US v. Hagen

• Decision Date: 13 August 1991
• Docket Number: No. CR. 90-0-137.,CR. 90-0-137.
• Parties: UNITED STATES of America, Plaintiff, v. Harold K. HAGEN, Defendant.
• Court: U.S. District Court — District of Nebraska

782 F. Supp. 1351

UNITED STATES of America, Plaintiff, v. Harold K. HAGEN, Defendant.

No. CR. 90-0-137.

United States District Court, D. Nebraska.

August 13, 1991.

Robert F. Kokrda, Asst. U.S. Atty., for plaintiff.

James E. Durr, Fort Collins, Colo., for defendant.

Don Stenberg, Atty. Gen., Linda L. Willard, Asst. Atty. Gen., Lincoln, Neb., for intervenor.

ORDER

STROM, Chief Judge.

This matter is before the Court on the magistrate judge's initial (Filing No. 26) and supplemental (Filing No. 36) findings and recommendations that the information filed against defendant, Harold K. Hagen, be dismissed. The United States of America, the State of Nebraska as intervenor, and Hagen have each objected to various portions of the initial and supplemental findings and recommendations (Filing Nos. 28, 29, 30, 37 and 38). Having conducted a de novo review of those portions of the findings and recommendations to which objections have been made, see 28 U.S.C. § 636, the Court generally adopts the magistrate judge's findings and recommendations as set forth in Filing No. 26 and as supplanted and supplemented in Filing No. 36, particularly those findings with respect to the adequacy of the government's information in light of the requirements specified in Fed.R.Crim.P. 7(c)(1).

The government requests that, should the Court adopt the findings and recommendations of the magistrate judge, the Court permit an amendment of the information as provided for in Fed. R.Crim.P. 7(e). Rule 7(e) provides:

The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Fed.R.Crim.P. 7(e). See generally 1 C. Wright, Federal Practice & Procedure § 128 (1982). The Court finds that defendant would not be prejudiced by the filing of an amended information, given that these proceedings are at their very earliest stages. In addition, amendment would not add additional offenses to the crimes charged in the present information but, rather, would serve to "state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated." Fed.R.Crim.P. 7(c)(1). Accordingly,

IT IS ORDERED that the findings and recommendations of the magistrate judge as embodied in Filing No. 26 and as supplanted and supplemented in Filing No. 36 are adopted; the United States of America is granted until August 30, 1991, to file an amended information in this matter, or this action will be dismissed.

REPORT, RECOMMENDATION AND ORDER

DAVID L. PIESTER, United States Magistrate Judge.

Pending before the court are defendant's motions to dismiss the information, filings 14 and 20. Because one of the defendant's motions raised an issue of constitutionality of Neb.Rev.Stat. § 37-505, this court granted the State of Nebraska leave to intervene. See filings 21 and 22. All parties have submitted their respective briefs on the motions and an evidentiary hearing was held on Thursday, April 25, 1991 on several of defendant's challenges to the information.

The defendant is charged with violations of the Lacey Act, 16 U.S.C. § 3371 et seq., which regulates the taking, possession, transportation, and sale of fish and wildlife in interstate commerce. Specifically, the information herein charges the defendant with four counts of transporting and selling rainbow trout in interstate commerce in violation of 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d)(2), and Neb.Rev.Stat. § 37-505.

Section 3372(a)(2)(A) provides, in relevant part:

It shall be unlawful for any person —

* * * * * *

(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce —

(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law....

The state law alleged to have been violated is set forth in the information as Neb.Rev. Stat. § 37-505 (Reissue 1988) which states:

37-505 Game animals, birds, or fish; possession or sale prohibited; exceptions; permits; fish dealer's regulations; fee. It shall be unlawful to buy, sell, or barter (1) any game bird or part thereof, except the feathers or skins from legally taken upland game birds, (2) any antelope, cottontail rabbit, deer, elk, squirrel, or bull-frog, except that deer, antelope, or elk hides from legally taken animals may be sold, or (3) any game fish protected by this act at any time, whether killed or taken within or without this state. It shall be unlawful for any commercial institution, commission house, restaurant, or cafe keeper to have in its, his, or her possession at any time game birds or game animals protected by this act. Game fish lawfully shipped in from without the state, by residents of this state, or game or fish lawfully acquired from a lawful game farm or a person having a fish culture permit may be sold in this state. The burden of proof shall be upon every such dealer and keeper to show by competent and satisfactory evidence that any game or game fish in his or her possession or sold by him or her was lawfully imported from without the state or was lawfully from a licensed game farm or a person having a fish culture permit. Nonresidents holding a valid nonresident fish dealer's permit may possess, buy sell, transport, and ship live bait minnows, live fish, all frogs, and crayfish, legally obtained from without this state or from a licensed fish hatchery, in accordance with the regulations of the Game and Parks Commission. The fee for a nonresident's fish dealer's permit shall be one hundred dollars.

(Emphasis added). As noted by the defendant, § 37-505, as amended in 1989, now provides that the fee for a nonresident's fish dealer's license is four hundred dollars. Neb.Rev.Stat. § 37-505 (1990 Cum.Supp.). The dates of the alleged violations as stated in the information herein are all within 1986.

The defendant is also charged with a violation of 16 U.S.C. § 3373(d)(2) which states:

Any person who knowingly engages in conduct prohibited by any provision of this chapter (other than section 3372(b) of this title) and in the exercise of due care should know that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a manner unlawful under any underlying law, treaty, or regulation shall be fined not more than $10,000, or imprisoned for not more than one year, or both. Each violation shall be a separate offense and the offense shall be deemed to have been committed not only in the district where the violation first occurred, but also in any district in which the defendant may have taken or been in possession of the said fish or wildlife or plants.

The criminal counts filed against this defendant allege, in essence, that on four separate occasions in 1986 the defendant knowingly transported, caused to be transported, and sold in interstate commerce certain rainbow trout which were possessed, transported and sold in violation of the laws and regulations of the state of Nebraska, specifically Neb.Rev.Stat. § 37-505. The government alleges that the defendant, doing business in the state of Colorado as Hagen Western Fisheries, transported and sold rainbow trout in the state of Nebraska without obtaining a "fish dealer's permit" as required by § 37-505 (Reissue 1988).

The defendant was originally charged under the identical federal statutes but that information was based upon alleged violations of Neb.Rev.Stat. §§ 37-705 and 37-719. (CR 90-O-36). That case was dismissed without prejudice by the plaintiff and the charges have now been refiled by the present information charging the defendant with violating Neb.Rev.Stat. § 37-505.

The defendant has filed two motions to dismiss the information, filing 14 and 20, which will be discussed in order. In his first motion the defendant raises four grounds for dismissal:

I. The information filed is defective as it does not allege essential facts constituting a violation of Title 16, United States Code, Sections 3372(a)(2)(A) and 3373(d)(2) and a violation of Neb.Rev. Stat. Sec. 37-505 (Reissue 1988).

II. The language of the underlying Nebraska Statute (Neb.Rev.Stat. Sec. 37-505 (Reissue 1988) is unconstitutionally vague.

III. The Nebraska regulatory scheme over interstate commerce in aquaculture, i.e. privately owned hatchery-raised trout, violates the Commerce Clause of the United States Constitution.

IV. This application of 16 U.S.C. 3372(a)(2)(A) and 16 U.S.C. 3373(d)(2) violates the Fifth and Eighth Amendments of the United States Constitution.

In his second motion, defendant raises:

V. Prosecutorial misconduct by failing to exercise independent discretion in the required pursuit of justice.

VI. The defendant has been a victim of selective prosecution.

CLAIM I

The defendant first alleges that the information filed herein is defective in that it fails to adequately allege essential facts which would constitute a violation of 16 U.S.C. § 3372(a)(2)(A) and § 3373(d)(2) and Neb.Rev.Stat. § 37-505.

Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that a proper indictment consist of "a plain, concise and definite written statement of the essential facts constituting the offense charged." The standard for judging the sufficiency of an indictment is whether it

first, contains the elements of the offense charged and fairly informs a defendant of the charge against him which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.

Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Lame, 716 F.2d 515, 518 (8th Cir.1983).

The defendant appears to complain that the information merely cites the relevant underlying state statute, § 37-505, which forms the basis of the Lacey Ac...