Eagle Feather Crime Was no Felony, Court Says

     SEATTLE (CN) – Two men who trafficked in bald eagles and other migratory birds will get new sentences after the 9th Circuit ruled that prosecutors had improperly charged the pair on one count with a felony instead of a misdemeanor.
     Douglas Vance Crooked Arm and Kenneth Shane were charged in Montana two years ago under the Migratory Bird Treaty Act for conspiring to kill and sell migratory birds, including bald and golden eagles.
     According to charging documents, the men used deer carcasses to bait and kill birds of prey, including eagles and hawks, and sold an eagle fan to an undercover agent with the U.S. Fish & Wildlife Service.
     Crooked Arm and Shane eventually pleaded guilty to one count of conspiracy to kill, transport and offer for sale migratory birds and one count of trafficking in migratory bird parts. They reserved the right to appeal U.S. District Judge Donald Malloy’s finding that the counts were both felonies.
     Felony guidelines brought Crooked Arm a four-years probation sentence and Shane one year of probation.
     A three-judge panel last year heard their appeals of the conviction and the denial of their motion to dismiss the indictment for failure to state a felony claim.
     Though the court affirmed the felony conspiracy count Monday, it held the second count was only a misdemeanor and thus vacated the men’s sentences.
     “Under any reading of the statute, even if defendants were right that sale of eagle feathers is only a misdemeanor,” the conspiracy charge is a felony, the unsigned ruling states.
     Mark Parker, an attorney for Crooked Arm with Parker, Heitz & Cosgrove in Billings, Mt., applauded the Ninth Circuit for recognizing that a “feather is not a bird.”
     “The lawyers, the court and the defendants can now proceed with this primary issue finally being resolved,” Parker said in an email. “We do not know what actions we will take at this juncture, but are grateful that the court saw things our way on the most important part of the case.”
     Finding that the second count should have been charged as a misdemeanor, the court noted that “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.”
     The men must be resentenced because of the “collateral consequences” that the felony sentencing carries for the defendants, according to the ruling.
     “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,” the judges wrote. “In general, the greater the criminal history category in which one fits, the greater will be the applicable advisory guidelines sentencing range.”
     Crooked Arm and Shane now have the option to withdraw their guilty pleas as to the second count, or the U.S. District Court in Montana may consider whether to resentence their convictions on that count as misdemeanors.
     Assistant U.S. Attorney Leif Johnson argued for the government in this appeal. A spokesman for that office said the government is studying the decision.
     Shane’s Billings-based attorney Sherry Matteucci has not returned a request for comment.

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