Petition — United States v. Sanford

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et ca No. 75-1867

a the Supreme Gout of fhe ied Sintes

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Unrrep wid OF Ancentca, Chael

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M . NELSON E, “Buck” SanrorD, ET Ate

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ROBERT H. BO

~h tolichoe General,

RICHARD L. THORNBURGH, -

Assistant Attorney General,

FRANK H. EASTERBROOK, -

aanetny to the Solicitor General,

Department of J: stioe,

Washington, DQ, 20530:

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CITATIONS

Cases:

Tilinois v. Sommerville, 410 U.S. 458___-

Logan vy. United States, 144 U.S. 263__--

Serfass v. United States, 420 U.S. 377_---

9, 10, 11, 12,

United States v. Dinitz, No. 74-928, de-

PO OE

11

il

8,

13, 14

14

United States vy. Jenkins, 420 U.S. 358 8, 9, 10,13

United States v. Jorn, 400 U.S. 470__---- 11, 16

United States v. Means, 513 F. 2d 1329__ 14

United States v. Moon, 491 F. 2d 1047____ 14

United States v. Perez, 9 Wheat. 579___- 11

United States v. Wilson, 420 U.S. 332____ 8,

10, 12, 13

United States vy. Wilson, C.A. 6, No. 15-

1944, decided April 22, 1976_-.-----__ 14

(1)

214-104—-76-—--1

II

Constitution and statutes:

United States Constitution,

Fifth amendment (Double Jeopardy page

Clause) ____._-..- 2, 7,8, 10, 11, 12, 14, 15 Gn the Supreme Court of the Gnited States

Criminal Appeals Act, 18

of a ee eee ee 2.7.15, 16

a eee oe 5, 6 OcToBeR TERM, 1975

he eh 8 5, 6 °

18 U.S.C. 43... 6

FF No.

he | | a aie; elle 5 |

1c : UNITED STATES OF AMERICA, PETITIONER

Uv.

Revised Codes of Montana 1947 anno-

tated, section 26-307(3)__-_______ 5 NELSON FE, “Buck” SANFORD, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

| The Solicitor General, on behalf of the United

| States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the district court (App. D, infra,

pp. 17A-27A) is not reported. The first opinion of

the court of appeals (App. C, infra, pp 11A-16A) is

reported at 503 F. 2d 291. The order of this Court

remanding for reconsideration is reported at 421

U.S. 996. The opinion of the court of appeals on re-

mand (App. A, infra, pp. 1A-7A) is not yet re-

ported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 9A) was entered on May 27, 1976. The juris-

(1)

2

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause precludes an

appeal by the United States from a pretrial erder,

otherwise appealable under 18 U.S.C. 3731, because

the order was entered after a mistrial had been de-

clared because of the inability of the jury to reach a

verdict at an earlier trial of the same charges.

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

1, The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

* * * [Nor shall any person be subject for the

same offence to be twice put in jeopardy of life

or ia * * °,

2. The Criminal Appeals Act, 18 U.S.C. 3731, pro-

vides in pertinent part:

In a criminal case an appeal by the United

States shall lie to a cour? of appeals from a

decision, judgment, or orde. of a district court

dismissing an indictment o: “formation as to

any one or more counts, except that no appeal

shall lie where the double jeopardy clause of the

United States Constitution prohibits further

prosecution.

STATEMENT

1. On November 2, 1972, a federal grand jury in the

District of Montana returned a seven-count indictment

charging respondents * and several co-defendants with

‘ * Nelson “Buck” Sanford and his three sons. Rodney, Lon, and

ick.

3

offenses arising out of the killing of two elk on the

Crow Indian Reservation and a Rocky Mountain big-

horn sheep in Yellowstone National Park.

The indictment alleged that on December 22, 1971,

respondent Rodney Sanford placed a telephone call

frem Montana to Paul Bagalio at the latter’s home in

Vermont and offered his services as a guide for elk

and bighorn sheep hunting in Montana. Rodney San-

ford telephoned Bagalio again on December 29, 1971,

to repeat the offer, and a ‘unt was arranged. On

January 2, 1972, Bagalio informed Rodney Sanford

that he might bring along Bruce Parker, whom he

described as a “friend and business associate” (App.

C. infra, p. 12A) Parker was in fact an undercover

agent of the United States Bureau of Sport Fisheries

and Wildlive.’

Bagalio and Parker arrived in Montana on Janu-

ary 4, 1972. On January 6, respondents Rodney, Lon,

and Rick Sanford transported Agent Parker and

Bagalio to Greybull, Wyoming, where they obtained

lodging for the night. The next morning the party

boarded a helicopter and flew to the Crow Indian

Reservation in Montana, where Rodney and Lon

Sanford guided Agent Parker and Bagalio on an elk

hunt. On January 8, 1972, at the direction of Rodney

Sanford, Parker shot and knocked down a bull elk

inside the Crow Reservation. Rodney Sanford then

actually killed the animal. Later that day Rick San-

ford returned with the helicopter, and the party flew

* Parker’s status as an agent was disclosed in the indictment.

Bagalio, although not an agent, had been deputized.

4

back to Greybull with the cape* of the slain elk.

Rodney, Lon, and Rick Sanford continued on to

Bridger, Montana, with the elk cape. Further hunt-

ing was postponed because of inclement weather, and

Agent Parker and Bagalio returned to Vermont on

January 11, after Bagalio gave Rodney Sanford a

$2,488 check for one elk and the helicopter rental.

Parker and Bagalio arrived in Montana on Febru-

ary 1, 1972, for another hunt. On February 2, Rodney

Sanford, Bagalio, and Agent Parker traveled by truck

and snowmobile to the Crow Reservation. Later that

day, at the direction of Rodney Sanford, Bagalio shot

and killed an elk. Rodney Sanford removed the cape

from the careass, and on February 3 he transported

Dagalio, Parker, and the elk cape through Wyoming

to Bridger, Montana.

On February 7, 1972, Rodney Sanford guided Agent

Parker and Bagalio from Bridger, Montana, into

Yellowstone National Park to hunt bighorn sheep.

Inside the park Rodney Sanford pointed out a sheep,

which Bagalio shot and killed. Rodney Sanford re-

moved the cape, head, and horns from the animal.

The next day Bagalio paid Rodney Sanford ¢2,912

in cash for the hunts and then flew to Seattle, Wash-

ington, with the two elk capes and the cape and horns

of the bighorn sheep. They were met at the airport by

taxidermist Chris Klineburger of Jonas Brothers of

Seattle, Inc., who took possession of the animal parts

*“Cape” is a term used by hunters to refer to the portion of an

animal’s skin that is used by taxidermists in mounting a trophy.

5

and told Bagalio and Parker that he would fix his

records to conceal the fact that the game had been

killed out of season.‘ On February 16, 1972, respond-

ent Nelson Sanford shipped additional parts of the

dead elk from Montana to the Seattle taxidermy firm.

2. Count One of the indictment charged respond-

ents, the three Klineburgers, and Jonas Brothers of

Seattle, Inc., with having conspired, in violation of

18 U.S.C. 371, to transport in interstate commerce

parts of the two elk and bighorn sheep, which had

been killed in violation of state and federal statutes.’

Count Two charged that Lon and Rodney Sanford

entered the Crow Reservation on January 8, 1972,

for the purpose of hunting thereon without lawful

authority or permission, in violation of 18 U.S.C.

1165, and that Nelson and Rick Sanford aided and

abetted them, in violation of 18 U.S.C. 2. Count

Three charged that Rodney Sanford committed a

similar offense on February 2, 1972, and that Nelson,

* Bagalio and Parker previously had told Gene and Burt Kline-

burger of Jonas Brothers that they were going to Montana to hunt

with respondents.

® Revised Codes of Montana 1947 Annotated, Section 26-307 (3),

provides in part: “It shall be unlawful and a misdemeanor for

any person during the closed season on any species of game ani-

mal * * * to take, hunt, shoot, kill or capture any such game

animal * * *,”

16 U.S.C. 26 provides in part: “All hunting, or the killing,

wounding, or capturing at any time of any bird or wild animal,

except dangerous animals, when it is necessary to prevent them

from destroying human life or inflicting an injury, is prohibited

within the limits of said [Yellowstone] park * * * Any person

found guilty of violating any of the provisions of this section

* * * shall be deemed guilty of a misdemeanor * * *,.”

6

Rick, and Lon Sanford aided and abetted him. Count

Four charged Rodney Sanford with having hunted

the bighorn sheep in Yellowstone National Park on

February 7, 1972, in violation of 16 U.S.C. 26. Count

Five charged Rodney, Lon, and Rick Sanford with

having transported parts of the first illegally killed

elk from Lovell, Wyoming, to Bridger, Montana, on

January 8, 1972, in violation of 18 U.S.C. 43. Count

Six charged Rodney Sanford with having committed

a similar offense on February 3, 1972, with regard

to the second illegally slain elk. Count Seven charged

Nelson Sanford with having shipped parts of the

two unlawfully killed elk from Montana to Jonas

Brothers in Seattle on February 16, 1972, in viola-

tion of 18 U.S.C. 43, and the three Sanford sons,

the three Klineburgers, and Jonas Brothers with

aiding and abetting this offense, in violation of 18

U.S.C. 2.

3. A jury trial commenced on February 5, 1973. At

the close of the government’s case the trial judge

acquitted all of the defendants on Count Seven and

the Klineburgers and Jonas Brothers, Ine., on Count

One. When the jury was unable to reach a verdict on

the remaining charges the trial judge declared a

mistrial.

Four months later (on June 6, 1973), as the govern-

ment was preparing to retry them, respondents filed a

motion to dismiss the indictment. After hearing oral

argument, the district court dismissed the indictment

on June 18, 1973, and entered a written opinion (App.

D, infra) on August 31, 1973, setting out in detail the

7

reasons for the dismissal. The «ourt found that the

federal government, properly exercising statutory

authority, had consented to the shooting of the ani-

mals and to the entries onto the Crow Reservation.’

This finding of governmental consent was based on the

facts stated in the indictment, on the government’s

concession in its memorandum opposing dismissal that

Agent Parker and Bagalio were “acting in undercover

‘apacities during the entire investigation,”’ and on the

testimony at trial of Robert Freeman, the United

States Game Management Agent for Montana, that

Parker and Bagalio were “given authority by our

Bureau to do what was necessary to complete the in-

vestigation * * *’’ (Tr. 93).’ The court reasoned that,

because the government had given consent to the ac-

tivities of Parker and Bagalio, those two individuals

had not committed any crimes. The court concluded

that respondents did no more than facilitate the acts

of Parker and Bagalio. Because the acts of the latter

were not crimes, the acts of respondents could not,

according to the district court, be crimes.

4. The United States appealed pursuant to the

Criminal Appeals Act, 18 U.S.C. 3731. The court of

appeals concluded that the Double Jeopardy Clause

barred the government’s appeal. The court rejected the

government’s argument that appeal was permissible

* The court found it unnecessary to reach the other grounds (in-

cluding entrapment) advanced in respondents’ motion to dismiss.

*“Tr.” refers to the transcript of trial, which, by agreement of

the parties, was not transmitted from the district court to the

court of appeals.

214-104-—-76——_-2

8

because respondents could, without violating the

Double Jeopardy Clause, have been tried again fol-

lowing the mistrial. Instead, the court held that re-

spondents had been “acquitted of all charges” and

that ‘‘[e]ven though a mistrial alone does not con-

stitute jeopardy, the action of the district judge was

based upon evidence heard at the trial going to the

general issue of gni't and his order dismissing the in-

dietment amounted to a finding of not guilty as a

matter of law’? (App. C. mfra, pp. 15A, 16A).

5. The United States filed a petition for a writ of

certiorari, No. 74-948. Because questions concerning

the government’s right to appeal were then before

the Court in three other cases, we asked the Court to

dispose of the petition “as appropriate” in light of

those cases.

After the Court rendered its decisions in Serfass v.

United States, 420 U.S. 377; United States v. Wilson,

420 U.S. 332; and United States v. Jenkins, 420 U.S.

308, respondents filed a memorandum arguing that

Jenkins controlled, and that the court of appeals

lacked jurisdiction because respondents already had

heen tried once and a vemand would require a second

trial. We filed a memorandum contending that Serfass

controlled because, once the mistrial had been declared,

a second trial was plainly permissible, and further

proceedings leading to that trial are ‘‘pretrial” pro-

ceedings. We also pointed out that respondents were

not “in jeopardy” at the time the district court dis-

missed the indictment.

9

On June 2, 1975, this Court granted our petition,

vacated the judgment of the court of appeals, and

remanded the ease ‘‘for further consideration in light

of Serfass v. United States, 420 U.S. 377 (1975).” 421

U.S. 996.

6. On remand, the parties filed new briefs. Respond-

ents did not contend that the court of appeals lacked

jurisdiction. Nevertheless the court of appeals once

more dismissed the appeal for want of jurisdiction. It

wrote (App. A. infra, p. 3A) that Serfass “does not

apply to the case now before us. Here [respondents]

have undergone trial. There is no question but that

jeopardy has attached. That be'ug so, and since the

proceedings in the district court have ended in

[respondents’] favor and the consequences of a

reversal in favor of the Government would be that

[respondents] must be tried again, we conclude that

they would, on retrial, be placed twice in jeopardy.”

The court concluded (App. A, infra, pp. 6A-TA):

“It is of no consequence that retrial on remand here

would be necessitated not by alleged judicial inter-

vention and error but by the fact that the jury on the

first trial was unable to agree. We recognize that at

that point, following mistrial, retrial would not have

constituted double jeopardy * * * Without retrial the

judicial process would be frustrated; the dispute

would be at stalemate. Here, however, mistrial was

followed by a judicial action terminating the trial in

[respondents’] favor.’’ This fact, in the court’s view

of the case, made Jenkins controlling.

10

REASONS FOR GRANTING THE PETITION

This is the second time the United States has sought

review of this case in this Court. After the court of

appeals initially dismissed for want of jurisdiction,

this Court vacated the judgment and remanded for

further consideration in light of Serfass. The Court

selected that case alone from the Serfass-Wilson-

Jenkins trilogy, even though respondents had argued

that Serfass is irrelevant and that Jenkins supports

them.

The court of appeals on remand again dismissed the

appeal, concluding, notwithstanding the order of this

Court, that Serfass is irrelevant. The court of appeals

is wrong; its decision is unsupported by any of the

policies of the Double Jeopardy Clause and conflicts

with a decision of another court of appeals

1. Following the mistrial that was manifestly

necessary because of a hung jury, respondents could

have been subjected to a second trial without viola-

tion of the Double Jeopardy Clause. The govern-

ment’s success on an appeal of the dismissal order

would simply subject respondents to that trial. The

court of appeals expressly conceded as much (App.

A, infra, p. GA). It follows from this that dismissal of

the indictment following a mistrial is properly viewed

as the equivalent, for double jeopardy purposes, of a

pretrial dismissal. Under that view, Serfass controls

this case, and the court of appeals erred in refusing,

in the face of this Court’s prior order, to recognize

that fact.

11

a. The district court dismissed the indictment in

the instant case prior to the retrial to which the gov-

ernment was entitled as a result of the jury’s in-

ability to reach a verdict. At the time the court

dismissed the indictment, respondents were not in

jeopardy, because the “District Court was without

power to make any determination regarding [re-

spondents’] guilt or innocence.” Serfass, supra, 420

U.S. at 389. “Without risk of a determination of

guilt, jeopardy does not attach, and neither an ap-

peal nor further prosecution constitutes double jeop-

ardy.” Id. at 391-392. The government therefore is

entitled to appeal and, if it prevails on appeal, to try

respondents, just as was the case in Serfass.

There is no reason to conclude that such a trial

would offend the Double Jeopardy Clause, for the trial

is justified by the jury’s inability to agree at the first

trial.* The government’s victory on appeal would not

create an opportunity to subject respondents to an

otherwise prohibited second jeopardy, but simply

would enable the government to proceed on the course

from which it was diverted by the grant of respond-

ents’ pretrial motion to dismiss the indictment.

Once a new trial is authorized by the mistrial, no

conceivable purpose is served by holding, as the court

of appeals did, that any legal mistake after the first

trial and before the second is immune from review.

8 Jllinois v. Somerville, 410 U.S. 458, 463; United States vy. Jorn,

400 U.S. 470. 480-482 (plurality opinion) ; Logan v. United States,

144 U.S. 263, 297-298; United States v. Perez, 9 Wheat. 579.

12

That makes no more sense than did the position,

rejected in Serfass, that pretrial rulings based on the

“oeneral issue” are unreviewable. If retrial following

the mistrial is permissible, how can an order disiissing

the indictment, followed by an appellate decision that

the order was incorrect, turn that same retrial into a

violation of the Double Jeopardy Clause ?

Because the first trial ended in a mistrial, there

were no findings of fact from the first trial on which

the court could rely in deciding to dismiss the indict-

ment. The jurv was unable to reach a verdict, so that

there literally were no facts found, either in favor of

the respondents or in favor of the government, by the

authorized factfinder. The mistrial operated to set

aside all of the proceedings at the first trial; conse-

quently, for double jeopardy purposes, the government

may act as though the first trial never happened.

There was no “yerdict’’ of any sort in respondents’

favor.” The fact that respondents could constitution-

ally be retried as a consequence of the mistrial is con-

clusive in establishing that there is no constitutional

bar to the appeal.

b. Even viewing the district court’s action as a post-

trial order, the government’s appeal is permissible

*In its original dismissal of the government's appeal in this

case, the court of appeals relied upon the fact that the trial court’s

order of dismissal was based on evidence adduced at the first trial.

concluding that the dismissal thus amounted to an acquittal and

was for that reason not appealable (App. C, ‘nfra. pp. 15A-16A).

In ordering the dismissal from which we now see's review. the court

of appeals quite properly abandoned any reliance upon such a

rationale, See Wilson, supra, 420 U.S. at 348-351; Serfass, supra,

420 U.S, at 390-393,

13

under the principles enunciated in Wilson. That case

held that the government could appeal a post-trial

legal ruling, where the effect of prevailing on appeal

would be to reinstate the verdict of the jury, even

though the ruling was based on evidence adduced at

a trial and going to the general issue.”

Although, unlike Wilson, a decision for the gov-

ernment on the merits of its appeal in this case

would not reinstate a verdict of guilty, it would re-

turn the government and the accused to the position

in which they were before the district court’s er-

roneous legal decision. After being returned to that

position, the ease would proceed to the trial, which is

permissible after a mistrial. a

C. The court of appeals thought that its decision

was supported by Jenkins. It is not. Jenkins involved

a verdict of acquittal entered at the end of trial by the

factfinder. That did not happen here; the factfinder

returned no verdict. The judge simply dismissed the

indictment several months after the trial had termi-

nated in a mistrial without a verdict for either the

prosecution or the defense.”

” Wilson stressed that a reinstatement of a verdict of guilty

would not require a new trial. In this case a new trial would be

required, and the court of appeals concluded that this fact alone

required it to dismiss the appeal. But the government's right to

retry respondents was established by the declaration of the mis-

trial. As Serfass held, the fact that the government’s success on

appeal will be followed by a trial does not preclude an appeal,

if the post-appeal trial is not itself a prohibited second jeopardy.

1 At the conclusion of its opinion, and by way of preface to its

reliance upon footnote 7 in Jenkins, the court stated (App. A,

infra. p. TA): “Here, however, mistrial was followed by a judicial

14

2. The court of appeals’ refusal to entertain the

government’s post-mistrial appeal from the dismissal

of the indictment in this ease conflicts with the de-

cision of the Sixth Cireuit in United States v. Wilson,

No, 75-1944, decided April 22, 1976. In that case, fol-

lowing a mistrial, the district court had granted the

defendant’s motion to dismiss the indictment on the

ground that a second trial would be barred by double

jeopardy. The United States appealed and the Sixth

Circuit, after determining in light of United States vy.

Dinitz, No. 74-928, decided March 8, 1976, that the

district court had erred, reversed and remanded for

trial. While the court did not separately address the

question of its jurisdiction to entertain the appeal, it

analyzed the case in terms of the only inquiry that we

helieve is proper (and that the court below rejected )—

Whether the second trial was independently barred by

the Double Jeopardy Clause. This conflict as to the

appealability of post-mistrial dismissals should he

resolved by this Court.”

action terminating the trial in appellees’ favor.” We are somewhat

at a loss to understand what the court had in mind by its use of

the phrase “terminating the trial.” since there was no trial in

progress at the time the indictment was dismissed. Unquestion-

ably, the first trial had “terminated” when the mistrial was de-

clared, and the second trial had yet to commence. Compare United

States Vv. Means, 513 F.2d 1329 (CLA.8).

*? See also United States v. Moon, 491 F. 2d 1047 (CLA, 5). a

pre-Nerfass case. Moon’s first trial ended in a mistrial because of

defense counsel's illness. At the second trial the judge granted a

mid-trial motion to suppress certain evidence. In light of the sur-

prise to the government, the court granted a mistrial. The district

court later dismissed the indictment, concluding that a third trial

15

3. For the reasons sect forth above, we believe that

the decision of the court of appeals is not only wrong

but in conflict with the applicable decisions of this

Court (and with the import of the earlier order of

this Court in the case) as well as with the decision

of another court of appeals. These reasons suffice to

justify review by this Court even though the hold-

ing of the court of appeals, narrowly construed,

governs a limited class of cases, those in which a

mistrial is followed by a ruling of the district court

dismissing the indictment prior to the second trial.

Moreover, the court of appeals has in fact acted

upon the basis of principles that extend considerably

beyond post-mistrial orders dismissing indictments.

The court has held that the government cannot

appeal whenever, after the appeal, a new trial would

be required; this bar applies whether or not the new

trial independently would be precluded by the Double

Jeopardy Clause. Under the mechanical rule articu-

lated by the court of appeals, the government could

not appeal from a post-mistrial order supplessing

evidence, even though 18 U.S.C. 3731 authorizes such

an appeal and even though the second trial following

the appeal would be permissible under the Double

Jeopardy Clause.”

would violate the Double Jeopardy Clause. The court of appeals

concluded that the mid-tria! suppression motion should not have

been granted, that the mistria] was appropriate, and that a third

trial would not violate the Double Jeopardy Clause. It entertained

the government's appeal and remanded for another trial.

™ The court of appeals conceivably could alley an appeal in

such a case by arguing that the granting of a motion to suppress

214-104 -76---—-3

16

There is another important class of cases in whick

the principles of the instant decision would preclude

government appeals otherwise authorized by Section

3731—cases in which the first trial resulted in a con-

viction that has been reversed on appeal and remanded

for a new trial, and in which the district court sup-

presses evidence or dismisses the indictment prior to

that second trial. Under the instant decision, govern-

ment appeal is precluded by the combination of two.

factors: that there has been a previous trial, and that

the government’s success on appeal would lead to a

second trial. Both conditions are satisfied when a con-

viction has been reversed and a new trial ordered, and

there is no principled basis for distinguishing the

government’s right to appeal a dismissal of an indict-

ment in such circumstances from the appealability of

the instant, post-mistrial dismissal. If the court of ap-

peals were correct in the instant case, the fact that a

second trial is constitutionally permissible following:

reversal of a conviction (United States v. Jorn, 400

U.S. 470, 484) would no more support the govern-

ment’s appeal rights than does the fact that in the

instant case a second trial of respondents was consti-

tutionally permissible following the declaration of a

nustrial.

The problems presented by this case will not dissi-

pate over time. The court of appeals has effectively

declared the Criminal Appeals Act unconstitutional to

does not “terminate the prosecution” in a defendant's favor, but

simply makes the prosecution unlikely to succeed. But in the light

of the court’s double jeopardy analysis this would be a distinction

without a difference, because in either event a successful appeal by

the government would be followed by a second trial.

17

the extent it authorizes an appeal by the government

that, if successful, would be followed by a second trial.

There is a conflict among the circuits on the precise

question presented here, and the court of appeals has

articulated a rule that logically would control many

‘ases in addition to that ones involving that specific

question. We therefore believe that the Court should

review this case and direct the court of appeals to con-

sider the merits of the government’s appeal.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Ricuarp L, THORNBURGH,

Assistant Attorney General.

FRANK H. Eastersrook,

Assistant to the Solicitor General.

JUNE 1976.

APPENDIX A

In the United States Court of Appeals for the Ninth

Circuit

No. 73-3016

Uxirep Strates OF AMERICA, PLAINTIFF-APPELLANT

r.

Newson Bb. “Buck’’ Sanxrorp, Ropney N. SANFORD,

Lox S. Saxrvrorp anp Rick SANFORD, DEFENDANTS-

APPELLEES

On Appeal from the United States District Court for

the District of Montana

[May 27, 1976]

Before: Merniun, Trask and SNEED, Circuit Judges.

OPINION

Merritt, Circuit Judge:

This appeal by the Government from an order dis-

mussing imdictment is back before us on remand from

the Supreme Court of the United States. When it was

before us the first time, 503 F. 2d 291 (9th Cir. 1974),

we held that the Government could not appeal dis-

missal of the indictment against appellees under 18

U.S.C. § 3731,’ since further prosecution would place

‘That section authorizes appeal by the Government “from a

decision, judgment, or order of a district court dismissing an

indictment or information * * * except that no appeal shall lie

where the double jeopardy clause of the United States Constitu-

tion prohibits further prosecution.”

(1A)

2a

them twice in jeopardy. Writ of certiorari was

granted by the United States Supreme Court, re-

sulting in an order vacating our judgment and re-

imanding the cause “for further consideration in the

hight of Serfass v. United States, 420 U.S. 377

(1975).” 421 U.S. 996 (1975).

The facts on the basis of which the district court

ordered dismissal of the indictment are discussed in

our earlier opinion. It suffices here to say that trial of

appellees resulted in a hung jury and declaration of

mistrial, and that prier to retrial the district court

granted appellees’ motion to dismiss the indictment.

Relying on evidence presented at the trial the court

ruled as matter of law that the Government, through

its authorized agents, had given its consent to the

actions of appellees on which the indietment was

hased.

In Serfass vy. United States, supra, the indictment,

charging refusal to submit to induction into the armed

forces, Was dismised prior to trial on the ground that

the Selective Service file disclosed a prima facie case

for relief. The Court, at 387, quoted Green v. United

States, 355 U.S. 184, 187 (1957), to the effect that:

“*The constitutional prohibition against “double

jeopardy” was designed to protect an individual from

being subjected to the hazards of trial and possible

conviction more than once for an alleged offense ...°”

The Court ruled:

Under our cases jeopardy had not yet at-

tached when the District Court granted peti-

tioner’s motion to dismiss the indictment. Pe-

titloner was not then, nor has he ever been,

‘put to trial before the trier of facts.’ * * *

Petitioner had not waived his right to a jury

trial * * *,. In such circumstances, the District

Court was without power to make any deter-

3A

mination regarding petitioner’s guilt or in-

nocence. * * * At no time during or following

the hearing on petitioner’s motion to dismiss

the indictment did the District Court have

jurisdiction to do more than grant or deny

that motion, and neither before nor after the

ruling did jeopardy attach.

420 U.S. at 389, The Court accordingly held that the

Double Jeopardy Clause did not bar appeal by the

United States under § 3731.

That ruling, however, does not apply to the case now

before us. Here appellees have undergone trial. There

is no question but that jeopardy has attached. That

heing so, and since the proceedings in the district court

have ended in appellees’ favor and the consequences of

a reversal in favor of the Government would be that

appellees must be tried again, we conclude that they

would, on retrial, be placed twice in jeopardy. In this

we rely upon two recent decisions of the Supreme

Court handed down shortly before Serfass and after

our earlier decision: United States v. Jenkins, 420

U.S. 358 (1975), and United States v. Wilson, 420

U.S. 332 (1975).

In Wilson, trial had resulted in a guilty verdict.

Defendant had made a pretrial motion to dismiss the

indictment upon the ground of delay in bringing him

to trial. The motion had been denied. Following trial

he had filed various motions, including ones for arrest

of judgment and judgment of acquittal. The district

court reversed its earlier ruling and dismissed the in-

dictment on the ground that the preindictment delay

was unreasonable and had prejudiced the defendant’s

right to a fair trial. The Supreme Court held appel-

late review of this determination was not barred since

the defendant would not have to undergo a second

4A

trial; reversal on appeal would merely serve to rein-

state the guilty verdict. The Court stated: “[W Je

agree with the Government that the constitutional

protection against Government appeals attaches only

where there is a danger of subjecting the defendant to

a second trial for the same offense * * *” 420 U.S. at

336, Discussing the importance of avoiding this

danger, the Court said:

The policy of avoiding multiple trials has

been regarded as so important that exceptions

to the principle have been only grudgingly al-

lowed. Initially, a new trial was thought to be

unavailable after appeal, whether requested by

the prosecution or the defendant. See United

States v. Gilbert, 25 F. Cas. 1287 (No, 15,204)

(CCD Mass. 1834) (Story, J.). It was not

until 1896 that it was made clear that a de-

fendant could seek a new trial after convie-

tion, even though the Government enjoyed no

similar right. United States vy. Ball, 163 U.S.

629

Id. at 3483 (footnote omitted).

In Jenkins, a full trial to the court without jury had

heen had and findings of fact had been made by the

court. A question was presented by the fact that the

law of the circuit at the time of the offense had, since

the offense, been changed by a decision of the Supreme

Court. The district court ruled that the Supreme

Court decision should not be given retroactive effect

and dismissed the indictment under the former circuit

rule. The Government appealed, seeking reversal of

this ruling. With reference to the Government’s posi-

tion, the Court stated:

Tf the court prepares special findings of

fact * * * it may be possible upon sifting those

findings to determine that the court’s finding

of ‘not guilty’ is attributable to an erroneous

conception of the law whereas the court has

> S—

DA

resolved against the defendant all of the fact-

ual issues necessary to support a finding of

guilt under the correct legal standard. The

Government argues that this is essentially

what happened in this case.

420 U.S. at 367. The Court rejected this argument,

saying:

* * * » determination by the Court of Ap-

peals favorable to the Government on the

merits of the retroactivity issue tendered to it

by the Government would not justify a ve-

versal with instructions to reinstate the gen-

eral finding of guilt: there was no such find-

ing, in form or substance, to reinstate.

Td. at 368.

Further discussing the Government's position, the

Court stated:

The Government suggests two possible the-

ories, each of which would go beyond our hold-

ing in Wilson, for permitting an appeal even

though the trial proceedings did not result in

either a verdict or a finding of guilt. First, the

Government suggests that ‘whether « new trial

must follow an appeal is always a_ relevant

consideration,’ but no more; the Double Jeop-

ardy Clause is not an absolute bar in such a

situation. Second, at least in a bench trial

setting, the Government contends that the con-

cept of ‘trial’ may be viewed quite broadly. Lf,

in a beneh trial, a judge has ruled in favor of

the defendant at the close of the Govern-

ment’s case on an erroneous Jegal theory, the

Government ought to be able to appeal; if the

appeal were successful, any subsequent pro-

ceedings Including, presumably, the reopening

of the proceeding for the admission of addi-

tional evidence, would merely be a ‘continua-

tion of the first trial.’ This theory would also

permit remanding a case to the District Court

for more explicit findings.

6A

We are unable to accept the Government’s

contentions. Both rest upon an aspect of the

‘continuing jeopardy’ concept that was artic-

ulated by Mr. Justice Holmes in his dissenting

opinion in Kepner v. United States, 195 U.S.,

at 134-137, but has never been adopted by a

majority of this Court.

Id. at 368-69 (footnotes omitted).

The Court coneluded:

Here there was a judgment discharging the

defendant, although we cannot say with as-

surance whether it was, or was not, a resolu-

tion of the factual issues against the Govern-

ment. But it is enough for purposes of the

Double Jeopardy Clause, and therefore for the

determination of appealability under 18

U.S.C. § 3731, that further proceedings of

some sort, devoted to the resolution of factual

issues going to the elements of the offense

charged, would have been required upon re-

versal and remand. Even if the District Court

were to receive no additional evidence, it

would still be necessary for it to make supple-

mental findings. The trial which could have

resulted in a judgment of conviction has lon,

since terminated in respondent’s favor. To

subject him to any further proceedings at this

stage would violate the Double Jeopardy

Clause.

Id. at 369-70.

On the basis of this authority we conelude that

reversal here would subject appellees to double

jeopardy, and that the appeal aecordingly must be

dismissed under 18 U.S.C. § 3731.

It is of no consequence that retrial on remand here

would he necessitated not by alleged judicial inter-

vention and error but by the fact that the jury on the

first trial was unable to agree. We recognize that at

7A

that point, following mistrial, retrial would not have

constituted double jeopardy, even without consent of

appellees, since “there is a manifest necessity for the

act, or the ends of public justice would otherwise be

defeated.” United States v. Perez, 9 Wheat. 579, 580

(1824). Without retrial the judicial process would be

frustrated; the dispute would be at stalemate. Here,

however, mistrial was followed by a judicial action

terminating the trial in appellees’ favor. As the Court

noted in Jenkins: “* * * it is of critical importance

whether the procecdings in the trial court terminate

ina mistrial * * * or in the defendant’s favor * * *.”

420 U.S. at 365 n. 7.

Appeal dismissed.

< ~eereens eat

a

APPENDIX B

Uniiep States Courr or APPEALS

FOR THE NINTH CIRCUIT

No. 73-3016, DC +624

Untrep States oF America, appellant

v.

NeEtson BL Buck” SANFORD, ETC., ET AL. APPELLEES

JUDGMENT

Appeal from the United States District Court for

the District of Montana.

This cause came on to be heard on the Transcript

of the Record from the United States District Court

for the District of Montana and was duly submitted.

On consideration whereof, It is now here ordered

and adjudged by this Court, that the appeal is dis-

missed.

Filed and entered: May 27, 1976

(9a)

APPENDIX C

No. 73-3016

United States Court of Appeals for the Ninth Circuit

UNITED STATES OF AMERICA, APELLANT

Vv.

Nextson E. “Buck” SANForD, RopNEY N. SANFORD,

Lon SANFORD, AND Rick SANFORD, APPELLEES

On Appeal from the Dis rict Court,

District of Montana

[September 24, 1974]

Opinion

Before: HAMLEY, MERRILL, and SNEED, Circuit Judges.

Per Curtam: The Government appeals from dis-

missal of a seven count indictment against Nelson

Sanford and his sons, Rodney, Lon and Rick Sanford.

We find that this court lacks jurisdiction to hear this

appeal and therefore dismiss it.

The indictment alleged the following facts. The

Sanfords are engaged in the business of outfitting and

guiding big game hunts in Montana. Rodney Sanford

telephoned Paul Bagalio at Bagalio’s home in Ver-

mont on December 22, 1971. During this conversation,

Rodney offered his services as a guide for late season

elk and Rocky Mountain bighorn sheep hunting in

Montana. A second conversation to the same effect was

(11a)

124

held on December 29, at which time the hunts at issue

in this case were arranged, Subsequently, Bagalio

telephoned Rodney and obtained permission to bring

along Bruce Parker, who Bagalio described as “:

friend and business associate.”

The Sanfords were unaware that both Bagalio and

Parker were acting in undercover capacities for the

Bureau of Sport Fisheries and Wildlife and were

authorized by federal officials to do whatever was

necessary to complete their investigations,

Bagalio and Parker arrived in Montana early in

January, 1972. On January 6, they were transported

hy Lon, Rick and Rodney Sanford from Bridger,

Montana to Greybull, Wyoming, where they secured

lodging for the night. The next morning, the party

of five boarded a helicopter and were transported

to the Crow Indian Reservation in Montana. At this

time, they penetrated the boundaries of the Reser-

vation in search of elk. Parker, at the direction of

Rodney Sanford, shot at and knocked down a bull

elk; the coup de grace was administered by Rodney

Sanford, Shortly thereafter, Rick Sanford returned

by helicopter and transported the party and the cape

of the elk from the Reservation back to Greybull,

Wyoming. The cape was then carried by Lon, Rick

and Rodney Sanford to Bridger, Montana. Bagalio

and Parker apparently joined the Sanfords in Mon-

tana on January 10.

A second hunt was planned but first postponed

hecause of inclement weather. The expedition finally

got under way on February 2, 1972. At this time,

Bagalio, Parker and Rodney Sanford again pene-

trated the exterior boundaries of the Crow Indian

Reservation. At the direction of Rodney Sanford,

ee, eR Ete,

—

ee

13A

Bagalio shot and killed a second elk. Rodney caped

the elk, and the party, leaving the carcass behind,

left the Reservation.

Within the next few days, Rodney Sanford guided

Bagalio and Parker on a hunt for Rocky Mountain

hbighorn sheep. Rodney led the party into Yellowstone

National Park, where he pointed out a sheep for

Bagalio to shoot. Bagalio shot and killed the sheep.

Rodney removed the cape, head and horns from the

sheep, leaving the caveass where it fell.

A seven count indictment was returned against the

Sanfords. In Count I, Nelson, Rodney, Lon and Rick

were charged under 18 U.S.C. §§ 2, 48, and 371 with

conspiracy to transport in interstate commerce ani-

mals killed in violation of R.C.M. § 26-307(3) and

16 U.S.C. § 26. Count IL charged Lon and Rodney

Sanford with the January 8 illegal entry on the Crow

Indian Reservation, 18 U.S.C. § 1165, and further

charged Nelson and Rick Sanford with aiding and

abetting the commission of the offense, lo U.S.C. § 2.

Count IIL charged Rodney Sanford for a_ similar

offense with respect to the February 2 entry onto

the Crow Indian Reservation; Nelson, Rick and Lon

Sanford were charged with aiding and abetting this

offense. Count 1V charged Rodney Sanford with il-

legal hunting within Yellowstone National Park, 16

U.S.C. § 26. The remaining three counts concerned

alleged violations of the Lacey Act, 18 U.S.C. §¢ 43.

In Count V, Rodney, Lon and Rick were charged

with interstate transportatin of the elk killed on

January 8; the elk was said to have been killed in

violation of federal, 18 U.S.C. § 1165, and state,

R.C.M. § 26-307(3), laws. Count VI made the same

charge against Rodney Sanford with respect to the

144

elk killed on February 2. Finally, Count VIT made

an identical charge against Nelson Sanford for the

transportation of parts of the bodies of the two dead

elk from Billings, Montana, to Seattle, Washington ;

Rodney, Lon and Rick Sanford were charged with

aiding: and abetting the commission of this offense.

Trial of this case began on February 54, 1973. A

mistrial resulted by reason of a hung jury. Prior to

retrial the district judge granted the defendants

motion to dismiss the indictment. The Government ap-

neals from the grant of this motion. .

Our jurisdiction in this case must be found, if at

all, in 18 U.S.C. § 3731, as amended, which grants

to the Government the right to appeal the dismissal

of an indictment ‘‘except that no appeal shall lie

where the double jeopardy clause of the United States

Constitution prohibits further prosecution.”

In United Siates v. Hill, 473 F. 2d 759, 761 (9th

Cir., 1972), this Court quoted with approval the gen-

eral rule as te when a defendant has been put in

jeopardy appearing in ‘Me ‘arthy v. Zerst, 85 F. 2d

640, 642 (10th Cir., 1936) which is as follows:

The general rule is that a person is not In

jeopardy until he has heen arraigned ona valid

indictment or information, has pleaded, and a

jury has been impaneled and sworn; and

where a case is tried to a court without a jury,

jeopardy begins after accused has been in-

dicted and arraigned, has pleaded and the

court has begun to hear evidence.

In Hill we then applied this rule to the facts of

that ease and held that when the defendant had been

arraigned on a valid indictment to which he had

pleaded and the court had heard evidence going to

the general issue whether the defendant was guilty of

a

15A

the offense charged, a finding by the court that the

defendant was not guilty of the offense charged con-

stituted jeopardy and deprived us of jurisdiction to

hear the appeal by the Government.

Hill is controlling here. The dismissal of the San-

fords indictment followed a mistrial at which all rele-

vant evidence was heard. In his Opinion and Order

of August 31, 1973, the district judge found as a mat-

ter of law that the Government, through its author-

ized agents,’ had given its consent to the acts of the

defendants and that their conduct was not criminal.

The Sanfords have been once put in jeopardy and

this appeal must therefore be dismissed.

The presence of a mistrial in this case does not

distinguish it from Hill. Even ‘ough a mistrial alone

does not constitute jeopardy, the action of the district

judge was based upon evidence heard at the trial

going to the general issue of guilt and his order dis-

inissing the indictment amounted to a findine of not

guilty as a matter of law. As we made clear in Hi//,

existence of jeopardy does not rest on whether the

district judge’s ruling was correct as a matter of law.

The Opinion and Order provides the following summary of

relevant testimony :

“At the trial, a Government witness, Robert C. Freeman, who

was the United States Game Management Agent in charge of

the State of Montana, testified that he authorized the shooting

of the animals in question. Furthermore, Freeman testified that a

similar authorization was made by the appropriate official in the

State of Montana Fish and Game Department. When asked if

Mr. Parker and Paul Bagalio were authorized to do it “* * *

whatever was necessary to complete this investigation * * *,

Freeman responded : ‘They were given authority by our Bureau to

do what was necessary to complete the investigation, yes.’ ”

16A

On this we here express no opinion. We merely hold

that under the cireumstances of this case the defend-

ants have been acquitted of all charges and that we

have no jurisdiction to hear the Government’s appeal.

Appeal dismissed,

et te le TN EN salle -

APPENDIX D

[Filed and E ered in Docket, August 31, 1975;

John J. Parker, Clerk; By Deputy Clerk]

In the United States District Court for the District

of Montana, Billings Division

Criminal No. 624

UNITED States OF AMERICA, PLAINTIFF

v.

NELSON FE. “Buck” Sanrorp, RopNeEy N. SANFORD,

Lon SANFORD, AND Rick SANFORD, DEFENDANTS

OPINION AND ORDER

This cause came before the court on November 2,

1972, upon the filing of an indictment. That indictment

may be summarized as follows:

1. Count I—Consprracy.

Prior to December 22, 1971, the parties willfully

and knowingly conspired to transport in interstate

commerce parts of illegally killed elk and Rocky

Mountain Big Horn sheep, contrary to Title 18 U.S.C.

§ 371.

2. Count 11—Trespass.

On January 8, 1972, Lon Sanford and Ron Sanford

did willfully and knowingly go upon the Crow Indian

Reservation for the purpose of hunting elk, without

permission, contrary to Title 18 U.S.C. § 1165. Rick

(17a)

18A

Sanford and Nelson Sanford aided and abetted, con-

trary to Title 18 U.S.C, § 2.

3. Count I11—Trespass.

On February 2, 1972, Rodney Sanford did willfully

and knowingly go upon the Crow Indian Reserva-

tion for the purpose of hunting elk, without permis-

sion contrary to Title 18 U.S.C. § 1165, aided and

abetted by Nelson Sanford, contrary to ‘itle 18

U.S.C. $ 2.

4. Count IV—Hunting in Yellowstone Park.

On February 7, 1972, Rodney Sanford did willfully

and knowingly hunt a Big Horn sheep in Yellowstone

National Park, contrary to Title 16 U.S.C. § 26.

5. Count V—Transportation.

On January 8, 1972, Rodney, Lon and Rick S:n-

ford transported, in interstate commerce, from Lovell,

Wyoming, to Bridger, Montana, parts of an elk

illegally killed, contrary to Title 26-307(3), Revised

Codes of Montana 1947, and Title 18 U.S.C. 6 1165

all in violation of Title 18 U.S.C. 6 43. .

6. Count VI-—Transportation.

. On February 3, 1972, Rodney Sanford transported

in interstate commerce, from Lovell, Wyoming, to

Bridger, Montana, parts of an elk, illegally killed

contrary to Title 26-307(3), R.C.M. 1947, and Title

7 U.S.C. § 1165, all in violation of Title 18 U.S.C.

\ 43.

7. Count VII—T ransportation

On February 16, 1972, Nelson FE. Sanford trans-

ported in interstate commerce from Billings, Montana

to Seattle, Washington, parts of two elk, iNegally

killed, contrary to Title 26-307(3), R.C.M. 1947, and

Title 18 U.S.C. § 1165, all in violation of 18 U.S.C.

?

19A

§ 43. Rodney, Ron and Rick Sanford aided and

abetted contrary to Title 18 U.S.C. § 2.

The indictment alleged that defendant Rodney San-

ford telephoned one Paul A. Bagalio and offered his

services as a guide for a late season elk and Rocky

Mountain Big Horn sheep hunt. Eventually, the in-

dictment alleges, Bagalio participated in the hunt with

one Bruce A. Parker, an agent of the Bureau of Sport

Fisheries and Wildlife. While under the guidance of

some of the defendants Sanford, two elk were downed

on the Crow Indian Reservation—one by Agent

Parker and the other by Paul Bagalio. Also while

under the guidance of some of the defendants San-

ford, Paul Bagalio killed a Rocky Mountain Big Horn

sheep within the exterior boundaries of Yellowstone

National Park.

In addition to the defendants Sanford, the indict-

ment charged Chris Klineburger, Bert Klineburger,

Gene Klineburger, and Jonas Brothers of Seattle,

Inc., with illegal conduct as specified in particular

counts of the indictment.

The trial of this cause began on February 5, 1973.

After the impanelment of a jury, evidence was intro-

duced by and on behalf of the plaintiff. Subsequently,

counsel for the defendants Klineburger and Jonas

Brothers of Seattle, Inc., moved for judgment of ac-

quittal on the ground that the Government had failed

to prove their participation in the offense. This court

found the motion to be meritorious and entered a

judgment of acquittal as to the defendants Kline-

burger and Jonas Brothers of Seattle, Ine. As to the

defendants Sanford, a mistrial resulted by reason of

a hung jury.

204

Subsequently, the defendants Sanford, advancing

several grounds, have moved to dismiss the indictment

against them.’

I

CONSENT

Defendants argue that the consent of the Federal

Government to the killing of the animals in question

deprives the acts alleged of any illegality. The indict-

ment alleges that all of the animals involved in this

cause were downed by either Agent Parker of the

Bureau of Sport Fisheries and Wildlife, or Paul

Bagalio, who was specially deputized. At the trial, a

Government witness, Robert C. Freeman, who was

the United States Game Management Agent in charge

of the State of Montana, testified that he authorized

the shooting of the animals in question. Furthermore,

Freeman testified that a similar authorization was

made by the appropriate official in the State of Mon-

tana Fish and Game Department. When asked if

Mr. Parker and Paul Bagalio were authorized to do

“* * * whatever was necessary to complete this inves-

tigation * * *,”’ Freeman responded: “They were

given authority by our Bureau to do what was neces-

sary to complete the investigation, yes.”’

‘The defendants have raised an entrapment-like defense, in

that the conduct of the Government displays substantial involve-

ment in criminal activity and that the Government’s conduct is a

violation of the fundamental fairness doctrine. This defense was

first presented in the trial by a motion of the defendants to dis-

miss. The court denied that motion. The defendants again present

the same argument in this motion to dismiss. Since the court by

this order is granting the defendants’ motion to dismiss on other

grounds, the court finds it unnecessary to address itself to this

argument,

eee AO ee te A EE oi

21a

Also, in a memorandum of law in opposition to a

motion of defendants Sanford to dismiss, the Govern-

ment conceded that “Both of these individuals [Agent

Parker and Paul Bagalio] were acting in undercover

capacities during the entire investigation.”’

This element of consent goes to the trespasses,

alleged in Counts II and III of the indictment in

violation of 18 U.S.C. § 1165, and to the hunting in

Yellowstone National Park, alleged in Count IV of

the indictment in violation of 16 T7.S.C, § 26.

In respect to the trespasses, tue defendants point

to an 1868 Treaty with the Crow Indians. That treaty

specifies the Reservation boundaries which cannot be

violated by any person “* * * except such officers,

agents, and employees of the Government as may be

authorized to enter upon Indian Reservations in dis-

charge of duties enjoined by law * * *.”’

Title 25 U.S.C. § 2 states:

The Commissioner of Indian Affairs shall,

under the direction of the Secretary of the

Interior, and agreeably to such regulations as

the President may prescribe, have the manage-

ment of all Indian affairs and of all matters

arising out of Indian relations.

In the construction of this statute, it is clear that

the Secretary of the Interior has overall direction

of the management of all Indian affairs and of all

matters arising out of Indian relations. This grant

of authority can only be construed as vesting in the

United States Government, acting through the

Department of the Interior, and subordinates, the

management and control of all Indian affairs.

Tn addition, it should be noted that the rules and

regulations of the Bureau of Indian Affairs, promu!-

22a

eated under the authority of law, have the force and

effect of statutes, of which the court will take judicial

notice. Bridgeman v. United States, 140 F. 577 (9th

Cir. 1995). One of these regulations, 25 CFR §1.2

reads:

The regulations in Chapter I of Title 25 of

the Code of Federal Regulations are of general

application. Notwithstanding any limitations

contained in the regulations uf this chapter,

the Secretary retains the power to waive or

make exceptions to his regulations as found in

Chapter I of Title 25 of the Code of Federal

Regulations in all cases where permitted by law

and the Secretary finds that such waiver or

exception is in the best interests of the Indians.

The language that is appropriate to this case is simply

that the regulations are of general application, and

that the Secretary of the Interior may waive these

regulations if it is in the best interests of the Indians.’

The Government is proceeding against the defend-

ants under the authority of Title 18 U.S.C. § 1165 °

* It is well to note that the Bureau of Indian Affairs is part of

the Department of the Interior and under the control of the Sec-

retary of the Interior. The Bureau of Sport Fisheries and Wild-

life is also established under the Department of the Interior and

comes within the jurisdiction of the Secretary of the Interior.

* Title 18 U.S.C.A. § 1165 reads as follows:

“Hunting, trapping, or fishing on Indian land

“Whoever, without lawful authority or permission, willfully

and knowingly goes upon any land that belonds to any Indian or

Indian tribe, band, or group and either are held by the United

States in trust or are subject to a restriction against alienation

imposed by the United States, or upon any lands of the United

States that are reserved for Indian use, for the purpose of hunt-

23A

which incorporates the following language: “Whoever

without lawful authority or permission * * * goes

upon Indian lands * * *.” When authorized repre-

sentatives of the Department of the Interior enter

upon trust lands held for the Crow Indian Tribe,

such act so authorized cannot be in violation of the

law. The almost absolute power and authority of the

Federal Government, and particularly the Depart-

ment of the Interior, of which the Bureau of Sport

Fisheries and Wildlife is a part, to control activities

upon Indian lands ean searcely be questioned. This

is consistent with the Treaties which granted au-

thority to enter and with regulations duly enacted

under the power granted to control all matters arising

out of Indian relations under the law. Clearly, Agent

Parker and Paul Bagalio had lawful “permission”

to go upon the Indian lands in question. Such consent

to trespass vitiates the act of any illegality.

Just as there existed authority for Agent Parker

and Paul Bagalio to enter upon the Indian land,

as demonstrated by the indictment and by testimony

of the Government’s own witness at the trial, it is

equally true that Agent Parker and Paul Bagalio

had the consent of the Government to kill the ani-

mals in question; and, as the indictment alleges, it

was Agent Parker and Paul Bagalio, not the de-

fendants, who downed the animals. Yet, the Govern-

ing, trapping, or fishing thereon, or for the removal of game,

peltries, or fish therefrom, shall be fined not more than $200 or

imprisoned not more than ninety days, or both, and all game, fish,

and peltries in his possession shall be forfeited.”

244

ment is charging the defendants with the violation

of Title 18 U.S.C. § 43. That statute states in part:

Whoever delivers, carries, transports, ships

* * * to or from any state * * * any wild

mammal or bird of any kind, or the dead body

or part thereof, * * * which was captured,

killed, taken, purchased, sold or otherwise

possessed or transported in any manner con-

trary to any Act of Congress or regulation is-

sued pursuant thereto or contrary to the laws

or regulations of any state * * * shall be

fined * * *.:

The Government alleges, in Counts V, VI and

VIT, that the animals were killed in violation of

Title 18 U.S.C. §1165 and Title 26-307(3), R.C.M.

1947. This court has already held that the trespass

statute (18 U.S.C. § 1165) was not violated because

the consent to the trespass by the United States

Government officials vitiated any criminality under

the statute. So, too, does the consent by the State of

Montana, as testified to by the Government’s own

witness, supra, vitiate any violation of the state stat-

ute, z.e., Title 26-307(3), R.C.M. 1947. Thus, since

there was no killing in violation of an Act of Con-

gress as a state law, there can be no illegal transpor-

tation of an animal killed in violation of the law.‘

The defense of consent also vitiates the charges

found in Count IV of the indictment. The defendant

Rodney Sanford is charged with hunting a Big Horn

*The Government cites United States v. Gould, 419 F. 2d 825

(1969), in opposition to the court's conclusion, In that case, a Gov-

ernment agent and the defendant purchased a quantity of mari-

huana in Mexico, The agent and the defendant returned to the

United States in separate motor vehicles. The marihuana was in

I ase A a a es Ns On

254

sheep in Yellowstone National Park, contrary to Title

16 U.S.C. § 26.° Title 16 U.S.C. § 22 states in part:

The Yellowstone National Park shall be

under the exclusive control of the Secretary of

the Interior.

Again, this court has held that the killing was au-

thorized by officials within the Department of the In-

terior, under the jurisdiction of the Secretary who

also has exclusive control of Yellowstone National

Park. The Rocky Mountain Big Horn sheep was killed

by Paul Bagalio, an undercover agent ultimately

under the jurisdiction of the Department of the In-

terior. It simply follows that the consent vitiates any

charge of criminality in this matter.

II

AIDERS AND ABETTORS

The court has previously summarized the indictment

in which some or all of the defendants were charged

with aiding and abetting criminal activity—i.e., a

the agent’s vehicle and the customs officials, with full knowledge

of the transaction, allowed the agent and the marihuana to enter

the United States. The Court of Appeals for the Ninth Circuit

affirmed the defendant’s conviction on both counts of (1) know-

ingly smuggling and clandestinely introducing marihuana into

the United States, and (2) knowingly concealing and facilitating

the transportation and concealment of marihuana in violation of

°1 U.S.C. §$ 176(a).

The distinction between the Gould case and the case at bar is

readily apparent. The Sanfords were not charged with the trans-

portation of contraband marihuana. Rather, the Sanfords were

charged with the transportation of the parts of illegally killed

animals, Elk are not contraband. Here, there were no illegally

killed animals.

* Title 16 U.S.C. § 26 states in part: “All hunting, or the killing,

* * * of any bird or wild animal * * * is prohibited within the

limits of said park * * *.”

26A

violation of 18 U.S.C. § 1165 (Trespass) and 18 U.S.C.

§43 (Interstate Transportation). These charges ap-

pear in Counts II, TIL and VIL of the indictment.

Title 18 U.S.C. § 2 states:

(a) Whoever commits an offense against the

United States, or aids, abets, counsels, com-

mands, induces or procures its commission, 1s

punishable as a principal.

(b) Whoever willfully causes an act to be

done which if directly performed by him or an-

other would be an offense against the United

States, is punishable as a principal.

It follows from this statute that one may be charged

with aiding and abetting when the principal’s guilt

has been proven beyond a reasonable doubt or when

there is evidence beyond a reasonable doubt that an

offense has been committed by a principal.

Evidence showing an offense to have been-

committed by a principal is necessary, although

it is not required that the principal be con-

victed, or even that the identity of the princi-

pal be established. |

Unite’ States v. Merriweather, 329, F. Supp.

1156 (A (S.D. Ala. 1971), at 1160.

In the case at bar, this court has held that authoriza-

tion by the Government has vitiated the conduct of

any criminality. Thus, where there is no criminal

conduct by the principals, there can be no culpable

parties aiding and abetting those principals in that

conduct.

III

CONSPIRACY

Title 18 U.S.C. § 371 states:

If two or more persons conspire either to

commit any offense against the United States,

27a

or to defraud the United States, or any

agency thereof in any manner or for any pur-

pose, and one or more of such persons do any

act to effect the object of the conspiracy, each

shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a mis-

demeanor only, the punishment for such con-

spiracy shall not exceed the maximum punish-

ment provided for such misdemeanor.

This court has held that the conduct alleged to have

heen completed by the defendants is not criminal.

While men may conspire to perform certain conduct,

if that conduct when complete does not constitute an

offense against the United States or does not defraud

the United States, those men cannot be found to con-

stitute part of a criminal conspiracy, as defined by

Title 18 U.S.C. § 371. Such is the case here.

For the foregoing reasons, IT IS HEREBY OR-

DERED that the indictme it against the defendants

be dismissed.

Done and dated this 31st day of August, 1973.°

JAMES F. Barrtin,

United States District Judge.

* It is the intention of the court that the filing date of this order

shall be the date of the entry of judgment in this case for the pur-

pose of appeal.

US. GOVERNMENT PRINTING OFFICE: 1976