US v. St. Onge, No. CR 87-32-M-CCL.

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Writing for the Court: Edward Cummings, Missoula, for defendant
• Citation: 676 F. Supp. 1044
• Parties: UNITED STATES of America, Plaintiff, v. Calvin Paul ST. ONGE, Defendant.
• Decision Date: 11 January 1988
• Docket Number: No. CR 87-32-M-CCL.

676 F. Supp. 1044

UNITED STATES of America, Plaintiff,
v.
Calvin Paul ST. ONGE, Defendant.

No. CR 87-32-M-CCL.

United States District Court, D. Montana, Missoula Division.

January 11, 1988.

Robert L. Zimmerman, Asst. U.S. Atty., Billings, for plaintiff.

Edward Cummings, Missoula, for defendant.

MEMORANDUM AND ORDER

LOVELL, District Judge.

Before the court is the motion in limine of the United States, by which the government seeks to exclude certain evidence from the trial of this matter. The defendant evidently intends to present evidence that he believed he was shooting an elk at the time he allegedly shot the bear in question. The United States moves to prohibit such evidence on the ground that it does not constitute a defense to the crime charged.

Title 16, United States Code, Section 1538(a)(1)(G), provides that it is unlawful for any person to "violate any regulation pertaining to ... any threatened species of fish or wildlife ... promulgated by the

676 F. Supp. 1045

Secretary of Interior pursuant to authority provided by this Act." Criminal liability may be imposed against "any person who knowingly violates any ... regulation" issued under the Act. 16 U.S.C. § 1540(b)(1). Under regulations promulgated by the Secretary pursuant to § 1538, it is unlawful for any person to "take any grizzly bear in the 48 coterminous states of the United States." 50 C.F.R. § 17.40(b)(1)(i)

As provided in the criminal penalty section, "knowingly" clearly is an element of the offense. The issue in this case is whether the government must prove that defendant knew he was shooting a grizzly bear at the time he pulled the trigger, or whether the government need only prove that he knowingly shot an animal which turned out to be a grizzly bear.

The court has found only one case that is closely on point. In United States v. Billie, 667 F.Supp. 1485 (S.D.Fla.1987), the defendant was charged with taking a Florida panther, an endangered species. He argued that the government was required to prove that he knew the animal he shot was a Florida panther, as opposed to a nonendangered species of panther. The court rejected this argument and ruled that the government "need prove only that the defendant acted with general intent when he shot the animal in question." Id. at 1493. The court's rationale was that the Endangered Species Act is a regulatory statute, enacted to conserve and protect endangered species, and that its purposes would be eviscerated if the...