Criminal Liabilities Annotations (Agricultural Law and Tax)

Posted April 18, 2023

Defendant Properly Sentenced for Falsely Obtaining Loans. The defendant was sentenced to 12 months and 1 day in prison followed by 3 years of supervised release and $74,600 in restitution for lying when obtaining a virus-related loan meant for small businesses. The defendant also misrepresented that he owned multiple businesses to obtain Paycheck Protection Program (PPP) loans as well as loans under the Economic Injury Disaster Loan program. The court determined the “intended loss,” the monetary harm the defendant purposely sought to inflict, was $116,525.56. The amount was calculated using pre-sentence investigation reports. The defendant claimed that his sentence should be reduced on the basis that the trial court should have limited the loss only to the PPP loans. The defendant claimed there was no evidence he did not intend to repay the non-forgivable loans, and relied on a previous case where a borrower took multiple remedial actions to repay loans that had been obtained with false information by selling his ranch and equipment, starting a new business, and financing his debt. The appellate court determined that the previous case was not like the defendant’s situation. The defendant provided no evidence that he would do anything to repay the loans and had no businesses that would allow him to repay the loans. The appellate court also concluded that the trial court did not error in considering the defendant’s past fraudulent actions of pawning stolen work computers as a reflection of the defendant’s character. The appellate court upheld the trial court’s sentencing determination. United States v. Stout, No. 21-1938, 2022 U.S. App. LEXIS 16627 (8th Cir. Jun. 16, 2022).

Posted February 12, 2022

Complaint for Animal Cruelty Moves Forward. The petitioner infiltrated a dairy farm via an “undercover agent” that was hired by the operation as an employee. The agent took videos of the condition and treatment of the animals on the farm with the petitioner claims constituted animal cruelty – improper restraining of calves; slowly burning animals’ horns; downer cows and excessive electrical prodding of animals. The petitioner prepared a legal memorandum alleging improper and illegal dairy farm procedures which included opinions of a veterinarian, and submitted the information to the state police. The state police interviewed the dairy’s owner and conducted an investigation that lasted more than a year. The state police also reviewed correspondence from the veterinarian and nutrition management consultant for the dairy which indicated no animal cruelty, but poor supervision and training. The state police declined prosecution and noted that the dairy had already taken step to change certain procedures related to the handling of calves on the farm. The petitioner then drafted its own criminal complaints and suppled them to the state police and the local magistrate. The district attorney disapproved of the complaints based on the evidence and applicable law. The trial court agreed with the district attorney’s conclusion and dismissed the complaints. On appeal, the appellate court affirmed in part and reversed in part. The appellate court concluded that the district attorney followed applicable law in finding that the complaints did not provide sufficient evidence of any criminal violations by the dairy. The appellate court specifically noted that the undercover agent’s allegations were in direct conflict with the reports and observations of professionals that had been working with the dairy for many years. But, the appellate court found that the trial court committed multiple errors of law in rendering its decision. The trial court, according to the appellate court, failed to view the evidence in the light most favorable to the petitioner and failed to consider all reasonable inferences based on that evidence which could support a guilty verdict. The trial court also made a point of noting that the dairy had voluntarily changed some of its practices, but that doesn’t affect liability for prior criminal acts, if any. Also, the trial court dismissed the petition in its entirety without while addressing only some of the allegations of animal cruelty. As such, the appellate court concluded that the petitioner had provided sufficient evidence to show a prima facie case of neglect, aggravated cruelty and cruelty such that the statutory defense for “normal” agricultural operations did not apply. The appellate court reversed the trial court’s decision to the extent it affirmed the district attorney’s disapproval of the charges in the private criminal complaints based on allegations that weren’t investigated. On remand, the trial court is to direct the district attorney to accept and transmit for prosecution the private criminal complaints. In re Animal Outlook, No. 374 MDA 2021, 2022 Pa. Super. LEXIS 352 (Sup. Ct. Pa. Feb. 8, 2022).

Posted December 2, 2021

Farmer’s Marijuana and Firearm Conviction Upheld. After receiving a complaint that the defendant was growing cannabis on his property, state police officers investigated the property and found a large crop of cannabis plants, growing equipment, hundreds of pounds of processed cannabis with levels of THC meeting the standard for a controlled substance. The defendant had a past criminal history and unauthorized firearms were also found in his possession. The defendant had also been denied an application for a hemp license the previous year due to his criminal history involving marijuana and drug paraphernalia. While being interviewed by police, the defendant emphasized that the marijuana on the property was for personal use and not for sale, though he admitted to giving marijuana away. He claimed that the firearms were for protecting his farm from nuisance animals and self-protection. Also at this interview, the defendant offered to smoke marijuana with the police officer conducting the interview. The defendant was arrested, charged with possession of a firearm by a user of controlled substances and ultimately sentenced to 46 months imprisonment. The defendant appealed his conviction, claiming that the government failed to prove that he knew he was prohibited from possessing a firearm, and that the government failed to prove that he knew he was possessing and manufacturing marijuana. To sustain a conviction, the government bears the burden to prove that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm. The defendant claimed that because he thought he was using hemp, the government failed to prove that he knew he used a controlled substance. In refuting the defendant’s claim, the government presented ample evidence of the man’s substance use, including prior testimony by the man about his use of marijuana throughout his entire adult life, testimony that he smokes pounds of marijuana a year, findings from the search of his property, testimony that the marijuana found was for personal use, the man’s offer to smoke marijuana with the police officer, and urine and hair samples that tested positive for high levels of THC. The court upheld the defendant’s conviction on the basis that there was overwhelming evidence that the defendant used marijuana with regularity and at the same time as his possession of firearms. United States v. Lundy, No. 20-6323, 2021 U.S. App. LEXIS 33551 (6th Cir. Nov. 9, 2021).

Posted December 30, 2020

Due to Farm Bill, Prison Sentence Improperly Enhanced For Prior Weed Conviction. The defendant was convicted in 2017 under Arizona law for “attempted unlawful transportation of marijuana for sale.” In 2019, the defendant was convicted in federal court of being a felon in possession of ammunition. He was sentenced in 2019 and the trial court increased his offense level for a previous “controlled substance offense” conviction under federal sentencing guidelines. The defendant did not object to the enhanced sentence at the trial court, but challenged the sentence on appeal. He claimed that the trial court erred in applying a recidivist sentencing enhancement based on his prior state conviction because the Arizona statute under which he was convicted included hemp in its definition of marijuana. In 2018, before the defendant was federally convicted, the Congress amended the Controlled Substances Act by virtue of a provision in the 2018 Farm Bill to exclude hemp from the definition of a controlled substance. Thus, the defendant claimed, when he was sentenced, the Arizona statute under which he had been convicted was overbroad and the conviction no longer qualified as a “controlled substance” offense under the federal sentencing guidelines. The appellate court agreed, finding that his conviction was facially overbroad and not a categorical match for a controlled substance offense. Thus, the trial court erred in enhancing his sentence. United States v. Bautista, No. 19-10448, 2020 U.S. App. LEXIS 36786 (9th Cir. Nov. 23, 2020).

Posted November 26, 2020

Lifetime Ban on Owning Firearms For Filing Tax Returns With False Statement. The plaintiff pleaded guilty in 2011 to willfully making a materially false statement on her federal tax returns. She was sentenced to three-years’ probation, including three months of home confinement, a $10,000 fine, and a $100 assessment. She also paid back taxes exceeding $250,000, penalties and interest. Her conviction triggered 18 U.S.C. §922(g)(1), which prohibits those convicted of a crime punishable by more than one year in prison from possessing firearms. The plaintiff’s crime was punishable by up to three years’ imprisonment and a fine of up to $100,000. As originally enacted in 1938, 18 U.S.C. §922(g)(1) denied gun ownership to those convicted of violent crimes (e.g., murder, kidnapping, burglary, etc.). However, the statute was expanded in the 1968. Later, the U.S. Supreme Court recognized gun ownership as an individual constitutional right in 2008. District of Columbia v. Heller, 554 U.S. 570 (2008). In a split decision, the majority reasoned that any felony is a “serious” crime and, as such, results in a blanket exclusion from Second Amendment protections for life. The majority disregarded that the offense was non-violent, was the plaintiff’s first-ever felony offense, and was on offense for which she received no prison sentence. The majority claimed it had to rule this way because of deference to Congressional will that, the majority claimed, created a blanket, categorical rule. The dissent rejected the majority’s categorical rule, pointing out that the plaintiff’s offense was nonviolent, and no evidence of the plaintiff’s dangerousness was presented. The dissent also noted that the majority’s “extreme deference” gave legislatures the power to manipulate the Second Amendment by simply choosing a label. Instead, the dissent reasoned, when the fundamental right to bear arms is involved, narrow tailoring to public safety is required. Because the plaintiff posed no danger to anyone, the dissent’s position was that her Second Amendment rights should not be curtailed. Likewise, because gun ownership is an individual constitutional right, the dissent pointed out that the Congress bears a high burden before extinguishing it. Post-2008, making a categorical declaration is insufficient to satisfy that burden, according to the dissent. It is likely that the case will be headed to the U.S. Supreme Court. Folajtar v. The Attorney General of the United States, No. 19-1687, 2020 U.S. App. LEXIS 37006 (3rd Cir. Nov. 24, 2020).

Posted May 28, 2020

Lack of Asset Accounting Proves Fatal to Attorney Fee Claim. In April of 2017 the defendant was indicted for destroying government property. The indictment was for overgrazing land "maintained" by the Bureau of Indian Affairs ("BIA") between March 25, 2013, and the date of the indictment. The indictment was later dismissed without prejudice by the government. The defendant filed a claim for attorney fees. The Hyde Amendment states that attorney fees are to be awarded pursuant to the Equal Access to Justice Act ("EAJA"). The EAJA allows for attorney fees to be awarded to parties "whose net worth did not exceed $2,000,000 at the time the civil action was filed[.]" The government did not show by preponderance of the evidence that the defendant was worth less than $2 million at the time the action was filed. The defendant’s first affidavit he stated his net worth was not greater than $2 million, but he did not provide the court with a full accounting of his assets. The defendant claimed that he owned 11,374.3 acres of land on that date, at the low valuation of $200 per acre the land value was $2,274,660. The Government valued the land $401 per acre for a total value of $4,561,094.30. The defendant admitted that he owned 3,650 head of cattle of varying ages at that date but refused to give his own valuation. The Government estimated the 1,500 head to be worth $1.575 million. At the low-end property valuation and the partial cattle valuation, the evidence weighed heavily that the defendant was worth more than $2 million. The defendant claimed that he had debts of $572,101 owed to the BIA and the bank. If the debts were subtracted from the defendant’s low land valuation would get him under the $2 million mark. The court was not persuaded by the defendant’s argument. The defendant consistently refused to provide accounting for his assets. Also, the valuations presented only included land and part of the livestock, not equipment, vehicles, buildings and a home. The court denied the defendant’s claim for attorney fees. United States v. Temple, No. CR. 17-500062-JLV, 2020 U.S. Dist. LEXIS 65258 (D. S.D. Apr. 14, 2020).

Posted February 2, 2020

Farmhouse Not a Dwelling – No Conviction for Burglary. The State charged the defendant with burglary of a dwelling and attempted theft of property valued at less than $1,000. A jury found the defendant guilty of both crimes, and the court ordered the defendant to a Community Corrections for 24 months. The underlying sentence was 21 months in prison for burglary and six months in jail for theft, with the sentences to be served concurrently. On appeal, the appellate court reversed. The appellate court noted that K.S.A. §21-5807(a)(1) defines burglary as “without authority, entering into or remaining within any… [d]welling, with intent to commit a felony, theft, or sexually motivated crime therein.” “Dwelling” is defined as a building that is used or intended to be used as a human habitation, home, or residence. The appellate court noted that the residence at issue was a 100- year old farmhouse that was used to store personal items that had been vacant for over two years prior to the alleged crime, and the owner had no intent to again live in it or rent it. Instead, it was used as storage space. Accordingly, the farmhouse did not meet the statutory definition of “dwelling” that was used or intended to be used as a habitation, and the State failed to prove beyond a reasonable doubt that the house was a dwelling. The appellate court reversed the defendant’s conviction for burglary of a dwelling and vacated her sentence. On further review, the state Supreme Court affirmed on the basis that the evidence revealed that the landowner lacked the present intent to use the farmhouse as a dwelling. The Supreme Court also rejected the State’s argument that the defendant should have been resentenced because that issue was not raised below. State v. Downing, No. 116,629, 2017 Kan. App. Unpub. LEXIS, 1092 (Kan. Ct. App. Dec. 15, 2017), aff’d., No. 116,629, 2020 Kan. LEXIS 6 (Kan. Sup. Ct. Jan. 24, 2020).

Posted October 19, 2019

Marijuana Search Proper; No Equal Protection Violation. Police officers were on the defendant’s property for a criminal matter and while there detected the smell of marijuana. The officers left the premises after discussing the criminal matter with the defendant. They later returned with drug enforcement officers, who knocked on the defendant’s door but received no answer. The smell of marijuana was still present. The officers applied for and ultimately received a search warrant. However, while waiting on the judge’s signature, some officers stayed on the property to secure it and encountered the co-defendant who was renting property next to the defendant. When questioned, the co-defendant stated that he had "personal use marijuana" in his residence and allowed the officers to enter his property. The officers applied for a search warrant for this property as well. Both warrants were issued, and officers found hundreds of marijuana plants growing inside the shop building on the defendant’s property and inside the shed on the co-defendant’s property. The defendant and his co-defendant were charged with growing and manufacturing marijuana, with additional charges added later. The Defendant plead guilty to one count of conspiracy to manufacture 1,000 or more marijuana plants pursuant to a conditional agreement and was sentenced to ten years in prison. During the trial, the defendant motioned to suppress evidence based on the officers going beyond the Fourth Amendment standard of “knock and talk.” The court denied the motion on the basis that the officers’ second visit was within the scope of permissible activity and they approached the residence, knocked and waited to be received. The court determined that the fact that the officers did not talk to anyone was immaterial and their intent when returning to the residence was immaterial. The defendant also moved to dismiss the indictment on the basis that marijuana is legal in some states under local law and, thus, he was not provided equal protection under the law. The trial court disagreed, and the appellate court affirmed. The defendant had not shown that he was the subject of selective prosecution and there was no evidence of constitutionally impermissible motive for prosecution. United States v. White, 928 F.3d 734 (8th Cir. 2019).

Posted April 14, 2019

Grazing Scam Results in Fraud Convictions. The defendant and his ex-wife (Amanda Holy Bull) set up a company to provide custom grazing in 2004. The ex-wife obtained grazing leases on tribal land from the Bureau of Indian Affairs ("BIA"). The defendant worked with ranchers to set up custom grazing contracts. In 2011, the BIA issued letters to the defendants for non-compliance with leasing procedures. In 2012, the defendants had leased enough pasture to sustain 57.92 cow-calf pairs but contracted to graze with three cattle producers for the lease of 100 cow-calf pairs and 200 heifers. That summer, 70 pairs were grazed for the full term of the grazing contract, and 33 pairs belonging to another rancher were grazed for a day. A third rancher was forced to find other pasture for his heifers. In 2013, the defendants had leased pasture for 91.26 pairs and had contracted with six different producers to graze a total of 380 pairs. A total of $126,500 was paid upfront by the producers. Not a single pair was grazed that summer and no rancher was reimbursed. In 2014, the defendants had leased pasture for 6.67 pairs and again over-contracted with three ranchers for 300 pairs, who paid $102,500 up front. No pairs gazed during the summer of 2014 and the ranchers were not reimbursed. The defendants were charged with three counts of wire fraud, four counts of mail fraud, and one count of conspiracy to commit mail and wire fraud for their fraudulent contracting/leasing practices. The ex-wife plead guilty to the conspiracy count and testified against the defendant at trial. The defendant was convicted by a jury for all eight counts. Sentencing included 46 months imprisonment and 3 years of supervised release on each count, restitution in the amount of $236,000, and a $100 special assessment on each count. The defendant appealed on the basis that the evidence was insufficient to prove he had the requisite intent to defraud, and that the two mailings were not in furtherance of any fraud. The appellate court affirmed the defendant’s conviction of conspiracy to commit mail and wire fraud, but vacated the conviction and special assessments on the other five substantive counts. The appellate court determined that sufficient evidence supported the jury verdict that the defendant had conspired to commit fraud by contracting with twelve different cattle producers to graze cattle. The defendants only filled one of these contracts and failed to refund the other eleven during the 2012-2014 grazing seasons. The appellate court also found sufficient evidence to support the jury’s verdict of use of mail and wire to defraud. One of the ranchers had mailed the defendant a $35,000 check, as full payment for the grazing contract and the defendant had cashed the check using a wire transmission a week later. There was a pasture visit where the defendant assured the rancher’s son that the pasture could support 200 pairs. Another contract was signed by the rancher’s son, and another $35,000 check was written to the defendant. This second contract brought the total contracted to graze with the defendant to 200 pairs for $70,000. It later became evident that the defendant only had 40 acers leased, enough to sustain 6.67 pairs. When it came time for delivery, the defendant did not return any calls. The ranch did not graze any cattle that season nor issued refunds for their payments. The appellate court determined that the evidence was sufficient for the jury to conclude that the defendant knowingly only had enough pasture to graze 6 pairs but nonetheless contracted to graze 200 pairs with this rancher. However, the appellate court vacated the convictions and special assessments tied to specific instance of fraud against different ranchers. The dry conditions that limited the length of the grazing season likely lead to a breach of contract for early termination, rather than an intent to defraud. Other mailings by the defendants containing offers to graze cattle were not in furtherance of fraud, and the convictions and special assessments related to these mailings were vacated. United States v. Hagen, No. 17-3279, 2019 U.S. App. LEXIS 6109 (8th Cir. Feb. 28, 2019).

Posted January 1, 2019

Report of Animal Abuse May Support Warrantless Search. Police officers received a report of animal abuse from a caller that stated hearing a dog yelping and being beaten. Two officers followed up this report. Outside the defendant’s home, the Officers heard yelling of "sit, get down, [or]lay down", a dog yelping, and what sounded like “striking of flesh” from the back yard. The officers confronted the defendant and told him of the report of animal abuse. The defendant then stated "Yeah, my dog bit me, and I hit him a couple of times." The defendant then stated to the officers, "I can show you the mess he made in the house. I tried to discipline him, and he bit me. So I hit him." The officers asked to search the home, the defendant refused, but told the officers to look at the mess the dog made from the front door. The officers then strongly suggested (which they knew was not probable) that they could instead obtain warrant. The defendant then allowed the officers in. Once in the back yard, the officers found the dog tied up in the corner, no longer alive. The officers arrested the defendant, then re-entered the home taking pictures of the crime scene and recovered the body of the dog. The defendant was charged with cruelty to animals. At trial, the defendant moved to suppress all of the evidence, arguing it was obtained illegally since there was no exigent circumstances allowing a warrantless entry into his home. The trial court granted in part and denied in part the defendant’s motion. The trial court allowed the evidence obtained during the initial search, but not that obtained after a re-entry of the premises. On appeal, the defendant claimed that the court erred in not suppressing all the evidence, as it was obtained via a warrantless search. On the other hand, the State claimed that the trial court erred in suppressing evidence after the arrest of the defendant, during the re-entry of the home. The appellate court determined that the officers had sufficient grounds to investigate the well-being of animals, and that state law provided that “exigent circumstances” for a warrantless entry included medical emergencies of animals as well as humans. But, the exigency ended when the officers found the dead animal and a warrant was required from that point on. Thus, any evidence obtained after re-entry, the appellate court held, required a search warrant. Accordingly, the appellate court reversed and remanded for a hearing to determine the evidence initially seen by the officers, but obtained after the initial entry of the premises. State v. Archer, No. 5D17-2423, 2018 Fla. App. LEXIS 18070 (Fla. Ct. App. Dec. 14, 2018).

Posted December 24, 2018

Misdemeanor Offense For Wrongful Castration. The parties owned adjoining tracts that were not fenced. Consequently, pursuant to an oral agreement, each party’s livestock would graze on the other party’s property. A dispute arose when the plaintiff’s stud horse was supposedly running the defendant’s livestock off from water and feed. The defendant claimed that the plaintiff was not fulfilling his obligation to sell any foals that were byproducts of his stud and the defendants mares. Sometime later, the defendant was turning out bulls when one of the plaintiff’s studs came chasing after the defendant and the horse he was on. The defendant became irritated, corralled the studs, and castrated all of them. The defendant castrated five horses, three of his and two of his neighbors. The plaintiff then went to the sheriff and the defendant was charged with wanton destruction of livestock. The State then filed the case as a second-degree felony, based on its estimate of the value of defendant’s castrated horses. At trial the jury found the defendant guilty and valued the geldings between $500 and $1,500 which reduced the charge to a misdemeanor. On appeal, the defendant asserted that the brand inspector was not required to prove ownership, and that the wanton destruction of livestock statute was unconstitutionally vague. The defendant also claimed that the trial court erred when determining the ownership of the horse through other means than a brand inspection. The defendant also claimed that the trial court erred by not instructing the jury as to various defenses including self-defense. The defendant also claimed that there was insufficient evidence for the jury to determine the value of the stallions. The appellate court affirmed. The appellate court determined that that statute for the wanton destruction of livestock was not vague or ambiguous. The appellate court concluded that the defendant should have clearly known that the unauthorized castration of the plaintiff’s horse was a criminal act and that allowing for other means of identification did not lead to “arbitrary or discriminatory enforcement.” Indeed, the defendant stated that he knew the horses were owned by the defendant. As to whether the trial court jury should have been instructed on various defenses, the appellate court determined that such an instruction would not have been applicable to the charges at issue. The imminent threat of the charging stallion had passed at the time of the castration. As to the calculation of damages, the appellate court determined that the jury award was within the acceptable range of damages to the horses. State v. Hunt, No. 20160963-CA, 2018 Utah App. LEXIS 238 (Utah Ct. App. Nov. 29, 2018).

Posted November 3, 2018

Police Officers Must Have Justification For Shooting Dogs Even If The Dogs Are Unlicensed. The plaintiff was occupying an abandoned house in Detroit with three dogs. The neighbors reported the plaintiffs for dealing drugs. A defendant police officer conducted a control buy from the plaintiff. After this was completed the defendants were granted a search warrant. Before the drug bust, in the briefing it was stated that there was “one small dog” in the home. However, the police heard multiple dogs before entering the home, but knocked the door down nevertheless out of concern that the plaintiff would destroy evidence. One of the plaintiffs claimed that she saw the police officers and called out that she was putting the dogs away. The plaintiff put two of the dogs in the basement and pulled an oven in front of the basement door to block it. The other dog was secured in a bathroom. One of the dogs in the basement was able to open the door and make his way in to the living room to where the plaintiff and defendant police officers were. Officer Morrison then shot the dog. Later while clearing the house, Officer Morrison and Gains opened the bathroom door to find a “’vicious’ dog that was ‘growling and exhibiting a posture or other indicators that a[n] imminent attack is probably going to occur.’” The Officers shot the dog. While clearing the basement, two Officers encountered the third dog and also shot and killed it. The Officers found 25.8 grams of marijuana in the residence. The plaintiff was arrested and charged with a misdemeanor violation of Detroit's marijuana law, which was dismissed when the Officers failed to appear in court to testify. Internal investigations into the incident concluded the shootings were justified. The plaintiffs sued the city and police department for illegal seizure of the dogs in violation of the Fourth Amendment. The trial court granted the summary judgment for the defendants, stating that the plaintiffs did not have a legitimate possessory interest in the dogs because they were unlicensed and that the defendants had qualified immunity as the plan was reasonable because the information given was only for a single, little dog. On appeal, the appellate court reversed and remanded. The appellate court determined that the only issue was if “Morrison and Gaines's seizures were nevertheless reasonable because Plaintiffs' dogs were "contraband" and therefore unprotected by the Fourth Amendment.” The dogs could be viewed as contraband due to being unlicensed. The appellate court noted that, under Michigan law, dogs are property. But to determine if the dogs are contraband the appellate court had to determine if the dogs are “…strictly unlawful to possess or produce...”. The state and city laws outlined licensing requirements for dogs. The appellate court determined that even if the officers knew that the dogs were contraband (because of the state licensing laws), they would not be authorized for shooting them on the basis of being contraband. Thus, the appellate court reversed the trial court’s decision in favor of Officer Morrison and Gaines, and remanded the case to determine if there was a justifiable taking because of the potential for future harm. Smith v. City of Detroit, No. 17-1907, 2018 U.S. App. LEXIS 28890 (6th Cir. Oct. 15, 2018).

Posted September 1, 2018

Posting of "No Trespassing" Signs Bars Warrantless Search.  A fish and game warden entered the defendant’s property via an adjoining property. The warden found a blind with a salt block and apples nearby. The precarious path through tough timber was used by the warden to avoid detection. The defendant was charged with baiting and taking big game by illegal means. At trial, the defendant and many others testified that there are “no trespassing” and “keep out” signs all around the property and on the gate to the public road. The warden stated that he did not see any of these signs. The court reasoned that the warden’s access to the property was abnormal and did not diminish the defendant’s intent to exclude. The trial court granted the defendant’s motion to suppress evidence obtained by the warden during the warrantless search. On appeal, the state Supreme Court affirmed. The state claimed that the defendant did not properly exclude the public and, therefore, did not have an expectation of privacy relating to the regulation of hunting. However, the Supreme Court held that when a landowner objectively demonstrates an intent to maintain privacy of open fields, a search warrant is required. Game wardens must obtain a search warrant, the court determined, whenever a warden seeks to enter property and gather evidence. The defendant’s posting of “no trespassing” signs created an expectation of privacy. Accordingly, the evidenced obtained in the warrantless search was properly suppressed. State v. Dupuis, 2018 VT 86 (Vt. Sup. Ct. 2018).

Posted August 5, 2018

Florida “Ag Gag” Statute At Issue. The defendant was charged with aggravated animal cruelty in violation of Florida Code §§828.12(2) and 777.011. The charges arose after the defendant was filmed while in the process of slaughtering pigs to be sold for meat by members of the animal rights organization Animal Recover Mission (ARM). The defendant and his co-defendants allegedly shot the pigs, and if the pigs did not immediately die, they drowned them in cauldrons. The defendant filed a motion to suppress the videos on the basis that they were obtained in violation of the prohibition against surreptitious recordings contained in Florida Code §934.06. The defendant argued that the events occurred on a private farm where he had a reasonable expectation of privacy. The ARM members, he asserted, lied about their true identities and purpose in order to enter the private property, and did not disclose that they were carrying recording devices. In response to the motion to suppress, the State argued that the pigs were sold and slaughtered on property that was open to the public. According to the State the property was “public” because a sign posted at the entrance of the property read "Animals for Sale," and the public was permitted to walk onto the property to purchase a slaughtered pig. The prosecutor proffered that the video recordings showed the defendants talking to other individuals who were on the property to purchase pigs. At the hearing on the defendant’s motion to supress, no testimony was taken and no evidence was admitted into the record. The trial court heard only arguments from the lawyers for the parties. Nevertheless, the trial court granted the motion to suppress. The State appealed. The appellate court determined that in order to prevail on his motion to suppress, the defendant must not only have had a subjective expectation of privacy, but also his expectation under the circumstances must have been one that society would accept as reasonable. In addition, the court determined that the expectation was not reasonable where the intercepted communication was made in an open, public area rather than an enclosed, private, or secluded area. The appellate court held that the trial court’s grounds for granting the motion to suppress would be acceptable if those grounds were supported by the record. However, the trial court’s key factual findings were not supported by competent substantial evidence simply because no evidence was taken. As such, the appellate court reversed the trial court’s decision and remanded the case for an evidentiary hearing. State v. Garcia, No. 3D16-1807, 2018 Fla. App. LEXIS 10302 (Fla. Ct. App. Jul. 25, 2018).

Posted July 21, 2018

Ag Practice Exception of MBTA Doesn’t Apply to Baiting of Protected Birds. The defendant was charged with illegally baiting and conspiracy to bait ducks, under the Migratory Bird Treaty Act (MBTA). Federal Fish and Wildlife Service (FWS) agents patrol the area near the defendant’s farm by plane, and spotted by aerial view large piles of corn near hunting blinds and irregular harvesting in one field on the farm. Along with an Idaho Department of Fish and Game Agent the FWS “snuck” on to the farm that night. The agents observed six piles of corn and a strip combined field (partly cut field, leaving strips of standing corn) as well as a lot of corn wasted on the ground around the strip. The agents left trail/game cameras hidden on the property. Two years after the initial investigation, the defendant was charged. At trial, the defendant argued that the “agricultural practice” exception of the MBTA applied. That exception states that taking birds over specified areas, including “standing crops or flooded crops,” is not baiting. The trial court jury was instructed that the government had the duty to prove that the exception did not apply in the case at hand as well as proving the defendant’s guilt. The plaintiff presented witnesses that testified that strip cropping and other farming activities by the defendant were not recommended farming practices. The jury was persuaded that the exception did not apply and, the defendant was convicted of baiting under the MBTA. On appeal the defendant claimed that the court misinterpreted the exception. The plaintiff, however, claimed that the exception only applied to “taking” and not baiting. The appellate court agreed and upheld the defendant’s conviction. United States v. Obendorf, No. 16-30188, 2018 U.S. App. LEXIS 18561 (9th Cir. Jul. 9, 2018).

Posted July 4, 2018

Animal Cruelty Charge Holds Up On Appeal. The defendant in this case and his estranged wife were involved in divorce proceedings and during that time various horses belonging to them having been ordered into the defendant’s custody lost weight, reportedly due to inadequate nutrition. Ultimately, the defendant was convicted of cruelty to livestock animals and sentenced to 180 days in jail (which was changed to 24 months on the condition that the defendant serve 30 days in jail). The defendant appealed on the basis that there the state failed to prove that he had the criminal intent (mens rea) to harm the animals. The defendant’s estranged wife as well as two other investigators and animal control officers all testified that the horses were in very bad condition with ribs showing and cracked and had split hooves due to malnutrition. The investigator testified that the horses were kept in an enclosure that had “virtually no grass,” and that grass that was present was too short for them to eat. All the bushes and shrubs had been picked clean. The water troughs within that enclosure were empty and had only leaves and debris in them or had been overturned. A stock tank or pond had water, but it was filled with debris and was stagnant. In addition, there was no evidence of hay found in the horses’ enclosure. The state’s expert witness was a veterinarian with 11 years’ experience. She explained that there is a body scoring scale from one (extremely emaciated) to nine or ten (being extremely obese). In addition, she explained that the acceptable range for a horse is four to six. A horse that is scored under four is in a condition that needs to be addressed. A horse scored at three on this scale is considered thin, while a score of two would indicated that a horse is badly emaciated but standing, while a one indicates extreme emaciation, not able to stand, and not considered savable. She testified that when she saw them the majority of the horses were scored at a three. She also testified that she was surprised with the relatively low parasite presence in most of them and concluded that the most likely reason for the horses’ thinness was that they were not being fed properly. The appellate court determined that evidence could lead a rational jury to find beyond a reasonable doubt that the defendant was intentional or knowing in not providing one or more of the horses in his care enough nutrition. The defendant also claimed that by inserting “by neglect” in the information and the jury charge, the State and the trial court, improperly instructed the jury and improperly lowered the mens rea requirement from intentionally or knowingly to a lower level of mens rea. However, the appellate court determined that the phrase “by neglect” charges the defendant with cruelty to animals by the manner and means of failure to act or of behavior that was not attentive to the needs of the horses, not with negligently doing so, especially given that the mens rea was specified in both the information and in the jury charge as intentional or knowing. Thus, the appellate court held that because the use of the phrase “by neglect” set out the manner and means of committing the offense and because the information and the jury charge clearly set out the required mens rea of intentional or knowing behavior by the defendant, the use of the phrase did not improperly reduce the State’s burden to prove the defendant’s willful or knowing mens rea. Cadwell v. State, No. 06-17-00227-CR 2018 Tex. App. LEXIS 4545 (Tex. Ct. App. Jun. 21, 2018).

Posted February 8, 2018

Protective Order Against Stalking Neighbor Is Valid. The plaintiff, an 83-year old male, lived on a five-acre tract next to the defendant’s property. On many occasions beginning in 2011 and continuing until 2017, the defendant would yell profanities across the property line, and stare and scream at the plaintiff as he gardened. The defendant also followed the plaintiff as he tended to his livestock, and would also make a fist that he would punch into the palm of his other hand. The defendant also sent text messages in which he called the plaintiff names and used profanity. In 2006, the defendant told the plaintiff’s grandson in the plaintiff’s presence that he wished the plaintiff was dead so that he could urinate on his grave. In addition, a friend of the plaintiff testified that he witnessed the defendant several times stomping and shouting along the fence line in an attempt to provoke the plaintiff and his daughter, calling them “white trash.” The defendant also recognized the plaintiff’s vehicle and pursued him when he encountered him away from his property, following him around through town. The plaintiff petitioned for an order of protection against the defendant and requested a hearing. The trial court issued an ex parte protective order on the same day. On June 21, 2017, the trial court conducted an evidentiary hearing, finding that the defendant was a credible threat to the safety of the plaintiff or a member of the plaintiff’s household and that the plaintiff had shown by a preponderance of the evidence, that stalking had occurred sufficient to justify the issuance of the protective order. The defendant filed a motion to correct error, which the trial court denied the same day. The defendant appealed. Specifically, the defendant argued that the plaintiff presented insufficient evidence to sustain the trial court’s order of protection. The appellate court held that the record supported a finding of stalking because the plaintiff presented evidence demonstrating an intentional course of conduct involving repeated or continuing harassment. In addition, the court found that the defendant’s actions of pursing the plaintiff when he encountered him away from his property constituted conduct that was “impermissible conduct” that supporting a finding of staking. In addition, the court held that the plaintiff’s statement that he was afraid of the defendant “not face to face, but my back to him, yes, I’m afraid of the defendant,” was sufficient to support a finding that the plaintiff was actually frightened by the defendant’s actions. Finally, the court concluded that taken as a whole, a reasonable person subjected to the defendant’s behavior toward the plaintiff would feel terrorized, frightened, intimidated and/or threatened. Consequently, the trial court’s judgment was affirmed. J.D. v. E.B., No. 55A01-1708-PO-1975 2018 Ind. App. Unpub. LEXIS 12 (Ind. App. Jan. 10, 2018).

Posted January 9, 2018

Pig Pen Not Protected By Fourth Amendment as Curtilage of Home. The defendant was charged with seven counts of cruelty to animals. A humane agent for the local Humane Society testified that she was constantly getting complaints, both from the public, next door neighbors, news and also from the County Sherriff’s Office regarding the defendant’s horse not being fed and a pig being stuck. The agent testified that she responded to the area based upon only seeing two of the three horses she knew were normally on the property. The agent also testified that she heard the pigs squealing and followed the sound of animal distress, a sound which she recognized through her experiences as a humane agent. She stated that she first observed the pigs on January 3, 2017. At this time, they were standing in “liquid mud” and she smelled “fecal and urine ammonia” coming from the pen. Fecal and urine ammonia is toxic to pigs. She further stated that pigs were at risk of hypothermia due to the cold weather. The agent spoke with the defendants concerning the condition of the pig pen and the fact that it needed to be remedied along with the pigs’ food and water. The humane agent stated that she and the defendants agreed on a timetable for these items to be remedied. The defendants stated that they would work on it through the week remedy the situation in a timely manner, and that the pigs would be provided food and water. The humane agent testified that when she returned to the property the next day, the pigs were in the same condition and the weather was getting colder. Finally, on her third trip to the property, the humane agent stated the pigs lacked food and fresh water, and that they were “actively freezing to death.” The outside temperature had fallen to six degrees, according to the humane agent. The humane agent arranged for the removal of the pigs from the property on January 7, 2017 at around 12:30am. The defendant filed a motion to suppress the evidence obtained by the humane agent as the result of an illegal search of the curtilage surrounding their home. As such, the Fourth Amendment required that a search warrant first be obtained. The trial court sustained the defendants motion to suppress and the state appealed. On appeal, the appellate court reversed. The appellate court noted that while curtilage is considered to be part of a defendant’s home and, as such, is entitled to Fourth Amendment protection, the agent’s testimony revealed that the home on the property was uninhabitable due to a collapsed roof and no windows. In addition, the evidence showed that the pig pen was 100 yards from the vacant home, and the pig pen was not in an enclosure surrounding the vacant home. There also was no evidence that steps had been taken to protect the area from observation from the adjacent lane, such as the erection of a privacy fence, locked gates or “No Trespassing” signs. Thus, the court concluded that the pig pen was not within the defendant’s residence or its curtilage, and that the defendant’s observation of the pigs was not a “search” for purposes of the Fourth Amendment. Accordingly, the trial court’s judgment was reversed and the matter remanded for further proceedings. State v. Powell, No. 27580, 2017 Ohio App. LEXIS 5096 (Ohio Ct. App. Nov. 22, 2017).

Posted December 30, 2017

Conviction Upheld for Clean Water Act Violations. The defendant, a disabled Vietnam Navy veteran, was charged with multiple counts of criminal violations of the Clean Water Act (CWA) by virtue of the unauthorized knowing discharge of “pollutants” into the “waters of the United States” (WOTUS) (in violation of 33 U.S.C. §1251-1388) and depradation of U.S. property (18 U.S.C. §1361). The defendant, represented by a federal public defender, was indicted for building illegal ponds (nine in total) in an existing stream on two parcels - one federal and one private (which the defendant did not own). The defendant did the work due to multiple fires in the area in recent years and to create stock water ponds for his animals. The government claimed that the ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and damaged both properties, even though there was no tributary from the ponds. At the time the ponds were discovered, the defendant was on probation for misdemeanor violations of U.S. Forest Service regulations. The defendant admitted to constructing the ponds by using an excavator on the federal property. The excavation work comprised about 1.2 acres and extended onto the adjacent private property. Dredged material from the ponds had been used to create the berms and had been placed in and around the streams and wetlands. The defendant continued constructing the ponds after federal officials told him to cease. The trial court judge had been the focus of a complaint filed by the defendant years earlier. The trial court determined that the stream at issue was a WOTUS on the basis that the stream headwater and wetland complex provided critical support to trout in downstream rivers and fisheries, including the Boulder and Jefferson Rivers (60 miles away) – navigable waters of the U.S. The trial court jury, after a second trial and the introduction by the government of evidence that it allegedly manufactured, found the defendant, age 77, guilty of two counts of illegal discharge of pollutants into WOTUS without a federal permit and one count of injury or depredation of U.S. property. On appeal, the appellate court affirmed. The appellate court held that U.S. Supreme Court Justice Kennedy’s opinion in Rapanos v. United States, 547 U.S. 715 (2006) was controlling and that the trial court jury instructions based on Justice Kennedy’s opinion in Rapanos was proper. Accordingly, the “significant nexus” test of Justice Kennedy was satisfied based on the evidence. The appellate court also held that the definition of WOTUS was not too vague to be enforced. Thus, there was no due process violation. The defendant had fair warning that his conduct was criminal based on the holding of Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) where the court held that Justice Kennedy’s concurrence in Rapanos was the controlling test for determining CWA jurisdiction. That opinion was issued several years before the defendant engaged in his excavation activities. Subsequent Ninth Circuit caselaw had not changed that as not being clearly irreconcilable. In any event, the case the defendant claimed changed the test for CWA jurisdiction in the Ninth Circuit was decided after the defendant’s dredging and pond construction activities. In addition, the appellate court determined that there was no double jeopardy violation when the trial court did not grant his motion to acquit after the jury deadlocked at his first trial. The appellate court also held that the trial court property allowed into evidence the “U.S. Army Corps of Engineers Jurisdictional Determination Form Instruction Guidebook” because the Corps used it to make jurisdictional determinations and it discusses the applicable regulations and law. United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017).

Posted December 17, 2017

Farmhouse Not a Dwelling – No Conviction for Burglary. The State charged the defendant with burglary of a dwelling and attempted theft of property valued at less than $1,000. A jury found the defendant guilty of both crimes, and the court ordered the defendant to a Community Corrections for 24 months. The underlying sentence was 21 months in prison for burglary and six months in jail for theft, with the sentences to be served concurrently. On appeal, the appellate court reversed. The appellate court noted that K.S.A. §21-5807(a)(1) defines burglary as “without authority, entering into or remaining within any… [d]welling, with intent to commit a felony, theft, or sexually motivated crime therein.” “Dwelling” is defined as a building that is used or intended to be used as a human habitation, home, or residence. The appellate court noted that the residence at issue was a farmhouse that was used to store personal items that had been vacant for over two years prior to the alleged crime, and the owner had no intent to again live in it or rent it. Instead, it was used as storage space. Accordingly, the farmhouse did not meet the statutory definition of “dwelling” that was used or intended to be used as a habitation, and the State failed to prove beyond a reasonable doubt that the house was a dwelling. The appellate court reversed the defendant’s conviction for burglary of a dwelling and vacated her sentence. State v. Downing, No. 116,629, 2017 Kan. App. Unpub. LEXIS, 1092 (Kan. Ct. App. Dec. 15, 2017).

Posted November 13, 2017

No Need To Inform Farm About Criminal Investigation Concerning Crop Insurance Fraud. The defendant, is a federal crop insurer and the plaintiff is a farming operation that raised potatoes and onions. The plaintiff claimed that it purchased a federal crop insurance policy from the defendant and tendered an insurance claim to the defendant in 2004. The defendant denied the claim and the plaintiff demanded arbitration. The arbitrator found for the plaintiff, requiring the defendant to pay $1,454,450 plus interest on the claim. The defendant appealed the arbitrator’s award, but the trial court affirmed the award for the plaintiff. While the claim was in dispute the USDA was, unbeknownst to the plaintiff, conducting a criminal investigation of the plaintiff for an alleged scheme to profit from the filing of false federal crop insurance claims. Ultimately, the plaintiff and its principal were indicted based on their acceptance of the arbitrator's award which the government claimed constituted a criminal act. At the subsequent trial, the court dismissed all of the counts with prejudice. The plaintiff had also sued the defendant for breach of contract, negligent misrepresentation, and violation of the Washington Consumer Protection Act (WCPA). The plaintiff claimed that the defendant had acted as the USDA’s agent and, as a result, the arbitrator's award was simply a ruse to entrap the plaintiff. The plaintiff claimed that if it had known about the criminal investigation that it could have required the USDA’s direct involvement in the process and would then have the opportunity to be assured that no criminal charges were pending.  Altertnatively, the plaintiff alleged that it could have proceeded to court and get an order that the plaintiff had a right to recover on its claims. The trial court granted summary judgment for the defendant holding that a private insurance company has no authority to bind the federal government from pursuing a criminal prosecution, absent involvement from a party with the requisite authority. The trial court ruled that it was unreasonable as a matter of law for a settlement agreement between private parties which clearly defines the subject matter of the agreement, to preclude criminal prosecution by the government. The plaintiff appealed. The Mutual Release in the parties’ contract provided that the defendant, “for itself and for its insurance companies, and related companies” releases the plaintiff from liability for claims arising out of the plaintiff’s claim for indemnity under the 2003 crop insurance policies issued by the defendant. The plaintiff argued that “its insurance companies” included the Federal Crop Insurance Company and, therefore, the federal government. However, the appellate court held that the phrase could not reasonably be interpreted to bind the federal government and prevent the Department of Justice from pursing a criminal prosecution against the plaintiff for events related to the 2003 policies. Furthermore, the limited scope of the release could not be reasonably read to encompass the criminal charges filed against the plaintiff, which dealt with inflating crop baseline prices to increase eventual payouts on numerous insurance policies. Thus, the appellate court affirmed the trial court’s grant of summary judgment on the breach of contract claim. The plaintiff also alleged misrepresentation of a material fact. The appellate court determined, however, that the plaintiff failed to demonstrate a genuine factual dispute as to whether the defendant knew that the plaintiff was under a criminal investigation. The plaintiff’s evidence in support of that proposition stemmed from a 2004 insurance policy, rather than the 2003 insurance policy at issue in this case. Consequently, the appellate court agreed with the trial court that, as a matter of law, the plaintiff could not have reasonably relied on the purported misrepresentation. Therefore, the trial court’s grant of summary judgment on the plaintiff’s misrepresentation claim was granted. Finally, the plaintiff’s WCPA claim failed because there was no misrepresentation, deception or unfairness. The terms of the contract were not deceptive and the plaintiff did not make a showing that there was a genuine dispute over whether the defendant knew about the criminal investigation. POCO, L.L.C. v. Farmers Crop Ins. All., Inc., No. 16-35310, 2017 U.S. App. LEXIS 20853 (9th Cir. Oct. 23, 2017).

Posted June 26, 2017

New Trial Ordered in Case Involving Conduct of Game Wardens. The defendant was walking the fence line of his land looking for trespassers on the last day of deer season when he was approached by two wardens with the Wisconsin Department of Natural Resources. It was near dark and the wardens who had gotten out of their truck and were walking on the farmer’s land, did not identify themselves. The defendant thought that the two men were trespassers hunting illegally. The wardens forcibly wrested his rifle from him and drew their handguns on him, causing the defendant to fear for his life. The defendant pointed his handgun at the two men believing he had to defend himself. At trial, the court determined that the defendant’s testimony was unreliable and refused to submit to the jury instructions on the defense of self-defense. The jury convicted the defendant of resisting a law enforcement officer and intentionally pointing a firearm at an officer. On appeal, the appellate court rejected the defendant’s argument that he was denied a constitutional right to present the defense of self-defense. The state (WI) Supreme Court reversed, holding that a reasonable jury could have determined that the defendant reasonably believed that the two men were not wardens and that he pointed his handgun at them believing he had to defend himself. The Court also noted that credibility is a question to be resolved by a jury rather than a court. Thus, the trial court should have instructed the jury on self-defense. The Court further held that the trial court’s error in refusing to give the jury instructions on self-defense affected the defendant’s substantial rights and was not a harmless error. The case was remanded for a new trial. State v. Stietz, No. 2014AP2701-CR, 2017 Wisc. LEXIS 303 (Wisc. Sup. Ct. Jun. 13, 2017).

Posted June 24, 2017

County Responsible for Fatal Dog Attack. The plaintiffs, the family members of a decedent who was killed by pit bull dogs, sued the defendant for failure to controls the dogs. The court determined that the defendant had a mandatory duty to take the dogs into custody pursuant to LACC § 10.12.090. The court also determined that there were strong public policy purposes inherent in the control of stray dogs and a part of that policy is to protect the public from dogs that are insufficiently controlled by an owner. Thus, LACC § 10.12.090 was designed to protect against the particular kind of injury the decedent suffered. Since there was no debate that the plaintiffs adequately asserted causation, the court found that the defendants were liable for the decedent’s death. The defendant claimed that the complaint was not timely filed, but the court determined that the plaintiffs did not know of the defendant’s wrongdoing until later alerted by a whistleblower. That was sufficient to postpone accrual of the causes of action under the delayed discovery doctrine. Consequently, the plaintiffs’ complaints were timely filed and the defendant was liable for breaching its duty to take the dogs into custody. Devitt v. L.A. County Dep’t of Animal Care & Control, No. B270577, 2017 Cal. App. Unpub. LEXIS 4063 (Cal. Ct. App. Jun. 14, 2017).

Posted June 9, 2017

Jail Sentence Imposed For Improperly Frying Chicken. The defendant left 17 chickens in three large Tupperware plastic tubs with top grates and chicken waterers inside her van for approximately 11 hours on a day in which temperatures were in the mid 80’s. When the chickens were removed, they were all lethargic and exhibited extreme thirst, one was unresponsive and later died. The defendant was charged with animal cruelty in violation of a city ordinance, a second-degree misdemeanor. At trial, a veterinarian with specific expertise in and knowledge of birds testified that under the conditions the ambient temperature inside the van would have been conservatively reached 130 to 140 degrees after 40-minutes. The veterinarian also testified that under these conditions the chickens would have become sick or in some way suffered and that the exposure to severe heat was likely the cause of the one chicken’s death. The trial court found the defendant guilty and the defendant argued on appeal that the veterinarian was not a competent witness to testify as to the inside temperature of the vehicle. The appellate court determined that the veterinarian’s statement about the buildup of heat inside the van was harmless and did not affect the outcome of the case and that the defendant’s lack of objection to the veterinarian’s testimony also did not affect the outcome of the case. The defendant was sentenced to 90 days in jail, $100 and court costs. State v. Paul, 2017 Ohio. App. LEXIS 2093 (Ohio Ct. App. May 30, 2017).

Posted July 7, 2016

Prison Sentences Upheld For Egg Company Executives Even Though Government Conceded They Had No Knowledge of Salmonella Contamination. The defendant, an executive of a large-scale egg production company (trustee of the trust that owned the company), and his son (the Chief Operating Officer of the company) pled guilty as “responsible corporate officers” to misdemeanor violations of 21 U.S.C. §331(a) for introducing eggs that had been adulterated with salmonella into interstate commerce from the beginning of 2010 until approximately August of 2010. They each were fined $100,000 and sentenced to three months in prison. They appealed their sentences as unconstitutional on the basis that they had no knowledge that the eggs at issue were contaminated at the time they were shipped. They also claimed that their sentences violated Due Process and the Eighth Amendment insomuch as the sentences were not proportional to their “crimes.” They also claimed that incarceration for a misdemeanor offense would violate substantive due process. The trial court determined that the poultry facilities were in poor condition, had not been appropriately cleaned, had the presence of rats and other rodents and frogs and, as a result, the defendant and his son either “knew or should have known” that additional salmonella testing was needed and that remedial and preventative measures were necessary to reduce the presence of salmonella. The appellate court agreed, finding that the evidence showed that the defendant and son were liable for negligently failing to prevent the salmonella outbreak and that 21 U.S.C. §331(a) did not have a knowledge requirement. The appellate court also did not find a due process violation. The defendant and son claimed that because they did not personally commit wrongful acts, and that due process is violated when prison terms are imposed for vicarious liability felonies where the sentence of imprisonment is only for misdemeanors. However, the court held that vicarious liability was not involved, and that 21 U.S.C. §331(a) holds a corporate officer accountable for failure to prevent or remedy “the conditions which gave rise to the charges against him.” Thus, the appellate court determined, the defendant and son were liable for negligently failing to prevent the salmonella outbreak. The court determined that the lack of criminal intent does not violate the Due Process Clause for a “public welfare offense” where the penalty is relatively small (the court believed it was), the defendant’s reputation was not “gravely” damaged (the court believed that it was not) and congressional intent supported the penalty (the court believed it did). The court also determined that there was no Eighth Amendment violation because “helpless” consumers of eggs were involved. The court also found no procedural or substantive due process violation with respect to the sentences because the court believed that the facts showed that the defendant and son “had reason to suspect contamination” and should have taken action to address the problem at that time (even though law didn’t require it). The dissent pointed out that the government stipulated at trial that its investigation did not identify any corporate personnel (including the defendant and son) who had any knowledge that eggs sold during the relevant timeframe were contaminated with salmonella. The dissent also noted that the government conceded that there was no legal requirement for the defendant or corporation to comply with stricter regulations during the timeframe in issue. As such, the convictions imposed and related sentences were based on wholly nonculpable conduct and there was no legal precedent supporting imprisonment in such a situation. The dissent noted that the corporation “immediately, and at great expense, voluntarily recalled hundreds of millions of shell eggs produced” at its facilities when first alerted to the problem. As such, according to the dissent, due process was violated and the sentences were unconstitutional. United States v. Decoster, No. 15-1890, 2016 U.S. App. LEXIS 12423 (8th Cir. Jul. 6, 2016).

Posted April 8, 2016

No Charge for Cultivation of Marijuana “Plants” Without Root Growth. Kansas law (K.S.A. §21-5701(c)) criminalizes the cultivation of marijuana. “Cultivate” is defined as the planting or promotion of the growth of five or more “plants” which contain or can produce controlled substances. The defendant was charged with cultivation of marijuana, possession of drug paraphernalia and marijuana possession. He admitted to having 2.1 grams of marijuana for personal use that was found in his home upon investigation of a drug complaint by neighbors. Upon searching the residence with the defendant’s permission, the officers found 29 small marijuana cuttings growing hydroponically in an upstairs attic. They also found one large marijuana plant with a complete root system. The parties agreed that the cuttings would grow a root system in one to three weeks and would be a clone of the large plant. The trial court determined that there was no question that the defendant intended to cultivate marijuana from the cuttings, and upheld the cultivation charge. On appeal, the appellate court reversed. The court noted that the statute did not define “plants” and the defendant maintained that the cuttings were not plants until there was visible root formation. On the other hand, the state claimed that the cuttings were plants because they had been transplanted into a growing medium. The court reasoned that the cuttings were not “plants” because they could not sustain life on their own by absorbing water and inorganic substances until they had roots. The court focused on the statutory requirement of five or more plants and not what the defendant intended to grow, which obviously was marijuana plants. The court also cited several federal cases defining marijuana plants for the proposition that a marijuana cutting is not a plant until there is “some readily observable evidence of root formation.” So, the defendant here did not cultivate or possess 29 individual marijuana plants under the statute. The legislature’s lack of definition for “plant” thus yielded to the common definition of the term among the courts which requires that a plant have an observable root formation. State v. Holsted, No. 112,846, 2016 Kan. App. LEXIS 24 (Kan. Ct. App. Apr. 8, 2016).

Posted April 1, 2016

Court Says Law Criminalizing Illegal Videotaping Is Unconstitutional Because It Targets People That Would Take Illegal Videos. Idaho law criminalizes (Idaho Code Sec. 18-7042(1)(d)) "interference with agricultural production" when a person knowingly enters an ag production facility without permission or without a court order or without otherwise having the right to do so by statute (in other words, the person is on the premises illegally), and makes a video or audio recording of how the ag operation is conducted. In other words, the law criminalized the use of “misrepresentation” to gain access and record operations in an ag production facility. The court held that the law was unconstitutional because it violated the free speech rights of those wanting to take the illegal videos and was, therefore, subject to strict scrutiny as content-based regulation of protected speech. The court also held that the law was unconstitutional on equal protection grounds because it singled out persons who sought to take illegal videos. The court believed that the state had no legitimate interest to provide special protections to certain agricultural enterprises from those groups (such as the plaintiffs) that are devoted to ensuring that they don't exist and have used terroristic tactics in other cases to achieve their goals that have involved charges of ag terrorism under federal law. However, as an abortion provider that objected to clandestine videos being taken of operations in their facilities later found out, the court did not hold that undercover operations could never result in actionable fraud, breach of contract or libel, which the law could constitutionally be limited to capturing and, thus, be constitutional. Animal Legal Defense Fund, et al. v. Otter, 118 F. Supp. 3d 1195 (D. Idaho 2015).

Jail Time For Company Execs In Egg Salmonella Outbreak. The defendant, an egg producing company, was linked to an egg salmonella outbreak in 2010 that caused illnesses to almost 2,000 people. The defendant was ordered to pay a $6.8 million fine as part of a plea agreement Two of the defendant's executives were also fined $100,000 each and ordered to pay $83,000 in restitution. The court, on the sentencing phase of the case, sentenced the executives to three months of prison time each plus a year of supervised release. The executives claimed that they had no knowledge of the unclean conditions at the defendant's facility and were not directly involved. The court pointed out that the defendant's workers knowingly shipped eggs with false processing and expiration dates, and bribed USDA regulators to secure approval of sales of poor quality eggs. The executives are free pending appeal of the sentence. United States v. Quality Egg, LLC, et al., No. C 14-3024-MWB, 2015 U.S. Dist. LEXIS 50660 (N.D. Iowa Apr. 14, 2015).

Deer Decoys Are Wildlife Under Criminal Mischief Statute. The defendant was convicted of second degree criminal mischief for damaging the "property of another" when he aided and abetted his son in shooting two state-owned deer decoys that the defendant and his son believed to be deer. The defendant appealed his conviction because wild deer do not become property until reduced to physical possession (e.g., the son thought he was shooting at deer and deer are not "property of another" until reduced to possession). The appellate court upheld his conviction and the OR Supreme Court granted review to determine whether wild deer are "property of another" as used in Ore. Rev. Stat. Sec. 164.354. The Court noted that the legislature had amended Ore. Rev. Stat. Sec. 164.305(2) (the definition of "property of another" in 1977 to broaden it and that the state had previously declared that it had a property interest in wildlife. Thus, the state had a legal interest in wildlife and wild deer are "property of another" for purposes of the statute at issue. The conviction was upheld. State v. Dickerson, 356 Ore. 822 (2015), aff’g., 260 Ore. App. 80 (2013).

Conviction For Letting Vicious Dogs Run Loose Upheld. The defendant was convicted under K.S.A. Sec. 21-6418(a) for allowing a dangerous animal (her dogs) to run at large when she knew they had dangerous or vicious propensities. The defendant lives next to a sheep farm with many lambs. The dogs had a history of predation upon the sheep and one dog had been shot while harassing the sheep on one occasion. The farmer had often complained to the defendant about the dogs, but to no avail. Ultimately, the county sheriff warned the defendant that the dogs could be considered dangerous and vicious and that the defendant needed to restrain the dogs. The dogs again mauled some sheep, and the defendant was cited for the offense. The rial court found that the defendant had violated the dangerous animal statute, imposed a sentence of 6-months in jail, one year of unsupervised probation and $192.85 in restitution. On appeal, the court affirmed. The appellate court determined that the trial court properly applied the plain language of the statute to the facts and that there was no need to resort to canons of statutory construction because the statute was not vague. The appellate court also held that the evidence was sufficient to put the defendant on notice that the dogs had dangerous or vicious propensities. The defendant had been warned numerous times about the dogs harming the sheep and lambs, the existing holes in the fence near the defendant's house and the unlikelihood of harm caused by coyotes. State v. Shell, No. 111,779, 2015 Kan. App. Unpub. LEXIS 153 (Kan. Ct. App. Mar. 6, 2015).

Criminal Indictment Upheld Against Farm Animal Terrorists. The defendants, from the Bel Air, California, area, were arrested in Illinois and charged in a two count indictment with violating the Animal Enterprise Terrorism Act (18 U.S.C. Sec. 43) (Act) for terroristic acts committed upon an Illinois mink farm. In an earlier action, one of the charges involved using a facility of interstate and foreign commerce for the purpose of damaging and interfering with the operation of an animal enterprise under the Act. Two cells phones were found in their car at the time of the arrest and the government searched those phones pursuant to a search warrant. The search indicated contact with a third cell phone and the government sought an order seeking historical cell site and toll record information for the third phone. The defendants claimed that the government had to obtain a search warrant to obtain that information because the defendant had a reasonable expectation of privacy in the information. The court disagreed with the defendants, noting that no federal case had ever determined that obtaining such information implicated the Fourth Amendment's requirement of a search warrant. The court held that the defendants did not have an expectation of privacy in historical cell site information. The court also noted that the records were relevant and material to the ongoing criminal investigation of the defendants and that the third cell phone's number belonged to one of the defendants. United States v. Lang, 78 F. Supp. 3d 830 (N.D. Ill. 2014). In the present action, the indictment charged the defendants with damaging an animal enterprise (18 U.S.C. Sec. 43(a)(2)(A)) and conspiring to damage an animal enterprise (18 U.S.C. Sec. 43(a)(2)(C)). The defendants moved to dismiss the indictment on the basis that the Act is facially overbroad because it criminalizes protected speech that causes an "animal enterprise" to lose profits or business goodwill. They also challenged the indictment as being void for vagueness because it allowed for arbitrary and discriminatory enforcement against animal rights activists, and that it is violated substantive due process for punishing as terrorism non-violent damage to property. The court rejected the overbreadth argument because the Act excludes purely economic damage. The court also rejected the void for vagueness argument and the substantive due process argument under rational basis review. United States v. Johnson, et al., No. 14-CR-390, 2015 U.S. Dist. LEXIS 26843 (N.D. Ill. Mar. 5, 2015).

Conspiracy To Commit Money Laundering, Mail Fraud and Wire Fraud Exists Before Investors Actually Ripped-Off By Investments in Fictitious Wind Farm. The defendant was in charge of an elaborate scheme to gather investments in a non-existent “wind farm” in South Dakota. The defendant was the sole signatory over invested funds solicited from others and could withdraw the funds for the other members of the conspiracy. The defendant set up money drop boxes, ran the “boiler room” where sales people worked, came up with sales pitches, told an investor that a wind turbine had been purchased with the $250,000 that the investor paid when it hadn’t been, oversaw the placement of signage in a field indicating that a “wind farm” was under construction when it wasn’t, and claimed he was merely a consultant paid $125,000 annually even though he transferred over $7000,000 of invested funds to his account over a period of two and one-half years. The defendant plead guilty to conspiracy to commit money laundering, as well as wire and mail fraud and was sentenced to over 12 years in prison plus three years of supervised release and ordered to pay restitution. The defendant appealed his sentence on the basis that the scheme had not resulted in any criminal securities violations as of the start of his prosecution and, thus, the court lacked subject matter jurisdiction because the government didn’t first obtain a referral from the Securities and Exchange Commission. The court rejected the argument and upheld the sentence enhancements. United States v. Reed, 602 Fed. Appx. 436 (10th Cir. 2015), cert. den., 2015 U.S. LEXIS 5408 (U.S. Sup. Ct. Oct. 5, 2015), cert. of appealability den., sub. nom., United States v. Scott, 2015 U.S. App. LEXIS 18244 (10th Cir. Oct. 15, 2015).