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United States v. Hugs



Defendants Frank and William Hugs were convicted of violating the Bald and Golden Eagle Protection Act (BGEPA).[1] On appeal to the Ninth Circuit, the defendants claimed the BGEPA violated their First Amendment right to free exercise of religion. They also argued that improper jury instructions and illegal actions by an undercover agent were grounds for reversing the conviction. The Ninth Circuit upheld the constitutionality of the BGEPA under the Religious Freedom Restoration Act of 1993 (RFRA)[2] and, after finding no validity in the defendants’ other claims, upheld their convictions.

A Montana state game warden posed as a semiretired contractor interested in hunting, fishing, and purchasing trophy big game heads. The defendants invited the warden to pay a fee and join them in a game hunt on the Crow Reservation. While hunting, the defendants shot at, and sometimes hit, golden and bald eagles. The warden learned that the Hugs were actively involved in purchasing and selling eagles and eagle parts, and subsequently gave the defendants artifacts made from eagle parts in return for cash and promised services. He concluded his investigation by searching the defendants’ home. The search revealed eagle feathers in war bonnets, a freshly killed golden eagle, and a videotape depicting William Hugs shooting and killing eagles caught in leg hold traps. The defendants were subsequently tried and convicted under the BGEPA.

The defendants freely admitted that they trapped, shot at, and killed eagles, but argued that they were seeking eagle feathers and parts for their own religious use, and therefore the BGEPA infringed on the First Amendment guarantee of free exercise of religion. Additionally, the defendants claimed that they were unduly prejudiced because the jury was not given an instruction regarding the above defense, and also because the case was not dismissed due to illegal actions conducted by the government during the undercover investigation. In particular, the defendants referred to the actions by undercover warden Long who personally shot at and killed several animals during the course of the undercover investigation.

The BGEPA provides a general prohibition on the taking, possessing, purchasing, or selling of bald eagles, golden eagles, or their parts.[3] Contrary to the defendants argument that the Act interferes with freedom of religion, enrolled Native Americans can obtain eagles or eagle parts for documented religious use through a permit process administered by the U.S. Fish and Wildlife Service.[4] The defendants, however, claimed that their right to free exercise of religion was effectively denied by the difficulty of obtaining administrative approval to take eagles or eagle parts. They asserted that up to two years may be required to obtain a permit to take, possess, or transport certain types of eagle parts.

A defendant who is prosecuted under the BGEPA for purely commercial, rather than religious, activities may not assert a claim that his free exercise of religion has been infringed. However, because the district court found that the Hugs’ activities may have been for religious purposes, the Ninth Circuit allowed the defendants to raise the free exercise of religion defense. However, the Ninth Circuit limited the defendants’ challenge to the facial validity of BGEPA, and therefore the manner in which the act was administered was not at issue. Administrative challenges were precluded in this case because the defendants never applied for a permit. The facial analysis of the BGEPA was guided by RFRA.

According to RFRA, the government is forbidden from substantially burdening the free exercise of religion unless the burden being imposed is in pursuit of a compelling governmental interest and is done in the least restrictive means possible.[5] As to the first element, the Ninth Circuit held that there was a compelling governmental interest in protecting eagles due to their religious significance to Native Americans and their status as threatened or endangered species. The defendants did not deny the existence of the compelling governmental interest. As to the second element, the Ninth Circuit was equally satisfied that the BGEPA and permit system effectuate the governmental interest in the least restrictive manner possible. The permit system allows for takings of eagles for religious purposes and only requires the minimum amount of information necessary to ensure that eagles and eagle parts will be used for legitimate religious purposes.

The Ninth Circuit also rejected the defendants’ allegation of improper jury instructions. The jury was offered instructions that essentially stated it was illegal for Native Americans to kill, sell, or purchase eagles, eagle feathers, or eagle parts without a permit. The Ninth Circuit affirmed that the BGEPA contains no exceptions for religious uses without a permit. Any instructions to the contrary would assume the BGEPA was unconstitutional. While unconstitutionality may have been the defendants’ theory for the case, it presented an issue of law for the judge and not the jury.

The Ninth Circuit was similarly unwilling to reverse the convictions based on the alleged illegal activities of the game warden because (1) the agent killed game out of season in order to maintain his credibility as a supposed hunter, (2) only shot animals from relatively abundant species, and (3) did not shoot any eagles. Although questions were raised regarding the extent to which crimes may be committed by undercover agents in an attempt to prevent similar crimes by others, the Ninth Circuit held that an agent’s conduct must be so outrageous that it would violate due process for the government to seek a conviction. Additionally, the Ninth Circuit relied on precedent that there is no outrageous government conduct defense when a defendant’s illegal activity is ongoing.[6] Accordingly, after confirming that the actions of the defendants constituted a “sale” within the meaning of the BGEPA, the Ninth Circuit affirmed the defendants’ convictions.

[1]16 U.S.C. §§ 668 – 668d (1994).

[2]42 U.S.C. §§ 2000bb to 2000bb-4 (1994).

[3]16 U.S.C. § 668(a) (1994).

[4]Id. § 668a; 50 C.F.R. § 22.22 (1997).

[5]42 U.S.C. § 2000bb-1(b) (1994).

[6]Unites States v. Stenberg, 803 F.2d 422, 430-31 (9th Cir. 1986).

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