United States v. Crooked Arm

Under the Migratory Bird Treaty Act of 1918, parts of the migratory bird are distinguishable from the entire migratory bird as a whole, and therefore, selling parts of a migratory bird is not equivalent to selling the actual bird, which is a felony.

Douglas “Vance” Crooked Arm and Kenneth Shane (collectively, “Defendants”) were charged with violating the Migratory Bird Treaty Act of 1918 (“MBTA”). Undercover agents from the United States Fish and Wildlife Service (“FWS”) contacted and met Defendants on several occasions to arrange and purchase bird feather fans, which were a violation under the MBTA. The Defendants were charged with conspiracy to kill, transport, offer for sale, and sell migratory birds (“Count One”), and for selling parts of different migratory birds (“Counts II-IV”). The Defendants filed motions to dismiss the indictment for failure to state a felony claim because the facts were sufficient for a misdemeanor charge for selling parts of the birds. The district court disagreed, and denied the motion. On appeal, the Ninth Circuit found Count One to be a felony because it clearly fell under the MBTA’s felony provisions. Regarding Counts II-IV, the panel considered whether migratory bird feathers constituted the sale of a “migratory bird” under 16 U.S.C. § 707(b). The panel referred to legislative history in reading the statutory ambiguity. The panel determined that because the MBTA uses “migratory birds” in numerous provisions, a consistent meaning is given throughout the statute. The phrases “migratory birds” and “parts, nests or eggs thereof” have been used separately, therefore using the expressio unius set exclusio alterius canon, the terms have separate meanings. As a result, the panel concluded that the plain meaning dictates it was not a felony to sell a fan containing migratory bird feathers, and therefore Counts II-IV should have been charged as misdemeanors. AFFIRMED in Part, REVERSED in Part, VACATED in Part, and REMANDED.