Spring 2009 appellate brief assignment u.s. v. apollo energies (prosecution)
MemorandumTo: Associates in LARW II Section A3 (Last names A-L)From: Professor GoeringDate: February 3, 2009Re: 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 StatesSupreme Court later this spring. Our client is the U.S. Government, and the defendants areApollo Energies, Inc. and Dale Walker d/b/a Red Cedar Oil. Each defendant was convicted andsentenced 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 prosecutedthem after dead birds were found in “heater/treaters.” You’ll see pictures of the equipment in thefiles. 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 WildlifeService. You’ll find those motions in the file. After a motion hearing in September, in whichseveral 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 defensecounsel’s motion for judgment of acquittal. The defense then presented its case. Afterdeliberating a short time, the magistrate issued a ruling convicting both defendants, following upwith a written Memorandum and Order memorializing the decision. The defendants were latersentenced 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, whichaffirmed on January 28, 2009. Both defendants immediately filed notices of appeal. Justyesterday, on February 2, the Tenth Circuit summarily affirmed the district court’s decision in aone-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 Courtfrom the Tenth Circuit’s summary affirmance. Among other errors, they believe they weredenied due process under the U.S. Constitution because the Government lacked evidence ofscienter. The district court agreed with our client’s argument, and the magistrate’s ruling, thatthe statute does not require proof of scienter to convict for a misdemeanor violation. Becausethis is a case of first impression, we believe the Supreme Court will take the case if they petitionfor certiorari. We want to keep this appeal moving, so we’ve been asked to prepare a responsebrief on behalf of the Government to be submitted to the United States Supreme Court after thepetition for certiorari is granted and the petitioners file their brief. Apparently they want to doeverything 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 badprecedent. If all oil producers risk criminal prosecution when some bird finds its way into oilproduction equipment, the producers are going to have to spend a good deal of money, and theywould like to avoid that if at all possible. The oil industry is all about profits, so that’s why thisis a very high-profile case even though the stakes for the two convicted defendants are relativelysmall. The attached file contains all the documents in the record that we currently haveavailable. The exhibits admitted at trial are on the way from trial counsel. I have posted thetranscript of the motion hearing and the subsequent trial on TWEN. In addition, two hardcopiesof the transcript have been placed on reserve in the firm’s law library if you would prefer to readthe printed version. Be sure to check the appropriate Supreme Court rules for filing appellate briefs. TheSupreme Court requires appellate briefs to be printed, but we’ll take care of that later. Right nowI want you to prepare a typed draft for my review no later than February 27, 2009. I expect youto 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 Certificateof Service. Your title page, margins, pagination, and other format issues must be consistent withall applicable Supreme Court rules. I will need your draft no later than 5:00 p.m. on Friday, February 27, so we will havetime 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 ofArgument, and Certificate of Service. Of course, all those sections (and anything else requiredby the Supreme Court rules) are necessary in your final appellate brief, which should be readyfor 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 otherassociates in our firm only (LARW Section A3), but do not show your written work or your legalanalysis to anyone but me or my junior partner, Jared Muir. The Honor Code applies to thisassignment and all others in this course. If you have questions, please refer to the WashburnUniversity 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.