Petition for Writ of Certiorari — Atkinson v. United States

92-11704

No. 92- _

IN THE SUPREME COURT OF THE UNIT Berd ile SCueR

October Term, 1992

MELVILLE O’NEAL ATKINSON, PETITIONER

UNTVED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAY F. LANSING

MOSES LAW FIRM

P. QO. Box 2853

Billings, Montana 59103-2533

(406)248-7702

COUNSEL FOR PETITIONER

No. 92-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

MELVILLE O’NEAL ATKINSON, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAY F. LANSING

MOSES LAW FIRM

P. O. Box 2533

Billings, Montana 59103-2533

(406)248-7702

COUNSEL FOR PETITIONER

ii.

QUESTIONS PRESENTED FOR REVIEW

1. Whether 16 U.S.C. Section 3373(d) of the

Lacey Act was properly construed so as to permit the

price paid for guiding services to be used in determining

the "market value" of the wildlife?

y Whether the jury instruction providing for

two methods in determining the "market value" of

wildlife was ambiguous and thereby violated the Fifth

and Sixth Amendments to the United States

Constitution?

3 Whether the application to the Petitioner

of Amendment Number 407 of Section 2@2.1 of the

Federal Sentencing Guidelines violated the Ex Post

Facto Clause of the United States Constitution?

iil

TABLE OF CONTENTS

Questions Presented for Review

Table of Authorities

Report of Opinions Below

Jurisdiction

Constitutional and Statutory

Provisions

Statement of the Case

Argument --

Question No. 1

Question No. 2

Question No. 3

Conclusion

Filing and Service Verification

TABLE OF AUTHORITIES

CASES CITED:

Busic v. U.S.

446 U.S. 398 (1980) 17

Miller v. Florida

482 U.S. 423

196 L.Ed.2d 351

107 S.Ct. 2446 (1987) 43

United States v. Anderton

629 F.2d 1044, 1049 and

n.5 (Sth Cir. 1980) 21

U.S. v. Atkinson

966 F.2d 1270

(9th Cir. 1992) 2, 38

U.S. v. Combs

762 F.2d 1343

(9th Cir. 1985) 22

United States v. Martinez

946 F.2d 100

(9th Cir. 1991) 4]

US. v. Stenberg

803 F.2d 422 (9th Cir.) 1]

U.S. v. Suarez

911 F.2d 1016

(Sth Cir. 1990) 47

United States v. Wentz

800 F.2d 1325

(4th Cir. 1986) 26

CODES:

16 U.S.C. Section 3372(2)(A) 9

16 U.S.C. Section 3373 10, 14

FEDERAL SENTENCING GUIDELINES:

2Q2.1 33, 35

2Q2.2

Amendment 407 40

COMES NOW the Petitioner, Melville O’Neal

Atkinson, and respectfully prays that the Supreme Court

of the United States issue a Writ of Certiorari to review

the Judgment of the United States Court of Appeals for

the Ninth Circuit.

REPORT OF OPINIONS BELOW

On April 27, 1992, the United States Court of

Appeals for the Ninth Circuit issued its opinion in

Cause No. 91-30084 in which the United States Court

of Appeals for the Ninth Circuit affirmed the conviction

and sentence of Melville O’Neal Atkinson. A copy of

the opinion is set forth in the appendix as Exhibit "B".

A timely Petition for Rehearing was filed on behalf of

Mr. Atkinson which was eventually denied on July 17,

1992. On July 22, 1992, the United States Court of

Appeals for the Ninth Circuit issued its Order and

2

Amended Opinion in Cause No. 91-30084. A copy of

the Order and Amended Opinion is set forth in the

appendix as Exhibit "A". This Amended Opinion can

now be properly cited as U.S. v. Atkinson, 966 F.2d

1270 (9th Cir. 1992).

JURISDICTION

The Order and Amended Opinion of the United

States Court cf Appeals for the Ninth Circuit was filed

on July 22, 1992. A timely Petition for Rehearing was

denied on September 10, 1992. This Petition for Writ

of Certiorari, which is mailed on December 9, 1992, is

timely as required by Supreme Court Rule 13.1 and

Rule 13.4.

The jurisdiction of this Court is invoked under 28

USS.C. Section 1254(1).

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS

United States Constitution, Article I, Section 9(3)

(Pertinent text set forth in the Appendix)

United States Constitution, Fifth Amendment

(Pertinent text set forth in the Appendix)

United States Constitution, Sixth Amendment

(Pertinent text set forth in the Appendix)

Lacey Act - 16 U.S.C. Section 3372

(Pertinent text set forth in the Appendix)

1988 Amendments to 16 U.S.C. Section 3372

(Pertinent text set forth in the Appendix)

Lacey Act - 16 U.S.C. Section 3373

(Pertinent text set forth in the Appendix)

1988 Amendments to 16 U.S.C. Section 3373

(Pertinent text set forth in the Appendix)

Section 2Q2.1 of Federal Sentencing Guidelines

4

(Pertinent text set forth in the Appendix)

Amended Section 2Q2.1 of Federal Sentencing

Guidelines

(Pertinent text set forth in the Appendix)

STATEMENT OF THE CASE

A. Statement of the Facts

The Petitioner, Melville O’Neal Atkinson, owned

and operated Neal’s Wilderness Outfitters, Inc., a

Jacksonville, Florida business which acted as a booking

agent for hunting expeditions in the State of Montana.

Arrangements would then be made to have the actual

guiding of the hunters performed by Montana outfitters

or landowners. In November of 1989, Mr. Atkinson

booked a number of hunters from the southeast portion

of the United States to hunt in Montana.

5

Most hunters paid the standard booking fee of

One Thousand Five Hundred and No/100ths ($1,500.00)

Dollars. The booking fee was then to be split with the

outfitter or landowner, who in this case were Wayne

Bacon and Brian Nelson. Lodging, meals, and ground

transportation were included in the booking fee.

During the hunts in November of 1989, it was

alleged that approximately 14 deer were illegally taken

in violation of the Lacey Act, specifically a violation of

16 US.C. Section 3372 and Section 3373. The

Indictment filed against Mr. Atkinson, a copy of which

is included in the Appendix, alleged eight counts of

conspiracy to violate the Lacey Act coupled with 13

counts of either attempted violation of the Lacey Act or

aiding and abetting the violation of the Lacey Act.

Atkinson was tried before a jury, was convicted on all

21 counts, and he was sentenced to a term of 37

EE are

6

months imprisonment. He appealed his conviction and

sentence to the United States Court of Appeals for the

Ninth Circuit on various grounds, two of which were the

“market value" issue and the Federal Sentencing

Guideline issue. As previously stated, the United States

Court of Appeals for the Ninth Circuit affirmed the

conviction and sentence of Mr. Atkinson.

B. Jurisdiction in Court

of First Instance

The basis for federal jurisdiction in the Court of

first instance, the United States District Court for the

District of Montana, Billings Division, is the alleged

violations of federal statutes, namely 16 U.S.C. Sections

3372 and 3373 and 18 U.S.C. Section 371.

7

ARGUMENT

A. Introduction

The Petition for Writ of Certiorari filed in this

case concerns the construction and interpretation of the

Lacey Act, specifically 16 U.S.C. Sections 3372 and

3373, together with the corresponding Federal

Sentencing Guideline. As a review of Section 3372 and

Section 3373 reveals, these particular sections are

concerned with the trafficking of illegally taken wildlife.

Although at first blush it would appear that the Lacey

Act has little impact upon and is of little importance to

most citizens, namely those who live in urban areas, it

is crucial to point out the fact that it is precisely these

urban citizens, who travel to the sparsely populated

West to hunt, that the Lacey Act is most often applied

due to the fact that the out-of-state hunter who

8

transports part of his wildlife home conveniently satisfies

the interstate commerce element of the Lacey Act.

As the number of Lacey Act prosecutions have

increased, so has the frequency of various legal issues,

most predominately the valuation issue. Although

Congress attempted to amend the Lacey Act following

the decision by the United States Court of Appeals in

U.S. v. Stenberg, 803 F.2d 422 (9th Cir. 1986), Congress

has seemed to only complicate and perpetuate the

issues, especially as to the element of "market value."

The United States Court of Appeals for the Ninth

Circuit has decided an important question of federal law

regarding the issue of valuation and the Lacey Act, and

the Petitioner, Mr. Atkinson, sincerely believes that this

questions which has not been, but should be, settled by

this Honorable Court.

9

B. Questions Presented for Review

1. Whether 16 U.S.C. Section 3373(d) of the

Lacey Act was properly construed so as to permit the

price paid for guiding services to be used in determining

the "market value" of the wildlife?

Mr. Atkinson was charged in this case with

several violations of 16 U.S.C. Section 3372(2)(A) which

provides:

"It is unlawful for any

person ... (2) to import,

export, transport, _ sell,

receive, acquire, or

purchase in interstate or

foreign commerce (A) any

fish or wildlife taken,

possessed, transported, or

sold in violation of any law

or regulation of any state or

in violation of any foreign

law. r

While the substantive offense is set forth in Section

3372, the penalty provisions are set forth in a separate

Ameer on ee ar

10

section, namely 16 U.S.C. Section 3373(d)(1) which

provides:

"Any person who --

(A) ... OF,

(B) violates any provision of

this chapter (other than

subsections (b) and (d) of

Section 3372 of this title) by

knowingly engaging in

conduct that involves the

sale or purchase of, the

offer of sale or purchase of,

or the intent to sell or

purchase, fish or wildlife or

plants with a market value

in excess of $350,

knowing that the fish or

wildlife or plants were

taken, possessed,

transported, or sold _ in

violation of, or in a manner

unlawful under, any

underlying law, treaty or

regulation, shall be fined

not more than $20,000, or

imprisoned for not more

than five years, or both.

Each violation shall be a

1]

separate offense and the

offense shall be deemed to

have been committed not

only in the district where

the violation first occurred,

but also in any district in

which the defendant may

have taken or been in

possession of the said fish

or wildlife or plants."

Therefore, it should initially be noted that the Lacey

Act provides for the substantive violation in one section

and the penalty provisions in another, and market value

is Only mentioned in the penalty provisions of Section

3373.

In 1986, the United States Court of Appeals for

the Ninth Circuit rendered its opinion in U.S. v.

Stenberg, 803 F.2d 422 (9th Cir. 1986). In Stenberg the

Court held that the Lacey Act’s prohibition of the "sale

of wildlife" did not apply to the sale of guiding services

et Maes v "

:

q

j

:

i

4

‘

12

or hunting permits. Mr. Stenberg also challenged the

jury instruction dealing with "market value."

"The District Court

instructed the jury that:

The market value of wildlife

may be established by

several methods.

One method is, of course,

the price a _ piece of

property would bring if sold

on the open market

between willing buyer and

seller.

Another method to establish

market value is the price

paid for guiding services for

the hunt in which the

wildlife was taken.

Either of the above

methods is a proper method

to use in determining

market value."

Mr. Fike contended that the Court’s instruction failed

to provide an appropriate standard for assessing the

13

market value of the wildlife, and the Court responded

at page 433 as follows:

“Because we reverse Fike’s

conviction on the only count

on which evidence was

introduced as to ‘the price

paid for guiding services,’

infra section VI, we need

not consider the _ third

paragraph of the court’s

instruction. The second

paragraph of the instruction,

which governed. the

deliberations on ail other

counts, required the jury to

determine the price the

wildlife would bring ‘if sold

on the open’ market

between a willing buyer and

seller. This formulation

corresponds to _ typical

definition of ‘market value.’

See, e.g., 55 C.J.S. Market at

789-97 (1948) (citing cases);

Black’s Law Dictionary 1123

(4th ed. rev. 1976. ..."

In other words, the United States Court of Appeals

chose not to determine whether market value could be

14

established by looking at the price paid for guiding

services for the hunt in which the wildlife was taken.

Nevertheless, the Court did find appropriate the

determination of market value as the price the wildlife

would bring if sold on the open market between a

willing buyer and seller.

In response to the decision in Stenberg, 16

U.S.C. Section 3372 was amended in 1988 to include a

provision concerning sale and purchase of guiding and

outfitting services and invalid licenses and permits. 16

U.S.C. Section 3373(c) provided:

"(c) Sale and purchase of

guiding and _ outfitting

services and invalid licenses

and permits

(1) Sale

It is deemed to be a sale of

fish or wildlife in violation

of this chapter for a person

for money’ or _ other

15

~~

consideration to offer or

provide --

(A) guiding,

outfitting, or other

services; OF

(B) a_ hunting or

fishing license or

permit;

for the illegal taking,

acquiring, receiving,

transporting, Or possessing

of fish or wildlife.

(2) Purchase

It is deemed to be a

purchase of fish or wildlife

in violation of this chapter

for a person to obtain for

money or other

consideration --

(A) guiding,

outfitting, or other

services; Or

(B) a hunting or

fishing license’ or

permit;

16

for the illegal taking,

acquiring, receiving,

transporting, Or possessing

of fish or wildlife.” 16

v.8.0. Section

3373(c)(1)(A), (B)."

It is critical to an understanding of Mr.

Atkinson’s argument that the amendments which were

the result of the Stenberg decision concerned only the

substantive offense as describe? in Section 3372, and

there were no corresponding amendments to the

penalty provisions set forth in Section 3373.

Nevertheless, the United States of America attempted

to do what Congress refused or failed to do by arguing

that market value may be determined by looking to the

money paid for guiding or outfitting services or the

money paid for a hunting or fishing license. However,

the penalty provisions as set forth in Section 3373 were

not amended to include this rather expansive definition

|

®

17

of "market value." As stated by the Court in Stenberg

one of the oldest and most settled rules of statutory

construction is the principal that criminal laws are to

be strictly construed. See Busic v. United States, 446

U.S. 398 (1980). Therefore, even though Congress was

aware of the special problems created by the sale of

guiding and outfitting services it chose not to amend

the penalty provisions of Section 3373. As a result,

although Mr. Atkinson clearly agrees that the sale of

guiding and outfitting services may not be a violation of

the Lacey Act if all other elements are proven, the

price paid for guiding and outfitting services cannot be

used in determining the "market value" of the wildlife

sold.

y Whether the jury instruction providing for

two methods in determining the "market value" of

18

wildlife was ambiguous and thereby violated the Fifth

and Sixth Amendments to the United States

Constitution?

If this Honorable Court determines that it is

proper to construe 16 U.S.C. Section 3373 so as to

permit the price paid for guiding services to be used in

determining the market value of the wildlife, then the

question becomes whether the jury instruction given at

the trial of this case providing for two methods in

determining "market value" was ambiguous and thereby

violated the Fifth and Sixth Amendments to the United

States Constitution. In this particular case, Instruction

No. 50 sets forth the two methods by which the "market

value" of the wildlife may be determined and stated:

"The market value of

wildlife may be established

by several methods.

19

One method is, of course,

the price a _ piece of

property would bring if sold

on the open_ market

between a willing buyer and

seller. |

Another method to establish

market viaue is the price

paid for guiding services for

the hunt in which the

wildlife was taken.

Either of the above

methods is a proper method

to use in determining

market value."

This instruction, identical to that given in Stenberg, was

proposed by the Government and was objected to by

counsel for Mr. Atkinson.

In order to understand the question presented

by the Petitioner, it is important to point out what

language from the instruction is objectionable, and what

language is not objectionable. First, Mr. Atkinson did

20

not at the time of trial and does not now object to the

definition of "market value" as the "price a piece of

property would bring if sold on the open market

between a willing buyer and seller." On the other

hand, the language which is objectionable is that

"market value” is defined as "the price paid for guiding

services for the hunt in which the wildlife was taken."

It is precisely this language which Mr. Atkinson

contends is vague and ambiguous. One may ask, how

so? Such a question is best answered by asking a

series of follow up questions which include: What does

"price paid for guiding services for the hunt" mean?

Does that mean the total fee paid by the hunter?

Should the cost of lodging be deducted from the fee

because it is not "guiding services"? Should the amount

paid for meals and ground transportation be deducted

because they are not "guiding services"? If the hunter

21

goes on two separate hunts and kills two deer, is the

amount paid for the guiding services divided by two?

If the hunter is guided by two guides, is the price paid

for guide services again divided by two? And, is the

amount paid by the hunter for licenses, airline tickets,

and taxidermy to be included in the "price paid for

guiding services"? These are not remote or farfetched

questions, but rather are precisely the questions a

competent juror would have asked himself or herself

during deliberations in the Atkinson case.. At the same

time, the instruction offers the juror no guidance

whatsoever in answering these questions.

It has been stated time and again that the Court

must explain all terms of legal significance. See United

States v. Anderton, 629 F.2d 1044, 1049 and n.5 (Sth

Cir. 1980). It is undisputed that the jurisdictional

amount of Three Hundred Fifty and No/100ths

22

($350.00) Dollars is, indeed, significant in light of the

fact that criminal sanctions are imposed only if the

pet ee Mec aiiadt egies

"market value" exceeds Three Hundred Fifty and

No/100ths ($350.00). While providing the jury a

. definition on essential elements is designed to reduce

uncertainty, just the opposite occurred here. The

United States Court of Appeals for the Ninth Circuit in

. U.S. v. Combs, 762 F.2d 1343 (9th Cir. 1985) addressed

a somewhat similar situation and stated at page 1346:

"It is the duty of the district

: court to instruct the jury on

wo eb.

all the essential elements of

the crime charged. United

States v. Bryant, 461 F.2d

912, 920 (6th Cir. 1972).

See also United States v.

i Mastelotto, 717 F.2d 1238,

1248 (9th Cir. 1983). When

a person is prosecuted

under a_ statute, the

requirements of the statute

should be explained to the

jury so that they may

determine whether or not

5 he

DORIS iach DP 2

‘Gri iio ied ectaipecommsian

23

the defendant’s conduct fits

within the statute. Bryant,

461 F.2d at 920; Moms v.

United States, 156 F.2d 5235,

529, 531 (9th Cir. 1946). ‘A

jury may not justifiably find

a verdict until they are

instructed on the law,

sufficiently to show them

what is necessary for proof.’

Mors, 156 F.2d at 531.

The court’s instruction in

this case was so lacking in

explanation of the offense

charged and its elements

that it was fundamentally

erroneous and inadequate.

Id. Cf. United States v.

Ramsey, 291 F.2d 737, 739

(6th Cir.) cert. denied, 368

US. 899, 82 S.Ct. 177, 7

L.Ed.2d 94 (1961).

By merely instructing the

jury that Combs would be

guilty of the crime charged

in Count One if he

possessed a rifle with a

barrel of less than 16 inches

and had made that rifle into

a rifle having a barrel of

less than 16 inches, the

court incorrectly defined the

}

.

TERE i AS a eo

DT SDN BIS AMM ee SD LSS. APES tales He foe, pes

.

3

-

3

it

24

offense actually charged in

Count One. The court

substantially amended the

indictment through its

instructions to the jury and

thus ‘"destroyed_ the

defendant’s substantial right

to be tried only on charges

presented in an indictment

returned by a grand jury.”

United States v. Pazsint, 703

F.2d 420, 424 (9th Cir.

1983) (quoting Stirone v.

United States, 361 U.S. 212,

217, 80 S.Ct. 270, 273, 4

L.Ed.2d 252 (1960). The

court broadened _ the

possible basis for conviction

in its instruction, and this

constitutes reversible error.

United States v. Miller,

US. : , 105 S.Ct.

1811, 1815, 85 L.Ed.2d 99

(1985). The court thus

erred in rejecting Combs’

proposed instructions. See

United States v. Tille, 729

F.2d 615, 624 (9th Cir.

1984) (no error in rejecting

requested instructions

where court’s instructions

addressed all elements);

United States v. Lane, 708

25

p F.2d 1394, 1397-98 (9th Cir.

The court had no discretion

to refuse to define the

crime charged in terms of

the very statutes whose

violation constituted the

crime. See Morris, 156 F.2d

at 531-32. Without finding

that Combs had violated

sections 5821 or 5822, the

jury could not properly

return a guilty verdict under

Count One."

? Here, Instruction No. 50 did not serve to clarify

“market value", but rather it was so lacking in

explanation or standards by which to determine "market

value" that it violated Mr. Atkinson’s Fifth Amendment

right to be tried only on charges presented in an

Indictment and his right to due process of law and his

Sixth Amendment right to be informed of the nature

and cause of the accusation against him.

26

The Government would obviously argue that

even if one theory or definition of "market value" was

impermissible, any instructional error is harmless and

Mr. Atkinson’s convictions should stand because there

remained a proper theory or definition of "market

value" upon which the jury could base its verdict. Such

an argument was addressed very clearly by the United

States Court of Appeals in United States v. Wentz, 800

F.2d 1325 (4th Cir. 1986). In Wentz, the Defendant

was charged under the National Stolen Property Act in

canta with the theft of a boat. -One element of

these crimes is that the stolen property must have a

value of at least Five Thousand and No/100ths

($5,000.00) Dollars. Following his conviction, Mr.

Wentz contended that the trial judge improperly

instructed the jury to consider not only the market

value of the boat, but also its replacement value, a

its opinion and stated:

27

measure that the Act does not permit.

addressed the argument of Mr. Wentz at

"In the jury instruction that

Wentz complains of, the

court explained that the

$5,000 value was an

essential element of the

offense. It then explained

that value ordinarily means

market value, that is the

price a willing buyer would

pay to a willing seller. Now

if there is no testimony to

Support market value for

the property, the jury is

permitted to consider other

reasonable methods of

valuation, and among those

other reasonable methods

of valuation are such items

as replacement value less

the amount of depreciation

that occurred during the

time that the property was

in the possession of | its

owner.

The

value,

second measure of

replacement value

page 1326 of

The Court

28

less depreciation, would best

have been left unsaid. Its

meaning is not clear to us,

nor could it have been clear

to the jury. It may be akin

to, if not the same as, the

definition of value given in

the Act. Whatever its

meaning, its inclusion was

neither necéSsary nor

heipful.

We do not think, however,

that the reference to

‘replacement value less

depreciation’ in_ this

instruction constitutes

reversible error. The judge

made clear to the jury that

the customary measure of

value was indeed market

value. Market value was

correctly defined for the

jury. Most importantly, the

court directed the jury to

consider the alternative

measure only if there was

no testimony supporting

market value. In fact, the

jury received extensive

testimony concerning

market value. Two

witnesses, the manager of a

29

Bayliner dealership and a

representative of the firm

that insured the boat,

testified that the boat had a

market value over $5,000,

testimony that made

unnecessary the jury’s

consideration of any other

method. Where evidence

of replacement value was

introduced apart from

market value, the judge

sustained defendant’s

objections, noting, ‘What is

relevant in this case is the

fair market value of the

boat immediately before the

loss.’ The only instance of

testimony on replacement

value permitted was where

the witness ‘made his

explanation that that was

about two thousand more’

than the actual value of the

boat."

In other words, the Court in Wentz found that the

second measure of value was neither necessary nor

30

helpful, but the evidence was sufficient to convict Mr.

Wentz using the first measure of market value.

In Mr. Atkinson’s case, if the second method of

determining "market value" was impermissible, was

there sufficient evidence to convict Mr. Atkinson using

the first method, namely the price a piece of property

would bring if sold on the open market between a

willing buyer and seller. Nearly all of the testimony

regarding the price paid between a willing buyer and a

willing seller was presented by Mr. Joel Scrafford,

Resident Agent for the United States Fish and Wildlife

Service. In that regard Agent Scrafford noted that

none of the deer were of trophy status. He further

testified that at wildlife sales conducted by Fish and

Game, the entire animal was sold for approximately

Thirty-five and No/100ths ($35.00) to One Hundred

Fifty and No/100ths ($150.00) Dollars. This was really

31

the only testimony regarding "market value" using the

first method. Obviously, there is not sufficient evidence

to sustain the jurisdictional amount of Three Hundred

Fifty and No/100th ($350.00) Dollars.

It should also be noted that. Mr. Scrafford also

presented what could be termed a third method of

determining "market value" when he testified as to

replacement cost. In that regard, he testified that it

was appropriate to look at license fees, guide fees,

airline transportation, taxidermy fees, cost of cold

weather equipment, coats, and packs and miscellaneous

food. Such a replacement cost has a low of Two

Thousand Two Hundred Sixty and No/100ths

($2,260.00) Dollars and a high of Three Thousand Two

Hundred and No/100ths ($3,200.00) Dollars for

replacement value. Such testimony only adds to the

confusion already generated by the ambiguous and

32

broad definition of "market value" set forth in the

second method. When all of the facts are considered,

the only conclusion is that Instruction No. 50 is vague

and ambiguous and _ violates Mr. Atkinson’s

constitutional rights. Second, the evidence was

insufficient, unlike Wentz, to sustain this crucial element

when only the proper method for determining "market

value" is used, namely the price a piece of property

would bring if sold on the open market between a

willing buyer and seller. The jury could not return a

verdict of guilty on any of the 21 counts.

a Whether the application to the Petitioner

of Amendment Number 407 of Section 202.1 of the

Federal Sentencing Guidelelines violated the Ex Post

Facto Clause of the United States Constitution?

HAM A ORBEA Aah be bas Ee DO ee the ebit

33

At the sentencing of Mr. Atkinson, the District

Court applied Section 2Q2.1 of the Federal Sentencing

Guidelines to determine the offense level for Mr.

Atkinson. Section 2Q2.1 provides a base offense level

of six. To the base offense level, the Court added two

levels if the offense involved a commercial purpose

pursuant to Section 2Q2.1(b)(1). Mr. Atkinson did not

object to that particular increase. However, the

District Court also increased the offense level by four

levels in applying Section 2Q2.1(b)(3)(A) which

provides:

"If the market value of the

specially protected fish,

wildlife, or plants exceeded

$2,000, increase the offense

level by the corresponding

number of levels from the

table in section 2F1.1

(Fraud and Deceit)"

34

The District Court went on to find that the market

value of the wildlife was One Thousand Five Hundred

and No/100ths ($1,500.00) Dollars for each of the 14

deer for a total of Twenty-one Thousand and

No/100ths ($21,000.00) Dollars. Referring to the tables

set forth in Section 2F1.1 (Fraud and Deceit), the

offense level was increased four levels.

On appeal before the United States Court of

Appeals for the Ninth Circuit, Mr. Atkinson argued

that deer are not "specially protected fish, wildlife, or

plants" as required by Section 2Q2.1(b)(3)(A). To

assist the Court in understanding the significance of the

"specially protected" language, Mr. Atkinson provided a

brief history of this particular guideline.

Prior to November 1, 1989, there were two

separate and distinct sentencing guidelines dealing with

conservation and wildlife. Section 202.1 was entitled

35

Specially Protected Fish, Wildlife, and Plants. One of

the specific offense characteristics set forth at Section

2Q2.1(b)(3)(A) stated:

"If the market value of the

specially protected fish,

wildlife, or plants exceeded

$2,000, increase the offense

level by the corresponding

number of levels from the

table in section 2F1.1

(Fraud and Deceit)."

The second guideline to deal with conservation and

wildlife prior to November 1, 1989, was Section 202.2

entitled Lacey Act; Smuggling and Otherwise

Unlawfully Dealing in Fish, Wildlife, and Plants. This

particular sentencing guideline made no mention of any

‘specially protected fish, wildlife, or plants". In other

words, prior to November 1, 1989, offenses involving

"specially protected" fish, wildlife, and plants would be

dealt with in Section 2Q2.1 and offenses involving the

36

Lacey Act and ordinary fish, wildlife, or plants would

be dealt with in Section 2Q2.2. However, on

November 1, 1989, these two sentencing guidelines

were amended, more specifically, Section 2Q2.2

involving the Lacey Act was deleted and combined into

Section 2Q2.1. As a result, when these two sections

were amended and combined, the United States

Sentencing Commission decided to limit the special

offense characteristic dealing with market value to only

"specially protected fish, wildlife, or plants." The

United States Sentencing Commission chose not to

utilize the more general language as set forth in the

previous Lacey Act guideline of Section 2Q2.2.

Therefore, the special offense characteristic in effect at

the time of the commission of the alleged offenses by

Mr. Atkinson could only be applied if the offense

involved "specially protected fish, wildlife, or plants."

37

The wildlife in this case do not fall within the definition

of "specially protected wildlife."

Nevertheless, the United States Court of

Appeals for the Ninth Circuit in its original opinion

dated Apri! 27, 1992 applied the specific offense

characteristic to Mr. Atkinson as though the language

"specially protected" did not exist. Mr. Atkinson filed

a timely Petition for Rehearing, and said Petition for

Rehearing was denied. Five days later, on July 22,

1992, the United States Court of Appeals for the Ninth

Circuit issued its Order and Amended Opinion. The

Court affirmed the sentence of Mr. Atkinson, cited

Amendment 407 which deleted the langugage "specially

protected" from Section 2Q2.1(b)(3)(A) which was

effective after Mr. Atkinson’s sentencing and stated at

page 1276 of its opinion:

38

"We give substantial

deference to a subsequent

Guideline amendment ‘when

it plainly serves to clarify

rather than change the

existing law.’ United States

v. Martinez, 946 F.2d 100,

102 (9th Cir. 1991). It is

clear from the commentary

to the 1991 amendment that

the deletion of the words

‘specially protected’

clarified, rather than.

changed, section

2Q2.1(b)(3)(A). U.SS.G.,

app. C, amend. 407 (1991)

(‘this amendment removes

language inadvertently

retained when this guideline

was. consolidated with the

former 2Q2.2’). This view

is also supported by the

1990 commentary to section

2Q2.1(b)(3)(A). As _ this

commentary shows, section

2Q2.1(b)(3)(A) was never

intended to apply solely to

‘specially protected’ wildlife

after its consolidation.

Rather, it was intended to

apply to violations of

several different animal

protection statutes, including

39

the Lacey Act. See

U.S.S.G. 2Q2.1 commentary

(1990) (‘[t}]his section

applies to violations of the

Lacey Act’). We

therefore conclude there is

no distinction between

specially protected wildlife

and wildlife taken in

violation of the Lacey Act

under the consolidated

version of section 2Q2.1."

Mr. Atkinson contends that the application to Mr.

Atkinson of Amendment 407 which deleted the

language "specially protected" from Section 2Q2.1

violates the ex post facto clause of the United States

Constitution.

Initially, it is important to set forth a brief

recitation of the relevant dates in this particular case

which is as follows:

iB Effective date of Amendment No. 209

which consolidated Section 2Q2.1 and

40

Section 2Q2.2 of the Federal Sentencing

Guidelines -- November 1, 1989.

2. Dates of the alleged offenses as reflected

in the Indictment -- November 6 through

November 29, 1989.

3. Date of Imposition of Sentence --

February 8, 1991.

4. Effective date of Amendment No. 407

which deleted the language "specially

protected" from Section 2Q2.1(b)(3)(A) -

- November 1, 1991.

The United States Court of Appeals in its

Amended Opinion attempts to circumvent the ex post

facto problem by concluding that the deletion of the

language is simply a clarification due to the fact that

the explanation to Amendment No. 407 states:

"This amendment removes

language inadvertently

retained when this guideline

was consolidated with the

former section 2Q2.2. The

effective date of this

41

amendment is November 1,

1991."

Nevertheless, the Sentencing Commission acknowledges

that this is not some sort of clarification, but rather it

is a deletion or a change. The Sentencing Commission

admits that it made a mistake, not a clerical error or a

typographical error, but a substantive mistake which

requires a specific amendment. It is cians to point

Out that Section 2Q2.1(b)(3)(A) was clear and

unambiguous at the time that Mr. Atkinson was

sentenced. There was absolutely no need to make

reference to any type of commentary whatsoever. Of

additional assistance is the decision by the United States

Court of Appeals for the Ninth Circuit in United States

v. Martinez, 946 F.2d 100 (9th Cir. 1991) where the

Court stated:

42

"Here, however, where the

circumstances surrounding

the relevant guideline and

its amendment fail to make

clear that the amendment’s

purpose was merely to

clarify rather than to alter

pre-existing law, we will

confer no weight on the

subsequent amendment.

Cf, e.g., Consumer Product

Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102,

118 n. 13, 100 S.Ct. 2051,

2061 n. 13, 64 L.Ed.2d 766

(1980) (‘{[E]ven when it

would otherwise be useful,

subsequent legislative

history will rarely override a

reasonable interpretation of

a Statute that can be

gleaned from its language

and legislative history prior

to its enactment.’). This is

expecially so in the criminal

law context where the rule

of lenity requires that we

infer the rationale most

favorable to the appellants

and construe the guidelines

accordingly."

ii

43

If this language is applied fairly to Amendment

No. 407 which deleted the relevant language "specially

protected", then it is obvious that the amendment failed

to make clear that the amendment was merely to

clarify. If that is the case, then no weight may be

conferred on this subsequent Amendment No. 407.

On the other hand, if weight is given to

Amendment No. 407, then reference need be made to

the decision by the Supreme Court of the United

States in Miller v. Florida, 482 U.S. 423 (1987). In

Miller, the Supreme Court of the United States was

faced with an amendment made to the sentencing

guidelines of the State of Florida. At the time the

Defendant committed the sexual battery and the other

offenses for which he was later convicted in a Florida

Trial Court, the statute provided a presumptive

sentence range of three and one-half to four and

44

one-half years imprisonment. The sentencing guidelines

were later revised to increase the number of points

assigned to sexual offenses, and at the time the

Defendant was sentenced, the guidelines called for a

presumptive sentence of five and one-half to seven

years in prison. The Judge who sentenced the

Defendant applied the amended guidelines and

imposed a seven year sentence.

On Certiorari, the United States Supreme Court

expressed the unanimous view of the Court that the

revised Sentencing Guidelines Statute, as applied to the

Defendant, whose crimes occurred before the Sstatute’s

effective date, violated the ex post facto clause of the

Federal Constitution, namely Article I, Section 10. In

so holding, the Court utilized the test set forth at 96

L.Ed. 2d 360 which provides:

45

"Our test for determining

whether a criminal law is ex

post facto derives from

these principles. As was

Stated in Weaver, to fall

within the ex post facto

prohibiton, two critical

elements must be present:

first, the law ‘must be

retrospective, that is, it must

apply to events occurring

before its enactment’; and

second, ‘it must

disadvantage the offender

affected by it.’ Id., at 29,

67 L Ed 2 17, 101 S Ct 960.

We have also held in

Dobbert v. Florida, 432 US

282, 53 L Ed 2d 344, 97S

Ct. 2290 (1977), that no ex

post facto violation occurs if

a change does not alter

‘substantial personal rights,’

but merely changes ‘modes

of procedure which do not

affect matters of

substance.”"

Keeping in mind the above quoted language, the

first prong is that the law must be retrospective, and it

46

is deemed retrospective if it changes the legal

consequences of acts completed before its effective

date. Here, Amendment No. 407 whose effective date

was November 1, 1991, and which deleted the language

“specially protected", has certainly been applied along

with the commentary of the amendment to Mr.

Atkinson’s offense which was alleged to have been

committed in November of 1989. One could argue that

the amendment and its commentary were not applied

retroactively, rather the Court was simply interpreting

the language of the guideline which existed in

November of 1989 at the time of the alleged offense.

However, the language which existed at the time of the

offense, namely November of 1989, did not require

interpretation. Rather, what the United States Court

of Appeals for the Ninth Circuit did was basically omit

or delete language which is precisely what Amendment

47

407 accomplished. Additionally, the deletion of existing

language is precisely what occurred in United States v.

Suarez, 911 F.2d 1016 (Sth Cir. 1990) in which the

United States Court of Appeals for the Fifth Circuit

was confronted with an amendment to Section 1B1.3 in

which the language of that section was deleted

regarding the Defendant’s state of mind. The purpose

of the amendment was to delete language which was

viewed as "unnecessary." The Court found that because

the amended section increased the Defendant’s

punishment, the amendment was not simply a change

in procedure which does not affect a matter of

substance. Very simply, the Court found that the

deletion of the language was a substantive change as

opposed to a clarification. Returning to the case at

bar, there is no doubt that Amendment No. 407 has

been applied to events occurring prior to its effective

48

date, November 1, 1991. The first prong of the test is

satisfied.

The second prong of the test is that the

amendment must disadvantage the offender affected by

it. Here, the Court’s application of Amendment No.

407 resulted in an increase of four levels which resulted

in Mr. Atkinson’s final offense level of 18, which,

together with his criminal history category, resulted in

a sentencing range of 30 - 37 months. Mr. Atkinson

was then sentenced to 37 months. Had the increase

pursuant to Section 2Q2.1(b)(3)(A) only applied to

"specially protected" wildlife, Mr. Atkinson’s offense

level would have been offence level 14 with a

sentencing range of 18 - 24 months. As the Court in

Suarez noted, the change alters the length of time that

the Defendant spends in prison. As such, there is no

doubt that the deletion of the language "specially

49

protected" and the application of Amendment No. 407

clearly disadvantaged Mr. Atkinson and the second

prong of the test is clearly satisfied.

Once again, when all of the facts and relevant

law are considered, the only conclusion that can be

drawn is that the application of Amendment No. 407 to

Mr. Atkinson violates the ex post facto clause of the

Federal Constitution.

CONCLUSION

For the reasons stated and the authorities cited,

the Petitioner, Melville O’Neal Atkinson, prays that this

Honorable Court grant his Petition for a Writ of

Certiorari.

DONE AND DATED this 9th day of

December, 1992.

50

MOSES LAW FIRM

P. O. Box 2533

Billings, Montana 59103

FILING AND SERVICE VERIFICATION

STATE OF MONTANA _)

County of Yellowstone i

JAY F. LANSING, of legal age, being first duly

sworn on his oath, deposes and says that he is the

attorney for Petitioner herein, and that he personally

has deposited said Petition at the United States Post

Office in Billings, Montana, by first class mail, postage

prepaid and properly addressed to the Clerk of this

51

Court on the 9th day of December, 1992, which is

timely as within 90 days of the date of denial of

Petitioner’s Petition for Rehearing by the United States

Court of Appeals for the Ninth Circuit. on

September 10, 1992.

Affiant further states that this Petition was at

such times and place served by mail on the Respondent

United States of America by mailing three copies

thereof to:

Solicitor General

Department of Justice

Washington, D.C. 20530

and three copies thereof to:

Kris A. McLean

Assistant United States Attorney

Federal Building

Drawer 10031

Helena, Montana 596267

52

SUBSCRIBED AND SWORN to before me this

9th day of December, 1992.

OOS TS: EP ee

Notary Public for the State of Montana

Residing at Huntley, MT

My Commission Expires: 1/31/95