Bird Trafficking Law Parsed in 9th Circuit

     (CN) - Noting that they sold feathers, not whole birds, two men urged the 9th Circuit to reduce their felony conviction for trafficking in eagles and migratory birds.
     Prosecutors wrote in a brief that this reading of the Migratory Bird Treaty Act (MBTA) "makes no sense" because it would let defendants skate for "simply cutting a bird into pieces."
     Douglas Vance Crooked Arm and Kenneth Shane were charged in Montana last year under the MBTA for conspiring to kill and sell migratory birds, including bald and golden eagles. They also faced three counts of selling various bird parts.
     According to charging documents, the pair used deer carcasses to bait and kill birds of prey, including eagles and hawks. The men sold and offered to sell ornaments made from the feathers to undercover agents, prosecutors claimed.
     In their motion to dismiss, Shane and Crooked Arm argued that the indictment alleged misdemeanors, not felonies.
     U.S. District Judge Donald Molloy disagreed in a lengthy docket entry.
     "Crooked Arm allegedly sold fans made of the feathers of various protected migratory birds," he wrote. "Although he 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."
     Reserving the right to appeal that finding, the men pleaded guilty to conspiracy and one count of selling a golden eagle feather fan. They were each sentenced under felony guidelines to five years probation and ordered to pay $3,000 apiece in restitution.
     They appeals were consolidated for oral arguments Friday before a three-judge panel.
     Brian Murphy, representing Shane and Crooked Arm, said his clients were "sentenced as felons for conduct that amounted to misdemeanor behavior."
     "All they pled guilty to was selling a family heirloom feather fan," Murphy said.
     When Judge Ronald Gould pointed out the plea to the conspiracy charge, Murphy noted that "the only conduct they admitted to" was selling the fan.
     He said Shane and Crooked Arm learned from the court that "selling an item with a few feathers" is a felony.
     The court must look at the language used by Congress regarding penalties in the MBTA, the defense attorney said.
     "Here the issue is what conduct is a felony," Murphy said. "Congress has addressed the issue. It said that taking with intent to sell or selling a migratory bird is a felony. Other violations are misdemeanors."
     Echoing the argument Shane and Crooked Arm presented to the lower court, Murphy said there was nothing in the act that says "a feather should be a bird."
     "Defendants admitted to selling feathers," he said. "They did not admit to selling birds and should be sentenced according to the language that Congress used."
     A skeptical Gould presented Murphy with a hypothetical case.
     "Let's say somebody started a business to sell bald eagle heads," the judge said. "They hire hunters to give then the heads. As I understand, your position would be that the hunters could be guilty of a felony, but the guys who commercialized it, created the demand and sell it would only be guilty of a misdemeanor."
     Murphy tried to duck a direct response, but was interrupted by Gould.
     "In my hypothetical, would that be true?"
     "That might be one of those cases for a jury to decide," Murphy replied.
     Arguing for the prosecution, Leif Johnson cited U.S. v Mackie as 9th Circuit precedent for a felony charge. In that case, the court interpreted no statutory difference between selling feathers or entire birds. Part of that opinion said the felony provision of the MBTA prohibits the sale of eagles or parts of eagles, he said.
     Gould asked Johnson if the rule of lenity applies. Lenity requires resolution favoring the defendant amid ambiguities in a criminal statute relating to penalties, as long as it doesn't contradict legislative intent.
     Johnson demurred.
     "We don't think so," he said. "The very clear purpose was to make commercial sale of migratory birds a felony."