Memorandum

To: Associates in LARW II Section A3 (Last names A-L)

From: Professor Goering

Date: February 3, 2009

Re: Appellate Brief Assignment: United States of America v. Apollo Energies, Inc. and Dale Walker d/b/a Red Cedar Oil.

______________________________________________________________________________

We have been retained to assist with an appellate brief to be filed in the United States Supreme Court later this spring. Our client is the U.S. Government, and the defendants are Apollo Energies, Inc. and Dale Walker d/b/a Red Cedar Oil. Each defendant was convicted and sentenced for one misdemeanor count of violating the Migratory Bird Treaty Act, 16 U.S.C. § 703. Defendants own oil leases in south central and southwest Kansas, and our client prosecuted them after dead birds were found in “heater/treaters.” You’ll see pictures of the equipment in the files.

The defendants both agreed to a trial before a federal magistrate judge (without a jury). Both filed pretrial Motions to Suppress certain evidence seized by the U.S. Fish and Wildlife Service. You’ll find those motions in the file. After a motion hearing in September, in which several witnesses testified, the magistrate judge denied both defendants’ Motions to Suppress. The case then proceeded to trial, on the very same day as the motion hearing.

At the conclusion of our client’s case-in-chief, the magistrate judge denied defense counsel’s motion for judgment of acquittal. The defense then presented its case. After deliberating a short time, the magistrate issued a ruling convicting both defendants, following up with a written Memorandum and Order memorializing the decision. The defendants were later sentenced to pay fines in the amount of $500 (Walker) and $1,500 (Apollo Energies, Inc.). Defense counsel appealed those decisions (and the sentence) to the federal district court, which affirmed on January 28, 2009. Both defendants immediately filed notices of appeal. Just yesterday, on February 2, the Tenth Circuit summarily affirmed the district court’s decision in a one-sentence order, citing U.S. v. Corrow, 119 F.3d 796 (10th Cir. 1997) as the controlling case.

Apparently the defendants plan to pursue an appeal to the United States Supreme Court from the Tenth Circuit’s summary affirmance. Among other errors, they believe they were denied due process under the U.S. Constitution because the Government lacked evidence of scienter. The district court agreed with our client’s argument, and the magistrate’s ruling, that the statute does not require proof of scienter to convict for a misdemeanor violation. Because this is a case of first impression, we believe the Supreme Court will take the case if they petition for certiorari. We want to keep this appeal moving, so we’ve been asked to prepare a response brief on behalf of the Government to be submitted to the United States Supreme Court after the petition for certiorari is granted and the petitioners file their brief. Apparently they want to do everything possible to get this conviction reversed because they are concerned about negative public relations, and fellow oil producers are very concerned that the case could set a bad

precedent. If all oil producers risk criminal prosecution when some bird finds its way into oil production equipment, the producers are going to have to spend a good deal of money, and they would like to avoid that if at all possible. The oil industry is all about profits, so that’s why this is a very high-profile case even though the stakes for the two convicted defendants are relatively small.

The attached file contains all the documents in the record that we currently have available. The exhibits admitted at trial are on the way from trial counsel. I have posted the transcript of the motion hearing and the subsequent trial on TWEN. In addition, two hardcopies of the transcript have been placed on reserve in the firm’s law library if you would prefer to read the printed version.

Be sure to check the appropriate Supreme Court rules for filing appellate briefs. The Supreme Court requires appellate briefs to be printed, but we’ll take care of that later. Right now I want you to prepare a typed draft for my review no later than February 27, 2009. I expect you to use the appropriate word processing format for the brief for now, until we have it printed.

Your final appellate brief should be no longer than 7,500 words double-spaced on letter-sized paper, excluding the Cover Page, Table of Contents, Table of Authorities, and Certificate of Service. Your title page, margins, pagination, and other format issues must be consistent with all applicable Supreme Court rules.

I will need your draft no later than 5:00 p.m. on Friday, February 27, so we will have time to review it together and make necessary revisions before the filing deadline in early April. For your draft brief only, you may omit the Table of Contents, Table of Authorities, Summary of Argument, and Certificate of Service. Of course, all those sections (and anything else required by the Supreme Court rules) are necessary in your final appellate brief, which should be ready for printing and filing in mid-April.

Thank you for your assistance with the brief. I look forward to reviewing your work.

PLEASE NOTE: You may discuss the assignment and your research with other associates in our firm only (LARW Section A3), but do not show your written work or your legal analysis to anyone but me or my junior partner, Jared Muir. The Honor Code applies to this assignment and all others in this course. If you have questions, please refer to the Washburn University School of Law Honor Code, or ask me for clarification. Feel free to ask either Mr. Muir or me if you have any questions about this assignment or the Honor Code.