U.S. v. Winddancer
| Decision Date | 19 June 2006 |
| Docket Number | No. 2:05-00014.,2:05-00014. |
| Citation | 435 F.Supp.2d 687 |
| Parties | UNITED STATES of America v. Ed WINDDANCER. |
| Court | U.S. District Court — Middle District of Tennessee |
Caryll S. Alpert, Federal Public Defender's Office, Nashville, TN, Kimberly S. Hodde, Hodde & Associates, Nashville, TN, for Defendant.
Byron M. Jones, Office of the United States Attorney, Nashville, TN, Elinor Colbourn, Dept. of Justice, Washington, DC, for Plaintiff.
This matter comes before the court on a Motion to Dismiss the Indictment filed by the defendant (Docket No. 30), to which the United States has responded (Docket No. 38). For the reasons discussed herein, the defendant's motion will be denied.
The defendant, Ed Winddancer, was indicted on six counts relating to possessing and bartering eagle feathers and feathers plucked from other migratory birds. (Docket No. 30.) Winddancer, as befits his name, performs Native American dances at pow-wows and has produced recordings of Native American flute music and traveled to Europe to perform his music and dance. While dancing, Winddancer wears the feathers of eagles, hawks and other birds. He alleges that the sacred feathers are crucial to the proper practice of his religion, which he alleges to be a Native American religion, though he does not specify which one.
Because Winddancer is not a member of a federally recognized Native American tribe, the Indictment charges that he has violated the Bald and Golden Eagle Protection Act ("BGEPA"), 16 U.S.C. § 668(a), and the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703, by possessing the feathers. On July 20, 2005, Winddancer traded feathers with an undercover agent for the U.S. Fish and Wildlife Service. The agent and Winddancer traded feathers on two successive days, after which two other Fish and Wildlife agents searched Winddancer's motor home, finding many contraband feathers. (Docket No. 30.) Winddancer was subsequently indicted on six charges: (1) possession, bartering, and offering to barter eagle feathers on July 20, 2005, in violation of the BGEPA; (2) possession, bartering, and offering to barter eagle feathers on July 21, 2005, in violation of the BGEPA; (3) possession, bartering, and offering to barter migratory bird feathers on July 20, 2005, in violation of the MBTA; (4) possession, bartering, and offering to barter migratory bird feathers on July 21, 2005, in violation of the MBTA; (5) selling and receiving contraband wildlife in excess of $350 on July 20, 2005, in violation of both the BGEPA and the MBTA; and (6) selling and receiving contraband wildlife in excess of $350 on July 21, 2005, in violation of both the BGEPA and MBTA. In addition, the United States seek forfeiture of Winddancer's collection of contraband feathers and parts, as well as his motor home, for its use in possessing and selling the items. (Docket No. 22).
The Secretary of the Interior has issued a set of regulations for both the BGEPA and the MBTA, creating a permit system which allows for limited possession of bird parts. 50 C.F.R. §§ 22.11(a), 22.22. The BGEPA applies only to bald and golden eagles. Under the regulations for the BGEPA, only members of Indian tribes recognized by the United States Bureau of Indian Affairs may apply for a permit to possess bald and golden eagle feathers for religious use. 50 C.F.R. § 22.22. The permits are good for life and grant the recipient access to the National Eagle Repository. Id. In general, Native Americans are not permitted to acquire eagle parts from any source other than the National Repository. However, certain tribes are allowed to take birds from private rookeries for use in religious ceremonies.
Unlike the BGEPA, the MBTA covers all migratory birds. Under the MBTA's regulations, several avenues are open for legal possession of migratory bird parts that are not available for possession of bald and golden eagle parts. Under the "Morton Policy," promulgated by Secretary of Interior Rogers C.B. Morton, all American Indians — that is, members of federally recognized Indian tribes — "may possess, carry, use, wear, give, loan, or exchange among other Indians, without compensation" migratory birds and bird parts covered by the MBTA without a permit. (Docket No. 30, Ex. 11.) In addition, the regulations implementing the MBTA provide for permits to possess migratory bird parts for a variety of purposes. For instance, 50 C.F.R. § 21.27 provides for special purpose permits available to all citizens "for special purpose activities related to migratory birds, their parts, nests, or eggs" that are not otherwise provided for by the other permit provisions. However, Winddancer did not apply for a permit, under that section or any other permit provision.
On April 27, 2006, the defendant filed a Motion to Dismiss the Indictment, alleging that both the BGEPA and the MBTA, as implemented by the Department of Interior, violate his rights under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb. (Docket No. 30.) Specifically, the defendant alleges that both statutes as implemented substantially burden his sincere religious practices involving the feathers and parts of protected birds and that the burden does not further a compelling government interest by the least restrictive means.
Motions to dismiss indictments are governed by Rule 12 of the Federal Rules of Criminal Procedure, which states "Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." Fed.R.Crim.P. 12(b). The Sixth Circuit guides district courts to "dispose of all motions before trial if they are capable of determination without trial of the general issue." U.S. v. Jones, 542 F.2d 661, 665 (6th Cir.1976). Moreover, "Rule 12 vests the Court with authority `to determine issues of fact in such manner as the court deems appropriate.'" Id. (). The Federal Rules of Criminal Procedure "clearly envision that a district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motion so long as the court's findings on the motion do not invade the province of the ultimate finder of fact." Jones, 542 F.2d at 664; see also U.S. v. Craft, 105 F.3d 1123, 1126 (6th Cir.1997) (). A defense raised in a motion to dismiss indictment is "capable of determination if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." Jones, 542 F.2d at 664 (citing United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969)).
An indictment that is valid on its face may not be dismissed on the ground it is based on inadequate or insufficient evidence. United States v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). Therefore, a court cannot consider a factual challenge to an indictment purporting to show a defect consisting solely of insufficient evidence to prove a particular charge. Id. Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are "capable of determination without the trial of the general issue," indicates that evidentiary questions of this type should not be determined on such a motion. United States v. Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). In short, "a motion to dismiss should be denied if it requires a pretrial test of the government's evidence." U.S. v. Jones, No. 1:05-132, 2006 WL 399234, at *1 (E.D.Tenn. Feb.16, 2006).
On a motion to dismiss indictment, "the [c]ourt must view the [i]ndictment's factual allegations as true, and must determine only whether the [i]ndictment is `valid on its face.'" U.S. v. Campbell No. 02-80863, 2006 WL 897436, at *2 (E.D.Mich. April 6, 2006) (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). Accordingly, the court must resolve factual issues in this case, such as they exist, in favor of the indictment. With this standard in mind, the court turns to an analysis of the defendant's motion.
The defendant argues that he is exempt from prosecution for possessing and bartering contraband bird parts under the RFRA. That statute provides that the "[g]overnment may substantially burden a person's exercise of religion.only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000bb-1(b).1 The defendant alleges that his activities involving the feathers hold a religious significance to him, and, though he concedes that the government has a compelling interest in preserving both the birds themselves and the cultures of recognized Indian tribes (which require access to some protected birds), he maintains that the government has not chosen the least restrictive means of furthering those interests. The court disagrees.
It was Congress' intention, in enacting the RFRA, to restore the compelling interest test long applied by the Supreme Court when interpreting the Free Exercise Clause of the First Amendment to the Constitution — see, e.g., Sherbert v. Verner, 374 U.S. 398, 405, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) — and abandoned by the Court in ...
To continue reading
Request your trial
-
U.S. v. Tawahongva
...system because the defendant provided no evidence the permit system had burdened his own religious exercise); United States v. Winddancer, 435 F.Supp.2d 687, 694-95 (M.D.Tenn.2006) (concluding a defendant who had never applied for a permit did not have standing to raise a First Amendment fr......
-
Versatile v. Johnson
...RFRA in analyzing RLUIPA claims. See, e.g., United States v. Quaintance, 471 F. Supp. 2d 1153 (D.N.M. 2006); United States v. Winddancer, 435 F. Supp. 2d 687, 692 (M.D. Tenn. 2006). 11. Aside from the Africa and Meyers tests, the Court recognizes that the United States Court of Appeals for ......