United States v. Douglas Crooked Arm

853 F.3d 1065, 2017 WL 1325273
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 11, 2017
Docket15-30277, 15-30280
StatusPublished
Cited by2 cases

This text of 853 F.3d 1065 (United States v. Douglas Crooked Arm) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Douglas Crooked Arm, 853 F.3d 1065, 2017 WL 1325273 (9th Cir. 2017).

Opinions

Dissent by Judge NGUYEN

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to review sentences imposed for violations of the Migratory Bird Treaty Act.

I

Douglas Vance Crooked Arm and Kenneth G. Shane appeal their felony sentences for conspiring “to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles” in violation of the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703(a), 707(b), and 18 U.S.C. § 371. Crooked Arm and Shane were the subjects of a sting operation conducted by United States Fish & Wildlife Service agents as part of “Operation Hanging Rock,” an investigation into the illegal sale of migratory bird feathers. Over the course of seven months, undercover agents posed as buyers seeking to purchase fans made from migratory bird feathers from Crooked Arm and Shane before executing search warrants against them. United States v. Vance Crooked Arm (Crooked Arm I), 788 F.3d 1065, 1068-69 (9th Cir. 2015).

In February 2013, a grand jury indicted Crooked Arm and Shane on foür criminal counts. Count I alleged a conspiracy “to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles,” in violation of 16 U.S.C. §§ 703(a), 707(b), and 18 U.S.C. § 371. It also alleged that Crooked Arm and Shane committed [1067]*1067one or more of the following acts in furtherance of the conspiracy:

1. Crooked Arm “placed deer carcasses on the land in order to attract and capture birds of prey, including eagles and hawks.”
2. Crooked Arm and Shane “sold a golden eagle feather fan for $1,500.”
3. Crooked Arm and Shane “offered to sell a magpie feather fan for $800.”
4. Crooked Arm and Shane “offered to sell a bald eagle feather fan, and received a down payment of $500.”
5. Crooked Arm “offered to sell a winter hawk tail fan for $500.”
6. Crooked Arm “offered to sell a bald eagle tail fan for $1,000.”

Count II alleged that Crooked Arm and Shane knowingly sold parts of a golden eagle for $1,500; Count III alleged that Crooked Arm and Shane offered to sell parts of á magpie for $800; and Count IV alleged that Crooked Arm and Shane knowingly offered to sell parts of a bald eagle for $1,000, all in violation of 16 U.S.C. §§ 703, 707(b), and 18 U.S.C. § 2.

Crooked Arm and Shane filed a motion to dismiss the indictment for failure to state a felony claim, contending that their conduct in selling parts of birds was a misdemeanor only. The district court denied this motion, ruling that § 707(b) does not distinguish between the sale of whole birds and bird parts and thus the indictment properly charged felony violations.

Subsequently, the defendants entered conditional plea agreements by which they pled guilty to Count I and Count II, while reserving their right to appeal the district court’s denial of their motion to dismiss. At the plea colloquy, the district court satisfied itself that Crooked Arm’s and Shane’s pleas were knowing and voluntary, and that they understood the nature of the charges against them and the consequences of their pleas. In addition to their general pleas of guilty to Count I and Count II, Crooked Arm and Shane specifically admitted to selling bird feathers, and Crooked Arm also admitted to dropping off a deer carcass in the hills “for the animals and the birds to eat.”

After being sentenced to probation, Crooked Arm and Shane appealed the district court’s denial of their motion to dismiss. Thus, in Crooked Arm I, Crooked Arm and Shane challenged their convictions by arguing that the sale of bird feathers was a misdemeanor under § 707. This court agreed, holding that the MBTA makes a distinction between birds and parts of birds. Crooked Arm I, 788 F.3d at 1073-75. We vacated their felony convictions for selling parts of a golden eagle (Count II) but affirmed their felony convictions for conspiracy to violate § 703(a) (Count I), through the killing, transporting, offering for sale, or selling of migratory birds. Recognizing that having one felony conviction instead of two could impact the sentence for Count I, we vacated the sentences for both counts and remanded for resentencing. Id. at 1072, 1080. On remand, the district court again imposed felony sentences for their convictions under Count I, sentencing each to one year of probation with credit for time served. Crooked Arm and Shane now contend that they admitted only to misdemeanor conduct and cannot be sentenced as felons, an argument they cast as an Apprendi claim.

II

A

While Crooked Arm and Shane challenge their sentences in this appeal, the core of their claim actually appears to be a challenge to their felony convictions — the logical predicate of being sentenced as a [1068]*1068felon is conviction of a felony.1 Yet, this court has already resolved any challenge to their felony convictions in Crooked Arm I. We held that Count I properly charged a felony offense, and we affirmed their Count I felony convictions. Id. at 1071-72, 1080.

Crooked Arm and Shane point to language in Crooked Arm I stating that “Count I clearly charge[d] in part a statutory felony,” id. at 1071-72 (emphasis added), and use this to argue that their convictions were not felonies. Yet, such selective quotation is a misreading of our opinion. At least six other times in Crooked Arm /, we stated that Count I charged a felony without including the qualifying language of “in part.”2 And, in context, we explained:

[E]ven if Defendants were right that sale of eagle feathers is only a misdemeanor, Count I clearly charge[d] in part a statutory felony ... because [it] charge[d] 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.

Id. at 1071-72. Thus, “in part” makes it clear that even iffhe sale of feathers might not amount to a felony, “placing deer carcasses to attract birds of prey” did support felony convictions.3 Id. And we upheld these convictions in our disposition. Id. at 1080.

B

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Cite This Page — Counsel Stack

Bluebook (online)
853 F.3d 1065, 2017 WL 1325273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-douglas-crooked-arm-ca9-2017.