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UNITED STATES v. ENGLER

November 19, 1985

UNITED STATES OF AMERICA,
v.
EDWARD ENGLER



The opinion of the court was delivered by: RAMBO

 Sylvia H. Rambo

 Procedural History

 On January 10, 1985, the Grand Jury returned two indictments against the defendant: Middle District of Pennsylvania Criminal No. 85-00005-01 charged him with one count of selling or aiding and abetting the sale of stolen explosives in violation of 18 U.S.C. §§ 842(h), 844(a) and 2; Middle District of Pennsylvania Criminal No. 85-00006 charged the defendant with fifteen (15) counts of selling migratory birds or bird parts in violation of 16 U.S.C. §§ 703 and 707(b)(2). The defendant pleaded not guilty on February 7, 1985 to all counts in both indictments.

 On March 7, 1985, the Grand Jury returned a third indictment against the defendant, Middle District of Pennsylvania Criminal No. 85-00049, charging him with one count of violating 18 U.S.C. §§ 842(h), 844(a) and 2 and one count of violating 16 U.S.C. §§ 703 and 707(b)(2).

 By order of March 13, 1985, the court granted the defendant's motion to consolidate indictments. By order of March 14, 1985, the court granted defendant's motion for continuance. On March 15, 1985, the defendant pleaded not guilty to both counts of Criminal No. 85-00049.

 Jury selection was conducted on May 6, 1985. Trial commenced on May 7, 1985. On May 15, 1985, the jury returned guilty verdicts on all counts.

 On May 22, 1985, the defendant filed motions for judgment of acquittal and for a new trial. On August 29, 1985, the defendant filed a motion for permission to raise the issue of the constitutionality of the Migratory Bird Treaty Act. The motion was granted on October 1, 1985. The Government filed a brief on October 10, 1985. All motions are now ripe for decision.

 Constitutional Issue

 The issue presented is whether the defendant's felony conviction for the sales of migratory birds in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 707(b) violates the due process clause of the fifth amendment of the United States Constitution.

 The sections of the statute relevant to this case are 16 U.S.C. 703 and 707. Section 703 provides in part that:

 
It shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, kill, possess, offer for sale, sell, . . . [or] purchase . . . any migratory bird, any part,. . . of any such bird, . . . included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916, the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936 and the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972.

 Section 707 provides in part:

 
(a) Except as otherwise provided in this section, any person . . . who shall violate any provisions of said conventions or of this Act, or who shall violate or fail to comply with any regulation made pursuant to this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be ...

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