-cr-00018-
DWM-2
KENNETH G. SHANE,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted
August 29, 2014—Seattle Washington
Filed June 8, 2015
2 UNITED STATES V. CROOKED ARM
Before: John T. Noonan, Michael Daly Hawkins,
and Ronald M. Gould, Circuit Judges.
Per Curiam Opinion
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CROOKED ARM 3
COUNSEL
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.
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 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
4 UNITED STATES V. CROOKED ARM
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 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.
UNITED STATES V. CROOKED ARM 5
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
1
This portion of the statement of facts, which describes the
government’s criminal investigation, is based on the government’s Offer
of Proof and the sources cited. Because the case was not tried after
Defendants’ conditional guilty pleas were accepted, there are no findings
of fact, only the district court’s independent determination that a factual
basis for the conditional guilty pleas existed. See Fed. R. Crim. P.
11(b)(3).
6 UNITED STATES V. CROOKED ARM
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 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
UNITED STATES V. CROOKED ARM 7
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.
8 UNITED STATES V. CROOKED ARM
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 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 court’s denial of his motion to
dismiss the indictment for failure to state a felony claim, the
UNITED STATES V. CROOKED ARM 9
same day. Shane likewise appealed on the same grounds on
November 1, 2013.2
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
16 U.S.C. §§ 703–712.3 The treaty stated that migratory birds
2
Defendants did not admit to all facts alleged in the Offer of Proof but
conceded that they “conspired to sell and actually sold” a golden eagle fan
“made with migratory bird parts.” Their argument on appeal is the legal
contention that what they did was misdemeanor and not felony conduct.
3
The MBTA later incorporated elements of similar bilateral treaties
between the United States and Mexico, Japan, and the Soviet Union. See
16 U.S.C. § 703(a). Pertinent here, eagles, which were not originally
covered under the MBTA, became protected by the statute in 1972. See
10 UNITED STATES V. CROOKED ARM
in North America were “in danger of extermination through
lack of adequate protection,” and called for “insuring the
preservation of such migratory birds” by saving them from
“indiscriminate slaughter.” Convention for the Protection of
Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 1702,
1702. And it banned the sale, or attempted sale, of
“migratory nongame birds” or their eggs without exception.
Id. arts. II, VII.
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.
16 U.S.C. § 703(a) (emphasis added). FWS, which
administers the MBTA, defines “migratory bird[s]” to include
United States v. Mackie, 681 F.2d 1121, 1123 (9th Cir. 1982) (“Obviously,
eagles are protected by the MBTA.”).
UNITED STATES V. CROOKED ARM 11
bald eagles, golden eagles, magpies, and many species of
hawk. See 50 C.F.R. § 10.13. FWS regulations also state that
a “[m]igratory bird” for MBTA purposes means any species
listed in § 10.13, “including any part, nest, or egg of any such
bird, or any product” consisting “in whole or part, of any such
bird or any part, nest, or egg thereof.” Id. § 10.12.
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.
12 UNITED STATES V. CROOKED ARM
(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.
16 U.S.C. § 707(a)–(b).
V
We start with Count I. We conclude that this count
plainly charged a felony. The felony provisions of § 707(b)
are clearly invoked when someone takes a migratory bird
with intent to sell it. Here, Count I alleged that Defendants
“knowingly and willfully conspired . . . 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).” The
overt acts that were alleged included that Crooked Arm had
“placed deer carcases on the land in order to attract and
capture birds of prey, including eagles and hawks.”
Count I formally charges Defendants with a conspiracy
under 18 U.S.C. § 371,4 which makes it a crime for “two or
4
The MBTA does not define a separate conspiracy offense. Here,
Count I charges a conspiracy under 18 U.S.C. § 371, which the Supreme
Court and our court have called the “general conspiracy statute.” United
UNITED STATES V. CROOKED ARM 13
more persons” to, among other things, conspire to “commit
any offense against the United States . . . and one or more of
such persons do any act to effect the object of the
conspiracy.” 18 U.S.C. § 371. Section 371 generally
felonizes conspiratorial conduct committed under that
provision. However, § 371 further states that if the offense,
“the commission of which is the object of the conspiracy, is
a misdemeanor only, the punishment for such conspiracy
shall not exceed the maximum punishment provided for such
misdemeanor.” Id.
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 statutory felony under 18 U.S.C.
§ 371. This is because Count I charges a conspiracy to “kill,
transport offer for sale, and sell migratory birds, including
bald and golden eagles,” conduct that falls within the
MBTA’s felony provisions. And the overt acts alleged
included placing deer carcasses to attract birds of prey. The
substantive MBTA offense, “the commission of which is the
object of the conspiracy,” makes Count I a felony charge
under 18 U.S.C. § 371. 18 U.S.C. § 371. We hold that Count
I, to which Defendants pled guilty, charged a felony offense.5
States v. Shabani, 513 U.S. 10, 14 (1994); United States v.
Garcia-Santana, 774 F.3d 528, 535 (9th Cir. 2014).
5
In their supplemental briefing to this court after oral argument,
Defendants raised for the first time a challenge to the adequacy of their
guilty pleas with regard to Count I. Defendants never moved in the
district court to withdraw their guilty pleas. Normally, we will not
consider an issue first raised on appeal and not presented to the district
court. Bennett Evan Cooper, Federal Appellate Practice: Ninth Circuit
§ 19:2 (2014–2015 ed.); see, e.g., Vision Air Flight Serv. v. M/V Nat’l
Pride, 155 F.3d 1165, 1168 (9th Cir. 1998) (issue not presented to or
14 UNITED STATES V. CROOKED ARM
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
decided by district court, and as to which no factual record had been
developed, would not be considered on appeal); Slaven v. Am. Trading
Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998) (appellate court will not
consider issues not properly raised before district court). Also,
Defendants did not contend in their opening brief before us that their pleas
were inadequate in factual basis or in understanding. The sole issue raised
in their opening brief questioned whether the sale of a “family heirloom
fan (containing a few feathers)” was a felony. Because no challenge to the
guilty pleas was raised in the opening brief, we consider any such
challenge to be waived. Cooper, Federal Appellate Practice, supra, at
§ 19:8; see, e.g., Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618, 628
n.5 (9th Cir. 1996); Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir. 1995)
(issues not raised in the opening brief usually are deemed waived).
Moreover, the record before us does not permit a conclusion that
Defendants’ pleas were not knowing and voluntary and without adequate
factual basis. We express no opinion about whether on a different factual
showing, presented with a motion under 28 U.S.C. § 2255, Defendants
might have any basis to withdraw their pleas, avoid the plea agreements,
and gain vacatur of their convictions and sentences.
UNITED STATES V. CROOKED ARM 15
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 criminal statutes” the presumption that “collateral
consequences” flow from a criminal conviction is
irrebuttable. Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir.
1994) overruled on other grounds by statute, 28 U.S.C.
§ 2253(c).
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)
16 UNITED STATES V. CROOKED ARM
(“[16 U.S.C. § 703] is naturally read as forbidding
transactions in all bird parts, including those that compose
pre-existing artifacts.”). As with Count I, the question is
whether the charged conduct amounts to a misdemeanor
under § 707(a) or a felony under § 707(b). This turns on
whether the sale of a fan made of migratory bird feathers
constitutes the sale of a “migratory bird.” We conclude that
it does not.
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 § 707(b), but also the MBTA as a whole, which
consists of ten sections codified at 16 U.S.C. §§ 703 through
712, and its purpose. Abramski v. United States, 134 S. Ct.
2259, 2267 (2014); Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997) (court considers “the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole”). We may consider
legislative history if the statute is ambiguous or if “the
legislative history clearly indicates that Congress meant
something other than what it said.” Carson Harbor Vill., Ltd.
v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001) (en banc)
(quoting Perlman v. Catapult Entm’t, Inc., 165 F.3d 747, 753
(9th Cir. 1999)).
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.”
16 U.S.C. § 707(b). Defendants contend that the term
“migratory bird” as used in § 707(b) refers to the bird as a
UNITED STATES V. CROOKED ARM 17
whole and does not also mean feathers or a product
containing migratory bird feathers. The Government
contends that the term “migratory bird” also includes
migratory bird parts and products containing migratory bird
parts.
“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. Id.
§ 715j (defining “migratory bird” for purposes of the
Migratory Bird Conservation Act and MBTA). The relevant
treaties generally define “migratory birds” with reference to
particular species of birds, e.g., ducks, cranes, herons. See
Convention for the Protection of Migratory Birds, U.S.-Gr.
Brit., art. I, Aug. 16, 1916, 39 Stat. 1702. Consistent with the
definition contained in § 715j and the relevant treaties, the
common definition of the term “bird” is “any of a class
(Aves) of warm-blooded vertebrates distinguished by having
the body more or less completely covered with feathers and
the forelimbs modified as wings.” MERRIAM–WEBSTER:
D ICTIONARY , available at http://www.merriam-
webster.com/dictionary/bird. Except in the limited context of
cookery, in which the term “bird” may refer more specifically
to a piece of meat, the term “bird” refers to a member of the
species rather than a part of the individual animal. Id.
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”:
18 UNITED STATES V. CROOKED ARM
[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. 16 U.S.C.
§ 703(a) (emphasis added).
[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 . . . . Id.§ 704(a) (emphasis added).
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 . . . . Id. § 705
(emphasis added).
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,
UNITED STATES V. CROOKED ARM 19
exported, or possessed contrary to the
provisions of this subchapter . . . shall, when
found, be seized . . . . Id. § 706 (emphasis
added).
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 . . . . Id. § 707(b) (emphasis added).
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 . . . . Id.
§ 707(c) (emphasis added).
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, 134 S. Ct. 2384, 2390 (2014) (use of “or” “is
20 UNITED STATES V. CROOKED ARM
almost always disjunctive, that is, the words it connects are to
be given separate meanings” (internal quotation marks and
citation omitted)); F.C.C. v. Pacifica Found., 438 U.S. 726,
739–40 (1978) (interpreting series of words written in
disjunctive and reasoning that statute’s use of “or” implied
that each word in series had separate meaning).6
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 § 707(b), making it a felony only to “take . . . any
migratory bird with intent to sell . . . or sell, offer for sale,
barter or offer to barter, any migratory bird . . . .” 16 U.S.C.
§ 707(b) (emphasis added). Under the longstanding canon
expressio unius est exclusio alterius, we presume that the
exclusion of the phrases “parts, nests, or eggs thereof” and
“products . . . consisting . . . of parts, nests, or eggs thereof”
from § 707(b) was intentional. Loughrin, 134 S. Ct. at 2390;
Crandon v. United States, 494 U.S. 152, 163–64 (1990)
(where Congress included unambiguous language to cover
preemployment payments in two sections of statute, absence
6
The Government effectively asks us to give the term “migratory birds”
two different meanings within the same section of the MBTA. Although
the Government contends that the use of “migratory birds” in § 707(b)
must also mean “any part, nest, egg thereof” or any product consisting of
any part thereof, it is illogical to apply that same meaning to the term
“migratory bird” as it is used in § 707(c), which permits seizure of any
equipment used to “take, capture, or kill any migratory bird.”
UNITED STATES V. CROOKED ARM 21
of comparable language in third section indicated that
Congress did not intend for that section to apply to
preemployment payments).
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 § 707(b)
indicates that the sale of a fan containing migratory bird
feathers is not a felony.
22 UNITED STATES V. CROOKED ARM
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 contrary
to the clearly expressed intent of Congress. Avendano-
Ramirez v. Ashcroft, 365 F.3d 813, 816 (9th Cir. 2004) (citing
Or. Natural Res. Council, Inc. v. Kantor, 99 F.3d 334, 339
(9th Cir. 1996)). The Government argues that the purpose of
the MBTA is to make all commercialization of migratory
birds a felony, such that the term “migratory bird” in § 707(b)
must be interpreted to include all migratory bird parts and
products made from the same.
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 (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,
16 U.S.C. ss 703, 707(b), and the BGEPA, 16 U.S.C.
s 668(a), prohibit offering to sell or selling eagles or parts of
eagles.” Id. Although we cited to § 707(b), we did not
consider or discuss whether the sale of eagle parts alone
constituted a misdemeanor or a felony.
In United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985),
the Sixth Circuit considered whether the absence of a scienter
requirement under § 707(b) violated due process. The felony
UNITED STATES V. CROOKED ARM 23
conviction in Wulff involved the sale of a necklace made in
part of red-tailed hawk and great-horned owl talons. Id. at
1122. Although the case involved the sale of migratory bird
parts, the Sixth Circuit specifically stated that the
Government’s argument that the charged conduct was
“exactly the type of commercialization of protected birds
Congress sought to punish as a felony” was not the issue
before the court. Id. at 1124–25.
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 § 703(a) and § 707(b),
but it did not discuss whether the sale of migratory bird parts
was properly charged as a felony. Id. at 427.
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 § 707(b) includes a whole bird as well as
any part thereof.” Id. The court explained that any other
interpretation would lead to the absurd result of allowing an
24 UNITED STATES V. CROOKED ARM
individual who kills 100 migratory birds to escape felony
punishment by simply dismembering the birds. Id.
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
subsequently sell the migratory birds. Individuals who sell
migratory birds also commit a felony under the MBTA.
Individuals who sell exclusively feathers of a migratory bird
or a product containing migratory bird feathers have also
committed a crime under the MBTA, albeit punishable as a
misdemeanor that is subject to a $15,000 fine and six-month
prison term. And, individuals who purchase a migratory bird
or migratory bird parts have also committed a crime under the
MBTA, again punishable as a misdemeanor. 16 U.S.C.
§§ 703(a), 707. Thus, the MBTA still protects against the
commercialization and destruction of migratory birds in all
regards.
Nor is the legislative history of § 707 as clear as the
Government or St. Pierre would suggest. The original bill
proposing the 1960 amendment to § 707 did not split the
available penalties into misdemeanor and felony categories.
S. REP. NO. 86-1779, at 2–3 (1960) (reprinting letter
discussing original bill). Rather, the bill proposed an increase
to the available penalty from a maximum $500 fine and six
months in prison to a maximum $1000 fine and two years in
prison while still punishing all violations of the MBTA as
misdemeanors. Id. The bill also proposed adding a
subsection that would allow courts to order the seizure of
equipment used by violators to hunt or trap migratory birds.
Id.
UNITED STATES V. CROOKED ARM 25
The purpose of the1960 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?
26 UNITED STATES V. CROOKED ARM
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 2½ 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 penalties under the existing statute.
Id. at 5, 7 (statement of Alton Lennon, Subcomm. on
Fisheries and Wildlife Conservation). Second, the
amendment applied equally to market hunters and sport
hunters that might mistakenly exceed the scope of their
hunting permits. Id. at 19–20 (statements of Rep. Lennon and
Daniel H. Janzen, Dir. Bureau of Sport Fisheries and
Wildlife). In response to these concerns, a new bill was
drafted, which included the felony punishment provision that
UNITED STATES V. CROOKED ARM 27
eventually became § 707(b). H.R. REP. NO. 86-1787, at 2
(explaining progression of proposed legislation to increase
penalties under MBTA).
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 § 707(b). The Senate
Committee Report explained that the “amendment will
require proof that the defendant knew (1) that his actions
constituted a taking, sale, barter, or offer to sell or barter, as
the case may be and (2) that the item so taken, sold, or
bartered was a bird or portion thereof.” S. REP. NO. 99-445,
at 16 (1986) (emphasis added). The report does not further
discuss the scope or purpose of § 707(b).
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. 16 U.S.C.
§ 707(a); H.R. REP. NO. 105-542, at 2 (1998). When
outlining the background and need for the 1998 amendments,
the House of Representatives Committee Report discussed
28 UNITED STATES V. CROOKED ARM
the meaning of “migratory bird”: “What is a migratory bird?
Under the Convention, the term ‘migratory bird’ means all
wild species of ducks, geese, brants, coots, gallinules, rails,
snipes, woodcocks, crows, and mourning and white-winged
doves.” Id. at 2. Like the 1986 report, the 1998 report does
not elaborate on the scope of § 707(b).
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 § 707(b),
Congress indicated that it did not intend to punish all
commercial acts involving migratory birds as felonies.7
Consequently, the 1960 legislative history, which is entitled
to the greatest weight, does not provide “convincing”
evidence that the term “migratory birds” also means “parts,
nests, or eggs thereof” and related products. Church of
Scientology of Cal. v. U.S. Dep’t of Justice, 612 F.2d 417,
422 (9th Cir. 1979). The 1986 Senate Committee Report
interpreted § 707(b) as applying to the sale of bird parts,
7
The Government relies heavily on the portion of the 1960
amendment’s legislative history providing that the increase in penalties
was “a more effective means of dealing with market hunters and with
others who commercialize in migratory game birds.” The Government
suggests that the reference to “others who commercialize in migratory
game birds” is a clear indication that Congress intended the 1960
amendment to apply to the sale of migratory bird parts. Yet, the quoted
statement was not made by a member of Congress. Instead, it was made
by the Department of the Interior in a report to the House Committee
expressing the Department’s support for the 1960 amendment. See, e.g.,
S. REP. NO. 86-1849, at 2 (providing copy of agency report). As such, we
do not find it particularly probative on the issue of Congress’ intent.
UNITED STATES V. CROOKED ARM 29
which supports the Government’s position here. Yet, the
1998 House Committee Report interpreted “migratory birds”
to mean specific species of birds, which supports our
interpretation of the statute’s plain meaning. As post-
enactment legislative history, however, the 1986 and 1998
reports are not entitled to great weight. Nw. Forest Res.
Council, 82 F.3d at 836.
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 § 707(b) what Congress did not draft.
C
Finally, to the extent that ambiguity did exist, the rule of
lenity would support our conclusion. See Burrage v. United
States, 134 S. Ct. 881, 891 (2014) (“Especially in the
interpretation of a criminal statute subject to the rule of lenity,
we cannot give the text a meaning that is different from its
ordinary, accepted meaning, and that disfavors the
defendant.” (internal citation omitted)); United States v.
Corbin Farm Serv., 578 F.2d 259, 260 (9th Cir. 1978)
(adopting opinion of district court applying rule of lenity to
determine that single act resulting in death of multiple
migratory birds constituted single violation of MBTA).
While we interpret the plain meaning of § 707 to indicate
that Congress intended for the sale of a product containing
30 UNITED STATES V. CROOKED ARM
migratory bird feathers to be a misdemeanor, we also
recognize the logic of maximizing penalties to chill market
demand for any product that drives illegal commercial
hunting. The overall statutory purpose and logic of tying the
severity of penalties to the marketplace in general may
narrowly allow a second permissible reading of the statute.
The rule of lenity directs us to resolve ambiguity in favor of
Defendants by punishing their acts as misdemeanors rather
than felonies. United States v. LeCoe, 936 F.2d 398, 402 (9th
Cir. 1991) (applying rule of lenity to determine whether
defendant’s conduct amounted to a misdemeanor or felony).8
Our holding reaches only the facts and issue before us,
whether the sale of a fan containing migratory bird feathers
constitutes the sale of a “migratory bird” within the meaning
of § 707(b). Considering the plain language of the MBTA
and being mindful of the criminal application of the statute,
we conclude that Counts II through IV of the indictment
charge misdemeanors rather than felonies. The district court
8
The Government asks us to defer to the FWS interpretation of
“[m]igratory bird,” which defines the term as “any [listed] bird . . .
including any part, nest, or egg of 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.” 50 C.F.R. § 10.12. Because
application of the “traditional tools of statutory interpretation” yields a
clear meaning, deference to FWS’s definition under the rule of Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1997), is not
warranted in this case. Id. at 843 n.9; I.N.S. v. St. Cyr, 533 U.S. 289, 320
n.45 (2001) (finding Chevron inapplicable because no ambiguity remained
after applying traditional rule that statute which is ambiguous with respect
to retroactive application is construed to be unambiguously prospective).
In other circumstances, however, where ambiguity persists, further
evaluation of Chevron deference rather than application of the rule of
lenity may be appropriate. Pacheco-Camacho v. Hood, 272 F.3d 1266,
1271–72 (9th Cir. 2001).
UNITED STATES V. CROOKED ARM 31
should have granted Defendants’ motion with regard to those
counts.
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, Fed. R.
Crim. P. 11(a)(2), or the district court may consider whether
to resentence their convictions on that count as
misdemeanors.
AFFIRMED in part, REVERSED in part, VACATED
in part, and REMANDED.