Vaden v. State

OPINION

COATS, Judge.

FACTS

Douglas B. Vaden, a professional hunting guide, was convicted in a jury trial of eleven hunting violations involving the illegal taking and subsequent transportation of game. A client of Vaden’s, John Snell, was an undercover agent for the State Division of Fish and Wildlife Protection. Snell shot four foxes out-of-season from Vaden’s airplane. Three of the foxes were transported back to the guide camp and ultimately on to Anchorage.1

Vaden essentially raises three issues on appeal. First, he claims the defense of legal impossibility to the aiding and abetting convictions. If there is no “crime” committed by the principal, he argues, there can be no accomplice liability. This argument relates to the four counts of aiding and abetting taking four foxes airborne in violation of former 5 Alaska Administrative Code (AAC) 81.072(4), and four additional counts of taking the same four foxes out-of-season in violation of former 5 AAC 81.330(4). Next, Vaden claims that he did not transport illegally-taken game because the foxes were not taken illegally.

*786This argument relates to three counts of unlawfully possessing and transporting three of the illegally-taken foxes. Finally, Vaden asserts that the government’s conduct in this case was so outrageous that due process requires dismissal of the case. We affirm.

In Knutson v. State, 736 P.2d 775 (Alaska App.1987), we concluded that AS 11.16.110, which provides for legal accountability of accomplices, applied to fish and game offenses charged under Title 16. Alaska Statute 11.16.110 provides:

Legal accountability based upon the conduct of another: Complicity. A person is legally accountable for the conduct of another constituting an offense if
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(2)with intent to promote or facilitate the offense, the person ...
(B) aids or abets the other in planning or committing the offense....

Under this statute, Vaden could be prosecuted for aiding another person in committing a game violation. Vaden’s argument, however, is that Snell did not commit any game violations because Snell was authorized by the authorities to engage in what would normally be illegal conduct necessary to carry out his undercover duties. Vaden argues that since Snell committed no crime, Vaden could not be convicted of aiding Snell in illegally taking or illegally transporting that game. The state points to AS 11.16.120 and argues that this statute permits it to prosecute Vaden even if Snell’s acts did not constitute a crime because they were authorized by the state. Alaska Statute 11.16.120 provides, in pertinent part:

Exemptions to legal accountability for conduct of another.
(a) In a prosecution for an offense in which legal accountability is based on the conduct of another person ...
(2) it is not a defense that
(A) the other person has not been prosecuted for or convicted of an offense based upon the conduct in question ...; [or]
(C) the other person is not guilty of the offense
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(Emphasis added.)

We have examined several sources in an attempt to deal with the issue of whether an accessory can be prosecuted if the principal has not committed a crime or has a complete defense to the crime. See Model Penal Code Part 1, Art. 2 § 2.06(7) (1985); G. Fletcher, Rethinking Criminal Law 642-43 (1978); R. Perkins & R. Boyce, Criminal Law 761-64 (3d ed. 1982); 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.8(c) at 159-61 (1986). There appear to be few cases in this area and the commentators appear to have different ways of approaching this issue. However, we believe that Vaden could be prosecuted under the facts of this case.

The first question, as we see it, is to determine whether a crime took place. To give a simple example, if Snell shot a dummy fox, no crime would have been committed. Hence, Vaden could not be prosecuted as an accessory regardless of his actions or his intent. But in this case, we think it is clear that Snell committed the offenses: he shot the foxes from an aircraft and during a closed season. Snell had a defense of justification, however. He was authorized to commit the crimes as part of his undercover assignment.

The next question is whether Vaden should be able to raise Snell’s defense of justification, or whether we should hold that the defense was one which only Snell could raise. Vaden knew that Snell shot the foxes illegally, yet he still transported them. We see no reason why Vaden should have a legal justification in this case. Therefore, we hold that Vaden could not raise Snell’s defense of justification. The fact that Snell might have a defense to the crime should not excuse Vaden. This holding seems to be consistent with and authorized by AS 11.16.120.

The real issue in this case, and the one upon which this court is divided, is a public policy issue: should we allow the state to convict Vaden as an accessory to a *787crime where the principal was a government agent? Vaden argues that his convictions violate the due process clauses of the United States and Alaska Constitutions. Where the undercover agent commits the crime and the defendant is charged as an accessory, there is a clear and obvious potential for overreaching by the government. We believe, however, that any government overreaching is adequately covered by the defense of entrapment. Alaska Statute 11.81.450 provides:

Entrapment. In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment.

The defense of entrapment has been further refined by the supreme court in Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978), to focus on whether “[police] conduct falls below an acceptable standard for the fair and honorable administration of justice.”

Vaden brought a pretrial motion to dismiss, alleging entrapment and a violation of his due process rights. Snell testified at the pretrial hearing that it was Vaden’s initial idea to shoot the foxes. Snell also stated that he shot the foxes under Vaden’s specific instructions. Thereafter, District Court Judge John Bosshard, III, denied the motion to dismiss. Later, at trial, Snell indicated that he merely followed Vaden’s instructions and that Vaden showed him how to shoot out of the airplane. Vaden testified at trial, however, that Snell initiated the idea to shoot the foxes and that Vaden agreed only because he weakened.

Judges and juries are constantly called upon to resolve credibility questions. This case is no different. Under these facts, Judge Bosshard could conclude that Vaden had not established an entrapment defense. See Yates v. State, 681 P.2d 1362, 1364 (Alaska App.1984) (entrapment an issue for the court, not the jury).

In conclusion, although we believe that convicting Vaden as an accessory, when the principal was an undercover agent for the government, is a cause for concern, we believe that the defense of entrapment provides an adequate remedy for this type of case. Therefore, we conclude that the trial court did not err in finding that Vaden did not establish entrapment in this case and in concluding that the government’s actions did not violate Vaden’s right to due process under the United States or Alaska Constitutions. We also conclude that the trial court did not err in failing to give Vaden’s proposed instructions and in concluding that Vaden could properly be convicted as an accessory in this case.

The conviction is AFFIRMED.

SINGLETON, J., concurs.

BRYNER, C.J., dissents.

. Vaden was convicted of violations of former 5 Alaska Administrative Code (AAC) 81.072(4), taking game from a mechanical vehicle; former 5 AAC 81.140(c), knowingly transporting game taken in violation of Title 16 or regulations promulgated under Title 16; former 5 AAC 81.-330(4), hunting fox during a closed season.