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United States v. Engler

Citation: 17 ELR 20334
No. Nos. 85-5818 et al., 806 F.2d 425/(3d Cir., 11/26/1986)

The court holds that a defendant prosecuted for selling protected wildlife in violation of the Migratory Bird Treaty Act (MBTA) is not entitled to an entrapment defense as a matter of law, and due process was not violated as a result of either the conduct of government officials during their investigation or the MBTA's strict liability felony provision. The court first holds that the government introduced sufficient evidence for the jury to conclude reasonably that defendant was predisposed to take protected birds for commercial purposes in violation of the MBTA, since the evidence indicated that defendant initiated discussions with a federal agent concerning the sale of hawk parts. The court next holds that the conduct of government agents was not so outrageous as to violate due process. The agents did not plant the criminal idea of selling protected wildlife in violation of the MBTA into defendant's mind, nor did they provide him with essential supplies or technical expertise for committing the crime. The court rejects defendant's contention that the district court erred by failing to instruct the jury on his due process defense, since the question of whether the government's conduct was so outrageous as to constitute a violation of due process is a question of law for the court. The court also holds that the district court properly admitted the testimony of a Fish and Wildlife Service special agent concerning alleged illegal activities of a fur trapping company for which defendant had worked. Although there is some argument for considering the testimony irrelevant in an investigation of defendant, the lower court's decision to admit the testimony is not reversible error given the amount of other evidence offered to show predisposition.

The court holds that there is no basis in the text or history of the MBTA for inferring an intent requirement in § 6(b) (2), whichmakes the sale of protected birds a felony. Numerous cases have interpreted the MBTA as imposing strict liability. The appearance of the word "deterrent" in the legislative history does not provide sufficient evidence that Congress intended scienter to be an element of the offense when it added the felony provision in 1960. The court next holds that the absence of any scienter requirement in the felony provision does not violate the Due Process Clause of the Fifth Amendment, noting that it is not bound by the government's concession that a scienter element is constitutionally required. The lack of a scienter element does not necessarily render the felony provision of a criminal statute unconstitutional. In this case, the differences between the penalties of the MBTA's misdemeanor and felony provisions are, for due process purposes, de minimis. There is no empirical evidence that a defendant's reputation is in danger of serious damage as a result of a two-year imprisonment sentence and/or $2000 fine under the felony provision but that it is in no such danger from a six-month sentence and/or $500 fine under the misdemeanor provision. Moreover, the constitutionality of strict liability crimes carrying penalties of equivalent or greater severity than those here has been upheld by the Supreme Court and other circuits where the provision was part of a regulatory scheme in the public interest.

A concurring judge would not have addressed the constitutional issue and would have held that the MBTA felony provision implicitly contains a scienter requirement or, if it does not, that the government proved that defendant knowingly violated the law.

Counsel for Appellee
F. Henry Habicht II, Ass't Attorney General; Claire L. McGuire
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Appellant
Peter T. Campana
Campana & Campana
30 Sixth St., Williamsport PA 17701
(717) 326-2401

Before Higginbotham and Hunter, JJ.