United States District Court, D. Arizona
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 ...