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United States v. Douglas Vance Crooked Arm

United States Court of Appeals, Ninth Circuit

April 11, 2017

United States of America, Plaintiff-Appellee,
v.
Douglas Vance Crooked Arm, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Kenneth G. Shane, Defendant-Appellant.

          Argued and Submitted October 6, 2016 Portland, Oregon

         Appeal from the United States District Court for the District of Montana D.C. No. CR-13-18-BLG-DWM-01, CR-13-18-BLG-DWM-02, Donald W. Molloy, District Judge, Presiding

          Brian M. Murphy (argued), Holland & Hart LLP, Billings, Montana; Mark D. Parker, Parker Heitz & Cosgrove PLLC, Billings, Montana; for Defendant-Appellant Douglas Vance Crooked Arm.

          Sherry Scheel Matteucci, Matteucci Law Firm PLLC, Billings, Montana; for Defendant-Appellant Kenneth G. Shane.

          Jeffrey S. Beelaert (argued), Allen Brabender, and Andrew C. Mergen, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Mark S. Smith and Leif M. Johnson, Assistant United States Attorneys; Michael W. Cotter, United States Attorney; United States Attorney's Office, Billings, Montana; for Plaintiff-Appellee.

          Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel affirmed the district court which, on remand, reimposed felony sentences for the defendants' convictions for conspiracy "to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles" in violation of the Migratory Bird Treaty Act.

         In an argument they cast as an Apprendi claim, the defendants, who challenged their sentences in this appeal, contended that they admitted during the plea colloquy only to misdemeanor conduct and cannot be sentenced as felons. The panel wrote that the core of the defendants' claim appears to be a challenge to their felony convictions, and held that the law of the case precludes this court from reconsidering the defendants' arguments, as this court has already resolved any challenge to their felony convictions in United States v. Vance Crooked Arm, 788 F.3d 1065 (9th Cir. 2015).

         Dissenting, Judge Nguyen wrote that the defendants' felony sentences violated Apprendi, and that because the prior panel did not decide whether the defendants' felony sentences were Apprendi error, the law of the case doctrine does not preclude the panel from deciding that issue here.

          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 four 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 one 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 a 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

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