UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
July 16, 1997
TO: All recipients of the captioned opinion
RE: 96-2185, USA v. Corrow
July 11, 1997
Please be advised of the following correction to the captioned decision:
Due to a typographical error, a word in the opinion is erroneously spelled. On the
first line of page thirteen, “swarths” should be “swathes.” Please make the correction.
Very truly yours,
Patrick Fisher, Clerk
Susie Tidwell
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 11 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD NELSON CORROW,
Defendant-Appellant.
No. 96-2185
---------------------------------------------------
ANTIQUE TRIBAL ART DEALERS
ASSOCIATION,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-95-637-JP)
Joseph Gandert (Alonzo J. Padilla with him on the briefs), Assistant Federal Public
Defenders, Albuquerque, New Mexico, for Defendant-Appellant.
Paula Burnett, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with her on
the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
Before PORFILIO, MCWILLIAMS, and LUCERO, Circuit Judges.
PORFILIO, Circuit Judge.
This appeal raises issues of first impression in this Circuit under the Native
American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013 (NAGPRA);
and the Migratory Bird Treaty Act, 16 U.S.C. §§ 701-712 (MBTA). Richard Nelson
Corrow challenges the constitutionality of 25 U.S.C. § 3001(3)(D) of NAGPRA which
defines “cultural patrimony,” the basis for his conviction of trafficking in protected
Native American cultural items in violation of 18 U.S.C. § 1170(b). First, he contends
the definition is unconstitutionally vague, an argument the district court rejected in
denying his motion to dismiss that count of the indictment and to reverse his conviction.
United States v. Corrow, 941 F. Supp. 1553, 1562 (D.N.M. 1996). Second, he invites us
to read a scienter requirement into § 703 of the MBTA to vitiate the government’s proof
he possessed protected bird feathers. Failing these propositions, he attacks the sufficiency
of the evidence supporting his two counts of conviction. We affirm.
I. Background
Until his death in 1991, Ray Winnie was a hataali, a Navajo religious singer. For
more than twenty-five years Mr. Winnie chanted the Nightway and other Navajo
ceremonies wearing Yei B’Chei originally owned by Hosteen Hataali Walker. Yei
-2-
B’Chei or Yei B’Chei jish are ceremonial adornments, Native American artifacts whose
English label, “masks,” fails to connote the Navajo perception these cultural items
embody living gods. Traditionally, a hataali passes the Yei B’Chei to a family or clan
member who has studied the ceremonies or loans the Yei B’Chei to another Navajo clan,
Mr. Winnie having acquired his Yei B’Chei from a different clan during his hataali
apprenticeship. When Mr. Winnie died, he left no provision for the disposition of his Yei
B’Chei, and no family or clan member requested them.
Richard Corrow, the owner of Artifacts Display Stands in Scottsdale, Arizona, is
an afficionado of Navajo culture and religion, having, on occasion, participated in Navajo
religious ceremonies. Some time after Mr. Winnie’s death, Mr. Corrow traveled to
Lukachukai, Arizona, to visit Mrs. Fannie Winnie, Mr. Winnie’s 81-year-old widow,
chatting with her; her granddaughter, Rose Bia; and other family members: a great
granddaughter, Harriette Keyonnie; and a son-in-law. During one visit, Mrs. Winnie
displayed some Navajo screens and robes, and Mr. Corrow inquired about the Yei
B’Chei. By his third visit in August 1993, the Winnie family revealed the Yei B’Chei,
twenty-two ceremonial masks, and permitted Mr. Corrow to photograph them. Mr.
Corrow told Mrs. Winnie he wanted to buy them, suggesting he planned to deliver the Yei
B’Chei to a young Navajo chanter in Utah to keep them sacred. Although Mr. Corrow
initially offered $5,000, he readily agreed to the family’s price of $10,000 for the Yei
-3-
B’Chei, five headdresses, and other artifacts. Mr. Corrow drafted a receipt,1 and Mrs.
Winnie, who spoke no English, placed her thumbprint on the document after Ms. Bia read
it to her in Navajo.
In November 1994, the owners of the East-West Trading Company in Santa Fe,
New Mexico, contacted Mr. Corrow telling him that a wealthy Chicago surgeon was
interested in purchasing a set of Yei B’Chei. In fact, the purported buyer was James
Tanner, a National Park Service ranger operating undercover on information he had
received about questionable trade at East-West. When Agent Tanner visited the business,
its owners showed him photographs of seventeen of the twenty-two Yei B’Chei that Mr.
Corrow purchased from Mrs. Winnie. In the photos, he noticed eagle and owl feathers in
several of the large headdresses and ceremonial sticks bundled with small eagle feathers.
After negotiations, Agent Tanner agreed to a purchase price of $70,000 for the Yei
B’Chei, $50,000 for Mr. Corrow and a $20,000 commission to East-West’s co-owners.
1
The receipt stated:
Sold to Richard N. Corrow on this date for cash paid in full, all of the
medicine bundles for yei be chai [sic] and fire dance including masks
owned by Hosteen Ray Winnie of Lukachucki [sic], AZ.
Selling these medicine bundles or jish is the wife of the late Mr. Winnie,
Fanny [sic], and his granddaughter Rose, and his great granddaughter,
Harriet, whose signatures are below.
The selling price is in cash of $10,000. Received by below this date.
-4-
On December 9, 1994, Mr. Corrow arrived at the Albuquerque airport en route to
Santa Fe carrying one large suitcase, one small suitcase, and a cardboard box. Yet once
he was in Santa Fe, F.B.I. agents became worried East-West’s owners had been alerted
and abandoned their script for the planned buy, instead directly executing the search
warrant. Agents found the two suitcases Mr. Corrow had carried to East-West, one
holding Navajo religious objects, small bundles, herbs, mini prayer sticks, and other
artifacts adorned with eagle feathers. Another suitcase contained eagle feathers rolled
inside several cloth bundles, Yei B’Chei dance aprons, and five headdress pieces made of
eagle and owl feathers. In the cardboard box was the set of twenty-two Yei B’Chei.
The government subsequently charged Mr. Corrow in a two-count indictment,
Count one for trafficking in Native American cultural items in violation of 18 U.S.C.
§ 1170, 25 U.S.C. §§ 3001(3)(D), 3002(c), and 18 U.S.C. § 2; and Count two for selling
Golden Eagle, Great Horned Owl, and Buteoine Hawk feathers protected by the MBTA
in violation of 16 U.S.C. § 703, 16 U.S.C. § 707(b)(2), and 18 U.S.C. § 2. The court
rejected Mr. Corrow’s pretrial motion to dismiss Count one based on its purported
unconstitutional vagueness, and the trial proceeded comprised predominantly of the
testimony of expert witnesses clashing over whether the Yei B’Chei constitute “cultural
patrimony” protected by NAGPRA. Having concluded they do, the jury convicted Mr.
Corrow of illegal trafficking in cultural items, Count one, but acquitted him of Count two,
selling protected feathers, instead finding him guilty of committing the lesser included
-5-
offense, possession of protected feathers. Post-trial, Mr. Corrow attacked his conviction
renewing his challenge to the constitutionality of §§ 3001(3)(D) and 3002(c) of NAGPRA
and to the sufficiency of the evidence underlying his conviction. Corrow, 941 F. Supp. at
1553. The district court denied the motion and sentenced him to two concurrent five-year
probationary terms and one hundred hours of community service.
In this renewed challenge, Mr. Corrow asserts the court erred in failing to dismiss
Count one on the ground the NAGPRA definition of cultural patrimony is
unconstitutionally vague, trapping the unwary in its multitude of meanings and creating
easy prey for the untrammeled discretion of law enforcement.2 Were NAGPRA’s
definitional bounds nevertheless discernible, Mr. Corrow then urges the evidence was
insufficient to support his conviction on either count. Mr. Corrow acknowledges our de
novo review of the legal question he raises, United States v. Murphy, 977 F.2d 503, 504
(10th Cir. 1992); and our task of deciding whether substantial evidence, both direct and
circumstantial taken together, underpins the conviction to confirm a reasonable jury could
find defendant guilty beyond a reasonable doubt. United States v. Garcia-Emanuel, 14
F.3d 1469, 1472 (10th Cir. 1994).
2
Mr. Corrow does not specifically address 25 U.S.C. § 3002(c) which prohibits the
intentional removal of Native American cultural items unless done with (1) a permit; (2)
after consultation with or consent of the Indian tribe; and (3) proof of tribal consultation
or consent. Our disposition of § 3001(3)(D) subsumes without directly addressing the
issue.
-6-
II. NAGPRA
Congress enacted NAGPRA in 1990 to achieve two principle objectives: to protect
Native American human remains, funerary objects, sacred objects and objects of cultural
patrimony presently on Federal or tribal lands; and to repatriate Native American human
remains, associated funerary objects, sacred objects, and objects of cultural patrimony
currently held or controlled by Federal agencies and museums. H. R. Rep. No. 101-877,
101st Cong., 2d Sess. 1990, reprinted in 1990 U.S.C.C.A.N. 4367, 4368. The legislation
and subsequent regulations, 43 C.F.R. §§ 10.1 - 10.17, provide a methodology for
identifying objects; determining the rights of lineal descendants, Indian tribes and Native
Hawaiian organizations; and retrieving and repatriating that property to Native American
owners. NAGPRA’s reach in protecting against further desecration of burial sites and
restoring countless ancestral remains and cultural and sacred items to their tribal homes
warrants its aspirational characterization as “human rights legislation.” Jack F. Trope &
Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act:
Background and Legislative History, 24 Ariz. St. L.J. 35, 37 (1992). Indeed, a Panel of
National Dialogue on Museum-Native American Relations, which was convened to
address the divergent interests of the museum and Native American communities,
reported to Congress that “[r]espect for Native human rights is the paramount principle
that should govern resolution of the issue when a claim is made.” 1990 U.S.C.C.A.N.
4369-70.
-7-
Nonetheless to give teeth to this statutory mission, 18 U.S.C. § 1170 penalizes
trafficking in Native American human remains and cultural items and creates a felony
offense for a second or subsequent violation. Subsection 1170(b), the basis for
prosecution here, states:
Whoever knowingly sells, purchases, uses for profit, or transports for
sale or profit any Native American cutural items obtained in violation of the
Native American Grave Protection and Repatriation Act shall be fined in
accordance with this title, imprisoned not more than one year, or both, and
in the case of a second or subsequent violation, be fined in accordance with
this title, imprisoned not more than 5 years, or both.
One must look to NAGPRA, 25 U.S.C. § 3001, for the definition of “cultural item.”
Section 3001(3) states:
“cultural items means human remains and --
(D) “cultural patrimony” which shall mean an object having ongoing
historical, traditional, or cultural importance central to the Native American
group or culture itself, rather than property owned by an individual Native
American, and which, therefore, cannot be alienated, appropriated, or
conveyed by any individual regardless of whether or not the individual is a
member of the Indian tribe or Native Hawaiian organization and such object
shall have been considered inalienable by such Native American group at
the time the object was separated from such group.3
3
There are three other components of “cultural items” included in § 3001(3): (A)
“associated funerary objects”; (B) “unassociated funerary objects” and (C) “sacred
objects.” The government alleged the Yei B’Chei are “cultural patrimony” and has not
argued they constitute “sacred objects,” defined as “specific ceremonial objects which are
needed by traditional Native American religious leaders for the practice of traditional
Native American religions by their present day adherents.” 16 U.S.C. § 3001(3)(C).
-8-
Thus, to be judged “cultural patrimony”4 the object must have (1) ongoing
historical, cultural or traditional importance; and (2) be considered inalienable by the tribe
by virtue of the object’s centrality in tribal culture. That is, the cultural item’s essential
function within the life and history of the tribe engenders its inalienability such that the
property cannot constitute the personal property of an individual tribal member. “The key
aspect of this definition is whether the property was of such central importance to the
tribe or group that it was owned communally.” Francis P. McManamon & Larry V.
Nordby, Implementing the Native American Graves Protection and Repatriation Act, 24
Ariz. St. L.J. 217, 233-34 (1992). The regulations mirror this definition and incorporate
the Senate Report for its version of the bill which did not pass, S. Rep. No. 473, 101st
Cong., 2d Sess. 1 (1990). 43 C.F.R. § 10.2(d)(4).5
4
Webster’s Third New International Dictionary defines “patrimony” as “anything
derived from one’s father or ancestors: HERITAGE; an inheritance from the past; an
estate or property held by ancient right.”
5
43 C.F.R. § 10.2(d)(4) states:
Objects of cultural patrimony means items having ongoing
historical, traditional, or cultural importance central to the Indian tribe or
Native Hawaiian organization itself, rather than property owned by an
individual tribal or organization member. These objects are of such central
importance that they may not be alienated, appropriated, or conveyed by any
individual tribal or organization member. Such objects must have been
considered inalienable by the culturally affiliated Indian tribe or Native
Hawaiian organization at the time the object was separated from the group.
Objects of cultural patrimony include items such as Zuni War Gods, the
Confederacy Wampum Belts of the Iroquois, and other objects of similar
character and significance to the Indian tribe or Native Hawaiian
(continued...)
-9-
In this prosecution, then, the definition of cultural patrimony divided into its three
component parts required the government prove Mr. Corrow trafficked in an object that
(1) was not owned by an individual Native American; (2) that could not be alienated,
appropriated, or conveyed by an individual; and (3) had an ongoing historical, traditional,
or cultural importance central to the Native American group. Mr. Corrow contends the
first and second elements are unintelligible.6 Thus, he argues, relying upon United States
v. Agnew, 931 F.2d 1397, 1403 (10th Cir. 1991), the definition does not comport with the
due process clause of the Fourteenth Amendment because it fails to give ordinary people
fair notice about what conduct is prohibited in such a manner that discourages arbitrary
and discriminatory law enforcement.
In support, Mr. Corrow arrays the conflicting expert testimony, characterized by
the amicus curiae7 as a conflict between orthodox and moderate Navajo religious views.
For the government, Alfred Yazzie, an ordained hataali and Navajo Nation Historic
Preservation representative, testified the Yei B’Chei must remain within the four sacred
(...continued)
5
organization as a whole.
Before the district court, Mr. Corrow challenged the third element as well
6
contending there was nothing unique about these Yei B’Chei. On appeal, he targets only
the question of alienability.
7
The Antique Tribal Art Dealers Association, a trade organization promoting
authenticity and ethical dealing in the sale of Native American artifacts, filed an amicus
brief contending the government in this case “exploited a controversy between orthodox
and moderate Navajo religious perspectives.”
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mountains of the Navajo for they represented the “heartbeat” of the Navajo people.8 Also
for the government, Harry Walters, a Navajo anthropologist, stated there is “no such thing
as ownership of medicine bundles and that these are viewed as living entities.” He
equated ownership with use, knowing the rituals, but acknowledged often cultural items
are sold because of economic pressures. For Mr. Corrow, Jackson Gillis, a medicine man
from Monument Valley, testified that if no claim is made by a clan relative or other
singer, the jish pass to the widow who must care for them. If the widow feels
uncomfortable keeping the jish, Mr. Gillis stated she has the right to sell them. Harrison
Begay, another of Mr. Corrow’s expert witnesses, agreed, explaining that because the
masks themselves are “alive,” a widow, uneasy about their remaining unused, may sell
them. Billy Yellow, another hataali testifying for Mr. Corrow, reiterated the traditional
disposition of a hataali’s Yei B’Chei to a spouse, the children, and grandchildren,
although he stated nobody really owns the jish because they are living gods.
Given these conflicting views on the alienability of the Yei B’Chei, Mr. Corrow
asks how an individual, even one educated in Navajo culture, indeed, one accepting the
8
He stated, “This is my heartbeat, this is my life, this is my teaching. This causes
me to behave right. It allows me to teach my children to behave. So it’s a God-given gift
to the Navajos and it has everything to do with the welfare and the health and wisdom.”
He explained the hataali is responsible for caring for the jish, restoring them in the event
of exposure to the wrong people or places: “when they do come back we would have to
use what we call a diagnosis to see what can be done and how we can treat them and
bring them back to the respect that they should have.” He explained the Navajo tradition
of compensating a person who gives his Yei B’Chei to another chanter.
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responsibility of inquiring further about the status of the item as the district court deduced
from its reading of NAGPRA, can “ascertain ownership when the group itself cannot
agree on that point?” The shadow cast by this question, he insists, sufficiently clouds the
meaning of “cultural patrimony” to render it unconstitutional. Mr. Corrow’s invocation
of void-for-vagueness review, however, obfuscates both its doctrinal reach and its
application to the facts of this case.
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Although Kolender
acknowledged a judicial shift from concern over deciding whether the statute provides
actual notice to “the more important aspect of the vagueness doctrine ... the requirement
that a legislature establish minimal guidelines to govern law enforcement,” id. at 358, the
legality principle, no crime or punishment without law, is the essence of a Fifth
Amendment due process challenge. See 1 W. LaFave & A. Scott, Substantive Criminal
Law § 3.1, at 271 (1986). That is, given the limitations of language and syntax, a statute
must convey to those individuals within its purview what it purports to prohibit and how
it will punish an infraction. While the Court equates that requirement roughly with a
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notion of “fairness,” it swarths it with the constitutional guarantees of the Fifth
Amendment.9
A couple of applications of these principles are instructive to our review. In
Palmer v. City of Euclid, 402 U.S. 544 (1971), the Court held a suspicious person
municipal ordinance was “so vague and lacking in ascertainable standards of guilt that, as
applied to Palmer, it failed to give ‘a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden.’” Id. at 545 (quoting United States v. Harriss, 347
U.S. 612, 617 (1954)). The city ordinance defined a “suspicious person” as one
wandering about the streets at late or unusual hours without visible or lawful business and
a satisfactory explanation for his presence. The police had charged James Palmer with
violating this ordinance after he had dropped a woman off late at night and then pulled
onto the street, parked with his headlights on, and used a two-way radio. Mr. Palmer’s
imprecise explanation for his behavior coupled with the conduct itself, the police decided,
violated the ordinance. The Court held, however, “in our view the ordinance gave
insufficient notice to the average person that discharging a friend at an apartment house
and then talking on a car radio while parked on the street was enough to show him to be
‘without any visible or lawful business.’” Id. at 546.
9
When a federal statute is involved, the due process clause of the Fifth Amendment
is implicated. However, a void-for-vagueness challenge to a state statute involves the
Fourteenth Amendment’s due process clause.
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In Kolender, the Court invalidated a California criminal statute which required
persons loitering or wandering on the streets to provide “credible and reliable”
identification. 461 U.S. at 353. Because the statute failed to describe with sufficient
particularity “what a suspect must do to satisfy the statute,” that is, what constitutes
“credible and reliable” identification, the Court found it unconstitutional on its face
“because it encourages arbitrary enforcement.” Id. at 361. Hence, while Kolender’s
focus is the potential for unrestrained police discretion, that concern remains rooted in
the Court’s predicate finding the statutory requirement of “credible and reliable”
identification is unfair. In void-for-vagueness review “[t]he same facets of a statute
usually raise concerns of both fair notice and adequate enforcement standards.” United
States v. Gaudreau, 860 F.2d 357, 359 (10th Cir. 1988). Consequently, under Kolender’s
guidance, we “treat each as an element to be analyzed separately.” Id. at 359-60.10
However, the Court has made equally clear our analysis is not global.
“[V]agueness challenges to statutes which do not involve First Amendment freedoms
must be examined in the light of the facts of the case at hand.” United States v. Mazurie,
419 U.S. 544, 550 (1975). Thus, to succeed, the proponent “who engages in some
conduct that is clearly proscribed [by the challenged statute] cannot complain of the
vagueness of the law as applied to the conduct of others.” Village of Hoffman Estates v.
Gaudreau delineates the differences in void-for-vagueness review when a
10
criminal rather than a civil statute is involved. United States v. Gaudreau, 860 F.2d 357,
360 (10th Cir. 1988).
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Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982); United States v. Austin, 902
F.2d 743, 745 (9th Cir. 1990). Further, in a facial challenge raising no First Amendment
or other claim that the act reaches constitutionally protected conduct, the complainant
“must demonstrate that the law is impermissibly vague in all of its applications.” Id. at
497 (emphasis added).
Mr. Corrow cannot meet that burden. First, deciding whether the statute gave him
fair notice, the district court found, after reviewing all of the expert testimony, Mr.
Corrow is knowledgeable about Navajo traditions and culture and “would have been
aware that various tribal members viewed ownership of property differently.” 941 F.
Supp. at 1560. The court cited the testimony of Ms. Charlotte Frisbie, author of Navajo
Medicine Bundles or Jish: Acquisition, Transmission and Disposition in the Past and
Present (1987). Ms. Frisbie related several calls from Mr. Corrow inquiring about the
prices of certain Navajo artifacts. Id. at 1562 n.13. Although she stated he did not
specifically ask her about these Yei B’Chei, she expressed her objection to dealers and
commercial handlers selling Native American cultural objects in the open market. Id.
Ms. Frisbie also reminded him both of the Navajo Nation’s implementing procedures to
return cultural items and of the enactment of NAGPRA. Id. Most damning, Ms. Bia,
Mrs. Winnie’s granddaughter, recounted Mr. Corrow’s representation that he wanted to
buy the Yei B’Chei to pass on to another young chanter in Utah. Reasonably, a jury could
infer from that representation that Mr. Corrow appreciated some dimension of the Yei
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B’Chei’s inherent inalienability in Navajo culture. Although Mrs. Winnie stated she
believed the Yei B’Chei belonged to her, she testified, “[t]here was another man that
knew the ways and he had asked of [the Yei B’Chei] but I was the one that was stalling
and ended up selling it.” Id. at 1565. Although this man trained with her husband, he had
not offered her any money. This is not a case of an unsuspecting tourist happening upon
Mrs. Winnie’s hogan and innocently purchasing the set of Yei B’Chei. Nor is it even
close to Palmer or Kolender where the unwary had no means or ability to discern their
conduct violated the acts in question.
Surely, this evidence establishes Mr. Corrow had some notice the Yei B’Chei he
purchased were powerfully connected to Navajo religion and culture. While it may be
true that even the experts in that culture differed in their views on alienability, no expert
testified it was acceptable to sell Yei B’Chei to non-Navajos who planned to resell them
for a profit, the very conduct § 1170(b) penalizes. All experts testified the Yei B’Chei
resided within the Four Corners of the Navajo people and acknowledged the ritual
cleansing and restoration required were the Yei B’Chei to be defiled in any way. Thus,
while the parameters of the designation “cultural patrimony” might be unclear in some of
its applications and at its edges, there is no doubt, in this case as applied to Mr. Corrow,
the Yei B’Chei were cultural items which could not be purchased for a quick $40,000 turn
of profit. Indeed, the Court observed in Hoffman Estates, 455 U.S. at 494 n.6, that
“ambiguous meanings cause citizens to ‘steer far wider of the unlawful zone’ ... than if
- 16 -
the boundaries of the forbidden areas were clearly marked.’” Baggett v. Bullitt, 377 U.S.
360, 372 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)) (internal
quotation marks omitted). Consequently, even if the term cultural patrimony “might
reflect some uncertainty as applied to extreme situations, the conduct for which
[defendant] was prosecuted and convicted falls squarely within the core of the [Act].”
United States v. Amer, 110 F. 3d 873, 878 (2d Cir. 1997) (challenge to International
Parental Kidnapping Crime Act attacking such terms as “lawful exercise of parental
rights” as unconstitutionally vague failed where defendant’s retention of three children in
Egypt when at least two of the children were born in New York and other child had
stayed in New York for eight years was clearly proscribed by IPKCA).
Consequently, we believe Mr. Corrow had fair notice - if not of the precise words
of NAGPRA - of their meaning that Native American objects “having ongoing historical,
traditional, or cultural importance central to the Native American group ... rather than
property owned by an individual Native American” could not be bought and sold absent
criminal consequences. Moreover, contrary to Mr. Corrow’s assertion, § 3001(3)(D) is
not infirm because it fails to list examples of cultural items. “In short, due process does
not require that citizens be provided actual notice of all criminal rules and their meanings.
The Constitution is satisfied if the necessary information is reasonably obtainable by the
public.” United States v. Vasarajs, 908 F.2d 443, 449 (9th Cir. 1990) (citations to La
Fave & Scot omitted) (statute barring reentry onto military base was not
- 17 -
unconstitutionally vague because it failed to inform individuals of the precise boundaries
of the base).
While not dispositive, we would add § 1170(b) includes scienter as an element of
the offense (“Whoever knowingly sells, purchases, uses for profit....”). “A statutory
requirement that an act must be willful or purposeful may not render certain, for all
purposes, a statutory definition of the crime which is in some respects uncertain. But it
does relieve the statute of the objection that it punishes without warning an offense of
which the accused was unaware.” Screws v. United States, 325 U.S. 91, 101-02 (1945)
(Douglas, J., concurring). Here, the government was required to prove Mr. Corrow
knowingly used the Yei B’Chei for profit assuring his understanding of the prohibited
zone of conduct.11 “[A] scienter requirement may mitigate a criminal law’s vagueness by
11
We do not say that a scienter requirement alone will rescue an otherwise vague
statute, recognizing “it is possible willfully to bring about certain results and yet be
without fair warning that such conduct is proscribed.” 1 W. LaFave & A. Scott, Jr.,
Substantive Criminal Law § 2.3, at 131 (1986). We would add in Sherry Hutt, Illegal
Trafficking in Native American Human Remains and Cultural Items: A New Protection
Tool, 24 Ariz. St. L.J. 135, 146 (1992), the author states as a general-intent crime, “the
prosecution must prove that the defendant knew he was engaging in a financial activity,
but need not prove that the defendant knew that the item was protected. One who deals in
Native American cultural items does so at the risk that an item may be protected by
NAGPRA. Failure to realize an intended profit is not a defense to a section 4 violation.
If the defendant bought, sold, used for profit, or transported for intended sale or profit a
protected item, the law is violated, regardless of the actual beneficial outcome of the
transaction.” The discussion, of course, presumes the constitutionality of NAGPRA and
its penalty provision.
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ensuring that it punishes only those who are aware their conduct is unlawful.” Gaudreau,
860 F.2d at 360.
Our analysis of the fairness issue infuses our disposition of the second vagueness
concern, the potential for arbitrary and discriminatory enforcement. Unlike the police in
Kolender who had complete discretion to judge what “reliable and credible”
identification might be, in this case, as the district court found, the statute as applied
caused law enforcement officers to inquire of tribal officials to determine whether the
cultural item in question constituted cultural patrimony. 941 F. Supp. at 1564. Here, the
Department of the Interior National Park Service officer, Mr. Young, examined a
photograph of the Yei B’Chei and discussed their significance with other knowledgeable
Park Service officers and representatives of the Navajo Nation before deciding the items
constituted cultural patrimony. Mr. Young testified he participated in other NAGPRA
investigations and was aware that law enforcement officers must first consult with tribal
representatives to determine whether an item has ongoing historical, cultural, or
traditional importance. We conclude, therefore, as applied to Mr. Corrow, § 1170(b)
provides sufficient guidance to law enforcement to dispel the fear of subjective
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enforcement.12 We affirm the district court’s denial of Mr. Corrow’s motion to dismiss
Count one.
Having failed in his constitutional challenge, Mr. Corrow urges we examine the
same evidence which defeated the legal claim to support his contention the government
failed to prove Mrs. Winnie was not the rightful owner of the Yei B’Chei. The evidence
we detailed infra - the expert and family members’ testimony as well as that of Forest
Service agents - viewed in the government’s favor satisfies us that a rational jury could
find beyond a reasonable doubt the Yei B’Chei are cultural patrimony which Mr. Corrow
could not resell for profit. We therefore affirm the district court’s denial of the motion
for judgment of acquittal on Count one.
12
We would note there have been similar challenges to federal statutes protecting
items deemed antiquities under the Antiquities Act of 1906, 16 U.S.C. § 431 - 433 (1988),
and the Archeological Resources Protection Act (ARPA), 16 U.S.C. §§ 470aa-470mm.
Although the Ninth Circuit invalidated the Antiquities Act, sustaining a challenge to its
penalizing appropriating “objects of antiquity situated on lands owned and controlled by
the Government of the United States,” as applied to taking three or four year old face
masks from a cave, United States v. Diaz, 499 F.2d 113 (9th Cir. 1974), we upheld the
same act in United States v. Smyer, 596 F.2d 939 (10th Cir. 1979), where defendants
excavated a prehistoric Mimbres ruin at an archeological site, removing objects of
antiquity. We held in light of defendants’ conduct, the Antiquities Act was not
unconstitutionally vague. Later, the Ninth Circuit upheld the Antiquities’ Act’s
successor, ARPA, in United States v. Austin, 902 F.2d 743 (9th Cir. 1990). Defendant
there unsuccessfully argued the terms, “weapons” and “tools” were unconstitutionally
vague, the court’s having found regarding defendant “there can be no doubt nor lack of
fair notice that the scrapers and arrow points for which he was convicted are indeed
weapons and tools.” Id. at 745. These predecessors were instructive to the district
court’s analysis.
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III. MBTA
Under 16 U.S.C. § 703, it is
unlawful at any time, by any means or in any manner to ... possess, offer for
sale, sell ... any migratory bird, any part ... or any product, which consists,
or is composed in whole or in part, of any such bird or any part ... included
in the terms of the conventions between the United States and Great Britain
for the protection of migratory birds ....
Since its enactment, the majority of courts considering misdemeanor violations under
§ 703 of the MBTA have treated these offenses as strict liability crimes, eliminating proof
of scienter from the government’s case. United States v. Boynton, 63 F.3d 337, 343 (4th
Cir. 1995). Although we have not previously so held, we now join those Circuits which
hold misdemeanor violations under § 703 are strict liability crimes. See United States v.
Smith, 29 F.3d 270, 273 (7th Cir. 1994); United States v. Engler, 806 F.2d 425, 431 (3d
Cir. 1986), cert. denied, 481 U.S. 1019 (1987); United States v. Chandler, 753 F.2d 360,
363 (4th Cir. 1985); United States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984); United
States v. Wood, 437 F.2d 91 (9th Cir. 1971); Rogers v. United States, 367 F.2d 998, 1001
(8th Cir. 1966), cert. denied, 386 U.S. 943 (1967); contra, United States v.
Delahoussaye, 573 F.2d 910, 913 (5th Cir. 1978). Simply stated, then, “it is not
necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific
intent or guilty knowledge.” United States v. Manning, 787 F.2d 431, 435 n.4 (8th Cir.
1986).
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Nonetheless, Mr. Corrow invites us to read a scienter requirement into the MBTA
to satisfy the due process concerns implicit in all criminal statutes. However, the plain
language of § 703 renders simple possession of protected feathers unlawful (“it shall be
unlawful”). Like other regulatory acts where the penalties are small and there is “no
grave harm to an offender’s reputation,” Engler, 806 F.2d at 531, conduct alone is
sufficient.13
Here, in fact, the district court instructed the jury it must find Mr. Corrow
knowingly possessed Golden Eagle and Great-Horned Owl feathers. In rejecting his
motion for judgment of acquittal on Count two, the district court pointed to the
photographs of the Yei B’Chei Mr. Corrow gave to East-West, the feathers found in his
suitcase, and testimony of an F.B.I. agent indicating Mr. Corrow’s awareness of the
illegal trade in protected feathers. Under our announced position, this evidence
abundantly satisfied § 703. We therefore affirm the district court’s denial of the motion
for judgment of acquittal and hold the evidence was sufficient to permit a rational jury to
find Mr. Corrow possessed protected bird feathers whether he did so knowingly or not.
We therefore AFFIRM the judgment of the district court.
13
We would note, in 1986, Congress amended § 707(b) of the MBTA inserting the
word “knowingly” to the offense of selling migratory birds. In a recent opinion, the First
Circuit held that “knowingly” in § 707(b) required the government to prove a knowing act
but not a wilful act based on its reading of the entire context of the MBTA. United States
v. Pitrone, ___ F.3d. ___, 1997 WL259714 (1st Cir. Mass. 1997). The jury here acquitted
Mr. Corrow of violation of § 707(b).
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United States v. Corrow
Court: Court of Appeals for the Tenth Circuit
Date filed: 1997-07-11
Citations: 119 F.3d 796
Copy CitationsCombined Opinion