U.S.A v. Apollo Energies Inc

• Decision Date: 30 June 2010
• Docket Number: 09-3038.,No. 09-3037,09-3037
• Citation: 611 F.3d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.APOLLO ENERGIES, INC., Defendant-Appellant.and United States of America, Plaintiff-Appellee,v.Dale Walker, doing business as Red Cedar Oil, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

611 F.3d 679

UNITED STATES of America, Plaintiff-Appellee,

v.APOLLO ENERGIES, INC., Defendant-Appellant.and ^* United States of America, Plaintiff-Appellee,

v.Dale Walker, doing business as Red Cedar Oil, Defendant-Appellant.

Nos. 09-3037, 09-3038.

United States Court of Appeals, Tenth Circuit.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Stephen E. Robison (Daniel E. Lawrence with him on each brief) Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Appellants.

Alan G. Metzger, Assistant United States Attorney (Lanny D. Welch, United States Attorney, with him on each brief), Office of the United States Attorney, Wichita, KS, for Appellee.

Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

“This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried ... as to raise questions both fundamental and far-reaching in federal criminal law....” Morissette v. United States, 342 U.S. 246, 257, 72 S.Ct. 240, 96 L.Ed. 288 (1952). And we might add, “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

This case requires us to consider the scope of the Migratory Bird Treaty Act (MBTA or Act). The Act declares it a misdemeanor to “pursue, hunt, take, capture, [or] kill” birds protected by several international treaties. 16 U.S.C. § 703. The MBTA also specifies a maximum penalty of $15,000 and six months in prison for a misdemeanor violation, but does not require any particular mental state or mens rea to violate the statute. See 16 U.S.C. § 707(a). The question this case presents is whether the MBTA constitutionally can make it a crime to violate its provisions absent knowledge or the intent to do so.

Appellants are two Kansas oil drilling operators who were charged with violating the Act after dead migratory birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater. After a trial before a magistrate judge, both Apollo Energies and Dale Walker (doing business as Red Cedar Oil) were convicted of taking or possessing migratory birds, each misdemeanor violations. Apollo was fined $1,500 for one violation, and Walker was fined $250 for each of his two violations. The federal district court affirmed the convictions, concluding that violations of § 703 of the MBTA are strict liability offenses, which do not require that defendants knowingly or intentionally violate the law.

On appeal, Apollo and Walker renew their challenges to the MBTA, claiming (1) it is not a strict liability crime to take or possess a protected bird, or, (2) if it is a strict liability crime, the Act is unconstitutional as applied to their conduct. We conclude the district court correctly held that violations of the MBTA are strict liability crimes. But we hold that a strict liability interpretation of the MBTA for the conduct charged here satisfies due process only if defendants proximately caused the harm to protected birds. After carefully examining the trial record, we agree Apollo proximately caused the taking of protected birds, but with respect to one of his two convictions, Walker did not. Due process requires criminal defendants have adequate notice that their conduct is a violation of the Act.

Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and REVERSE in part the district court's decision.

I. Background

Apollo and Walker own many heater-treaters, a device commonly used in oil drilling operations. Heater-treaters are cylindrical equipment up to 20 feet high and more than three feet wide that separate oil from water when the mixture is pumped from the ground. The heater-treaters at issue in this case have vertical exhaust pipes that are approximately nine inches in diameter, and Walker's heater-treaters included movable louvers that can be opened to access heating equipment at the base. Birds can crawl into the exhaust pipes or through the louvers to form nests. Once inside the heater-treaters, escape can be difficult for some birds.

Acting on an anonymous tip, an agent with the U.S. Fish and Wildlife Service (Fish and Wildlife, or Service) inspected more than a dozen of Apollo's heater-treaters in December 2005. He found bird remains in about half of the heater-treaters he inspected. In February 2006, Fish and Wildlife officers expanded their investigation in the region (southeast Kansas), finding more than 300 dead birds in heater-treaters, 10 of which were identified as protected species under the MBTA.¹

As a result of the investigation, Fish and Wildlife embarked on a public education campaign to alert oil producers to the heater-treater problem. The Service sent letters to 36 of the oil companies involved in the February 2006 inspections, including Apollo. The record does not disclose, however, that Walker's company, Red Cedar, received the notice. Fish and Wildlife also created a poster describing the problem, which it distributed to oil equipment supply companies. Service representatives made presentations to the Kansas Independent Oil and Gas Association and at a Kansas Corporation Commission Oil and Gas meeting. Finally, a Kansas television station and the Associated Press news service each ran a story about heater-treaters' threat to protected birds. Fish and Wildlife chose not to recommend prosecution for MBTA violations related to heater-treaters through the end of 2006, while the education campaign was ongoing.²

In April 2007, after Fish and Wildlife's grace period ended, agents searched heater-treaters belonging to Apollo and Walker. The search of Apollo's heater-treaters yielded the carcass of a Northern Flicker, an MBTA-protected species. Agents found four protected birds in Walker's heater-treaters, as well. When confronted with the dead birds, Walker is reported to have said “that's not good.” Aplt.App. 212. A year later, in April 2008, the Service again conducted a search of Walker's heater-treaters. Although Walker had placed metal caps on the exhaust pipes-where birds previously had been found-a Fish and Wildlife agent retrieved a protected bird that he found lodged in a heater-treater's louvers.

Apollo was convicted of one violation of the MBTA based on the April 2007 bird death. Walker also was convicted of two violations based on the April 2007 and April 2008 deaths.

II. Discussion

Appellants make one statutory and several due process arguments. Their statutory argument is that the MBTA does not create a strict liability crime to take or possess migratory birds, and, under that statutory construction, they lacked the necessary imputed mental state to commit an MBTA violation. Our precedent forecloses Appellants' statutory construction, and consequently we are obliged to address Appellants' broader arguments about the MBTA's constitutionality.

As to their constitutional due process claims, Appellants argue: (1) the MBTA is unconstitutionally vague because it provides inadequate notice of what conduct is criminal, (2) due process requires that they caused an MBTA violation to be guilty of a crime, and (3) the district court erred in applying the law to the facts in this case.

A. Standard of Review

“In an appeal from a bench trial, we review the district court's factual findings for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir.2001). “A finding of fact is not clearly erroneous unless it is without factual support in the record, or unless the court after reviewing all the evidence, is left with a definite and firm conviction that the district court erred.” United States v. Jarvison, 409 F.3d 1221, 1224 (10th Cir.2005) (internal punctuation omitted).

B. Statutory Construction: The MBTA Creates a Strict Liability Crime

Appellants first contend § 703 is not a strict liability offense, but contains a scienter requirement.

Section 703 makes it a crime to “take” protected birds:

[I]t shall be unlawful at any time, by any means or in any manner, to ... take [or] ... attempt to take ... any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of [various treaties between the United States and Great Britain, Mexico, Japan, and the U.S.S.R.]. (Emphasis added).

16 U.S.C. § 703. Regulations implementing the statute explain that the term “take” means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 50 C.F.R. § 10.12.³ Under § 707(a), “any person, association, partnership, or corporation” is “guilty of a misdemeanor” if they “violate any provisions” of the Act. The statute does not supply a mens rea requirement.

Appellants' contention is foreclosed by our holding in United States v. Corrow, 119 F.3d 796 (10th Cir.1997), which squarely addressed § 703's mens rea requirement. In Corrow, we considered and resolved the mens rea requirement of § 707(a), and concluded that “misdemeanor violations under § 703 are strict liability crimes.” Id. at 805. In that case, the defendant was charged with illegal possession of protected Golden Eagle and Great-Horned Owl feathers. We upheld the conviction, finding it persuasive that a plain reading of § 703's text-“it shall be unlawful” to possess protected birds-did not require any particular state of mind or scienter. Id. We relied on the fact that “[l]ike other regulatory acts where the penalties are small and there is ‘no grave harm to an offender's reputation,’ ” the Supreme Court has long recognized a different standard applies to those federal criminal statutes that are essentially regulatory. Id. (citing United States v. Engler, 806 F.2d 425, 432 (3d Cir.1986) (relying on ...