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United States v. Archibald

United States District Court, D. New Jersey

October 13, 2017

UNITED STATES OF AMERICA,
v.
DANIEL ARCHIBALD, Defendant.

          OPINION & ORDER

          CATHY L. WALDOR United States Magistrate Judge

         THIS MATTER comes before the Court on Defendant and the Government's in limine motions. Both raise questions of statutory interpretation that the Court previously touched on in denying Defendant's omnibus motion to dismiss (Omnibus Opinion, ECF No. 34.), but now is called upon to further clarify in light of pending trial. The Court heard oral argument on these issues and, for the reasons set forth below, the Court: grants the Government's motion prohibiting the introduction of testimony or evidence on matters of law; grants Defendant's motion to introduce the MMPA authorization into evidence; and denies Defendant's motion concerning the use of grand jury testimony at trial for purposes other than impeachment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant, a crewman aboard a tuna fishing vessel, is accused via a two-count indictment of (1) conspiracy, 18 United States Code § 371, (2) “to take marine mammals on the high seas . . . by means of a firearm, contrary to” Title 16, United States Code §§ 1372(a)(1) and 1375(b), and 18 U.S.C. § 2. (Indictment, ECF No. 1, ¶ 2.) The charges under Title 16 are the relevant ones for the current dispute. This Title contains the Marine Mammal Protection Act (henceforth “MMPA”). As explained when ruling on the omnibus motion to dismiss, the requisite mens rea for the crimes charged under the MMPA is “knowing”-the Government seeks criminal penalties for a “knowing unlawful take[].” (Omnibus Opinion, at 6.)

         Central to the motions in limine is a looming question of the intersection between the MMPA provisions charged and § 1387-“Taking of marine mammals incidental to commercial fishing operations.” Despite the Court's ruling on this issue, Defendant continues to point to a mention of the word “intentional” in § 1387 to promulgate a different mens rea standard for commercial fishermen. This argument is at the heart of the motions presently before the Court. The Court takes this opportunity to more fully articulate the intersection of the MMPA provisions charged and § 1387 of the MMPA. This analysis requires: 1) a restatement of the MMPA charges in the Indictment; 2) an examination of mens rea under § 1387; and 3) a discussion of the applicability, if any, of § 1387 to the current evidentiary decisions.

         DISCUSSION

         I. MMPA Provisions Charged:

         16 U.S.C. § 1372(a)(1): Prohibitions

(a) Taking: Except as provided in sections 1371, 1373, 1374, 1379, 1381, 1383, 1383a, and 1387 of this title and subchapter V, it is unlawful-
(1) for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas;
16 U.S.C. § 1375(b): Penalties
(b) Any person who knowingly violates any provision of this subchapter or of any permit or regulation issued thereunder (except as provided in section 1387 of this title) shall, upon conviction, be fined not more than $20, 000 for each such violation, or imprisoned for not more than one year, or both.

         Section 1372(a)(1) indicates that it is unlawful to take a marine mammal on the high seas and § 1375(b) provides that a knowing violation of a provision of the subchapter, that § 1372 falls within can carry a criminal penalty-imprisonment for not more than one year. Those are the bounds of the indictment.

         II. Mens rea under § 1387

         Defendant now asks this Court to look beyond the four corners of the provisions charged to a cross-referenced provision § 1387, titled “Taking of marine mammals incidental to commercial fishing operations.” The Court addressed § 1387 in its Omnibus Motion Opinion in so far as it impacted the requisite mens rea for the crime charged.[1] Specifically within § 1387, subsection (a)(5) mentions an “intentional lethal take, ” but this Court was clear to note that this did not change the required mens rea for a “taking” as charged under § 1372(a)(1). (Omnibus Opinion, at 7-8.)

         Rather this subsection, § 1387(a)(5), describes a scenario where a commercial fishermen may kill a marine mammal and not otherwise be subject to the specific penalty provision of § 1387.[2] That scenario is one of self-defense as defined by § 1371(c). Under § 1387(a)(5), the only time when the “intentional lethal take of a marine mammal in the course of commercial fishing operations is” allowed is “as provided in section 1371(c).”[3] To read § 1387(a)(5)'s reference to “intentional lethal take(s)” as heightening the mens rea requirement for commercial fishermen would suggest that commercial fisherman are permitted to commit takes so long as they are not intentional. That would mean any mental state up to intentional would be permissible for commercial fishermen as defined by § 1387. This would necessarily include permission for commercial fishermen to knowingly take marine mammals. This conclusion is illogical based on

         (a) the structure of the penalty provisions in the statute and (b) the MMPA's intended purpose.

         a. Defendant's interpretation of § 1387(a)(5) would make the penalty section of § 1387 inoperable and leave knowing takes by commercial fishermen unregulated

         Section 1375 is the penalties section of the MMPA and it imposes both a civil and criminal penalty for “[a]ny person who knowingly violates any provision of this subchapter or any permit or regulation issued thereunder (except as ...


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