367 F.2d 998 (8th Cir. 1966), 18279, Rogers v. United States

Docket Nº:18279.
Citation:367 F.2d 998
Party Name:Calvin ROGERS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 08, 1966
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 998

367 F.2d 998 (8th Cir. 1966)

Calvin ROGERS, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18279.

United States Court of Appeals, Eighth Circuit.

November 8, 1966

Rehearing Denied Dec. 19, 1966.

Page 999

Warren C. Schrempp, of Schrempp, Lathrop, Rosenthal & Bruckner, Omaha, Neb., for appellant. Richard J. Bruckner, Omaha, Neb., was with him on the brief.

Calvin K. Hamilton, Asst. U.S. Atty., Kansas City, Mo., for appellee. F. Russell Millin, U.S. Atty., and John W. Carter, Asst. U.S. Atty., Kansas City, Mo., were with him on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and LAY, Circuit Judges.

VOGEL, Chief Judge.

Calvin Rogers, the appellant herein, was convicted by a jury on all four counts of an indictment charging unlawful sale or possession of wild ducks and wild geese in violation of 16 U.S.C.A. § 703 and § 704, and §§ 10.4 and 10.53, Title 50, Code of Federal Regulations. Upon conviction, the appellant was sentenced to imprisonment for a period of 90 days on each of the four counts, the sentences to be served concurrently. In addition, appellant was assessed a fine of $500 on Count 1. Following a denial of his motion for judgment notwithstanding the verdict or in the alternative for a new trial, Rogers appealed to this court. We affirm.

Specifically, Count 1 charged that on January 23, 1964, the appellant unlawfully sold four wild ducks. Count 2 charged that on November 23, 1964, the appellant unlawfully sold one wild duck and two wild geese. Count 3 charged that on January 12, 1965, the appellant unlawfully sold 39 wild ducks and 20 wild geese. Count 4 charged that on January 12, 1965, the appellant did knowingly, willfully and unlawfully have in his possession more than the prescribed limit of wild ducks and wild geese, to-wit, 31 wild ducks and 15 wild geese.

Following testimony establishing the sale of the wild ducks and wild geese referred to in Counts 1, 2 and 3 and the possession of the wild ducks and wild geese referred to in Count 4, the appellant took the witness stand and testified in his own behalf. He admitted the sale of the ducks and geese in question and the possession of a 'substantial number of wild game' but as a defense claimed unlawful entrapment in that he contended that he was induced to accumulate and to sell the wild game by Luther E. Miller, a criminal investigator employed by the Department of the Interior, Bureau of Sports Fisheries and Wildlife. Appellant claims a number of errors and asks that the conviction be reversed.

Appellant's first contention is that there was a failure of proof in that the government offered no testimony or evidence of any nature that he did not have a permit to sell wild ducks and geese under the authority of the Migratory Bird Treaty and that it likewise did not establish that the defendant did not have authority to have in his possession more than the prescribed limit of wild

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ducks and wild geese. Appellant's contention is not tenable. After establishing the sales and the possession, it was not necessary for the government to prove that Rogers was without authority to make the sales or without authority to have possession of more than the prescribed limits of birds. A prima facie case had been established and no further proof was necessary to sustain a conviction. The sales were established by the government and admitted by the appellant. It was not necessary for the government to prove a negative. The Supreme Court, when faced with a similar evidentiary problem in a criminal prosecution, recognized that:

'The general principle, and we think the correct one, * * * is that it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could be readily disproved by the production of documents or other evidence probably within the defendant's possession or control. (Cases cited.)' Rossi v. United States, 1933, 289 U.S. 89, 91-92, 53 S.Ct. 532, 533, 77 L.Ed. 1051, 1052.

This fundamental principle has been continually followed. Holland v. United States, 1954, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150; United States v. Fleischman, 1950, 339 U.S. 349, 360-361, 70 S.Ct. 739, 94 L.Ed. 906; United States v. Arnold, 4 Cir., 1966, 358 F.2d 633, 636. The burden is solely upon appellant to prove the affirmative.

Appellant's claimed errors Nos. 2 and 3 appear to be an attack on the trial court's instructions to the jury, with particular reference to the court's definition of the crimes and of the specific intent required for their perpetration. A careful reading of the court's entire charge herein forces us to the conclusion that appellant had no just grounds for complaint. Judge Duncan instructed the jury that as to Counts 1, 2 and 3 there was no regulation authorizing the appellant to sell wild ducks and wild geese. As to Count 4, he instructed that the total number of wild ducks which a person might have in his possession at that time was eight and the number of wild geese five. The scope of the relevant regulations was thus clearly defined for the jury. By 16 U.S.C.A. § 704 Congress authorized the Secretary of the Interior to adopt regulations with reference to the possession and sale of wild ducks and wild geese. 44 U.S.C.A. § 305 requires that all such regulations be published in the Federal Register. § 307 of the same title provides that the contents of the Federal Register shall be judicially noticed. We find no error in the trial court's taking judicial notice thereof and instructing the jury with reference to such regulations. See, Caha v. United States, 1894, 152 U.S. 211, 221-222, 14 S.Ct. 513, 38 L.Ed. 415.

As for the claim that the jury was not properly instructed with respect to requisite specific intent, it is clear that the trial court, after directing attention to the first three counts of the indictment and calling attention to the fact that each charged the defendant with a felony, specifically referred to the fact that in each count it was charged that the appellant 'did knowingly, willfully, unlawfully and feloniously sell * * *.' He instructed that the word 'feloniously' meant 'with criminal intent' and that 'to do an act feloniously means to do willfully something which the law denounces as a major crime, a felony.' He also instructed as follows:

'Unlawfully means contrary to the law; hence, to do an act unlawfully means to do willfully something which is contrary to law.

'An act is done willfully if done voluntarily and purposely and with specific intent to do that which the law forbids, that is to say, with bad purpose, either to disobey or to disregard the law.

'The word knowingly was used, of course, to insure that no one would be convicted for an act done because of mistake or inadvertence or other innocent reason.'

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As to Count 4, a misdemeanor, it was charged that the appellant

'* * * did knowingly...

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