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United States v. Apollo Energies, Inc.

United States Court of Appeals for the Tenth Circuit

June 30, 2010, Filed

No. 09-3037, No. 09-3038

Opinion

 [*681]  TYMKOVICH, Circuit Judge.

"This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried . . . as to raise questions both fundamental and far-reaching in federal criminal law . . . ." Morissette v. United States, 342 U.S. 246, 257, 72 S. Ct. 240, 96 L. Ed. 288 (1952). And we might add, ] "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939).

This case requires us to consider the scope of the Migratory Bird Treaty Act (MBTA or Act). ] The Act declares it a misdemeanor to "pursue,  [**2] hunt, take, capture, [or] kill" birds protected by several international treaties. 16 U.S.C. § 703. The MBTA also specifies a maximum penalty of $ 15,000 and six months in prison for  [*682]  a misdemeanor violation, but does not require any particular mental state or mens rea to violate the statute. See 16 U.S.C. § 707(a). The question this case presents is whether the MBTA constitutionally can make it a crime to violate its provisions absent knowledge or the intent to do so.

Appellants are two Kansas oil drilling operators who were charged with violating the Act after dead migratory birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater. After a trial before a magistrate judge, both Apollo Energies and Dale Walker (doing business as Red Cedar Oil) were convicted of taking or possessing migratory birds, each misdemeanor violations. Apollo was fined $ 1,500 for one violation, and Walker was fined $ 250 for each of his two violations. The federal district court affirmed the convictions, concluding that violations of § 703 of the MBTA are strict liability offenses, which do not require that defendants knowingly or intentionally violate the law.

On appeal,  [**3] Apollo and Walker renew their challenges to the MBTA, claiming (1) it is not a strict liability crime to take or possess a protected bird, or, (2) if it is a strict liability crime, the Act is unconstitutional as applied to their conduct. We conclude the district court correctly held that ] violations of the MBTA are strict liability crimes. But we hold that a strict liability interpretation of the MBTA for the conduct charged here satisfies due process only if defendants proximately caused the harm to protected birds. After carefully examining the trial record, we agree Apollo proximately caused the taking of protected birds, but with respect to one of his two convictions, Walker did not. Due process requires criminal defendants have adequate notice that their conduct is a violation of the Act.

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611 F.3d 679 *; 2010 U.S. App. LEXIS 13378 **; 180 Oil & Gas Rep. 358; 40 ELR 20176; 70 ERC (BNA) 2057

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. APOLLO ENERGIES, INC., Defendant-Appellant. and 1 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DALE WALKER, doing business as RED CEDAR OIL, Defendant-Appellant.

Subsequent History: Judgment entered by, On remand at United States v. Walker, 2010 U.S. Dist. LEXIS 86133 (D. Kan., Aug. 20, 2010)

Prior History:  [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. 6:08-CR-10111-01-JTM and D.C. NO. 6:08-CR-10112-01-JTM).

United States v. Apollo Energies, Inc., 2009 U.S. Dist. LEXIS 6160 (D. Kan., Jan. 28, 2009)

CORE TERMS

heater-treaters, strict liability, notice, oil, migratory, due process, violations, causation, criminalized, vague, mens rea requirement, proximately, inspection, district court, predicate act, mens rea, convicted, kill, proximate cause, exhaust pipe, fair notice, foreseeable, misdemeanor, scienter, trapped, cases, statutory construction, misdemeanor violation, criminal statute, mental state

Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Criminal Law & Procedure, General Overview, Criminal Offenses, Miscellaneous Offenses, Environmental Law, Natural Resources & Public Lands, Fish & Wildlife Protection, Acts & Mental States, Trials, Bench Trials, Standards of Review, Clearly Erroneous Review, Findings of Fact, De Novo Review, Conclusions of Law, Classification of Offenses, Misdemeanors, Mens Rea, Specific Intent, Governments, Courts, Judicial Precedent, Legislation, Vagueness, Status Offenses, Defenses, Ignorance & Mistake of Law