U.S. v. Sanford, 73-3016

• Decision Date: 23 December 1976
• Docket Number: No. 73-3016,73-3016
• Citation: 547 F.2d 1085
• Parties: UNITED STATES of America, Appellant, v. Nelson E. "Buck" SANFORD et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1085

547 F.2d 1085

UNITED STATES of America, Appellant, v. Nelson E. "Buck" SANFORD et al., Appellees.

No. 73-3016.

United States Court of Appeals Ninth Circuit.

Dec. 23, 1976.

Keith L. Burrowes, Asst. U. S. Atty. (argued), Billings, Mont., for appellant.

Ralph S. Wright and D. Frank Kampfe (argued), of Sandall, Moses & Cavan, Billings, Mont., for appellees.

Before MERRILL, TRASK and SNEED, Circuit Judges.

SNEED, Circuit Judge:

This opinion marks the third time we have sought to dispose of this case. Trial on a seven-count indictment against Nelson Sanford and his sons, Rodney, Lon and Rick Sanford began on February 5, 1973. A mistrial resulted by reason of a hung jury. The district court then granted the Sanfords' motion to dismiss the indictment, and the Government appeals pursuant to 18 U.S.C. § 3731 from the grant of this motion. We originally held that this court lacked jurisdiction to hear the appeal because the double jeopardy clause prohibited further prosecution. 503 F.2d 291 (9th Cir. 1974). The Supreme Court remanded the case to us "for further consideration in the light of Serfass v. United States, 420 U.S. 377, (95 S.Ct. 1055, 43 L.Ed.2d 265) (1975)." 421 U.S. 996, 95 S.Ct. 2392, 44 L.Ed.2d 663 (1975). On remand, we adhered to our prior determination. 536 F.2d 871 (9th Cir. 1976). The Supreme Court reversed, holding that the double jeopardy clause did not prohibit further prosecution, and remanded the case to us for a decision on the merits of the district court's dismissal of the indictment. --- U.S. ----, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976). We reverse and remand for further proceedings on all seven counts. Because of the rather unique facts presented in this case, a full statement of the allegations set forth in the indictment is necessary. Well-pleaded factual allegations are assumed to be true.

The Sanfords are engaged in the business of outfitting and guiding big game hunts in Montana. Rodney Sanford telephoned Paul Bagalio at Bagalio's home in Vermont on December 22, 1971. During this conversation, Rodney offered his services as a guide for late season elk and Rocky Mountain Big Horn sheep hunting in Montana. A second conversation to the same effect was held on December 29 at which time the hunts at issue in this case were arranged. Subsequently, Bagalio telephoned Rodney and obtained permission to bring along Bruce Parker, who Bagalio described as "a friend and business associate."

The Sanfords were unaware that both Bagalio and Parker were acting in undercover capacities for the Bureau of Sport Fisheries and Wildlife and were authorized by federal officials to do whatever was necessary to complete their investigations. ¹

Bagalio and Parker arrived in Montana early in January 1972. On January 6, they were transported by Lon, Rick and Rodney Sanford from Bridger, Montana to Greybull, Wyoming, where they secured lodging for the night. The next morning, the party of five boarded a helicopter and were transported to the Crow Indian Reservation in Montana. At this time, they penetrated the boundaries of the Reservation in search of elk. ² Parker, at the direction of Rodney Sanford, shot at and knocked down a bull elk; the coup de grace was administered by Rodney Sanford. Shortly thereafter, Rick Sanford returned by helicopter and transported the party and the cape of the elk from the Reservation back to Greybull, Wyoming. The cape was then carried by Lon, Rick and Rodney Sanford to Bridger, Montana. Bagalio and Parker apparently joined the Sanfords in Montana on January 10.

A second hunt was planned but first postponed because of inclement weather. The expedition finally got under way on February 2, 1972. At this time, Bagalio, Parker and Rodney Sanford again penetrated the exterior boundaries of the Crow Indian Reservation. At the direction of Rodney Sanford, Bagalio shot and killed a second elk. Rodney caped the elk, and the party, leaving the carcass behind, left the Reservation.

Within the next five days, Rodney Sanford guided Bagalio and Parker on a hunt for Rocky Mountain Big Horn sheep. Rodney led the party into Yellowstone National Park, where he pointed out a sheep for Bagalio to shoot. Bagalio shot and killed the sheep. Rodney removed the cape, head and horns from the sheep, leaving the carcass where it fell.

A seven-count indictment was returned against the Sanfords. In Count I Nelson, Rodney, Lon and Rick were charged under 18 U.S.C. §§ 2, 43, and 371 with conspiracy to transport in interstate commerce animals killed in violation of R.C.M. § 26-307(3) and 16 U.S.C. § 26. Count III charged Lon and Rodney Sanford with the January 8 illegal entry on the Crow Indian Reservation, 18 U.S.C. § 1165, and further charged Nelson and Rick Sanford with aiding and abetting the commission of the offense, 18 U.S.C. § 2. Count III charged Rodney Sanford for a similar offense with respect to the February 2 entry onto the Crow Indian Reservation; Nelson, Rick and Lon Sanford were charged with aiding and abetting this offense. Count IV charged Rodney Sanford with illegal hunting within Yellowstone National Park, 16 U.S.C. § 26. The remaining three counts concerned alleged violations of the Lacey Act, 18 U.S.C. § 43. In Count V, Rodney, Lon and Rick were charged with interstate transportation of the elk killed on January 8; the elk was said to have been killed in violation of federal, 18 U.S.C. § 1165, and state, R.C.M. § 26-307(3), laws. Count VI made the same charge against Rodney Sanford with respect to the elk killed on February 2. Finally, Count VII made an identical charge against Nelson Sanford for the transportation of parts of the bodies of the two dead elk from Billings, Montana, to Seattle, Washington; Rodney, Lon and Rick Sanford were charged with aiding and abetting the commission of this offense.

Our consideration of the sufficiency of the indictment will focus: first, on Counts II and III, relating to the alleged trespass on the Crow Indian Reservation; second, on Counts V, VI and VII, relating to the alleged violations of the Lacey Act; third, on Count IV, relating to hunting within Yellowstone National Park; and, fourth, on Count I, relating to conspiracy to transport illegally killed animals in interstate commerce.

Counts II and III: Trespass on Crow Indian Reservation.

Turning to the portions of the indictment charging appellees with illegal trespass on the Crow Indian Reservation, 18 U.S.C. § 1165 proscribes unauthorized entry onto an Indian reservation for the purpose of hunting, trapping, or removal of game. ³ The district court dismissed Counts II and III on the ground that the trespass was effectively authorized by Bagalio and Parker. We disagree.

We need not pass on the authority of the federal agents to enter the Crow Reservation under the facts alleged in this case, for even assuming that the entry of Bagalio and Parker was lawful, we find nothing in these facts which would warrant a conclusion either that the agents could lawfully authorize appellees to enter the Reservation or that in fact such authorization was given. The facts as set forth in the indictment suggest that the Sanfords were the prime motivating force in the entry and that Bagalio and Parker did little more than follow the instructions of their guides. The participation of the undercover agents in the adventure does not, as the district court suggests, constitute an authorization nor in any other manner make lawful what would otherwise be an unlawful trespass by appellees. See United States v. Gonzales, 539 F.2d 1238 (9th Cir. 1976).

We are also unable to accept the argument that 18 U.S.C. § 1165 does not extend to the activities of guides, who presumably are not actively engaged in the shooting of animals. On the contrary, the statute is written in the broadest possible terms and was designed to prevent encroachments on Indian lands of the type presented in this case. It would clearly violate the intent of Congress to read the statute as not governing the entries of hunting guides.

Counts V, VI and VII: Interstate Transportation of Animals Killed in Violation of Federal and State Law.

Appellees are charged under the Lacey Act, 18 U.S.C. § 43, with three counts of interstate transportation of illegally killed animals: Count V charges Rodney, Lon and Rick Sanford with interstate transportation of "parts of the dead elk killed on January 8, 1972; Count VI charges Rodney Sanford with interstate transportation of "parts of the dead elk killed on February 2, 1972; Count VII charges Nelson Sanford with interstate transportation of the above from Billings, Montana to Seattle, Washington, and further charges the remaining Sanfords with aiding and abetting the transportation. ⁴

The Lacey Act proscribes the transportation of wildlife killed in violation of federal laws and the interstate transportation of wildlife killed in violation of state laws. ⁵ Thus, the inquiry under this portion of the indictment is directed to whether the elk which were transported were killed in violation of either federal or state laws.

To establish an illegal killing under federal law, the Government urges that 18 U.S.C. § 1165 makes illegal the unauthorized killing of wildlife on Indian reservations. We disagree and find persuasive the reasoning of the Montana Supreme Court: It is significant to note that section 1165 does not directly prohibit hunting and fishing but makes the act of going upon the Indian reservation a violation if done for the purpose of hunting or fishing . . . (S)ection 1165 must be considered to be a statute providing a penalty for trespass to an Indian reservation and not an attempt by Congress to enter the field of fish and game regulation.

State v. Danielson, Mont., 427 P.2d 689, 691 (1967).

Turning to state law, the Government also argues that the elk were killed in violation of the Montana fish and game law, R.C.M. § 26-307(3). This, of course raises the preliminary issue of...