Tenth Avoids Heller Issue; Affirms Conviction for Unlawful Possession of Firearm by DV Misdemeanant

US v. Pope, No. 09-4150, 7/23/10 (Utah - Denial of pretrial motion to dismiss based on Heller/McDonald as-applied challenge affirmed. Defendant was charged with possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. He moved to dismiss before trial on grounds that the statute was unconstitutional as applied to him because, he claimed in a proffer, that he possessed the gun on his property solely to protect himself, others and his property. The government disputed that that was his sole purpose in possessing the gun, in light of allegations that he had threatened to kill a neighbor's dog, along with the neighbor, which the government claimed it would prove at trial. The district court denied the motion and the defendant pled guilty, reserving the right to appeal the denial of the motion. The 10th avoided the constitutional issue and affirmed on the basis that the motion depended on disputed facts that could only be resolved at trial.

Criminal Liability for a Strict-Liability Offense Requires Fair Notice and Proximate Cause

United States v. Apollo Energies, Inc., ___ F.3d ___ , 2010 WL 2600502 (10th Cir. 2010) (Kan)

Violation of the Migratory Bird Treaty Act (MBTA) is a strict liability crime, requiring no mens rea to commit an offense. However, due process is satisfied in this case only if defendants–in this case, oil and gas producers whose exhaust equipment sometimes traps and kills migratory birds sheltering or nesting there–proximately caused the harm to protected birds. Two key concepts in the COA’s analysis: (1) fair notice that an act is criminal is especially important in the case of strict liability crimes. “When, as here, predicate acts which result in criminal violations are commonly and ordinarily not criminal, we must ask the fair notice question once again;” (2) criminalizing acts which the defendant does not cause is unconstitutional.

The COA rules that the MBTA is not vague and gives fair notice. Although linked, notice and proximate cause are distinct. In the context of this case, there must be fair notice that a certain predicate act might cause a violation of the MBTA. In this case, defendant Apollo had notice that its equipment caused bird deaths because the government conducted an education program for over a year with producers, without prosecuting, informing them how to adjust equipment. Apollo did so for some but not all of its equipment. It was prosecuted for deaths occurring in the period after the education campaign. It had notice that not fixing its equipment was causing bird deaths. The COA affirmed its convictions. Walker had no notice for a count that preceded its receiving information about how to protect birds, so that count was reversed. The count for deaths after being educated was affirmed.

United States v. McGinty, ___ F.3d ___ , 2010 WL 2573980 (10th Cir. 2010) (OK). Defendant’s assets at the time of sentencing for misapplication of bank funds were his home and boat, which were also the proceeds from his crime. Under the plea agreement, the parties agreed to forfeiture of these assets and to the entry of a money judgment. The district court ordered restitution to the bank, and only forfeiture of the assets. The government appealed the district court’s refusal to enter a money judgment type of forfeiture. The COA reversed. Forfeiture is an in personam action, and is punishment; restitution is not punishment. It is not double counting to order restitution and forfeiture. Forfeiture and restitution are mandatory under the statutes. The court can order forfeiture of assets at the same time as forfeiture as a money judgment–the government is entitled to forfeiture of the proceeds of the criminal activity.