U.S. v. Hardman

• Decision Date: 05 August 2002
• Docket Number: No. 00-4015.,No. 00-2166.,No. 99-4210.,99-4210.,00-2166.,00-4015.
• Citation: 297 F.3d 1116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond S. HARDMAN, Defendant-Appellant, In the Matter of Joseluis Saenz, Claimant-Appellee, v. Department of the Interior, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Samuel Ray Wilgus, Jr., Defendant-Appellant. Christian Legal Society, The New Mexico Civil Liberties Foundation, The Commission on Social Action of Reformed Judaism, Hopi Tribe, and Jicarilla Apache Nation, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

297 F.3d 1116

UNITED STATES of America, Plaintiff-Appellee, v. Raymond S. HARDMAN, Defendant-Appellant, In the Matter of Joseluis Saenz, Claimant-Appellee, v. Department of the Interior, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Samuel Ray Wilgus, Jr., Defendant-Appellant.

Christian Legal Society, The New Mexico Civil Liberties Foundation, The Commission on Social Action of Reformed Judaism, Hopi Tribe, and Jicarilla Apache Nation, Amici Curiae.

No. 99-4210.

No. 00-2166.

No. 00-4015.

United States Court of Appeals, Tenth Circuit.

August 5, 2002.

Cindy Barton-Coombs, Roosevelt, UT, for Appellant Hardman.

Peter Schoenburg of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Frye, LLP, Albuquerque, NM (Justin Bogan, Eureka, CA, with him on the brief), for Appellee Saenz.

Joseph F. Orifici, Salt Lake City, UT, for Appellant Wilgus.

Kathryn E. Kovacs, Attorney, United States Department of Justice, Washington, D.C. (John Cruden, Acting Assistant Attorney General, Christopher B. Chaney, Assistant United States Attorney, Salt Lake City, UT, Sasha Siemel, Assistant United States Attorney, Albuquerque, NM, Andrew Mengen, Attorney, United States Department of Justice, Washington, D.C., E. Ann Peterson, Attorney, United States Department of Justice, Washington, D.C.; and William G. Myers, III, Solicitor, Benjamin C. Jesup, Attorney, Mary Anne Kenworthy, Attorney, Janet Spaulding, Attorney, Department of the Interior, Washington, D.C., with her on the brief), arguing as Appellee for the United States in case numbers 99-4210 and 00-4015, and arguing as Appellant for the Department of Interior in case number 00-2166.

Stuart J. Lark and Gregory S. Baylor, Center for Law and Religious Freedom, Christian Legal Society, submitted a brief for amicus Christian Legal Society, the New Mexico Civil Liberties Foundation, and the Commission on Social Action of Reformed Judaism.

Alfred T. McDonnell and Kevin T. Traskos, Arnold & Porter, Denver, CO, submitted a brief for amicus Hopi Tribe.

Stephen H. Greetham, Nordhaus, Haltom, Taylor, Taradash & Bladh, LLP, Albuquerque, NM; Wayne H. Bladh and Susan G. Jordan, Nordhaus, Haltom, Taylor, Taradash, & Bladh, LLP, Santa Fe, NM, submitted a brief for amicus Jicarilla Tribe.

Before TACHA, Chief Judge, McKAY, SEYMOUR, BALDOCK, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, and HARTZ, Circuit Judges.^*

TACHA, Chief Judge.^**

Appellants Raymond S. Hardman and Samuel Ray Wilgus, Jr. were convicted for unrelated counts of illegally possessing eagle feathers in violation of sections 703 and 668(a) of Title 16 of the United States Code, respectively. Appellee Joseluis Saenz had eagle feathers in his possession seized by the Bureau of Indian Affairs, but was not criminally prosecuted.¹ He made a motion pursuant to Fed.R.Crim.P. 41(e) for the return of the feathers, and the district court granted the motion. The cases initially came to three separate panels of this court. Because of the conflicting panel outcomes and the factual and legal similarities among the cases, we simultaneously issued and vacated the panel opinions, and then sua sponte ordered that the cases be reheard en banc. United States v. Hardman, 260 F.3d 1199 (10th Cir.2001); see United States v. Wiles, 102 F.3d 1043, 1047 n. *, 1056 (10th Cir.1996) (hearing issue as an en banc court before release of the panel decisions). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, hold that the Religious Freedom Restoration Act controls all three cases, REMAND to the district court with respect to Mr. Hardman and Mr. Wilgus, and AFFIRM with respect to Mr. Saenz.

I. Background

A. Hardman

Mr. Hardman has been a practitioner of a Native American religion for many years. Although Mr. Hardman is not of Native American descent, his ex-wife and two children are enrolled members of the S'Kallum Tribe, a federally recognized tribe located in Washington State. Mr. Hardman resides within the boundaries of the Uintah and Ouray Reservation in Neola, Utah.

In 1993, when Mr. Hardman was still married to and living with his ex-wife, his son's godfather died. Mr. Hardman transported the body to Arizona so that appropriate religious services could be performed. As a part of the religious cleansing ritual, a Hopi tribal religious leader gave Mr. Hardman a bundle of prayer feathers — which included golden eagle feathers — to be kept in the truck that he had used to transport the body. Mr. Hardman claims that the feathers "hold a special prayer for me, my family, and the automobile they were in." After returning to his home, Mr. Hardman contacted the Utah Division of Wildlife Resources in order to obtain a permit to possess the feathers. He was informed, however, that he would not be allowed to apply because he was not a member of a federally recognized tribe.

Several years later, after Mr. Hardman and his wife separated, Mr. Hardman's estranged wife informed Ute tribal officers that he possessed golden eagle feathers without a permit. On September 24, 1996, Ute tribal fish and game officer Cleveland Murray went to Mr. Hardman's home and demanded the surrender of the eagle feathers.² Under protest, Mr. Hardman surrendered the eagle feathers, which were hanging from the rear view mirror of his truck.

On March 10, 1997, Mr. Hardman was issued a federal violation notice for possessing golden eagle feathers without a permit in violation of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703. Mr. Hardman was not charged with a violation of the Bald and Golden Eagle Protection Act ("BGEPA"). On February 25, 1999, a bench trial was held before a magistrate judge. The court found Mr. Hardman guilty of violating the MBTA, sentenced him to pay a small fine, and placed him on two years' bench probation. Mr. Hardman appealed to the district court, which affirmed his conviction.

Mr. Hardman then appealed to this court. Mr. Hardman argued that he had been prosecuted in a selective and discriminatory manner that violated his equal protection rights, and that the citing officer was acting outside the scope of his authority when he demanded that Mr. Hardman surrender the eagle feathers. Mr. Hardman also argued that the regulations violated his free exercise rights and ran afoul of the Establishment Clause. In oral argument before the en banc court, however, he waived the Establishment Clause issue. While Mr. Hardman argued in his motion to dismiss before the magistrate judge that the regulations violated the Religious Freedom Restoration Act ("RFRA"), he did not argue this on appeal to the district court or to this court. A divided panel of this court affirmed his conviction.

B. Wilgus

Like Mr. Hardman, Mr. Wilgus is not of Native American descent and is not a member of any federally recognized tribe, although he practices a Native American religion.³ Mr. Wilgus resides in Layton, Utah.

In June 1998, a Utah Highway Patrol Officer pulled over a speeding Mazda pickup truck in which Mr. Wilgus was a passenger. After arresting the driver for driving on a suspended license, the officer searched the truck and discovered 137 bald and golden eagle feathers that belonged to Mr. Wilgus.⁴ Mr. Wilgus's wife later produced an additional four bald and golden eagle feathers. Mr. Wilgus admits that he knowingly possessed all 141 eagle feathers and did not have a permit from the U.S. Fish and Wildlife Service authorizing possession of the feathers.

In February 1999, the Government charged Mr. Wilgus with two counts of possessing bald and golden eagle feathers without a permit in violation of the BGEPA, 16 U.S.C. § 668(a). Mr. Wilgus entered a conditional plea of guilty, subject to resolution of his constitutional claims. He received a small fine and twelve months' probation. Mr. Wilgus then appealed to this court, citing the Free Exercise Clause and the Establishment Clause as grounds for appeal. In oral argument before the en banc court, however, he waived the Establishment Clause issue. While Mr. Wilgus raised RFRA in his motion to dismiss, the district court dismissed this claim in light of City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding that RFRA was not a valid exercise of Congress's Enforcement Clause powers). He did not appeal this issue. A divided panel of this court affirmed his conviction.

C. Saenz

Joseluis Saenz is a lineal descendant of the Chiricahua Apache. Chiricahua have been included as members of other, federally recognized Apache tribes, and there was once a Chiricahua Reservation. Since at least 1886, however, the Chiricahua have not been a federally recognized tribe.

Mr. Saenz follows the beliefs and traditions of the Chiricahua Apache religion. Eagle feathers are an integral part of his religious practices. In 1996, while New Mexico state officials were executing a search warrant at Mr. Saenz's home as part of an investigation unrelated to this case, the officers noticed items with eagle feathers hanging on the walls. Mr. Saenz had obtained these feathers as gifts in connection with various ceremonies. After contacting the U.S. Fish and Wildlife Service and determining that Mr. Saenz did not have a permit for the feathers, the officers seized the items and sent them to the Fish and Wildlife Service office in Albuquerque.⁵ In March 1997, the government brought criminal charges against Mr. Saenz under the BGEPA, 16 U.S.C. § 668(a), but the charges were dismissed on the government's motion in July 1997. After attempting to retrieve his feathers through administrative proceedings,⁶ Mr. Saenz filed a motion in federal district court under Fed.R.Crim.P. 41(e) for the return of property seized by a search warrant. Mr. Saenz initially brought his claims under the BGEPA and RFRA, the Free Exercise Clause, and the Equal Protection Clause. The government moved to have the 41(e) motion treated as a civil complaint, but the district court denied the government's motion. The...