United States v. Apollo Energies, Inc.

                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               June 30, 2010
                                        PUBLISH             Elisabeth A. Shumaker
                                                                Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,
            v.                                        No. 09-3037
 APOLLO ENERGIES, INC.,

                 Defendant-Appellant.

and *

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,
            v.                                        No. 09-3038
 DALE WALKER, doing business as
 RED CEDAR OIL,

                 Defendant-Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF KANSAS
                     (D.C. NO. 6:08-CR-10111-01-JTM and
                       D.C. NO. 6:08-CR-10112-01-JTM)


Stephen E. Robison (Daniel E. Lawrence with him on each brief) Fleeson,
Gooing, Coulson & Kitch, L.L.C., Wichita, Kansas for Appellants.


        *
        By the court’s Order dated October 29, 2009, these two cases are
consolidated.
Alan G. Metzger, Assistant United States Attorney (Lanny D. Welch, United
States Attorney, with him on each brief), Office of the United States Attorney,
Wichita, Kansas for Appellee.


Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.


TYMKOVICH, Circuit Judge.


      “This would have remained a profoundly insignificant case to all except its

immediate parties had it not been so tried . . . as to raise questions both

fundamental and far-reaching in federal criminal law . . . .” Morissette v. United

States, 342 U.S. 246, 257 (1952). And we might add, “No one may be required

at peril of life, liberty or property to speculate as to the meaning of penal statutes.

All are entitled to be informed as to what the State commands or forbids.”

Lanzatta v. New Jersey, 306 U.S. 451, 453 (1939).

      This case requires us to consider the scope of the Migratory Bird Treaty

Act (MBTA or Act). The Act declares it a misdemeanor to “pursue, hunt, take,

capture, [or] kill” birds protected by several international treaties. 16 U.S.C.

§ 703. The MBTA also specifies a maximum penalty of $15,000 and six months

in prison for a misdemeanor violation, but does not require any particular mental

state or mens rea to violate the statute. See 16 U.S.C. § 707(a). The question this

case presents is whether the MBTA constitutionally can make it a crime to violate

its provisions absent knowledge or the intent to do so.


                                          -2-
       Appellants are two Kansas oil drilling operators who were charged with

violating the Act after dead migratory birds were discovered lodged in a piece of

their oil drilling equipment called a heater-treater. After a trial before a

magistrate judge, both Apollo Energies and Dale Walker (doing business as Red

Cedar Oil) were convicted of taking or possessing migratory birds, each

misdemeanor violations. Apollo was fined $1,500 for one violation, and Walker

was fined $250 for each of his two violations. The federal district court affirmed

the convictions, concluding that violations of § 703 of the MBTA are strict

liability offenses, which do not require that defendants knowingly or intentionally

violate the law.

       On appeal, Apollo and Walker renew their challenges to the MBTA,

claiming (1) it is not a strict liability crime to take or possess a protected bird, or,

(2) if it is a strict liability crime, the Act is unconstitutional as applied to their

conduct. We conclude the district court correctly held that violations of the

MBTA are strict liability crimes. But we hold that a strict liability interpretation

of the MBTA for the conduct charged here satisfies due process only if

defendants proximately caused the harm to protected birds. After carefully

examining the trial record, we agree Apollo proximately caused the taking of

protected birds, but with respect to one of his two convictions, Walker did not.

Due process requires criminal defendants have adequate notice that their conduct

is a violation of the Act.

                                            -3-
      Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM

in part and REVERSE in part the district court’s decision.

                                  I. Background

      Apollo and Walker own many heater-treaters, a device commonly used in

oil drilling operations. Heater-treaters are cylindrical equipment up to 20 feet

high and more than three feet wide that separate oil from water when the mixture

is pumped from the ground. The heater-treaters at issue in this case have vertical

exhaust pipes that are approximately nine inches in diameter, and Walker’s

heater-treaters included movable louvers that can be opened to access heating

equipment at the base. Birds can crawl into the exhaust pipes or through the

louvers to form nests. Once inside the heater-treaters, escape can be difficult for

some birds.

      Acting on an anonymous tip, an agent with the U.S. Fish and Wildlife

Service (Fish and Wildlife, or Service) inspected more than a dozen of Apollo’s

heater-treaters in December 2005. He found bird remains in about half of the

heater-treaters he inspected. In February 2006, Fish and Wildlife officers

expanded their investigation in the region (southeast Kansas), finding more than

300 dead birds in heater-treaters, 10 of which were identified as protected species

under the MBTA. 1

      1
        According to a government witness at trial, the issue of bird deaths in
heater-treaters was “brand new to the Service,” and to his knowledge, no Fish and
                                                                      (continued...)

                                        -4-
      As a result of the investigation, Fish and Wildlife embarked on a public

education campaign to alert oil producers to the heater-treater problem. The

Service sent letters to 36 of the oil companies involved in the February 2006

inspections, including Apollo. The record does not disclose, however, that

Walker’s company, Red Cedar, received the notice. Fish and Wildlife also

created a poster describing the problem, which it distributed to oil equipment

supply companies. Service representatives made presentations to the Kansas

Independent Oil and Gas Association and at a Kansas Corporation Commission

Oil and Gas meeting. Finally, a Kansas television station and the Associated

Press news service each ran a story about heater-treaters’ threat to protected

birds. Fish and Wildlife chose not to recommend prosecution for MBTA

violations related to heater-treaters through the end of 2006, while the education

campaign was ongoing. 2

      1
       (...continued)
Wildlife officer had ever inspected heater-treaters before the December 2005
inspection. Aplt. App. at 116
      2
        The education campaign apparently reached Apollo but not Walker.
Apollo had notice of the heater-treater problem from the time of Fish and
Wildlife’s inspection of its property in December 2005, and the company’s
president acknowledged he received the Service’s 2006 letter. Walker, however,
received no such notice. The Fish and Wildlife agent in charge of the
investigation admitted he did not send Walker the Service’s 2006 letter, and
Walker testified he did not receive a Service letter until June 2007—after Fish
and Wildlife searched his heater-treater for the first time. It is Walker’s
undisputed testimony that up to the time of Fish and Wildlife’s first search of his
property—in April 2007—he did not “know anything” about the heater-treater
                                                                       (continued...)

                                         -5-
      In April 2007, after Fish and Wildlife’s grace period ended, agents searched

heater-treaters belonging to Apollo and Walker. The search of Apollo’s heater-

treaters yielded the carcass of a Northern Flicker, an MBTA-protected species.

Agents found four protected birds in Walker’s heater-treaters, as well. When

confronted with the dead birds, Walker is reported to have said “that’s not good.”

Aplt. App. 212. A year later, in April 2008, the Service again conducted a search

of Walker’s heater-treaters. Although Walker had placed metal caps on the

exhaust pipes—where birds previously had been found—a Fish and Wildlife agent

retrieved a protected bird that he found lodged in a heater-treater’s louvers.

      Apollo was convicted of one violation of the MBTA based on the April

2007 bird death. Walker also was convicted of two violations based on the April

2007 and April 2008 deaths.

                                   II. Discussion

      Appellants make one statutory and several due process arguments. Their

statutory argument is that the MBTA does not create a strict liability crime to take

or possess migratory birds, and, under that statutory construction, they lacked the

necessary imputed mental state to commit an MBTA violation. Our precedent

forecloses Appellants’ statutory construction, and consequently we are obliged to

address Appellants’ broader arguments about the MBTA’s constitutionality.


      2
      (...continued)
problem. See Aplt. App. 203–5, 282–84.

                                         -6-
       As to their constitutional due process claims, Appellants argue: (1) the

MBTA is unconstitutionally vague because it provides inadequate notice of what

conduct is criminal, (2) due process requires that they caused an MBTA violation

to be guilty of a crime, and (3) the district court erred in applying the law to the

facts in this case.

       A. Standard of Review

       “In an appeal from a bench trial, we review the district court’s factual

findings for clear error and its legal conclusions de novo.” Keys Youth Servs.,

Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001). “A finding of fact is

not clearly erroneous unless it is without factual support in the record, or unless

the court after reviewing all the evidence, is left with a definite and firm

conviction that the district court erred.” United States v. Jarvison, 409 F.3d 1221,

1224 (10th Cir. 2005) (internal punctuation omitted).

       B. Statutory Construction: The MBTA Creates a Strict Liability Crime

       Appellants first contend § 703 is not a strict liability offense, but contains a

scienter requirement.

       Section 703 makes it a crime to “take” protected birds:

       [I]t shall be unlawful at any time, by any means or in any manner,
       to . . . take [or] . . . attempt to take . . . any migratory bird, any part,
       nest, or egg of any such bird, or any product, whether or not
       manufactured, which consists, or is composed in whole or part, of any
       such bird or any part, nest, or egg thereof, included in the terms of
       [various treaties between the United States and Great Britain, Mexico,
       Japan, and the U.S.S.R.]. (Emphasis added).

                                           -7-
16 U.S.C. § 703. Regulations implementing the statute explain that the term

“take” means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 50

C.F.R. § 10.12. 3 Under § 707(a), “any person, association, partnership, or

corporation” is “guilty of a misdemeanor” if they “violate any provisions” of the

Act. The statute does not supply a mens rea requirement.

      Appellants’ contention is foreclosed by our holding in United States v.

Corrow, 119 F.3d 796 (10th Cir. 1997), which squarely addressed § 703’s mens

rea requirement. In Corrow, we considered and resolved the mens rea

requirement of § 707(a), and concluded that “misdemeanor violations under § 703

are strict liability crimes.” Id. at 805. In that case, the defendant was charged

      3
         The Supreme Court in Babbitt v. Sweet Home Chapter of Cmtys. for a
Great Or., 515 U.S. 687 (1995), determined the reasonableness of federal
regulations defining “take,” which were similar but not identical to the regulatory
definition here. In Sweet Home, “take” in the Endangered Species Act (ESA) was
defined by statute as “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect . . . .” Id. at 691 (quoting 16 U.S.C. § 1532(19)). The
regulatory definition of “take” here is the same as the ESA’s statutory definition
except that the regulatory definition omits to “harass” and “harm.” See 50 C.F.R.
§ 10.12. Sweet Home turned not on the statutory definition of “take,” but on the
Department of Interior’s regulatory interpretation of the word “harm”—again, not
a word present in the definition at issue here. The regulatory definition of “harm”
encompassed “an act which actually kills or injures wildlife,” including
“significant habitat modification or degradation.” Sweet Home, 515 U.S. at 691.
The respondents in Sweet Home, parties “dependent on the forest products
industries,” argued that “harm” in the ESA could not include acts such as habitat
modification that lead to the harming of protected species. Id. at 692. The Court
upheld the regulation’s broader definition of “harm.” Although that word is not
present here, and therefore Sweet Home does not have much relevance to the
current case, inasmuch as the Court upheld a definition of “take” that
encompasses acts that lead to the taking of protected species, Sweet Home
comports with our holding.

                                         -8-
with illegal possession of protected Golden Eagle and Great-Horned Owl feathers.

We upheld the conviction, finding it persuasive that a plain reading of § 703’s

text—“it shall be unlawful” to possess protected birds—did not require any

particular state of mind or scienter. Id. We relied on the fact that “[l]ike other

regulatory acts where the penalties are small and there is ‘no grave harm to an

offender’s reputation,’” the Supreme Court has long recognized a different

standard applies to those federal criminal statutes that are essentially regulatory.

Id. (citing United States v. Engler, 806 F.2d 425, 432 (3d Cir. 1986) (relying on

Morissette v. United States, 342 U.S. 246 (1952)). “Simply stated, then, ‘it is not

necessary to prove that a defendant violated the Migratory Bird Treaty Act with

specific intent or guilty knowledge.’” Id. at 805 (quoting United States v.

Manning, 787 F.2d 431, 435 n.4 (8th Cir. 1986) (emphasis added).

      Our holding in Corrow fell in line with those of other circuits at the time of

that case. At least seven other circuits either had held that MBTA misdemeanors

are strict liability crimes or noted the MBTA’s lack of mens rea in passing. See,

e.g., United States v. Pitrone, 115 F.3d 1, 5 (1st Cir. 1997); United States v.

Hogan, 89 F.3d 403, 404 (7th Cir. 1996); United States v. Boynton, 63 F.3d 337,

343 (4th Cir. 1995); United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986);

United States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984) (per curiam); United

States v. FMC Corp., 572 F.2d 902, 907–08 (2d Cir. 1978); Rogers v. United

States, 367 F.2d 998, 1001 (8th Cir. 1966). See also United States v. Morgan,

                                          -9-
311 F.3d 611, 614–16 (5th Cir. 2002) (citing Corrow and holding misdemeanor

MBTA violations are strict liability crimes). But see Newton County Wildlife

Ass’n, 113 F.3d 110, 115 (8th Cir. 1997) (“Strict liability may be appropriate

when dealing with hunters and poachers. But it would stretch this 1918 statute

far beyond the bounds of reason to construe it as an absolute criminal prohibition

on conduct, such as timber harvesting, that indirectly results in the death of

migratory birds.”); Mahler v. U.S. Forest Serv., 927 F. Supp. 1559, 1579 (S.D.

Ind. 1996) (questioning the MBTA’s application to bird deaths caused indirectly

by logging).

      Despite this applicable precedent, Appellants challenge the extension of

Corrow to the conduct alleged here. They reason our holding in Corrow was

limited to the MBTA violations at issue there—possessing and selling protected

bird feathers. For support, they point to Fish and Wildlife’s regulations that

define “possession” as “detention and control,” and “to take” as to “capture, or

collect.” 50 C.F.R. § 10.12. They say the linguistic differences imply an active

state of mind to violate the Act, and the conduct here was passive—they merely

failed to bird-proof the heater-treaters.

      We see no express or implied limitation to our holding in Corrow. In fact,

that decision broadly held “misdemeanor violations under § 703 are strict liability

crimes.” Corrow, 119 F.3d at 805 (emphasis added). Nothing in the structure or

logic of the opinion lends itself to carving out an exception for different types of

                                            -10-
conduct, and therefore a scienter requirement for the takings here. Nor is there

any reason to find that capturing or collecting birds implies a higher mens rea

than detaining or controlling them. See also W EBSTER ’ S T HIRD N EW

I NTERNATIONAL D ICTIONARY 444 (2002) (defining “collect” as “to regain control

of”—similar to the regulations’ definition of “possession”). In short, the conduct

alleged here has the same mental state requirement as the sale and possession of

protected birds we considered in Corrow.

      Appellants also point to Supreme Court case law on the books at the time

we decided Corrow as fatally undermining its holding. They contend three years

before Corrow, the Supreme Court in Staples v. United States, 511 U.S. 600

(1994), cast doubt on the presumption of strict liability when a statute omits a

mens rea requirement. Id. at 607–10. The Court in Staples held that strict

liability crimes “generally are disfavored,” and suggested some indicia of

congressional intent, “express or implied,” is necessary before courts can dispense

with the traditional mens rea requirement. Id. at 606.

      While we did not cite to Staples in Corrow, our reasoning was that

although the MBTA was silent as to mens rea, its “plain language”—an indicia of

legislative intent—supported a strict liability interpretation. Congress, moreover,

in 1986 added the word “knowingly” to create the felony offense of selling

migratory birds, while leaving intact the language of the misdemeanor provision

without an explicit mens rea requirement. This is further evidence the legislative

                                        -11-
scheme invokes a lesser mental state for misdemeanor violations. See S. R EP . N O .

99-445, at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 6113, 6128 (“Nothing in

this amendment [to create the MBTA felony offense] is intended to alter the

‘strict liability’ standard for misdemeanor prosecutions under 16 U.S.C. 707(a), a

standard which has been upheld in many Federal court decisions.”). Finally, the

Court in Staples took pains to reaffirm the basic proposition that “public welfare”

or “regulatory” offenses can “impose a form of strict criminal liability.” Staples,

511 U.S. at 606.

      Appellants also point to cases outside our circuit to argue that Corrow’s

logic does not apply to the facts here. In particular, they cite Newton County

Wildlife Ass’n v. U.S. Forest Service, 113 F.3d 110 (8th Cir. 1997), to suggest

§ 703 does not apply to activities beyond purposeful hunting or possession of

migratory birds. See also Citizens Interested in Bull Run, Inc. v. Edrington, 781

F. Supp. 1502 (D. Or. 1991); United States v. Rollins, 706 F. Supp. 742 (D. Idaho

1989). But all of those cases involved logging or pesticide application that

modified bird habitat in some way. While the MBTA’s scope, like any statute,

can test the far reaches in application, we do not have that case before us. The

question here is whether unprotected oil field equipment can take or kill

migratory birds. It is obvious the oil equipment can. Simply put, the take and

kill provisions of the Act are not outside the holding of Corrow.




                                        -12-
      In sum, Corrow squarely addressed the mens rea requirement for an MBTA

violation, and we are bound by its holding. See In re Smith, 10 F.3d 723, 724

(10th Cir. 1993) (per curiam) (“We are bound by the precedent of prior panels

absent en banc reconsideration or a superseding contrary decision by the Supreme

Court.”). As a matter of statutory construction, the “take” provision of the Act

does not contain a scienter requirement.

      C. Due Process: Notice and Causation

      Having concluded the MBTA applies a strict liability standard to the taking

or killing of migratory birds, we must address Appellants’ additional arguments

that the Act is unconstitutional facially and as applied to the conduct in this case.

Appellants’ broader argument is that the MBTA violates their due process rights

because of its scope and application to their conduct.

      By way of background, although § 703 is a strict liability crime, a few

historical elements are worth remembering. At common law, crime was a

“compound concept” consisting of both an “evil-meaning mind” and an “evil-

doing hand.” Morissette v. United States, 342 U.S. 246, 251 (1952). A

traditional element of criminal violations thus was that the perpetrator committed

the prohibited act with intent or, at minimum, knowledge. See 1 W AYNE R.

L A F AVE , S UBSTANTIVE C RIMINAL L AW § 5.5 (2d ed. 2003) (“For several centuries

(at least since 1600) the different common law crimes have been so defined as to

require, for guilt, that the defendant’s acts or omissions be accompanied by one or

                                         -13-
more of the various types of fault . . . .”). The Supreme Court has characterized

the scienter requirement as foundational: “The contention that an injury can

amount to a crime only when inflicted by intention is no provincial or transient

notion. It is as universal and persistent in mature systems of law as belief in

freedom of the human will and a consequent ability and duty of the normal

individual to choose between good and evil.” Morissette, 342 U.S. at 250.

      Yet by the middle of the twentieth century, the Supreme Court was

confronted with a new category of crimes for which no mens rea was required. In

Morissette v. United States, for example, the Supreme Court gave a stamp of

approval to regulatory crimes that lacked or had a minimal mens rea element. See

id. at 255–56. But the Court did not do so in unequivocal terms. The Court

reasoned that while the strict liability crimes at that time technically did not

require mens rea, the “accused, if he d[id] not will the violation, usually [wa]s in

a position to prevent it with no more care than society might reasonably expect

and no more exertion than it might reasonably exact from one who assumed his

responsibilities.” Id. at 256. Moreover, the “penalties commonly [we]re

relatively small,” and did not cause “grave damage to an offender’s reputation.”

Id. The Court relied on these principles as recently as its decision in Staples v.

United States, 511 U.S. 600 (1994), considering whether possession of an

unregistered firearm required a scienter element (which it did).




                                          -14-
        A line of subsequent cases suggest several important limiting principles to

strict liability crimes. Two due process limitations are especially relevant here.

        First, due process requires citizens be given fair notice of what conduct is

criminal. A criminal statute cannot be so vague that “ordinary people” are

uncertain of its meaning. See Kolender v. Lawson, 461 U.S. 352, 357 (1983).

However, even when a statute is specific about which acts are criminal, our due

process analysis is not complete. When, as here, predicate acts which result in

criminal violations are commonly and ordinarily not criminal, we must ask the

fair notice question once again. In the context of laws criminalizing the

possession of dangerous items such as drugs or explosives, the Supreme Court has

stated when items have characteristics such that a reasonable person would expect

the items to be regulated, strict liability for violations of those regulations passes

constitutional scrutiny. But when the items lack those special characteristics—

that is, when persons would not reasonably foresee the items’ regulation—strict

liability becomes constitutionally suspect. See Int’l Minerals, 402 U.S. at 564–65

(“In Balint the Court was dealing with drugs, in Freed with hand grenades, in this

case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips

may also be regulated. But they may be the type of products which might raise

substantial due process questions if Congress did not require . . . ‘mens

rea’ . . . .”).




                                          -15-
      Second, criminalizing acts which the defendant does not cause is

unconstitutional, as is criminalizing acts based on the defendant’s status. See

Lambert v. California, 355 U.S. 225, 228 (1957) (striking down as

unconstitutional “where a person, wholly passive and unaware of any

wrongdoing, is brought to the bar of justice for condemnation in a criminal

case”). Put differently, the concept of causation limits criminal sanctions to a

defendant’s conduct—whether the conduct includes affirmative actions or

proscribed omissions. Cf. Robinson v. California, 370 U.S. 660, 665, 678 (1962)

(holding “status” crimes unconstitutional). 4 More pertinent to this case, “[b]y

interpreting such public welfare offenses to require at least that the defendant

know that he is dealing with some dangerous or deleterious substance” the

Supreme Court “avoided construing criminal statutes to impose a rigorous form of

strict liability.” Staples, 511 U.S. at 607 n.3.




      4
         Another important consideration is the severity of punishment.
Appellants did not develop this argument below, but due process suggests some
constitutional limits on the penalties contained in strict liability crimes. Severe
fines and jail time would warrant a state of mind requirement. See Engler, 806
F.2d at 433–34; United States v. Wulff, 758 F.2d 1121, 1123, 1125 (6th Cir.
1985); Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960). For
example, based on Morissette’s description of strict liability crimes, the Sixth
Circuit invalidated the MBTA’s prior felony provision, which had no scienter
requirement. See Wulff, 758 F.2d at 1125. In Wulff, the court reasoned that
felonies carry a “severe penalty and grave damage to [the defendant’s]
reputation,” and due process requires such a substantial punishment to be given
only when “the defendant acted with some degree of scienter.” Id.

                                         -16-
      Apollo and Walker make several arguments based on these principles which

fall into three general categories: (1) the statute provides inadequate notice of

what conduct would violate the MBTA, (2) due process requires they caused an

MBTA violation to be guilty of a crime, and (3) the district court erred in

applying the preceding principles to them.

             1. Vagueness: Notice of Statutorily-Prohibited Acts

      Apollo and Walker contend the statute allows them to be criminally

convicted without fair notice of what conduct constitutes a crime. Their notice

argument comes in two varieties. First, the MBTA is unconstitutionally vague

because of the multiplicity of actions the statute’s language criminalizes. Second,

Appellants argue the potential predicate acts that may lead to MBTA

violations—innocuous conduct such as driving a car or closing a window—do not

provide fair notice of what constitutes criminal behavior. Because this second

question is, at bottom, a question of causation, we will leave it to be discussed

below with Appellants’ other causation arguments.

      “As generally stated, the void-for-vagueness doctrine requires that a penal

statute define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.” Kolender, 461 U.S. at 357;

see also United States v. Lovern, 590 F.3d 1095, 1103 (10th Cir. 2009) (quoting

Colautti v. Franklin, 439 U.S. 379, 390 (1979)) (“Elemental to our concept of due

                                         -17-
process is the assurance that criminal laws must ‘give a person of ordinary

intelligence fair notice that his contemplated conduct is forbidden by the statute,’

and those that fail this test are treated as no laws at all: they are ‘void for

vagueness.’”) “Although the doctrine focuses both on actual notice to citizens

and arbitrary enforcement,” the “more important aspect” is “that a legislature

establish minimal guidelines to govern law enforcement.” Kolender, 461 U.S. at

357–58.

      The MBTA is not unconstitutionally vague. It criminalizes a range of

conduct that will lead to the death or captivity of protected migratory birds,

including to “pursue, hunt, take, capture, [and] kill . . . .” 16 U.S.C. § 703. The

actions criminalized by the MBTA may be legion, but they are not vague.

      Furthermore, the MBTA’s language does not encourage arbitrary

enforcement—at least as far as vagueness is concerned. The arbitrariness at

which a vagueness challenge takes aim is the “standardless sweep [of a statute’s

language, which] allows policemen, prosecutors, and juries to pursue their

personal predilections.” Smith v. Goguen, 415 U.S. 566, 575 (1974); see id. at

569–70 (overturning the conviction of a defendant who “did publicly treat

contemptuously the flag of the United States”). In contrast, the MBTA’s terms

are capable of definition without turning to the subjective judgment of

government officers. We thus reject Appellants’ vagueness contention.




                                           -18-
             2. Causation: Notice of Predicate Acts

      In a variation of their vagueness argument, Appellants also contend the

statute does not provide fair notice of prohibited conduct because of the sheer

breadth of the Act. They argue the Act applies to innocuous conduct several steps

removed from bird deaths or takings. No reasonable person, they contend, would

be on notice that those predicate acts are potentially criminal.

      The Supreme Court made clear in Lambert that reasonable notice is

“[e]ngrained in our concept of due process.” 355 U.S. at 228. In that case, the

Court struck down a state felon registration law because “circumstances which

might move one [subject to the law] to inquire as to the necessity of registration

[were] completely lacking.” Id. at 229. The defendant did not have any

knowledge of the registration requirement, and the violation—mere presence

within the state—“would not be blameworthy in the average member of the

community.” Id. at 227, 229.

      More recently, the role of notice for conduct not reasonably foreseen as

criminal has played a central role in the Court’s statutory interpretation. First, in

Liparota v. United States, 471 U.S. 419 (1985), the Court examined a statute that

criminalized the possession of unauthorized food stamps. Then, in Staples the

Court examined one which criminalized the possession of certain firearms. 511

U.S. at 602–03. In both cases, the Court found a mens rea requirement as an

implicit element to the statutes because strict liability would “criminalize a broad

                                         -19-
range of apparently innocent conduct.” Liparota, 471 U.S. at 426; see also

Staples, 511 U.S. at 607 (noting strict liability crimes typically “involve statutes

that regulate potentially harmful or injurious items”).

      Questions abound regarding what types of predicate acts—acts which lead

to the MBTA’s specifically prohibited acts—can constitute a crime.

Conceptually, the constitutional challenge to the criminalization of these

predicate acts can be placed under the rubric of notice or causation. The inquiries

regarding whether a defendant was on notice that an innocuous predicate act

would lead to a crime, and whether a defendant caused a crime in a legally

meaningful sense, are analytically indistinct, and go to the heart of due process

constraints on criminal statutes.

      Recognizing these notice and causation concerns, the district court

attempted to cabin the MBTA’s reach by holding the defendants must

“proximately cause” the MBTA violation to be found guilty, and that they did so

here. Aplt. App. at 24 n.16. In other words, the court found the government had

found “‘proximate causation’ or ‘legal causation’ beyond a reasonable doubt” by

“showing that trapped birds are a reasonably anticipated or foreseeable

consequence of failing to cap the exhaust stack and cover access holes to the

heater/treater.” Aplt. App. at 24 n.16.

      The court’s proximate cause holding relied heavily on a district court case

construing the MBTA, United States v. Moon Lake Elec. Ass’n, Inc., 45 F. Supp.

                                          -20-
2d 1070 (D. Colo. 1999). In Moon Lake, the court considered the liability of a

company for migratory bird deaths caused by its high-voltage overhead power

lines. The court concluded proximate cause is an “important and inherent

limiting feature” to the MBTA, and that liability would attach where the injury

“might be reasonably anticipated or foreseen as a natural consequence of the

wrongful act.” See id. at 1085.

      We agree with the district court’s assessment of proximate cause. Central

to all of the Supreme Court’s cases on the due process constraints on criminal

statutes is foreseeability—whether it is framed as a constitutional constraint on

causation (Lambert, Robinson) and mental state (International Minerals), or

whether it is framed as a presumption in statutory construction (Staples,

Liparota). When the MBTA is stretched to criminalize predicate acts that could

not have been reasonably foreseen to result in a proscribed effect on birds, the

statute reaches its constitutional breaking point.

      Based on these cases, we agree with the district court’s legal conclusion

and hold that the MBTA requires a defendant to proximately cause the statute’s

violation for the statute to pass constitutional muster. See B LACK ’ S L AW

D ICTIONARY 1225 (6th ed. 1990) (defining “proximate cause” as “that which, in a

natural and continuous sequence, unbroken by any efficient intervening cause,

produces the injury and without which the accident could not have happened, if

the injury be one which might be reasonably anticipated or foreseen as a natural

                                         -21-
consequence of the wrongful act”), In re Antrobus, 519 F.3d 1123, 1127 (10th

Cir. 2008) (Tymkovich, J., concurring) (“If the intervening cause was foreseeable

then proximate cause can be established.”), Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Or., 515 U.S. 687, 713 (1995) (O’Connor, J., concurring)

(“Proximate causation is not a concept susceptible of precise definition. . . . We

have recently said that proximate causation ‘normally eliminates the bizarre,’ and

have noted its ‘functionally equivalent’ alternative characterizations in terms of

foreseeability and duty.”) (internal citations omitted); see also id. at 696 n.9, 700

n.13 (majority opinion) (describing “proximate causation and foreseeability” as

“ordinary requirements”); id. at 712 (O’Connor, J., concurring) (“Strict liability

means liability without regard to fault; it does not normally mean liability for

every consequence, however remote, of one’s conduct.”). 5

             3. Proximate Cause As Applied to Appellants

      Applying these principles to Appellants’ claims, we reject the contention

that the Act violates due process, with one important exception.

      5
         We emphasize that “foreseeability” in the proximate cause sense is not
foreseeability of a legal rule. “We have long recognized the ‘common maxim,
familiar to all minds, that ignorance of the law will not excuse any person, either
civilly or criminally.’” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,
130 S. Ct. 1605, 1611 (2010) (quoting Barlow v. United States, 7 Pet. 404, 411
(1833) (opinion for the Court by Story, J.)). Due process constrains the
criminalization of predicate acts that do not foreseeably result in a danger that is
criminal—here, the taking of protected birds. What knowledge Apollo and
Walker had of the MBTA’s provisions is irrelevant to our analysis. What is
relevant, by contrast, is what knowledge the defendants had or should have had of
birds potentially dying in their heater-treaters.

                                         -22-
      As to Apollo, the record shows it had notice of the heater-treater problem

for nearly a year-and-a-half before the bird death resulting in its conviction.

Indeed, Apollo admitted at trial that it failed to cover some of the heater-treaters’

exhaust pipes as Fish and Wildlife had suggested after the December 2005

inspection. In effect, Apollo knew its equipment was a bird trap that could kill.

      In contrast, Walker was charged and convicted for dead birds found in both

the April 2007 and April 2008 inspections. Walker contends the conviction

arising from the April 2008 inspection should be reversed because on that

occasion the bird was found in his heater-treater’s louvers, not the exhaust pipe,

for which he had no knowledge of a problem. Fish and Wildlife argues it warned

Walker of the louver problem when, in its 2007 letter, it admonished Walker to

secure all heater-treater cavities in which a protected bird might become trapped.

Regardless, we find that once Walker was alerted to protected birds’ proclivity to

crawl into the heater-treaters’ exhaust pipes, it was reasonably foreseeable

protected birds could become trapped in other of the heater-treaters’ cavities.

      The conviction for the April 2007 bird death is a different matter. Walker’s

testimony—which the Fish and Wildlife agent does not dispute—is that prior to

April 2007, he was not aware of problems with heater-treaters in the oil industry

or in his specific operations. Fish and Wildlife did not send him a letter about the

issue before the April 2007 inspection, and he was not a member of the trade

association to which the Service advertised the oil field equipment problem. Nor

                                         -23-
was Walker aware of the one television report or newspaper article about heater-

treaters. Given the state of this record, we agree no reasonable person would

conclude that the exhaust pipes of a heater-treater would lead to the deaths of

migratory birds.

      In its findings of fact, the magistrate judge found generally that “birds

trapped in heater/treaters [were] relatively common in the industry,” Aplt. App. at

23, and “oil operators have been aware for some time that bird remains are

frequently found in heater/treaters,” id. at 24 n.15. The magistrate judge did not

provide citations in support of these factual conclusions, and our review of the

trial record reveals no substantial evidence of pervasive industry knowledge about

the heater-treater problem until the Service’s educational outreach campaign. To

the contrary, a Fish and Wildlife agent testified bird deaths in heater-treaters were

“brand new” to the Service before the December 2005 inspections, Aplt. App. at

160, and the fact that the Service did not recommend prosecutions during its

educational campaign suggests the issue was not well known.

      Therefore, the magistrate judge’s finding as to the April 2007 bird death is

reversed.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM in part, REVERSE in part, and

REMAND for further proceedings consistent with this opinion.




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