U.S. v. Corrow, 96-2185

• Decision Date: 11 July 1997
• Docket Number: No. 96-2185,96-2185
• Parties: 28 Envtl. L. Rep. 20,125, 97 CJ C.A.R. 1129 UNITED STATES of America, Plaintiff-Appellee, v. Richard Nelson CORROW, Defendant-Appellant. Antique Tribal Art Dealers Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 796

119 F.3d 796

28 Envtl. L. Rep. 20,125, 97 CJ C.A.R. 1129

UNITED STATES of America, Plaintiff-Appellee, v. Richard Nelson CORROW, Defendant-Appellant Antique Tribal Art Dealers Association, Amicus Curiae.

No. 96-2185.

United States Court of Appeals Tenth Circuit.

July 11, 1997.

Joseph Gandert (Alonzo J. Padilla, with him on the briefs), Assistant Federal Public Defenders, Albuquerque, NM, for Defendant-Appellant.

Paula Burnett, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with her on the briefs), Albuquerque, NM, for Plaintiff-Appellee.

Before PORFILIO, McWILLIAMS, and LUCERO, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

This appeal raises issues of first impression in this Circuit under the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013 (NAGPRA); and the Migratory Bird Treaty Act, 16 U.S.C. §§ 701-712 (MBTA). Richard Nelson Corrow challenges the constitutionality of 25 U.S.C. § 3001(3)(D) of NAGPRA which defines "cultural patrimony," the basis for his conviction of trafficking in protected Native American cultural items in violation of 18 U.S.C. § 1170(b). First, he contends the definition is unconstitutionally vague, an argument the district court rejected in denying his motion to dismiss that count of the indictment and to reverse his conviction. United States v. Corrow, 941 F.Supp. 1553, 1562 (D.N.M.1996). Second, he invites us to read a scienter requirement into § 703 of the MBTA to vitiate the government's proof he possessed protected bird feathers. Failing these propositions, he attacks the sufficiency of the evidence supporting his two counts of conviction. We affirm.

I. Background

Until his death in 1991, Ray Winnie was a hataali, a Navajo religious singer. For more than twenty-five years Mr. Winnie chanted the Nightway and other Navajo ceremonies wearing Yei B'Chei originally owned by Hosteen Hataali Walker. Yei B'Chei or Yei B'Chei jish are ceremonial adornments, Native American artifacts whose English label, "masks," fails to connote the Navajo perception these cultural items embody living gods. Traditionally, a hataali passes the Yei B'Chei to a family or clan member who has studied the ceremonies or loans the Yei B'Chei to another Navajo clan, Mr. Winnie having acquired his Yei B'Chei from a different clan during his hataali apprenticeship. When Mr. Winnie died, he left no provision for the disposition of his Yei B'Chei, and no family or clan member requested them.

Richard Corrow, the owner of Artifacts Display Stands in Scottsdale, Arizona, is an afficionado of Navajo culture and religion, having, on occasion, participated in Navajo religious ceremonies. Some time after Mr. Winnie's death, Mr. Corrow traveled to Lukachukai, Arizona, to visit Mrs. Fannie Winnie, Mr. Winnie's 81-year-old widow, chatting with her; her granddaughter, Rose Bia; and other family members: a great granddaughter, Harriette Keyonnie; and a son-in-law. During one visit, Mrs. Winnie displayed some Navajo screens and robes, and Mr. Corrow inquired about the Yei B'Chei. By his third visit in August 1993, the Winnie family revealed the Yei B'Chei, twenty-two ceremonial masks, and permitted Mr. Corrow to photograph them. Mr. Corrow told Mrs. Winnie he wanted to buy them, suggesting he planned to deliver the Yei B'Chei to a young Navajo chanter in Utah to keep them sacred. Although Mr. Corrow initially offered $5,000, he readily agreed to the family's price of $10,000 for the Yei B'Chei, five headdresses, and other artifacts. Mr. Corrow drafted a receipt, ¹ and Mrs. Winnie, who spoke no English, placed her thumbprint on the document after Ms. Bia read it to her in Navajo.

In November 1994, the owners of the East-West Trading Company in Santa Fe New Mexico, contacted Mr. Corrow telling him that a wealthy Chicago surgeon was interested in purchasing a set of Yei B'Chei. In fact, the purported buyer was James Tanner, a National Park Service ranger operating undercover on information he had received about questionable trade at East-West. When Agent Tanner visited the business, its owners showed him photographs of seventeen of the twenty-two Yei B'Chei that Mr. Corrow purchased from Mrs. Winnie. In the photos, he noticed eagle and owl feathers in several of the large headdresses and ceremonial sticks bundled with small eagle feathers. After negotiations, Agent Tanner agreed to a purchase price of $70,000 for the Yei B'Chei, $50,000 for Mr. Corrow and a $20,000 commission to East-West's co-owners.

On December 9, 1994, Mr. Corrow arrived at the Albuquerque airport en route to Santa Fe carrying one large suitcase, one small suitcase, and a cardboard box. Yet once he was in Santa Fe, F.B.I. agents became worried East-West's owners had been alerted and abandoned their script for the planned buy, instead directly executing the search warrant. Agents found the two suitcases Mr. Corrow had carried to East-West, one holding Navajo religious objects, small bundles, herbs, mini prayer sticks, and other artifacts adorned with eagle feathers. Another suitcase contained eagle feathers rolled inside several cloth bundles, Yei B'Chei dance aprons, and five headdress pieces made of eagle and owl feathers. In the cardboard box was the set of twenty-two Yei B'Chei.

The government subsequently charged Mr. Corrow in a two-count indictment, Count one for trafficking in Native American cultural items in violation of 18 U.S.C. § 1170, 25 U.S.C. §§ 3001(3)(D), 3002(c), and 18 U.S.C. § 2; and Count two for selling Golden Eagle, Great Horned Owl, and Buteoine Hawk feathers protected by the MBTA in violation of 16 U.S.C. § 703, 16 U.S.C. § 707(b)(2), and 18 U.S.C. § 2. The court rejected Mr. Corrow's pretrial motion to dismiss Count one based on its purported unconstitutional vagueness, and the trial proceeded comprised predominantly of the testimony of expert witnesses clashing over whether the Yei B'Chei constitute "cultural patrimony" protected by NAGPRA. Having concluded they do, the jury convicted Mr. Corrow of illegal trafficking in cultural items, Count one, but acquitted him of Count two, selling protected feathers, instead finding him guilty of committing the lesser included offense, possession of protected feathers. Post-trial, Mr. Corrow attacked his conviction renewing his challenge to the constitutionality of §§ 3001(3)(D) and 3002(c) of NAGPRA and to the sufficiency of the evidence underlying his conviction. Corrow, 941 F.Supp. at 1553. The district court denied the motion and sentenced him to two concurrent five-year probationary terms and one hundred hours of community service.

In this renewed challenge, Mr. Corrow asserts the court erred in failing to dismiss Count one on the ground the NAGPRA definition of cultural patrimony is unconstitutionally vague, trapping the unwary in its multitude of meanings and creating easy prey for the untrammeled discretion of law enforcement. ² Were NAGPRA's definitional bounds nevertheless discernible, Mr. Corrow then urges the evidence was insufficient to support his conviction on either count. Mr. Corrow acknowledges our de novo review of the legal question he raises, United States v. Murphy, 977 F.2d 503, 504 (10th Cir.1992); and our task of deciding whether substantial evidence, both direct and circumstantial taken together, underpins the conviction to confirm a reasonable jury could find defendant guilty beyond a reasonable doubt. United States v. Garcia-Emanuel, 14 F.3d 1469, 1472 (10th Cir.1994).

II. NAGPRA

Congress enacted NAGPRA in 1990 to achieve two principle objectives: to protect Native American human remains, funerary objects, sacred objects and objects of cultural patrimony presently on Federal or tribal lands; and to repatriate Native American human remains, associated funerary objects, sacred objects, and objects of cultural patrimony currently held or controlled by Federal agencies and museums. H.R.Rep. No. 101-877, 101st Cong., 2d Sess.1990, reprinted in 1990 U.S.C.C.A.N. 4367, 4368. The legislation and subsequent regulations, 43 C.F.R. §§ 10.1--10.17, provide a methodology for identifying objects; determining the rights of lineal descendants, Indian tribes and Native Hawaiian organizations; and retrieving and repatriating that property to Native American owners. NAGPRA's reach in protecting against further desecration of burial sites and restoring countless ancestral remains and cultural and sacred items to their tribal homes warrants its aspirational characterization as "human rights legislation." Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 Ariz. St. L.J. 35, 37 (1992). Indeed, a Panel of National Dialogue on Museum-Native American Relations, which was convened to address the divergent interests of the museum and Native American communities, reported to Congress that "[r]espect for Native human rights is the paramount principle that should govern resolution of the issue when a claim is made." 1990 U.S.C.C.A.N. 4369-70.

Nonetheless to give teeth to this statutory mission, 18 U.S.C. § 1170 penalizes trafficking in Native American human remains and cultural items and creates a felony offense for a second or subsequent violation. Subsection 1170(b), the basis for prosecution here, states:

Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation Act shall be fined in accordance with this title, imprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, imprisoned not more than 5 years, or both.

One must look to NAGPRA, 25 U.S.C. § 3001, for the definition of "cultural item." Section 3001(3) states:

"cultural items" means human remains and--

(D) "cultural patrimony" which shall mean an object having...