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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, Court of Appeals Nos. A-11819, A-11829,
and A-11830
Appellant,
Trial Court Nos. 4FA-12-3228 CR
v. and 4FA-12-3659 CR
KENNETH JOHN JOUPPI and O P I N I O N
KEN AIR, LLC,
Appellees. No. 2551 — May 12, 2017
Appeal from the District Court, Fourth Judicial District,
Fairbanks, Patrick S. Hammers, Judge.
Appearances: Donald Soderstrom, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Michael C.
Geraghty and Craig W. Richards, Attorneys General, Juneau, for
the Appellant. Nelson Traverso, Fairbanks, for Appellee
Kenneth Jouppi. Robert John, Fairbanks, for Appellee Ken Air,
LLC.
Before: Mannheimer, Chief Judge, and Allard, Judge.
Judge MANNHEIMER.
The State of Alaska prosecuted Kenneth John Jouppiand the air carrier that
he and his wife owned, Ken Air, LLC, for unlawful importation of alcoholic beverages
into a “local option” community (i.e., a community that had exercised its option under
AS 04.11.491 to prohibit the importation of alcohol). 1 Following a jury trial, both
Jouppi and Ken Air were convicted of this crime.
At sentencing, the district court denied the State’s request to order forfeiture
of the airplane involved. The State appealed the district court’s refusal to order forfeiture
of the airplane, and both Jouppi and Ken Air then filed cross-appeals, challenging their
convictions on various grounds.
For the reasons explained in this opinion, we affirm the defendants’
convictions, but we reverse the trial court’s ruling regarding the forfeiture of the airplane.
We conclude that, under the pertinent statutes, forfeiture of the airplane was mandatory.
Underlying facts
Kenneth Jouppi and his wife were the two principals of Ken Air, LLC, and
Jouppi was the only pilot working for Ken Air. On April 3, 2012, Alaska State Troopers
were conducting surveillance of Jouppi and his airplane at the Fairbanks airport. The
troopers were there to execute a search warrant for the airplane (a warrant that had been
issued in connection with another investigation).
As the troopers watched, two women — Helen Nicholia and Irene Todd —
drove up to Jouppi’s airplane. Jouppi was scheduled to fly Nicholia to Beaver, a local
option village.
Nicholia and Todd’s vehicle contained several boxes and semi-transparent
grocery bags. The troopers observed Jouppi opening and closing these boxes and bags,
and redistributing their contents to fill up the containers. Jouppi then loaded this cargo
into his airplane (with no assistance from the women). Some of the boxes that Jouppi
1
AS 04.11.499(a).
–2– 2551
loaded into the plane were open, and the others were loosely closed. Based on the way
Jouppi was carrying the boxes, they appeared to be heavy.
Once the plane was loaded, Helen Nicholia entered the plane on the copilot
side. Jouppi got into the pilot’s seat, started the engine, and prepared to take off. (The
other woman, Irene Todd, drove away.)
At this point, the troopers contacted Jouppi and had him shut off the engine.
They then executed the search warrant.
When the troopers looked through the plane’s windows, they could see beer
in a plastic grocery bag sitting unsecured in the plane. The troopers later testified that
this beer was in plain view, obvious to any observer. The troopers took additional
photographs as they removed the cargo from the plane.
The troopers found beer in various boxes and bags onboard the plane; they
removed this beer from its containers and seized it as evidence. The troopers then
returned the boxes and bags to Nicholia, since these boxes and bags contained Nicholia’s
other groceries.
Based on this incident, Jouppi, Ken Air, and Helen Nicholia were all
charged with importation of alcoholic beverages into a local option community, in
violation of AS 04.11.499. Nicholia pleaded guilty to this charge. Jouppi and Ken Air
invoked their right to trial.
The defendants’ request for a jury instruction on spoliation of evidence
At trial, the defendants took the position that the troopers had improperly
destroyed evidence by failing to take custody of, and preserve, the plastic grocery bags
and the cardboard boxes that the beer was found in. (As described in the preceding
–3– 2551
section, the troopers returned Nicholia’s boxes and bags to her after they removed the
beer.)
With respect to the Fred Meyer plastic grocery bags, the defendants argued
that even though beer cans might be visible through the sides of a typical Fred Meyer
grocery bag, there was a possibility that the grocery bags found in Jouppi’s airplane were
less transparent than a typical grocery bag, and that the beer might not have been visible
through the plastic film of these particular bags.
With respect to the cardboard boxes, the defendants argued that, if the
troopers had preserved these boxes, the defendants might have been able to demonstrate
that all of the beer found in Jouppi’s plane might have fit within these boxes when their
tops were folded over and closed. Such a demonstration would potentially support
Jouppi’s position that Nicholia had concealed all of the beer in the cardboard boxes, and
that none of it was visible to Jouppi.
Based on these arguments, the defendants asked the judge to instruct the
jurors that, because the State failed to collect and preserve the grocery bags and the
boxes, the jurors should assume that the grocery bags and the boxes would have been
favorable evidence for the defense.
(This type of instruction is commonly referred to as a “Thorne” instruction,
because this was the remedy granted in Thorne v. Department of Public Safety, 774 P.2d
1326, 1331-32 (Alaska 1989).)
The trial judge denied the defendants’ request for a Thorne instruction. He
noted that the police generally have no duty to collect physical evidence — only a duty
to preserve the evidence once they have actually collected it. See Selig v. State, 286 P.3d
767, 772 (Alaska App. 2012). Here, the judge found that the troopers “did not lose or
destroy any evidence”. Rather, the troopers chose not to collect the evidence: they
photographed the grocery bags and the boxes, and then they returned these bags and
–4– 2551
boxes (along with the non-alcoholic groceries in them) to Nicholia, who was the owner
of this personal property.
The judge concluded that the troopers had acted properly, and that the
defendants were not entitled to the Thorne instruction that they requested.
On appeal, the defendants renew their claim that they were entitled to a jury
instruction telling the jurors that, because the State returned the plastic grocery bags and
cardboard boxes to Nicholia, the jurors should assume that this evidence would have
been favorable to Jouppi’s claim that he was unaware of any alcoholic beverages in his
airplane.
We reject the defendants’ argument for three reasons. First, we agree with
the trial judge that, because the troopers never collected the bags and the boxes, they
were not required to preserve them.
Second, with respect to the Fred Meyer grocery bags, the defendants
offered no evidence that these bags are not uniform — i.e., no evidence that there is a
substantial variation in the coloration or thickness of Fred Meyer plastic film grocery
bags, such that beer might be visible through the sides of one Fred Meyer grocery bag
but not visible through the sides of another.
Third, with respect to the cardboard boxes, we note that (according to the
evidence) the boxes contained other groceries besides beer. The defendants claimed that
they needed these boxes so that they could conduct a demonstration to show that the beer
found in Jouppi’s airplane could have fit completely within the boxes when they were
fully closed. But such a demonstration would be probative only if the parties re
assembled the entire original contents of the boxes — including the other groceries that
belonged to Nicholia, and that were returned to her.
The defendants never claimed that the troopers were required to seize and
preserve every item of Nicholia’s personal property. And without all those articles of
–5– 2551
personal property, no meaningful demonstration could be conducted, even if the boxes
themselves had been preserved (or could somehow be retrieved from Nicholia).
Accordingly, we uphold the trial judge’s decision to deny the defense
request for a Thorne instruction.
The defendants’ claim that a state trooper was improperly allowed to offer
an opinion on Jouppi’s mental state
During trial, Trooper Sergeant Kevin Yancey testified about the events that
took place at the Fairbanks airport and the discovery of the alcohol in Jouppi’s airplane.
During the prosecutor’s direct examination of Sgt. Yancey, the prosecutor asked Yancey
to offer an opinion as to whether Jouppi had been “willfully blind” to the presence of the
alcohol in his plane. Sgt. Yancey responded that he would not offer an opinion on
“willful blindness” in a legal sense. But Yancey added that, based on his observations
of the plane and its cargo, Jouppi would have had to be physically blind not to see the
alcohol in the airplane:
Prosecutor: Based on your observations of Kenneth
Jouppi’s interaction with the cargo in the back of [the] SUV
[that Nicholia arrived in], and his loading of the aircraft ... ,
did you form any opinion as to willful blindness by Mr.
Jouppi with regard to his knowledge of the alcohol in that
plane?
Sgt. Yancey: I wasn’t using the term — the legal term
“willful blindness” in my thought process, but it would have
to be — he’d have to be blind not to know what was on [the
plane], and absolutely ignoring whatever he was putting in
that airplane. Just — there’s just — pilots with that bad of
eyesight don’t fly.
–6– 2551
On appeal, the defendants argue that Sgt. Yancey’s above-quotedtestimony
was improper because it amounted to an assertion about Jouppi’s mental state — an
assertion that Jouppi acted with the mens rea required for the crime.
We disagree with this characterization of the trooper’s testimony. Even
though the prosecutor invited Sgt. Yancey to draw an inference about Jouppi’s mental
state, the trooper responded by saying that he was not offering an opinion on the issue
of “willful blindness” in a legal sense. Rather, Yancey testified that, given the fact that
Jouppi loaded all of the cargo himself, Jouppi would certainly have seen the alcoholic
beverages.
The trial judge could reasonably conclude that Yancey’s inference was
based upon, and represented a summation of, Yancey’s own observations of the cargo
as it sat within the cabin of the aircraft. In the words of Alaska Evidence Rule 701, the
judge could reasonably conclude that Yancey’s testimony on this point was an inference
“rationally based on [his] perception ... and ... helpful to a clear understanding of [his]
testimony or the determination of a fact in issue.”
For these reasons, we conclude that the admission of Yancey’s testimony
was not error.
Defendant Ken Air’s argument that it is entitled to a judgement of acquittal
Defendant Ken Air argues that it is entitled to a judgement of acquittal
because the evidence presented at trial was legally insufficient to establish that Jouppi
was acting as an agent of Ken Air, and was acting within the scope of his employment,
during the events of this case. More specifically, Ken Air argues that there is no
evidence to show that Jouppi was flying that day as a Ken Air pilot, as opposed to flying
on his own.
–7– 2551
When a defendant challenges the legal sufficiency of the evidence to
support a criminal conviction, we view the evidence and the reasonable inferences to be
drawn from the evidence in the light most favorable to the verdict, and we ask whether
reasonable jurors could conclude that the State had proved its allegations beyond a
reasonable doubt. 2
Jouppi testified at trial that he started Ken Air in Ketchikan in 1992, and he
converted the company to a limited liability company in 2004. According to Jouppi’s
testimony, he was the “owner-operator” of Ken Air — i.e., both an owner of the business
and an agent of the business.
Jouppi testified that Helen Nicholia arranged a charter flight with him on
the day at issue in this case, and that Nicholia had booked charter flights with him in the
past.
Jouppi agreed that, in his capacity as the “pilot/agent” of Ken Air, his
activities “directly impact[ed] the bottom line of the organization” — that when he
booked charter flights and collected fares, he was “making money for the organization
and for [him]self.” Jouppi also acknowledged that he made a practice of not checking
his passengers’ bags or boxes — partly because, if he searched his passengers’
belongings and cargo, he would lose customers.
From this testimony, a fair-minded juror could reasonably infer that Jouppi
was acting as an agent of Ken Air, and acting within the scope of his employment, when
he came to the airport to pilot Helen Nicholia’s charter flight, and when he loaded
Nicholia’s belongings onto the plane.
We therefore conclude that the evidence is legally sufficient to support the
conviction of Ken Air.
2
See, e.g., Augustine v. State, 355 P.3d 573, 587 (Alaska App. 2015).
–8– 2551
The State’s contention that the district court was required to order
forfeiture of the airplane
Before the sentencing hearing in this case, the State filed a pleading in
which the State asserted that, under the pertinent statutes, the sentencing court was
required to order forfeiture of the airplane used in this crime. The district court initially
concluded that the State was correct — that the pertinent statutes required forfeiture of
the plane. But Ken Air sought reconsideration of this ruling, arguing that the court had
misinterpreted the forfeiture statute. After hearing further argument on this point, the
district court changed its ruling — concluding that forfeiture of the plane was not even
authorized, much less mandated, by the pertinent statutes.
The question of whether the district court was required to order forfeiture
of the airplane hinges on the interpretation of two statutes.
The first of these statutes, AS 04.11.499(a), is the statute that Jouppi and
Ken Air were convicted of violating. AS 04.11.499(a) states that when a community has
banned the importation of alcoholic beverages, it is a crime to “send, transport, or bring”
alcoholic beverages into that community, or attempt to do so, or solicit someone else to
do so.
Aseparate statute, AS 04.16.220, apparently authorizes the forfeiture of any
aircraft used to facilitate a violation of AS 04.11.499. We say “apparently” because this
forfeiture statute does not track the precise language of AS 04.11.499 when it defines
which aircraft are subject to forfeiture. Rather, AS 04.16.220 declares that an aircraft is
subject to forfeiture if it is used to “facilitate the transportation of alcoholic beverages
imported into a [community] in violation of AS 04.11.499(a).”
Based on these two italicized words, “imported into”, the district court ruled
that even when an airplane is used to facilitate the unlawful transportation of alcoholic
–9– 2551
beverages to a local option community, forfeiture of the airplane is not allowed under
AS 04.16.220 unless the alcoholic beverages actually arrive in the local option
community.
In the present case, the alcoholic beverages were intercepted before Jouppi
was able to take off from the Fairbanks airport. Based on its interpretation of
AS 04.16.220, the district court ruled that it had no authority to order forfeiture of the
airplane.
The State argues that the district court misconstrued AS 04.16.220 — that
forfeiture under this statute is not limited to instances where alcoholic beverages actually
arrive illegally in a local option community. For the reasons we are about to explain, we
agree with the State that the forfeiture statute should not be interpreted in this narrow
fashion. Rather, the statute mandates forfeiture of any aircraft that is knowingly used to
facilitate a violation of AS 04.11.499, regardless of whether the alcoholic beverages ever
arrive in the destination community.
The State’s right to pursue this appeal
Before we begin our analysis of the forfeiture issue, we must address the
defendants’ argument that the State has no right to appeal the district court’s decision on
this issue. Both Jouppi and Ken Air contend that even if the State is correct in saying
that forfeiture of the airplane was mandatory under the pertinent statutes, the double
jeopardy clause bars the State from seeking relief because the district court has already
pronounced the defendants’ sentences.
In some sense, the resolution of the defendants’ double jeopardy claim has
little practical importance, because the forfeiture statute — AS 04.16.220 — allows the
– 10 – 2551
State to seek forfeiture of the airplane either as part of a criminal sentence or in a
separate in rem proceeding against the airplane itself. See AS 04.16.200(d). 3
The fact that Jouppi and Ken Air have already been sentenced for violating
AS 04.11.499 does not bar the State from pursuing a separate in rem forfeiture action
against the airplane — because the forfeiture statute declares, in subsection (g), that “it
is no defense in an in rem forfeiture proceeding brought under (d)(2) of this [statute] that
a criminal proceeding is pending or has resulted in conviction or acquittal of a person
charged with violating ... [AS] 04.11.499”.
Nevertheless, we will address the merits of the defendants’ argument that
the State has no right to appeal their sentences.
Under AS 22.07.020(d)(2), the State is entitled to appeal a final decision
in a criminal case except “[as] limited by the prohibitions against double jeopardy
contained in the United States Constitution and the Alaska Constitution.”
If the State is correct that the pertinent statutes not only allow forfeiture of
the airplane but actually mandate it, then the defendants’ sentences are unlawfully
lenient. And as this Court has repeatedly held, if a sentence is unlawfully lenient, the
double jeopardy clause does not bar a court from increasingthe sentence to the minimum
extent required to correct the illegality. 4
3
This subsection of the forfeiture statute reads:
(d) Property subject to forfeiture under (a) of this [statute] may be forfeited
(1) upon conviction of a person for a violation of ... 04.11.499 ... or
(2) upon judgment by the superior court in a proceeding in rem that the property was
used in a manner subjecting it to forfeiture under (a) of this section.
4
Grant v. State, 379 P.3d 993, 994 (Alaska App. 2016), and the other six cases cited
in footnote 3 of Grant.
– 11 – 2551
Under Alaska law, the State has a recognized right to seek appellate review
of an illegal sentence (and to seek correction of that sentence) by filing a petition for
review — i.e., a request for discretionary review. 5 The question here is whether the
State is entitled to appeal an illegal sentence — i.e., whether the State has the right to
demand appellate review of the State’s claim that a sentence is illegal.
As this Court explained in Forster v. State, 236 P.3d 1157, 1173 (Alaska
App. 2010), the legislature enacted AS 22.07.020(d)(2) for the purpose of bringing
Alaska law in line with the corresponding federal statute, 18 U.S.C. § 3731. (See SLA
1993, ch. 71, § 1.) The federalcourts of appeal are split as to whether this federal statute
authorizes the government to appeal an illegal sentence, and the legislative history of
AS 22.07.020(d)(2) is silent on this issue. It is therefore not clear whether, under Alaska
law, the State has a right to appeal a sentence on the ground that it is illegally lenient (as
opposed to the right to seek discretionary review of the sentence).
But, as in Forster, we need not decide this point of law. Even assuming
that the State has no right of appeal in the present case, the question of statutory
construction that the State raises in this case has substantial public importance, not only
in this case but in future cases. For this reason, even if we assume that the State’s notice
of appeal in this case should have been treated as a late-filed petition for review, we
would grant review and reach the merits of the State’s claim.
We now turn to the merits of that claim.
5
State v. Laporte, 672 P.2d 466, 469 (Alaska App. 1983).
– 12 – 2551
A closer look at the offense of “importation”
The statute that Jouppi and Ken Air were convicted of violating,
AS 04.11.499(a), is titled “Prohibition of importation or purchase after election”.
The “importation” portion of the statute makes it a crime to send or convey
(or try to send or convey) alcoholic beverages into a community if that community has
voted to ban the importation of alcoholic beverages. The “purchase” portion of the
statute makes it a crime for a resident of a local option community to purchase
unlawfully conveyed alcoholic beverages.
The problem in the present case arises from the fact that, even though the
title of AS 04.11.499 refers to the crime as “importation” of alcoholic beverages, the
statute itself does not use the noun “importation” or any form of the verb “import” to
define this crime. Instead, AS 04.11.499 declares that it is a crime for a person to
knowingly “send”, “transport”, or “bring” an alcoholic beverage to a local option
community.
In Alaska, section headings and the captions of statutes are not part of the
law. 6 Thus, the fact that the word “importation” is used in the title of the statute to
describe this offense has no effect on the actuallegaldefinition of the offense. The crime
is defined in terms of “sending”, “transporting”, or “bringing” alcoholic beverages into
the local option community.
In everyday usage, the verb “import” means “to bring in from the
outside”. 7 Because the legislature has given communities the authority to ban the
6
See AS 01.05.006; Ketchikan Retail Liquor Dealers Ass’n v. Alcoholic Beverage
Control Board, 602 P.2d 434, 438 (Alaska 1979); Lewis v. State, 195 P.3d 622, 638 (Alaska
App. 2008).
7
Webster’s New World College Dictionary (Fourth Edition, 2004), pp. 716-17.
– 13 – 2551
importation of alcoholic beverages, the legislature could reasonably decide to enforce
these community bans by penalizing all persons who are complicit in an unlawful
importation. 8 We conclude that the legislature used the terms “send”, “transport”, and
“bring” to define the scope of that complicity.
The notion of importation obviously includes the act of “bringing”
alcoholic beverages into the local option community, in the sense of a completed
delivery. But by adding the verb “send” to the definition of the crime, the legislature
broadened the statute to include people who knowingly initiate the unlawful delivery,
even though they may play no personal role in the actual transportation and delivery of
the beverages. Similarly, by adding the verb “transport”, the legislature broadened the
statute to include middlemen who, at some stage, knowingly transport the alcoholic
beverages toward the unlawful destination — even though these middlemen may not
have initiated the sending of the beverages, and even though they may not personally
complete the final delivery of the beverages into the community.
The wordingof AS 04.11.499 actually goes farther than this — because the
definitions of “send”, “transport”, and “bring” codified in subsection (c) of the statute
additionally include any act of soliciting another person to do any of these three things,
as well as any attempt to do any of these three things.
The act of soliciting another person to “send”, “transport”, or “bring”
alcoholic beverages to a local option community would, in any event, make the person
8
See the definition of complicity found in AS 11.16.110(2)(B) and AS 11.16.110(3).
Together, these two provisions declare that a person is legally accountable for the criminal
conduct of another person if, acting “with intent to promote or facilitate the commission of
the offense”, the person “aids or abets the other [person] in planning or committing the
offense”; or if, “acting with [a] culpable mental state ... sufficient for the commission of the
offense”, the person “causes an innocent person or a person who lacks criminal responsibility
to engage in the proscribed conduct.”
– 14 – 2551
an accomplice to the crime under AS 11.16.110(2)(A). 9 Thus, it is unclear whether the
legislature’s decision to include solicitation in the definition of the crime actually
expanded the scope of criminal liability under the statute.
Similarly, any attempt to commit a crime is already punishable as a crime
under AS 11.31.100 — although the punishment for an attempt is normally lower than
the punishment for the completed crime. Thus, by including attempts as part of the
definition of the substantive crime, the legislature did not expand the category of people
who could be prosecuted; rather, the legislature effectively increased the penalty for an
attempt.
Nevertheless, the legislature’s expansive definition of this offense makes
it clear that the legislature intended to cast a wide net. Even though the title of
AS 04.11.499, “importation”, might suggest a completed act of importation, the statute
in fact authorizes the prosecution of practically all persons who knowingly involve
themselves in any aspect of an endeavor to illegally import alcoholic beverages into a
local option community — regardless of whether the alcoholic beverages are actually
transported toward their destination, and regardless of whether the alcoholic beverages
actually arrive in the community.
We now turn to the other statute involved in this case — the forfeiture
statute, AS 04.16.220.
9
This statute declares that a person is legally accountable for the criminal conduct of
another person if, acting “with intent to promote or facilitate the commission of the offense”,
the person “solicits the other [person] to commit the offense”.
– 15 – 2551
Our analysis of the forfeiture statute
The specific forfeiture provisions at issue in this appeal are AS 04.16.
220(a)(3)(C) and (i)(1). Subsection (a)(3)(C) of the statute authorizes the forfeiture of
“aircraft, vehicles, or vessels” that are used to “transport or facilitate the transportation
of ... alcoholic beverages imported into a [local option community] in violation of
AS 04.11.499(a)”. Subsection (i)(1) of the statute declares that if the owner of an
airplane is convicted of violating AS 04.11.499, and if the airplane is subject to forfeiture
under subsection (a)(3)(C), then it must be forfeited. 10
Taken together, these provisions mean that if the airplane in this case was
subject to forfeiture under AS 04.16.220(a)(3)(C), then the district court was required to
order forfeiture of that airplane. We must therefore decide whether the airplane in this
case was subject to forfeiture under subsection (a)(3)(C) — in other words, whether the
airplane was used to “transport or facilitate the transportation of ... alcoholic beverages
imported into a [local option community] in violation of AS 04.11.499(a)”.
As we have already explained, AS 04.11.499(a) was written to encompass
practically all activities connected to the unlawful importation of alcoholic beverages
into a local option community, whether those activities succeed or not — that is,
regardless of whether those activities actually result in the delivery of alcoholic
beverages into the local option community.
But because subsection (a)(3)(C) of the forfeiture statute uses the phrase
“imported into a [local option community] in violation of AS 04.11.499(a)”, the district
10
More specifically, AS 04.16.220(i)(1) declares that, “upon [a person’s] conviction
for a violation of ... AS 04.11.499(a), if an aircraft ... is subject to forfeiture under
[subsection] (a) of this [statute], the court shall, subject to remission to innocent parties [as
authorized by this statute], order the forfeiture of the airplane to the state[.]”
– 16 – 2551
court ruled that the scope of forfeiture authorized by this provision of the statute does not
encompass all airplanes used to facilitate the transportation of alcoholic beverages into
a local option community. Rather, the court concluded that forfeiture of airplanes under
subsection (a)(3)(C) is strictly limited to instances where those efforts succeed — i.e.,
where alcoholic beverages are actually delivered to the local option community.
Thus, the district court concluded, AS 04.16.220(a)(3)(C) does not even
authorize — much less mandate — a forfeiture of the airplane in the present case.
It is true, as we noted earlier in this opinion, that the verb “import” normally
means “to bring in from the outside”. And because neither the charging statute,
AS 04.11.499, nor the forfeiture statute, AS 04.16.220, contains a special definition of
“import”, it would normally make sense to apply this dictionary definition when
interpreting the forfeiture statute. But we agree with the State that, in this particular
context, the forfeiture statute’s reference to “imported” should not be interpreted so
narrowly that forfeitures are strictly limited to instances where alcoholic beverages are
actually delivered into a local option community.
Although there are many rules of statutory construction, a court’s primary
goal is to ascertain the intent of the legislature and, if that intent can reasonably be
ascertained, to implement that legislative intent. 11
This remains the goal of statutory construction even though the wording of
a statute is seemingly “plain”. Even when a statute uses words or phrases that have a
“plain” or commonly accepted meaning, Alaska law does not require a court to apply this
meaning mechanically. Instead, Alaska courts use a sliding scale approach to statutory
interpretation — analyzing the wording of the statute in light of the statute’s legislative
11
Dickie v. State, 282 P.3d 382, 384-85 (Alaska App. 2012); Millman v. State, 841 P.2d
190, 194 (Alaska App. 1992).
– 17 – 2551
history, and in light of the statute’s context in the legislature’s greater statutory scheme
— to see if this analysis reveals a legislative intent that differs from the “plain meaning”
of the statutory language. 12
In particular, when a statute is part of a larger framework or regulatory
scheme, even seemingly unambiguous statutory language must be interpreted in light of
the other portions of the regulatory whole. 13
Here, the legislature enacted a trio of statutes that address the prosecution
and punishment of people who are involved in the importation of alcoholic beverages
into local option communities.
We have already examined the first two of these statutes: AS 04.11.499
(the statute that defines the offense) and AS 04.16.220 (the statute that governs related
forfeitures).
The third statute that we must consider — a statute which we have not
mentioned before — is AS 04.16.200. Subsections (e) through (g) of this statute set forth
the penalties for violating AS 04.11.499. These penalties vary according to how much
alcohol is involved, and according to the defendant’s prior record. But this penalty
statute draws no distinction between cases where the delivery of alcoholic beverages into
a local option community is actually completed versus cases where the alcoholic
beverages are intercepted before they reach the community.
We now return to the specific question before us: What does
AS 04.16.220(a)(3)(C) mean when it speaks of the forfeiture of aircraft that are used to
12
See Alaska Public Employees Assn. v. Fairbanks, 753 P.2d 725, 727 (Alaska 1988);
Stephan v. State, 810 P.2d 564, 566 (Alaska App. 1991).
13
Lake v. Construction Machinery, Inc., 787 P.2d 1027, 1030 (Alaska 1990); Hafling
v.Inlandboatmen’s Union of the Pacific, 585 P.2d 870, 872 (Alaska1978);Millman v.State,
841 P.2d 190, 194 (Alaska App. 1992).
– 18 – 2551
transport or facilitate the transportation of alcoholic beverages “imported into” a local
option community?
We have already explained that, even though the title of AS 04.11.499 uses
the word “importation” to describe the offense, the actual wording of the statute
demonstrates the legislature’s intent to criminalize all aspects of any endeavor to bring
alcoholic beverages into a local option community — all attempts to “send”, “transport”,
or “bring” alcoholic beverages to these communities, regardless of whether those
attempts succeed.
AS 04.16.220(a)(3)(C) authorizes the forfeiture of aircraft that are used to
“transport or facilitate the transportation of ... alcoholic beverages imported into a [local
option community] in violation of AS 04.11.499(a)”. Based on the legislature’s intent
to broadly prohibit all attempts to introduce alcoholic beverages into local option
communities, we conclude that the phrase “imported” into a local option community
should not be interpreted in the narrow sense of “physically delivered” into a local option
community. Instead, we interpret the word “imported” as a shorthand reference to the
crime defined in AS 04.11.499 — similar to the way the word “importation” is used in
the title of AS 04.11.499.
The defendants argue that the legislature might reasonably have concluded
that the most serious violations of AS 04.11.499 are the cases where alcoholic beverages
are actually delivered into a local option community — and that, for this reason, the
legislature may have wanted to allow forfeitures of aircraft only in those cases.
But other than the use of the words “imported into” in AS 04.16.220
(a)(3)(C), there is nothing in the history or wording of the trio of interrelated statutes to
suggest that the legislature intended to draw such a distinction — no indication that the
legislature viewed cases where alcoholic beverages are actually delivered into a local
option community as significantly more serious than cases where the alcoholic beverages
– 19 – 2551
are intercepted by the authorities, or where the intended delivery fails for some other
reason. Instead, as we have explained, the legislature intended to punish essentially all
persons who knowingly involve themselves in any aspect of an endeavor to introduce
alcoholic beverages into a local option community, regardless of whether the alcoholic
beverages ever physically arrive in the community.
For these reasons, we reverse the ruling of the district court on the issue of
the airplane forfeiture. Under AS 04.16.220(a)(3)(C) and (i)(1), the court was required
to order the forfeiture of the airplane in this case. We therefore direct the district court
to amend the judgements against the two defendants by ordering the forfeiture of the
airplane.
Conclusion
The judgements against the two defendants are AFFIRMED, with the
exception that those judgements must be amended to include forfeiture of the airplane.
– 20 – 2551