Mary C. Geddes

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO. xxxxxxxxxxxxxxxxxx

)

Plaintiff, )

)

vs. )

) DEFENDANT'S SENTENCING

xxxxxxxxxxxxxxxxxxx, ) MEMORANDUM

)

Defendant. )

____________________________________)

EXCLUDABLE DELAY:

A period of excludable delay under 18 U.S.C. § 3161(h) may

occur as the result of the filing/granting/denying of this motion.

COMES NOW THE DEFENDANT, xxxxxxxxxxxxx, by and through counsel Mary C. Geddes, Assistant Federal Defender, and files this sentencing memorandum in advance of his hearing on December 21, 1998, in Kodiak, Alaska. The defendant relies heavily upon information his counsel submitted to the PSR writer, in the form of witness interviews which pertain to sentencing issues. Those interviews have been attached to the back of the PSR, and are hereby respectfully brought to the court's attention.

• INTRODUCTION

Todd xxxxxxxxxxxx, who is twenty-six, has pleaded guilty to one misdemeanor count of Taking a Stellar Sea Lion, in violation of 16 § 1538(a)(1)(B) and 50 CFR § 222.33. Mr. xxxxxxxxxxxx will be sentenced on Monday, December 21, 1998, in Kodiak, during a special session of the United States District Court.

The parties agree that Mr. xxxxxxxxxxxx is in criminal history category I, as he has but one criminal history point. The applicable sentencing guideline is USSG §2Q2.1 (Offenses Involving Fish, Wildlife and Plants). The applicable base offense level is therefore 6 (USSG §2Q2.1(a)). The offense involved the endangered Steller sea lion, which increases the offense level by 4 (USSG §2Q2.1(b)(3)(B)). The parties also agree that the defendant is eligible for an acceptance of responsibility for a downward adjustment of 2 levels ( USSG §3E1.(a)). If sentencing proceeded based only upon these guidelines, the defendant would be at an offense level of 8, and in a sentencing range of 0-6 months in Zone A.To be debated are the applicability of:

• USSG §3B1.2(b)(whether the defendant had a mitigating/minor role in the offense);
• USSG §2Q2.1(b)(1)(A)(whether the offense "was committed for pecuniary gain or otherwise involved a commercial purpose"); and
• Three downward departures proposed by the defendant.

The PSR writer has recommended that this court not apply USSG 3B1.2(b), the minor role reduction. The PSR writer has also recommended that this court apply USSG §2Q2.1(b)(1)(A), the pecuniary gain enhancement. The PSR writer has not taken a position on the defendant's three proposed departures. If the court accepted the writer's recommendations and did not find mitigating circumstances, then Mr. xxxxxxxxxxxx would fall into the sentencing range of 6-12 months in Zone B, requiring confinement or incarceration.II. THE OFFENSE SUMMARIZED

On July 7, 1998, Kenny Petersen killed at least one and possibly three Stellar sea lions who were in the vicinity of his set nets off Kodiak Island. Mr. Petersen shot at sea lions from the front of his boat, while directing his crewmember and employee Todd . Mr.   drove Mr. Petersen's boat while Mr. Petersen shot his gun. Mr. xxxxxxxxxxxx drove the boat in such a manner so as to aid Mr. Petersen's efforts.

Petersen, Petersen's girlfriend and xxxxxxxxxxxx were confronted later in the day by law enforcement officers. When asked whose gun was in the boat, Petersen denied having or owning a gun. Following this denial,  then stated that it was his gun. When Petersen was removed and  was interviewed apart from him, he said that the gun was Petersen's, and he thought that the police had understood that. He also confirmed that Petersen had taken sea lions, and he identified himself as the driver of the boat. Finally, he disclosed that he had witnessed Petersen shooting sea lions approximately two weeks before.

Todd  later participated in yet another voluntary interview with United States Fish and Wildlife, which was taped.

III. ROLE IN THE OFFENSE

The PSR writer has declined to recommend a two-level reduction for the defendant's role in the offense. However, Mr. xxxxxxxxxxxx's position is that his role was "minor." It is the defendant's burden to advocate for such a reduction in the offense level. The factual basis for such a reduction must be established by a preponderance. The determination is heavily dependent on the facts of the particular case. See United States v. Davis, 36 F.2d 1424, 1436 (9^th Cir. 1994).

The Ninth Circuit has held that, with respect to adjustments for minor and minimal participant status, the relevant comparison is that between the defendant's conduct and the conduct of his co- participant in the case at hand, not everyone who has ever committed the crime. See e.g., United States v. Petti, 973 F.2d 1441, 1447 (9th Cir.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1859, 123 L.Ed.2d 480 (1993). See also Commentary, Application Note 3 states:

For purposes of § 3B1.2(b), a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal.The PSR writer has reportedly, elsewhere, characterized Mr. Peterson as a manager/supervisor of Mr. , and advocated for an enhancement based upon that role. However, here, she has not provided a corresponding acknowledgment of Mr. 's relatively diminished role.

The undesigned believes that there is no controversy between the parties as to the relevant facts, so it is merely a matter of the court determining whether such facts establish, by a preponderance, that Mr.  had substantially less culpability than Mr. Peterson.

The uncontroverted facts are:

• The decision to kill sea lions was made by Petersen alone.
• There was no discussion of a plan to kill sea lions between Petersen and xxxxxxxxxxxx.
• Petersen shot at and killed the sea lion(s).
• Peterson carried and used his own gun to commit the offense.
• xxxxxxxxxxxx did drive the boat which aided Petersen in committing the crime.
• Petersen directed xxxxxxxxxxxx how to drive the boat. ,
• The boat belongs to Petersen.
• Petersen is xxxxxxxxxxxx's skipper/employer.
• xxxxxxxxxxxx, as crew, felt obliged to follow the directions of skipper/employer.
• Petersen acted because sea lions were destroying his property (net and fish).
• The personal property (nets, fish) principally belonged to Petersen, not Todd.
• Todd 's financial interest was limited to a crewman's stake, and therefore limited to a fraction of Petersen's profit.

The PSR writer has noted that the reduction for being a "minor participant" is not automatic, even when the actor is undisputably less culpable. See United States v. Andrus, 925 F.2d 335, 338 (9^th Cir.), cert. denied, 112 S.Ct. 249 (1991). As she has noted, the question is whether the defendant is "substantially" less culpable. She has directed the undersigned to the following Ninth Circuit cases. After reviewing the cases, the undersigned is of the opinion that the fact patterns in these cases, when contrasted with the facts here, indicate that the defendant's argument that he had a lesser role is well-taken . In United States v. Benitez, 34 F.3d 1489 (9^th Cir. 1994), the court rejected a minor-role reduction for a co-defendant who carried ammunition and supplied the guns used for an assault, as well as impersonated a police officer and pretended to falsely arrest an undercover agent for purposes of robbing him. In United States v. Hoac, 990 F2d 1099 (9^th Cir. 1992) a co-defendant was denied a reduction in offense level because he participated in two foreign meetings concerning the shipment of drugs, owned the trading company utilized for shipping, and leased the warehouse where the drugs were delivered. In United States v. Peters, 962 F.2d 1410 (9^th Cir. 1992), a husband and wife team who ran a scheme to defraud out of their family house were both denied reductions for their respective roles in the offense. In all of these cases, we see that the defendants' roles involved planning and coordination, and thus the level of their participation in the offense far exceeded that of Todd .

Another case cited, Ajala v. United States Parole Commission, 997 F.2d 651, (9^th Cir. 1993), is inapplicable because, although the defendant may have only been a courier, her account of her role was unsubstantiated and her credibility was otherwise lacking. In contrast, in this case, the determination will turn on uncontested factual information and evidence of Mr. xxxxxxxxxxxx's veracity.

And, finally, the case of United States v. Davis, 36 F.3d 1424 (9^th Cir. 1994) has also been cited but is inapposite as it concerns a minimal-role reduction for a courier; the defendant was denied the four-level reduction because he was carrying drugs (one-half pound of cocaine base) and was prepared to accept $6,400.

IV. COMMERCIAL PURPOSE ENHANCEMENT

The government bears the burden of establishing, by a preponderance, the application of this two-level enhancement.

The pertinent Guideline, U.S.S.G §2Q2.1(b) states:

If the offense (A) was committed for pecuniary gain or otherwise involved a commercial purpose; or (B) involved a pattern of similar violations, increase by 2 levels.

The Application Notes defining the terms used in this Guideline state:

a. [Application Note 1.] "For pecuniary gain" means for receipt of, or in anticipation of receipt of, anything of value, whether monetary or in goods or services. Thus, offenses committed for pecuniary gain include both monetary and barter transactions. Similarly, activities designed to increase gross revenue are considered to be committed for pecuniary gain.

b. [Application Note 2.] The acquisition of fish, wildlife, or plants for display to the public, whether for a fee or donation and whether by an individual or an organization, including a governmental entity, a private non-profit organization, or a private for-profit organization, shall be considered to involve a "commercial purpose."

There are very few appellate cases in which the appellate courts considered the sufficiency of evidence to support the application of this enhancement. It can therefore be assumed that the application of this enhancement is rarely debatable, despite being debated here. Two cases in which its application was upheld were: United States v. Stubbs, 11 F.3d 632, 640 (6th Cir.1993)(adequate evidence that importation of baby crocodiles was for a commercial purpose; there was evidence of attempts to arrange sale of crocodiles to nonprofit institutions and discussion of possible sale price of the crocodiles); and United States v. Asper, 753 F.Supp.1260, 1280 (M.D. Penn. 1990)(unlawful importation of body parts of endangered species into the United States)(commercial purpose was involved, even assuming that defendant's museum for which animals were obtained operated at loss, where museum operated as "calling card" for defendant's other purposes, and defendant amortized and deducted costs of his "hunting expeditions" as business expense on his income tax returns during some accounting periods).

In this case, the offense was not committed for pecuniary gain, but rather to defend and to maintain an existing economic operation. The goal was not to obtain the sea lion itself for sale, either in whole or in part. Compare contrasting cases where goal is to harvest the animal (e.g. polar bear skins or walrus tusks). Nor did this offense involve the commercial hunt of an endangered species where the killing or the taking of the animal was the goal. Thus the linkage between the offense and any commercial purpose is far too attenuated for the application of this enhancement.

V. APPLICABLE DOWNWARD DEPARTURES

A. Introduction

The defendant has the burden of proof, by a preponderance, for establishing a departure. See USSG § 5K2.10 (Grounds for departure).

In Koon, the Supreme Court held that, unless the Sentencing Commission explicitly prohibited it, any factor may be considered as a potential basis for departure. "[A] federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answers to the question is no - as it will be most of the time - the sentencing court must determine whether the factor, as occurring in a particular circumstances, take the care outside the heartland of the applicable Guideline." Koon v. United States, 116 S. Ct. 2035, 2051 (1996). The Ninth Circuit has also held "that a combination of factors [may] together constitute a 'mitigating circumstance.'" United States v. Cook, 938 F.2d 149, 153 (9^th Cir.1991)(remanded).

B. The Applicable Departures

1. Aberrant Conduct

The memoranda documenting the anticipated statements of witnesses support the finding that Todd 's offense conduct constituted aberrant conduct. A downward departure may be proper when defendant's conduct is a "single act of aberrant behavior." USSG Ch. 1, Pt. A.4(d). United States v. Takai, 941 F.2d 738, 743-44 (9^th Cir. 1991) (amending and superseding 930 F.2d 1427). Even if there was more than one sea lion taken, Todd's conduct should nevertheless qualify since the Ninth Circuit has held that multiple incidents occurring over a six-week period aimed by obtaining green cards for immigrant relatives and friends was "a single act of aberrant behavior" that warranted downward departure. Takai, 941 F.2d at 743-44.

Pertinent facts supporting the departure include Todd's lack of prior convictions and, the fact that he tried to discourage his employer from shooting. Leigh Thomet, a witness extremely antagonistic to Peterson, was surprised at Todd's involvement in the offense conduct.

2. Imperfect Necessity Defense (Defense of Property)

Noted criminal law commentators have discussed the circumstances under which the principle of necessity may be applicable in the sentencing context.

The defense of necessity is available only in situations wherein the legislature has not itself, in its criminal statute, made a determination of values. If it has done so, its decision governs. . . . When the necessity defense applies, it justifies the defendant's conduct in violating the literal language of the criminal law and so the defendant is not guilty of the crime in question. Where the defense does not apply, and yet the defendant did act with good motive of preserving some value, his good motive, though not a defense, may be considered in mitigation of punishment for the crime committed.

W. LaFave & A. Scott, Criminal Law, § 50 at 382-83 (1972). The 'good' or positive social value here was the preservation of personal property and livelihood, and the commercial harvesting of fish, a food source for this species.

Recognizing that the society's interest and protection of wildlife must be balanced by the individual interest in protecting personal property, Alaska state Fish and Game regulations allow for the emergency killing of game animals in defense of property -- if the property is of substantial value and necessary for the livelihood of the owner, 5 AAC 92.410. In contrast, federal regulations do not allow lethal action in defense of such personal property ( noise "bombs," herding, making noise, frightening animals, even inflicting non-serious injury, etc., is okay). While the defense of necessity under these circumstances would not be available as an absolute (or "perfect") defense under federal law, facts relating to an "imperfect defense" should nevertheless mitigate the punishment. With respect to other common-law defenses, the Guidelines have recognized "imperfect defenses" as mitigating circumstances. See, e.g., United States v. Pinto, 48 F.3d 384, 388 (9^th Cir. 1995)("standard for a § 5K2.12 duress departure is imperfect duress, that is, duress which is not 'a complete defense'").

Notably, the weight of the provocation leading to an offense is not always addressed by the Guidelines, and may be appropriately addressed through departures. For example, in considering provocation for an offense, even a victim's conduct may warrant a downward departure under § 5K2.10. Koon v. United States, 116 S. Ct. 2035, 2048-50 (1996)(district court properly departed in Rodney King case because offense guideline for police brutality did not account for victim's misconduct - resisting lawful arrest - in provoking offense). Cf. United States v. Yellow Earrings, 891 F.2d 650, 653-55 (8^th Cir. 1989) (affirmed: victim "substantially provoked" assault).

3. Duress (5K2.12)

"If the defendant committed the offense because of ... duress, under circumstances not amounting to a complete defense, the court may [depart downward]." USSG § 5K2.12. See also United States v. Henderson-Durand, 985 F.2d 970, 976 (8^th Cir. 1993)(in dicta: "This ground for departure is broader than the defense of duress, as it does not require immediacy of harm or inability to escape, and allows the district court to consider the subjective mental state and personal characteristics of the defendant").

The finding of duress (taking into account the subjective pressures experienced by the defendant) is premised upon the circumstances unique to this case and acknowledges the stressors of working for a extremely difficult personality as one's employer in a remote rural location. The gill net season had opened on June 9. For the following month, employer and crew stayed together in a small cabin, joined at times by Peterson's girlfriend. Attached are excerpted investigative reports which corroborate Todd 's own account that Peterson' temper was "extreme," that he was "ballistic" about the sea lions, and that he was at times extremely abusive and intimidating. These documents show that Peterson was in fact quick to fly off the handle, and quick to make threats.  took the path of least resistance to Peterson's rages, capitulating to his admonition to "shut up" and to his directions to drive the boat.

Adding to these personal pressures is the longstanding expectation of fishermen to follow the orders of their skippers. "The law of the sea is obedience. Disobedience of a master's reasonable orders constitutes just cause for discharge. 1B Benedict on Admiralty S 65, at 5-17 (7th ed. 1982)." Davis v. Delta S.S. Co., Inc., 704 F.2d 762 (5^th Cir. 1983). As crew, it would go against the grain to counter or refuse Peterson's directions, even if the orders were not "reasonable."

• Summary

These mitigating circumstances, considered aggregately or individually, provide a substantial basis for a downward departure of the sentencing range.

VI. CONCLUSION

Todd xxxxxxxxxxxx is a skilled and hard-working young man who has the ability to learn from his mistakes. His first mistake was returning to work for Kenny Peterson. Todd was so intent on establishing himself financially that he compromised his better judgment to work for a employer who had acted irrationally and mistreated him in the past. Todd's second mistake was in staying with Peterson once it became apparent that Peterson intended to break the law, and in ultimately capitulating to Peterson's direction.

Todd is not a sophisticated person, although he is a good one. His passionate statements to law enforcement officials demonstrate his forthrightness, and his conviction that he should "tell it like it is." The fact that Todd was entirely frustrated with the ineffectiveness of non-lethal measures, the fact that he attempted to defend Peterson's actions, and his opinion that the law does not protect the fisherman should not damn him in this sentencing process.

Todd pleaded guilty because he knew he was wrong. He needs to be better educated about the alternatives available to self-help, and about the means by which the laws are changed. Todd has already been thoroughly re-educated -- through this case -- about the need to strictly comply with the law, no matter how you feel about it. No matter that this case is "only" a misdemeanor, Todd has found that being the subject of a criminal prosecution in a small town is humiliating and humbling, and is adamant on not ever coming back to court.

This court is respectfully requested to find, in light of the above or other departures, that Mr.  should be sentenced at an offense level no higher than 8, and receive a wholly probationary sentence.

Should this court reject all of the defendant's arguments, it should find that Mr.   is eligible for six months of home detention with provisions for work release, which may be scheduled for later in 1999, as Mr.  has a seasonal job commitment beginning in January which he would like to be able to meet.

DATED this ____ day of August, 2000.

Respectfully submitted,

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

________________________________

Mary C. Geddes

Assistant Federal Defender

Certification:

I certify that on the _____ day of August 2, 2000

I hand delivered a copy of this document to:

Crandon Randell,

Assistant United States Attorney, U.S.

Attorney's Office, 222 West Seventh Avenue,

Anchorage, AK 99513.

Helen Harris

Probation Office

222 W. 7^th Ave.

Anchorage, AK 99513

_______________________________________

Karen Hollingshead