State v. Rundquist
| Decision Date | 16 November 1995 |
| Docket Number | No. 16756-5-II,16756-5-II |
| Citation | 79 Wn.App. 786,905 P.2d 922 |
| Parties | The STATE of Washington, Appellant, v. Michael G. RUNDQUIST, Respondent. |
| Court | Washington Court of Appeals |
Brett Andrews Purtzer, Law Offices of Monte E. Hester, Tacoma, for Respondent.
Michael G. Rundquist was charged with six counts of knowingly purchasing unlawfully taken salmon and six counts of knowingly purchasing unlawfully taken steelhead. After three days of testimony in a jury trial, the trial court interrupted the State's case-in-chief and dismissed all charges on the ground that outrageous conduct by the government agents had deprived the defendant of his right to due process of law. The court also held that the government had entrapped the defendant into committing the offense. We hold that the governmental conduct was not so outrageous as to shock the sense of universal justice inherent in due process of law. We also hold that entrapment was a jury issue, which could not be determined by the trial court before the prosecution rested. We reverse and remand for trial.
In late 1989, an informant told state agents about a Agent Bill Hebner, of the Washington State Department of Wildlife, formed an undercover company, licensed as Admiralty Fish Company, to carry out the investigation. The undercover team used a truck equipped to run a mobile fish buying company. Mike Quall, an informant, worked with the agents to set up the fish deals.
thriving business in the purchase and sale of illegally caught fish in Washington. The Washington State Department of Fisheries, the Washington State Department of Wildlife, and the U.S. Fish and Wildlife Service pooled their funds, resources, and expertise in order to determine the scope of the illegal market and to put an end to the market.
Agent Hebner first met defendant Rundquist when Hebner sold legal fish eggs to Rundquist. The two men discussed the possibility of future fish transactions. The agent told Rundquist that if he "were to engage in illegal activity that [he] did not want a paper trail existing with the illegal product." "[Rundquist] agreed and said that he never made any kind of paperwork on those kinds of deals and that in the future if [they] did that kind of business [they] shouldn't do it in town, it should be done at his house in the privacy of his neighborhood."
The State presented evidence at trial that Rundquist purchased allegedly illegal fish eggs from Hebner on at least two separate occasions. Agent Hebner purchased the fish from Nisqually tribal member Albert Squally. The State sought to prove that the fish were caught by Squally during seasons closed to salmon fishing. The fishing season in the Nisqually River opened and closed on a schedule set by the Fisheries Advisory Board, composed of representatives from the Nisqually Indian Tribe and the State of Washington. The evidence relating to the purchases was as follows.
Counts I and II. The Nisqually River was closed to fishing from noon on January 24, to noon on January 28, 1990. On January 27, 1990, Hebner went to Squally's residence where he observed two large bins of fresh fish. He believed Hebner testified that he was experienced in examining fish and testified as to his method of determining whether the fish were fresh or not. Ascertaining the date the salmon were killed was critical to determine if the fish were legally purchased. On January 27, the agent purchased the salmon and steelhead approximately sixteen hours before the season reopened. Hebner testified to his observations that the fish were fresh, but the trial court excluded Hebner's opinion of how recently the fish had been caught. In reviewing the defense motion to dismiss for outrageous government conduct, we will grant all inferences in favor of the State, the non-moving party, and assume that the fish had been caught out of season. 1
the fish were caught out of season from the Nisqually. He did not see the fish caught. He purchased ninety-six chum salmon and seven steelhead at market value. He did not fill out any fish tickets on these fish. Purchasers of fish for commercial use are required to fill out fish tickets documenting the time and location of purchase. See chapter 220-69 WAC.
After the fish were purchased, Hebner and two others cleaned the fish and removed the fish eggs. On the next day, January 28, 1990, Hebner and Quall met with Rundquist. The eggs were transported in Hebner's undercover vehicle to meet with Rundquist. Hebner told Rundquist that he had illegal fish eggs for sale and that he was concerned about leaving a paper trail. Rundquist agreed to purchase the fish. After Hebner asked for cash, Rundquist offered to give Hebner a check and then buy back the check the next day.
On January 29, 1990, Rundquist bought back the check Counts III and IV. The Nisqually River was closed to fishing from noon on January 31, until noon on February 4, 1990. On February 4, 1990, Hebner traveled to Squally's residence and observed fresh fish at Squally's residence in large bins. He arrived at the residence at 11:20 a.m., forty minutes before the opening of the legal fish season. (Thus the fish were likely out of season fish.) Squally was not home so Hebner went to the Nisqually landing, where Squally was fishing. He purchased eighteen chum salmon and four steelhead from Squally during the afternoon. As Squally was fishing during the open season these fish presumably were legal.
with cash. The agent reiterated to Rundquist that the fish were illegal because the fish were closed season and no fish tickets had been prepared.
Later that afternoon, Hebner returned to Squally's residence and purchased twenty-one chum salmon and five steelhead. He purchased what he believed to be the fish that he had observed that morning. He had no personal knowledge that it was those fish. Thus, he purchased a mix of legal fish and what he believed to be illegal fish. He filled out treaty Indian fish receiving tickets for the fish purchased at Squally's home and at the landing.
The fish were cleaned, with the legal and illegal eggs segregated. On Hebner's request, Quall called Rundquist and set up a meeting to purchase the eggs, informing him that half the eggs were legal. Hebner met with Rundquist and told him that he had two sets of eggs, one set purchased during the open season and the other during the closed season. Rundquist purchased all the eggs.
Counts V through XII. The trial judge interrupted the case before the prosecution could present evidence on the remaining counts. The trial judge expressed his opinion that, "The whole idea was conceived by this gentleman [agent Hebner], if I dare call you that, sir, sitting on the witness stand now." The prosecutor explained that the investigation was controlled and approved at high levels of state and federal government The trial court later entered findings of fact that are inconsistent with the court's conclusions of law. The court found that agent Hebner never saw the fish caught and had no personal knowledge when the fish were caught, and that Rundquist had no personal knowledge whether the fish eggs were legal or illegal. But the court concluded as a matter of law that the fish were illegally caught, and that the agents' conduct violated due process and entrapped defendant Rundquist.
in constant consultation with state and federal prosecutors. The investigation led to dozens of prosecutions in state and tribal courts, including Squally's conviction in tribal court on thirty counts. The judge responded that he believed that Rundquist was guilty of buying illegal fish, but that the government's conduct was so "shocking" that it violated due process and constituted entrapment. The judge announced that he would dismiss the entire proceeding for a violation of due process and as an entrapment.
The court entered written findings and conclusions six months after the verbal order of dismissal. The State filed notices of appeal nine days before the written findings and eleven days after the written findings. The trial court eventually entered a written order of dismissal ten months later. The State did not file a new or amended notice of appeal from the order of dismissal.
Defendant Rundquist argues that this court lacks jurisdiction to consider the appeal because the State failed to appeal within thirty days of the trial court's verbal order dismissing the charges. We reject this argument because a party need not appeal from a verbal dismissal until the trial court enters a written order of dismissal. 2
Rundquist next argues that the appeal is untimely because the State failed to file a new notice of appeal from the order of dismissal. We reject this argument because the State was not required to file a new notice of appeal. The earlier notices were prematurely filed. RAP 5.2(g) cures any defect in premature notices by providing that, "A notice of appeal ... filed after the announcement of a decision but before entry of the decision will be treated as filed on the day following the entry of the decision."
We analyze the dismissal of this prosecution under CrR 8.3(b), which provides, "The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order." We review dismissals under this rule for abuse of discretion, and we find abuse "when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." 3 Three steps are included in this analysis: first, the court has acted on untenable grounds if its factual findings are unsupported by the record; second, the court has acted for untenable reasons if it has used an incorrect standard, or the facts do not meet the...
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