Ninth Circuit – Page 71

The Ninth Circuit agreed with the district court’s findings that at the time of first contact with Europeans, the Chugach were a culturally, ethnically and linguistically related people who had made actual and continuous use and occupancy of an area of the Outer Continental Shelf for a long time. The courts also agreed there was no evidence that others used the area, except for the periphery. Based on these showings by the Chugach, did the Ninth Circuit err in concluding that the exclusive use required to establish aboriginal title was defeated by a failure to demonstrate an ability to expel a hypothetical invader, by other groups’ use of the periphery of the Chugach territory, and by the fact that the Chugach villages were politically independent?

Lower court materials here.

Ninth Circuit Affirms Conviction for Selling Eagle Parts

November 27, 2012November 27, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Wahchumwah:

The court’s summary:

The panel affirmed in part and reversed in part a criminal judgment in a case in which a jury convicted the defendant of offenses relating to the sale of eagle parts. The panel held that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. The panel held that Count 2 charging the defendant with offering to sell Golden Eagle tails, in violation of the Bald and Golden Eagle Protection Act, and Count 3 charging the defendant with the subsequent sale of a Golden Eagle tail, in violation of the Lacey Act, are multiplicitous because the offer to sell is a lesser included offense. The panel held that Count 4 charging the defendant with offering to sell a pair of eagle plumes from a collection of plumes and Count 5 charging him with the subsequent sale of a pair of plumes, both premised on a violation of the Bald and Golden Eagle Protection Act, are likewise multiplicitous. The panel rejected the defendant’s objection to the admission of certain photographs of eagles and other bird parts under Fed. R. Evid. 403. The panel held that the district court did not err under the Confrontation Clause by permitting officers to testify to receiving complaints from unnamed tribal members that the defendant was selling eagle parts, when the complaints were offered not to prove that the defendant was selling eagle parts, but merely to explain why federal agents began investigating him.

I found this portion of the opinion a little odd (not the opinion, but what it describes):

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

It just seems odd to use eagle parts for the purpose of entrapment….

Update: A related unpublished opinion in United States v. Jim is here.