U.S. v. Delahoussaye, 77-5475
| Citation | 573 F.2d 910 |
| Decision Date | 26 May 1978 |
| Docket Number | No. 77-5475,77-5475 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis DELAHOUSSAYE, David Lemoyne Knerien and Robert Lee Richard, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James A. Wysocki, Steven M. Koenig, New Orleans, La., for defendants-appellants.
Edward L. Shaheen, U. S. Atty., D. H. Perkins, Jr., George H. Mills, Jr., Asst. U. S. Attys., Shreveport, La., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Louisiana.
Before MORGAN and GEE, Circuit Judges, and KING, * District Judge.
Appellants were convicted of violating two federal regulations promulgated by the Secretary of the Interior pursuant to statutory authority conferred on him by the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. These are designed to conserve migratory game, such as the ducks here concerned, by regulating the means employed in taking them. The regulations here in point 1 generally forbid the use of live decoys (callers) and the use of grain or the like as artificial bait. They read, in pertinent part:
No person shall take migratory game birds:
(f) By the use or aid of live birds as decoys; although not limited to, it shall be a violation of this paragraph for any person to take migratory waterfowl on an area where tame or captive live ducks or geese are present . . ..
(i) By the aid of baiting, or on or over any baited area. As used in this paragraph, "baiting" shall mean the placing, exposing, depositing, distributing, or scattering of shelled, shucked, or unshucked corn, wheat or other grain, salt or other feed so as to constitute for such birds a lure, attraction or enticement to, on, or over any areas where hunters are attempting to take them; and "baited area" means any area where shelled, shucked, or unshucked corn, wheat, or other grain, salt, or other feed whatsoever capable of luring, attracting, or enticing such birds is directly or indirectly placed, exposed, deposited, distributed, or scattered . . ..
On sufficient evidence, the magistrate found that at the time of the offenses charged, appellants were hunting from a duck blind located less than 300 yards from calling live decoys and cracked corn, with ducks flying directly over the blind to these enticements. He found as well that appellants either knew (Knerien and Richard) or should have known (Delahoussaye) of the presence of the callers and should all have seen cracked corn located in piles along the levee they traversed to get to the blind. On these findings, he concluded that the blind was in a baited area and that all appellants should have known it was.
Appellants' primary attack on their convictions contends that the term "area" used in the regulations is unconstitutionally vague and uncertain. Several other grounds for reversal are also brought forward, which we will notice in due course, but one which interlocks with the first is the question of scienter. We conclude that the term "area" is not, as used in these regulations, unconstitutionally vague and that a minimum form of scienter the "should have known" form is a necessary element of the offense.
The "area" intended by the quoted regulations is rather plainly that within and over which the bait or the callers exercise an attraction. Since these are forbidden means of taking ducks, the area within which but for them ducks would not be is one forbidden to hunters. It is true that such an area is not subject to exact definition and may expand or contract with changes of wind and weather, but hunters must make many such judgments as these in order to hunt at all. Any other definition would be ineffective to deny the advantage of the prohibited means to hunters inclined to seek it, and we think that, in...
To continue reading
Request your trial
-
U.S. v. Anderson
...we have not done this for other offenses. Even for the misdemeanor offense of shooting over a baited field, United States v. Delahoussaye, 573 F.2d 910 (5th Cir.1978), we imposed a "should have known" standard respecting strict liability. And, in United States v. Panter, 688 F.2d 268 (5th C......
-
U.S. v. Engler
...386 U.S. 943, 87 S.Ct. 976, 17 L.Ed.2d 874 (1967); United States v. Bryson, 414 F.Supp. 1068 (D.Del.1976). But see United States v. Delahoussaye, 573 F.2d 910 (5th Cir.1978) (minimum of scienter required to establish violation of MBTA). Finally, we do not believe that the appearance of the ......
-
U.S. v. Garrett, 92-3483
...This presumption is well established, too, in the case law of this Circuit. A seminal case in this regard is United States v. Delahoussaye, 573 F.2d 910 (5th Cir.1978), in which defendants were convicted of duck hunting in violation of federal regulations promulgated pursuant to the Migrato......
- United States v. Castellana
-
The dilemma of mental state in federal regulatory crimes: the environmental example.
...1984), cert. denied, 471 U.S. 1074 (1985); United States v. Brandt, 717 F.2d 955, 956-59 (6th Cir. 1983); United States v. Delahoussaye, 573 F.2d 910, 912-13 (5th Cir. 1978); United States v. Green, 571 F.2d 1, 1-2 (6th Cir. 1977); United States v. Wood, 437 F.2d 91, 92 (9th Cir. In additio......
-
Chopping down the birds: logging and the Migratory Bird Treaty Act.
...a unanimous view. The Fifth Circuit and certain other courts choose not to follow this concept. See, e.g., United States v. Delahoussaye, 573 F.2d 910, 913 (5th Cir. 1978) (finding it unjust to penalize a hunter that unknowingly killed a duck that was lured in by a neighbor's caller); accor......