United States v. McPherron

          REPORT AND RECOMMENDATION

          ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the government's Motion in Limine to preclude the defense from introducing certain evidence at the bench trial set before the District Court on October 29, 2019. (Doc. 50.) Pursuant to LRCrim. 5.1, this matter was referred to the assigned Magistrate Judge for a Report and Recommendation. For the reasons set forth below, it is recommended that the District Court deny the government's Motion in Limine.

         FACTUAL BACKGROUND

         The defendant, Dennis Raymond McPherron, is charged in an Indictment with Smuggling Goods into the United States, in violation of 18 U.S.C. § 545. Specifically, the Indictment alleges that on or about February 17, 2016, at the Mariposa Port of Entry, the defendant:

did willfully, knowingly and fraudulently import and bring into the United States certain merchandise, that is, various bald eagle feathers contrary to law that is, the Bald and Golden Eagle Protection Act under Title 16 United States Code Section 668, knowing the same to have been imported and brought into the United States contrary to law.

[Doc. 1.]

         The government filed a Motion in Limine which seeks to prevent the defendant from introducing any evidence relating to: (1) Native American Tribes; (2) Native American Tribal membership; (3) Native American religious customs, practices, and ceremonies; and (4) the religious and historical significance of bald and golden eagle feathers to any said Native American religious custom, practice, and ceremony. (Doc. 50.) The government argues that the foregoing evidence is irrelevant to the charged offense, and therefore, the defense should be precluded from introducing any of this evidence at trial. The defense argues that the exclusion of this evidence would violate his First Amendment and due process rights under the United States Constitution. (Doc. 53.) The defense also argues that the instant offense requires the government to prove the defendant's specific intent to violate the law, and the proffered evidence shows that the defendant did not have that requisite intent. (Doc. 70.)

         An evidentiary hearing on the Motion in Limine was held on August 9, 2019. The government called Tamara Kurey, a Special Agent with the U.S. Fish and Wildlife Service, and the defense called Mr. McPherron. Their testimony is summarized below.

         Agent Kurey testified as follows on direct examination. Agent Kurey has been a Special Agent with the Fish and Wildlife Service for eleven years. (Transcript of Proceedings, Evidentiary Hearing, held 8/9/19, at 13-14.) She was previously a Special Agent with the FBI for three-and-a-half years. (Id. at 14.) Her duties in her current position are to investigate wildlife crimes, such as trafficking of wildlife, Endangered Species Act violations, Lacey Act violations, and Migatory Bird Treaty Act violations. (Id.) She has also dealt with violations of 18 U.S.C. 545, the charge in the instant case. (Id.)

         Agent Kurey testified to the events of February 17, 2016. On that day, she received a call from Tracey Tilley, a Customs and Border Protection Agriculture Specialist, who advised her that the defendant did not declare certain feathers when entering the United States from Mexico. (Id. at 15, 20-21). Ms. Tilley advised that the defendant gave two negative declarations when asked if he had anything to declare, such as plants, animals, and food. (Id. at 15.) The defendant and his traveling companion were asked to exit the vehicle while agricultural specialists inspected the defendant's vehicle. (Id. at 16.) The defendant was sent to the secondary inspection area while the search was being conducted. (Id. at 18.) At secondary, the defendant was again asked if he had any plants to declare, and he responded that he did not have any fresh plants but “he had some herbs, including moringa and peyote.” (Id. at 19.) The defendant also added that he had ammunition in the vehicle. (Id. at 19-20.)

         During the search of the bed of the defendant's truck, the agricultural specialists found a wooden box containing ceremonial-type items, as well as bird feathers. (Id. at 20-21, 24.) In total, over 220 feathers, some of which were from bald and golden eagles, were found in the bed of the defendant's truck. (Id.) Some of the feathers were in the wooden box, some were in a Federal Express box, and some were in trash bags. (Id. at 24.) Agent Kurey testified that the defendant did not declare any of the feathers, and refused to sign a form indicating that he was willing to abandon any claim to the feathers. (Id. at 22-23.) The defendant told the agricultural specialists that he comes back and forth between Mexico and the United States all the time. (Id. at 26-27.) Agent Kurey testified that people entering the United States are always asked to declare agricultural products. (Id. at 26.)

         Agent Kurey's testimony turned to who can lawfully possess bald and golden eagle feathers. (Id. at 27.) She testified that only members of federally recognized tribes can lawfully possess these types of feathers. (Id.) She explained that the United States has an interest in regulating the possession of these feathers based on the decline of the species in the past and to prevent the decline of those species again. (Id. at 27-28.) She further explained that the United States does provide bald and golden eagle feathers to federally recognized tribal members for their religious ceremonies and practices. (Id. at 27.) Native Americans may give eagle feathers as gifts to other Native Americans and may hand them down within their families. (Id. at 28.) However, a non-Native American is not able to receive bald or golden eagle feathers from a Native American. (Id. at 28-29.) That is because non-Native Americans are not able to possess bald and golden eagle feathers. (Id. at 28.)

         Agent Kurey's testimony then turned to some other items found in the defendant's truck. The defendant was in possession of a card that says that he is a member of the “Native American Church”in Nevada, and also references the Sho-Ban tribe. (Id. at 30; Ex. 4.) Agent Kurey testified that the Sho-Ban Tribe confirmed that the defendant is not a member of that tribe. (Id; Ex. 2.) She also testified that the “Native American Church” is not a federally recognized tribe. (Id. at 32.) T h e Tuscarora Nation also confirmed that the defendant is not a member. (Id. at 31; Ex. 8.)

         Agent Kurey testified that she has worked on other cases where individuals have tried to enter the United States with feathers. (Id.) The non-Native American individuals usually abandon the feathers and there is no further investigation. (Id.) The Native American individuals frequently call before they exit or enter the United States “to find out either what the requirements are or just to notify us that they're traveling for ceremonial reasons and members of their tribe will be bringing feathers in and out of the country, and so we are expecting them ...