U.S. v. Van Fossan, No. 89-3102
| Decision Date | 09 April 1990 |
| Docket Number | No. 89-3102 |
| Citation | 899 F.2d 636 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harvey W. VAN FOSSAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Byron G. Cudmore, Asst. U.S. Atty., Office of the U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Thomas R. Appleton, Morse, Giganti & Appleton, Springfield, Ill., for defendant-appellant.
Before CUMMINGS, POSNER and EASTERBROOK, Circuit Judges.
This case is for the birds: migratory birds, protected by the Migratory Bird Treaty Act, 16 U.S.C. Secs. 703-11. Springfield's city fathers concluded that too many pigeons were congregating at a vacant lot near Harvey Van Fossan's home, and they told him to get rid of them. He did, first by shooting them and then, to take care of the nimble ones, by spreading corn and wheat suffused with strychnine. Two common grackles and two mourning doves arrived and learned that there ain't no such thing as a free lunch. Their bodies were found nearby and shipped to the Smithsonian Institution in Washington, D.C., for autopsy. The pathologist's report: strychnine poisoning. The ensuing information against Van Fossan has been characterized by the prosecutor as "one of the most important cases" of his office.
Neither the common grackle (Quiscalus quiscula ) nor the mourning dove (Zenaida macroura ) is endangered or even threatened. The mourning dove, a member of the pigeon family whose name comes from its sad song, nests in all 48 adjacent states and summers in Alaska. Its estimated population in North America exceeds 400 million. John K. Torres, The Audubon Society Encyclopedia of North American Birds 730 (1980). The common grackle, a large member of the troupial (meadowlark) family often called a "blackbird" or "jackdaw", averages more than a foot in length with a wingspan of 17-18 1/2 inches. Like its relatives the boat-tailed grackle and the great-tailed grackle, the common grackle nests throughout North America east of the Rocky Mountains, and on occasion wings into the Pacific northwest. Common grackles enjoy urban living and are "seen much on lawns and in evergreen trees in cities, parks, suburbs", sometimes coming together in a "large noisy roost of thousands, ... sometimes in cities or suburban shade trees", id. at 940. Although neither species seems to need protection, each is "migratory", and the regulations under the Migratory Bird Treaty Act do not allow people to poison them--although it is permitted to shoot them, provided the hunter does not employ bait, which would not be sporting. 50 C.F.R. Sec. 20.21.
Van Fossan was tried before Magistrate Evans, who convicted him, fined him $450, and put him on probation for three years. He appealed to the district judge on the authority of 18 U.S.C. Sec. 3402 and, when the district judge affirmed, to us on the authority of 28 U.S.C. Sec. 1291. Ours is the second appellate opinion in Van Fossan's case; there have been two rounds of appellate briefs and arguments. One may well wonder why the defendant should have two appeals as of right in a misdemeanor case, when the accused gets only one in a felony prosecution that may land him in prison for life. On the civil side, parties who opt for trial by magistrate must elect either a direct appeal to the court of appeals, 28 U.S.C. Sec. 636(c)(3), or an appeal to the district judge plus an opportunity to seek discretionary review in the court of appeals, 28 U.S.C. Sec. 636(c)(4), (5). A similar arrangement for criminal cases would avoid the anomaly that more judges review misdemeanor convictions than review felony convictions. Nonetheless, Sec. 636(c) does not apply to criminal cases. Section 1291, which does, allows appeal of all "final decisions" of district courts. This is one, notwithstanding its earlier decision by a magistrate, and we have jurisdiction. See United States v. Forcellati, 610 F.2d 25, 28 (1st Cir.1979).
One of Van Fossan's neighbors said she saw him spread purple grain on the lot, which his son Kevin owned. She thought this odd and picked up a little. Another noticed the strange grain and collected some but did not see Van Fossan scatter it. Both samples were tested and found to contain strychnine. Van Fossan points out that no such grain could be found on the lot later, but perhaps the birds ate it all. To believe the neighbors is to conclude that Van Fossan is guilty, and the trier of fact was entitled to credit their testimony. Here Van Fossan sees an opening, for Magistrate Evans actually expressed this thought in the negative: he said that in order to acquit Van Fossan he would have to disbelieve the neighbors. This misstatement of the burden of proof requires a new trial, he submits. On the initial appeal, the district judge concluded that the magistrate was well aware of the prosecutor's burden, and we agree.
Precise statements of burdens are essential in jury trials, for jurors rely on the judge's description of the law. When discussing the case with counsel, judges are not confined to formulaic...
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