Opinion
Court of Appeals No. A-9632.
August 8, 2007.
Appeal from the District Court, First Judicial District, Sitka, Larry C. Zervos, Judge, Trial Court No. 1SI-04-157 Cr.
Louis James Menendez, Juneau, for the Appellant. Roger B. Rom, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Troy A. Denkinger was prosecuted for illegally catching or retaining herring, based on evidence that he did not close his purse seine until approximately 28 seconds after the closing of the fishery. (The fishery was open for only a total of 15 minutes.)
The State initially charged Denkinger under AS 16.05.723, the statute that provides misdemeanor penalties (including up to 1 year in jail) for various commercial fishing violations if the State proves that the defendant acted negligently. However, shortly before Denkinger was to go to trial, the State decided to prosecute Denkinger under the companion statute, AS 16.05.722. This statute allows the State to prosecute commercial fishing violations under a strict liability theory, but the only penalties that can be imposed are a fine (ranging up to $9000, depending on the defendant's past record) and a forfeiture of any fish taken or retained as a result of the violation.
Denkinger argues that the Alaska Legislature violated the equal protection clause of the Alaska Constitution when it enacted this latter statute, AS 16.05.722. Denkinger's argument is based on the fact that defendants who are prosecuted for a misdemeanor under section 723 are entitled to a jury trial (because they face imprisonment as a potential penalty), but defendants who are prosecuted for a strict liability offense under section 722 are not entitled to a jury trial (because they face only a fine and a forfeiture).
Article I, Section 1.
Denkinger acknowledges that the Alaska Supreme Court has directly held that defendants prosecuted for commercial fishing violations under the strict liability provisions of section 722 have no right to trial by jury. See State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 744-46 (Alaska 1998) (opinion on rehearing). Denkinger argues, however, that the supreme court's decision in Dutch Harbor Seafoods is not controlling here because (1) the supreme court's opinion does not expressly address the issue of whether the denial of trial by jury could survive an equal protection challenge, and (2) the defendants in Dutch Harbor Seafoods were "large corporate entities".
The answer to Denkinger's equal protection argument is found in the Alaska Supreme Court's decision in Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970). In Baker, the supreme court held that the Alaska Constitution's guarantee of trial by jury applied to all prosecutions where the potential penalties included incarceration, the loss of a valuable license, or a fine so large as to connote criminality. Id. at 402. See also Alexander v. Anchorage, 490 P.2d 910, 912-13 (Alaska 1971).
Baker implicitly rests on the premise that there is a significant and valid distinction between (1) prosecutions where a defendant faces these penalties and (2) prosecutions where a defendant does not face these penalties. In the commercial fishing context, defendants prosecuted under section 723 face potential imprisonment (as well as potential forfeiture of their vessel and gear), while defendants prosecuted under section 722 face only a fine and forfeiture of their illegal catch. This distinction justifies the denial of trial by jury in prosecutions under section 722.
Denkinger next argues that forfeiture of his illegal catch constitutes cruel and unusual punishment, in violation of Article I, Section 12 of the Alaska Constitution. Denkinger points out that the value of the forfeited fish in his case was almost $170,000, and that he lost these fish even though the State was not required to prove that he acted with a culpable mental state.
But the forfeiture of fish (or the equivalent value of fish) under section 722 is not apportioned to a defendant's degree of blameworthiness. Rather, it directly reflects the amount of unlawful gain that the defendant would have reaped if the fishing violation had gone unprosecuted, or (conversely) the amount of unlawful loss to the fisheries resource occasioned by the defendant's unlawful conduct.
See the discussion of this point in Resek v. State, 706 P.2d 288, 292-93 (Alaska 1985).
This type of restorative forfeiture is not "cruel and unusual punishment". Rather, as the supreme court stated in Dutch Harbor Seafoods, "[a] fisherman who must give up his [unlawful] catch is roughly in the position that he was in before he began fishing illegally." 965 P.2d at 743. Or, as this Court noted in McCann v. State, 817 P.2d 484, 486 n. 2 (Alaska App. 1991), "even [when a defendant has] acted without fault[, they] have [no] valid claim to fish or game obtained in violation of [the law]."
Denkinger argues in the alternative that, even if strict liability prosecutions and forfeitures under AS 16.05.722 are constitutional, it was nevertheless an abuse of prosecutorial discretion for the State to decide, on the eve of Denkinger's trial, to drop the initial misdemeanor charge against Denkinger and instead prosecute Denkinger's case as a strict liability offense under section 722. Denkinger contends that the timing of the prosecutor's decision "smacks of bad faith" because (according to Denkinger) the prosecutor's primary motive in making this change was to deny Denkinger a trial by jury.
Denkinger attempts to draw an analogy to cases where, in the middle of a criminal trial that is not going well for the government, the prosecuting attorney engages in misconduct for the purpose of causing a mistrial — hoping to forestall an acquittal and, at the same time, defeat any potential claim of former jeopardy. We do not find this analogy apt.
The State has broad discretion to decide whether to prosecute a violation of the law and, if the decision is to prosecute, broad discretion to determine the appropriate charge(s) to pursue. It may be that the prosecutor's decision to amend the charge in Denkinger's case was based on the prosecutor's apprehension that the State would not be able to prove that Denkinger acted "negligently" (the culpable mental state required for a misdemeanor prosecution under section 723), or on the suspicion that a jury might be sympathetic to Denkinger. But Denkinger cites no cases for the proposition that a prosecutor engages in misconduct by choosing to pursue a lesser charge that affords fewer procedural protections to a defendant.
See State v. District Court, 53 P.3d 629, 631-32 (Alaska App. 2002), and the cases cited there.
For instance, state prosecutors often decide to reduce felony charges to misdemeanors, and to pursue these reduced charges in the district court rather than the superior court. Such amended charging decisions result in a reduction of procedural rights for the defendant — because, in misdemeanor prosecutions, a defendant has no right to grand jury indictment, and a district court jury consists of only six people, not twelve. But, absent unusual circumstances of injustice, prosecutors have the authority to make these decisions.
Moreover, Denkinger has not suggested how he might have been prejudiced by the prosecutor's decision in his case. Indeed, it appears that Denkinger benefited substantially from the revised charge: he no longer faced a sentence of imprisonment, and the forfeiture allowed in a strict liability prosecution under section 722 is considerably narrower than the forfeiture allowed in a misdemeanor prosecution under section 723.
(Under both sections 722 and 723, the sentencing court must order forfeiture of the illegally caught fish. But in misdemeanor prosecutions under section 723, the sentencing court may additionally order forfeiture of "any vessel and any fishing gear . . . used in[,] or in aid of[,] the [commercial fishing] violation.")
Denkinger argues that the amended charging decision violated his right to due process of law because, by switching to a strict liability prosecution under section 722, the State could still seek forfeiture of Denkinger's catch, but without giving him a jury trial. This argument is just a reformulation of the claim we addressed earlier — Denkinger's claim that it is unconstitutional to impose a forfeiture of illegally caught fish without giving the defendant a jury trial. But, as we explained above, this procedure is lawful. Accordingly, we reject Denkinger's assertion that the prosecutor acted improperly by reducing the charge.
Denkinger next argues that the State illegally seized a certain piece of physical evidence: a videotape that was shot by a friend of Denkinger's who was aboard his vessel.
After the state troopers observed that Denkinger did not draw his purse seine shut until some 28 seconds after the fishery closed, the troopers boarded Denkinger's boat, the FV Confidence. The troopers had seen someone videotaping the seine set from the bow of Denkinger's vessel, so they approached the videographer (Sitka Mayor Marko A. Dapcevich) and asked him if they could view the videotape. When Denkinger was apprised of this request, he told the troopers (in Dapcevich's presence) that he did not want the troopers to view the tape. But a little later, when the troopers spoke to Dapcevich alone, they asked Dapcevich to turn the tape over to them for safekeeping, and Dapcevich agreed. The next day, the troopers obtained a search warrant to view the videotape.
Denkinger asked the district court to suppress the videotape on the ground that it had been unlawfully seized. Superior Court Judge Larry C. Zervos (sitting in the district court) concluded that, even assuming that Dapcevich had no authority to relinquish the videotape to the troopers over Denkinger's objection, the troopers were nevertheless authorized to temporarily seize the videotape for safekeeping — to prevent its destruction until the troopers could apply for a warrant.
The record fully supports Judge Zervos's analysis and decision. We therefore conclude that the judge properly denied Denkinger's suppression motion.
Denkinger next argues that he is entitled to a judgement of acquittal, in that the State's evidence was too weak and contradictory to support a finding of guilt beyond a reasonable doubt.
But as we explained in Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006), when a defendant attacks the sufficiency of the evidence to support the verdict in a judge-tried case, an appellate court "[does] not re-weigh the evidence or choose between competing inferences; we only determine whether evidence exists to support the judge's conclusion." The test is whether, viewing all of the evidence in the light most favorable to the court's verdict, a reasonable judge could conclude that the State had proved its case. Id. Here, the troopers' testimony, if believed, was sufficient to support the conclusion that Denkinger and his crew did not draw their purse seine shut until after the fishery had ended.
See also Helmer v. State, 608 P.2d 38, 39 (Alaska 1980); McKinney v. State, 566 P.2d 653, 662 (Alaska 1977).
Denkinger's related argument — that Judge Zervos "improperly shifted the burden of proof from the prosecution to the defendant by placing undue weight on the testimony of [the two t]roopers" — is frivolous.
Denkinger also argues, in the alternative, that Judge Zervos at least should have granted him a new trial under Alaska Criminal Rule 33(a) — the rule that authorizes a trial judge to order a new trial in a criminal case if "required in the interest of justice".
In jury trials, Criminal Rule 33(a) authorizes a trial judge to vacate a guilty verdict and order a new trial if, even though the government's evidence may be legally sufficient to support the conviction, the jury's decision to convict the defendant is against the weight of the evidence.
See Dorman v. State, 622 P.2d 448, 454 (Alaska 1981); Amidon v. State, 565 P.2d 1248, 1262 (Alaska 1977); Maloney v. State, 667 P.2d 1258, 1267-68 (Alaska App. 1983).
But Denkinger's case was not decided by a jury; it was decided by a judge. And Judge Zervos obviously did not believe that his decision to convict Denkinger was against the weight of the evidence. (In fact, when Judge Zervos rendered his verdict, he carefully explained his decision — analyzing the evidence and explaining how he had assessed the credibility of the competing testimony in the case.) Judge Zervos was not obliged to grant Denkinger a new trial.
Denkinger's final argument on appeal is that, even if he was lawfully convicted, it was improper for the district court to order forfeiture of his entire catch.
Under AS 16.05.722(b), a sentencing court is obliged to order forfeiture of all fish taken or retained as a result of a commercial fishing violation. This statute further provides a rebuttable presumption that "all fish found on board [the] fishing vessel . . ., or found at the fishing site, were [illegally] taken or retained". Because of this rebuttable presumption, "[i]t is the defendant's burden to show by a preponderance of the evidence that fish on board or at the site were lawfully taken and retained."
Judge Zervos found that all of Denkinger's catch was the result of a commercial fishing violation — i.e., Denkinger's failure to stop fishing until after the fishery closed. Denkinger offers two challenges to this ruling.
Denkinger first argues that even if his purse seine was still open when the fishery ended, he nevertheless was entitled to the great majority of the herring in his net, because these fish were in the net before the fishery ended. Denkinger points out that, even viewing the evidence in the light most favorable to the State, Denkinger and his crew began to set their purse seine two or three minutes before the close of the fishery, and they drew the purse seine shut approximately 28 seconds after the fishery ended. Based on this evidence, Denkinger argues that the majority of his fish must be attributed to the two or three minutes when he was fishing legally, and thus it was improper for Judge Zervos to order forfeiture of the entire catch.
Denkinger's second argument is a broader attack on the forfeiture. Denkinger contends that, even though he may have technically violated the law by not having both ends of the seine attached to his vessel when the fishery closed, he had in fact stopped fishing within the time limit — by sailing his boat across the mouth of the net, thus effectively closing the net even though he had not yet attached both ends of the net to his boat.
As explained above, AS 16.05.722(b) directs a court to order forfeiture of "any fish . . . taken or retained as a result of the commission of the [defendant's] violation". Denkinger claims that, because his violation of the fishery closure was purely a technical one ( i.e., a failure to attach both ends of his net to his boat within the time limit, even though he had already physically closed his net to any further entry of herring), the State failed to show that the fish within his net were caught or retained "as a result of" this violation.
A purse seine is a wall of netting constructed with a series of rings at its bottom. A rope passes through these rings and, when the rope is pulled, the rings are drawn close together (like the closing action of a drawstring purse), thus preventing the fish within the perimeter of the net from "sounding" — i.e., swimming downward to escape the net.
See the description and diagram that appear at the web site of the Food and Agricultural Organization of the United Nations, Fisheries and Aquaculture Department:www.fao.org/fi/website/FIRetrieveAction.do?dom=geartypefid=249 as well as the description of the purse seining process in Wikipedia:http://en.wikipedia.org/wiki/Seine_(fishing).
To physically close a purse seine, the upper ends of the seine must be drawn together (so that the fish are encircled), and then the rope that connects the rings at the bottom of the net must be pulled (so that the rings are brought together, thus closing the bottom of the net). In other words, even though fish may be swimming within the perimeter of an open purse seine, the fish are not "caught" or "retained" until the circle or "purse" of the net is closed.
In practice, even after a herring fisherman closes the ends of the purse seine (and thereby encircles the fish), it takes several more minutes to close the rings at the bottom of the net. It could therefore be argued that, until the bottom rings of the net are drawn together, the fish are not really "caught" — because it still remains possible for the fish to swim free through the unclosed bottom of the net.
But under the regulations governing the herring fishery, a purse seine is deemed to "have stopped fishing when both ends of the seine are attached to the fishing vessel". See 5 AAC 27.050(f). In other words, a herring fisherman is deemed to have made the catch within the time allowed so long as both ends of the purse seine have been drawn together and attached to the fishing vessel before the fishery closes — even though it will inevitably take longer to close the bottom of the purse seine (and thus ensure that no fish escape).
Here, Judge Zervos found that Denkinger did not have both ends of his seine attached to his fishing vessel by the close of the fishery. Thus, under 5 AAC 27.050(f), the purse seine was still fishing when the fishery closed. Accordingly, none of the fish within the perimeter of the net were "caught" or "retained" until after the fishery closed.
When Denkinger presented his arguments at his sentencing hearing, Judge Zervos acknowledged that these arguments were "interesting", but the judge rejected Denkinger's arguments as inconsistent with 5 AAC 27.050(f). As explained above, this herring fishery regulation states that a purse seine is deemed to "have stopped fishing when both ends of the seine are attached to the fishing vessel".
Judge Zervos reasoned that, even if it was true (as a factual matter) that Denkinger had physically closed the mouth of the purse seine — by crossing the mouth of the net with the bow of his boat — before the fishery ended, it was nevertheless also true (as a matter of law) that Denkinger had to attach both ends of the net to his vessel before he could harvest the fish. Denkinger did not attach both ends of the net to his vessel until after the fishery closed. Thus, the fish within Denkinger's net were "retained" as a result of Denkinger's failure to stop fishing within the time limit.
In his briefs to this Court, Denkinger makes no mention of Judge Zervos's ruling on this issue, nor does Denkinger even mention the regulation that Judge Zervos relied on, 5 AAC 27.050(f). This being so, Denkinger has failed to convince us that the judge's ruling was either legally or factually incorrect. Accordingly, we uphold Judge Zervos's application of the forfeiture provision of AS 16.05.722(b).
In conclusion, the judgement of the district court is AFFIRMED.