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STATEMENT OF THE ISSUES

I. Was the trial court incorrect when it decided that Jennifer Floyd, when she purposefully flew her helicopter within ten feet of wild animals, did not harass animals within the meaning of the law and that specific intent is required in order to violate the Airborne Hunting Act?

II. Was the trial court incorrect when it found that Jennifer Floyd did not act in furtherance of Carlos Cesenas illegal presence within the United States when she flew him from Seattle to Peaceful Valley, Washington?

STATEMENT OF THE CASE On or about June 1, 2010, defendant Jennifer Floyd flew her helicopter as close as ten feet from deer, causing the deer to flee. (R. 1.) The harassment of animals using an aircraft is a violation of 16 U.SC 742-j-1(a)(2). (R. 1.) The limited range on the onboard computer system requires her to fly as close as ten feet from the deer so that her customers, using laser guns, may be able to target and hunt the deer. (R. 5.) Defendant Floyd is a licensed helicopter pilot, and the laser guns do not fire actual projectiles. (R. 4.) Nevertheless, the animals are fleeing and appear frightened in the pictures provided in the Record on Appeal. (R. 8-11.) On November 30, 2010, the defendant was found not guilty of violating 16 U.SC 742j-1(a)(2) because, the court says, the prosecution failed to show that this violation constituted a public welfare offense. Additionally, the prosecution failed to prove the existence of the specific intent that the courts said was required. (R. 14.) Moreover, Defendant Floyd transported Carlos Cesena, an illegal alien, within the United States, when she flew him with her helicopter from Seattle to Peaceful Valley, WA. (R. 6.) Defendant Floyd frequently utilizes day laborers to accomplish physical tasks associated with her business, and has never questioned any of them as to their legal entry into or status within the United States. (R. 3.) Cesena stated that he needed to go to Peaceful Valley because there was someone there who would help him with his legal status, but no further details were given. (R. 12.) She agreed to do so in exchange for several hours of his physical labor that he had already done. (R. 5) On November 30, 2010, Defendant Floyd was acquitted of this charge as well. (R. 14.) The court states this is because the transportation was only incidental to Floyds work and that the

Government failed to prove that this transportation was in furtherance of Cesenas unlawful residency, and therefore did not violate 8 U.S.C. 1324(a)(1)(A)(ii). (R. 14.)

SUMMARY OF ARGUMENTS

Violation of the Airborne Hunting Act (AHA) is a public welfare offense. As such, strict liability attaches because the animals were harassed within the legal meaning of the word and against the intention of the statute. Therefore, the trial court was mistaken in finding that Jennifer Floyd did not have the requisite intent to violate the statute because in reality no intent is required. Furthermore, the trial court was mistaken in finding Floyds transportation of Cesena was only incidental to her work, and therefore she was not in violation of the Immigration Reform and Control Act. Jennifer transported Cesena so that he could conduct business within the United States, and therefore the transportation was in furtherance of Cesenas violation of The Immigration Reform and Control Act. Jennifer hired and transported him without any inquiry into his legal status within the United States, and therefore was reckless in regard to the fact that Cesena was in the country illegally and so should be held liable for violation of the statute. The United States seeks relief in the form of reversal of defendants acquittal.

ARGUMENT Jennifer Floyd, the defendant in this case, is charged with violation of the Airborne Hunting Act and the Immigration Reform and Control Act. Flying at low

altitudes and chasing animals is harassment that falls within the meaning of the plain language of the statute. 16 U.S.C. 742j-1(a)(2) (2011). Aliens who enter the country illegally or who reside in the country unlawfully are in violation of the Immigration Reform and Control Act. Transporting the aliens in furtherance of that violation is also a violation of that Act. 8 U.S.C. 1324 (a)(1)(A)(ii) (2010). The trial court was wrong not to convict defendant Floyd of these charges, the Government appeals the trial courts decision and seeks to have it reversed.

I. THE TRIAL COURT WAS INCORRECT IN FINDING THAT JENNIFER FLOYD DID NOT VIOLATE THE AIRBORNE HUNTING ACT. Jennifer Floyd is charged with violation of the AHA because she flew her helicopter within ten feet of wild deer long enough and in order to allow her customers to target those deer with laser guns. Chasing, frightening, corralling, or otherwise bothering wild animals with an aircraft of any type is harassment under the law. United States v. Red Frame Parasail, Buckeye Model Eagle 503, 160 F. Supp. 2d 1048 (D. Ariz. 2001); 16 U.S.C. 742j-1(a)(2) (2011). Defendant Floyd clearly harassed animals and is therefore in violation of the rules set forth above and should be convicted as a result.

A. Violation of the AHA is a public welfare offense. The AHA is a public welfare offense and as such strict liability should attach. 16 U.S.C. 742j-1(a)(2). The court in U.S. v. One Bell Jet Ranger II Helicopter ruled that the legal meaning of the word harassment should be understood within the common language of 4

the statute. The defendants in that case were held to have satisfied any intent requirement under the statute, but the court did not go into whether strict liability attaches. 943 F.2d 1121 (9th Cir. 1991). Public welfare offenses are also typically strict liability offenses and therefore a person who commits a strict liability offense is very likely to have committed a public welfare offense. The trial court should have held defendant Floyd strictly liable for her actions, had they done so, they would have done so under a public welfare theory of statutory analysis. Because defendant Floyd acted in such as way as to cause fear in animals and cause them to flee, she clearly harassed those animals within the meaning of the law and should be held responsible for it. The AHA is a creature of statute, meaning that it is law created not by courts, but by a legislature with a particular purpose in mind. Strict liability statutes often address socalled public welfare offenses. Such statutes are aimed at conduct that, although not morally wrongful, could adversely affect the health, safety, or welfare of the public. Examples include statutes that prohibit the manufacture or sale of impure food or drugs to the public, anti-pollution environmental laws, as well as traffic and motor-vehicle regulations. Strict Liability statutes also regulate other types of conduct against individuals, such as the offense of a pilot harassing animals from an aircraft. Congress enacted the AHA primarily in response to public outcry over a 1969 NBC film depicting the slaughter of wolves, shot from aircraft. Red Frame, 160 F. Supp. 2d at 1053. The outcry that gave rise to the statute demonstrates that the public views the harassment of animals as something that adversely affects their welfare, and rightly so. Given the

circumstances under which the statute was born, there is no choice but to see it as a public welfare offense. Since the AHA can only be a public welfare statute, strict liability must apply and therefore the trial court was wrong to find that Jennifer Floyd lacked the required specific intent to be convicted because there is no specific intent required. As the AHA is a public welfare statute, strict liability should apply. The general presumption that some guilty purpose is a required element of every crime is not applicable to what have been termed public welfare offenses, which typically impose penalties to serve as an effective means of regulation. - United States v. Ellison, 112 F. Supp. 2d 1234 (D. Colo. 2000). i.e. Creatures of statute imply strict liability. The reason for this is that had the legislature wanted to insert a mens rea requirement, they would have. Proof of Jennifers actus reus is well established by her own testimony and the photographs provided by the record on appeal. Therefore, since no specific intent is required, Jennifer should have been convicted of violation of the AHA. B. The animals in question were indeed harassed. The animals in this case were harassed within the meaning of the law as set forth in United States v. Red Frame Parasail, Buckeye Model Eagle 503, 160 F. Supp. 2d 1048 (D. Ariz. 2001). The court in Red Frame stated that Flying at low altitudes, chasing animals, in order to scout good trophy animals for hunting, falls well within the common meaning of the word harass. Simply bothering an animal with an aircraft can constitute harassment under the AHA. Anything done using an aircraft that does anything to molest a wild animal in any way may make one liable for violation of the AHA. It may seems harsh, but that is the 6

statute and it was crafted to be strict in order to protect those wild animals that would otherwise be hunted, corralled, harassed, or otherwise put in peril or fear. The pictures in the record on appeal clearly show such molestation. Based on the above arguments, there is no choice but to hold Jennifer Floyd responsible for violation of the AHA. The court in U.S. v. Red Frame Parasail set the legal definition of the word harassment and the court in United States v. One Bell Jet Ranger II Helicopter, 943 F.2d 1121 (9th Cir. Wash. 1991) reaffirms courts discretion when deciding punishment for one who has violated AHA. The courts in these cases state that Flying at low altitudes, chasing animals, in order to scout good trophy animals for hunting, falls well within the common meaning of the word harass. The court cited the following to make its judgment: 16 U.S.C.S. 742j-1(a)(2), which prohibits use of an aircraft to "harass any bird, fish, or other animal." Regulations promulgated by the Secretary of Interior define "harass" as to disturb, worry, molest, rally, concentrate, harry, chase, drive, herd or torment. It is self-evident, given the photographs shown in the Record on Appeal, that the animals were harassed within the legal meaning of that word as defined by the court in Red Frame supra.

THE TRIAL COURT WAS WRONG IN FINDING THAT JENNIFER FLOYDS TRANSPORTATION OF CARLOS CESENA WAS ONLY INCIDENTAL TO HER WORK AND THAT SHE DID NOT VIOLATE THE IMMIGRATION CONTROL AND REFORM ACT. Defendant in this case recklessly transported an illegal alien in furtherance of his violation of the Immigration Reform and Control act.

II.

Two elements are required in order to violate the Immigration Reform and Control Act in this way. The first is that the actor acts knowingly or in reckless disregard of the fact that the person they are transporting is in the United States illegally, and the second is that they act in furtherance of that persons illegal presence. United States of America v. Rodriguez-Rodriguez, 840 F. 2d 697 (9th Cir. 1988); 8 U.S.C. 1324 (a)(1)(A)(ii) (2010). In transporting Carlos Cesena with her helicopter, Defendant Floyd acted in furtherance of Cesenas illegal presence within the United States.

A. Defendant Floyd knew or should have known that Cesena was here in the United States illegally. When she hires day laborers to help her with her business, defendant never checks their legal status. This goes to show her recklessness in finding out whether the people she hires are legally residing within the United States. United States of America v. Rodriguez-Rodriguez, 840 F. 2d 697 (9th Cir. 1988); 8 U.S.C. 1324 (a)(1)(A)(ii) (2010). In Rodriguez-Rodriguez, the aliens had not filed for adjustment of status, therefore they lingered in the country unlawfully. By transporting the aliens in furtherance of that violation, defendants violated 8 U.S.C. 1324(a)(1)(B). Furthermore, even if the aliens had entered the country to apply for adjustment of status, they would have entered in violation of law. In Rodriguez, the defendants acted with equal recklessness or knowledge that defendant Floyd acted with when she hired Cesena. Based on the precedent set above, there is no choice but to hold Floyd responsible for her recklessness. 8

8 U.S.C. 1324 (a)(1)(A)(ii) states that any person who knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law is subject to criminal penalties. In U.S. v. Salinas-Calderon, 585 F.Supp 599 1984 DC Kan at 602, court lays out elements of unlawfully transporting illegal aliens. Among those elements was the following: the defendant knew or had reasonable grounds to believe that aliens entry was within the last three years. Reckless disregard is defined as conscious indifference to the consequences of an act. Bryan A. Garner, Blacks Law Dictionary third pocket edition, p. 596. Jennifer regularly hires day laborers without checking their legal status or eligibility to work legally within the United States. This practice is in blatant disregard for other laws of the United States requiring employers to make sure their employees are legally eligible to work within the United States. This disregard for that standard equates to reckless disregard of the fact that Carlos Cesena has entered the United States and resides there illegally. By not checking into Cesenas legal status, Jennifer shows her reckless disregard for the fact that Cesena is in the United States illegally.

B. Jennifers transportation of Carlos Cesena was in furtherance of his illegal presence within the United States.

Under 8 U.S.C. 1324 (a)(1)(A)(ii) (2010), it is a violation to transport an alien in furtherance of their illegal presence within the United States.

Under the rule stated supra, and further clarified by United States v. RodriguezRodriguez, in which the court makes clear that regardless of the aliens eligibility for legal status, it is still illegal to transport them in furtherance of their illegal presence if they have not yet applied for legal status. 840 F.2d 697, 699 (9th Cir. Cal. 1988). Transporting Cesena furthered his illegal presence in the United States because it allowed him to conduct business within the United States. Cesena said he needed to go to Peaceful Valley to meet with a person who could assist (him) with (his) immigration status. There were no further details. It is entirely possible that Cesena was lying, or that the assistance he would receive would itself be illegal. There could have been any number of reasons that Cesena would want transportation within the United States, any and all of these reasons would go to further his illegal presence within the country and therefore violate the Immigration Reform and Control Act. Regardless of the reason given for Cesenas transportation, the fact that he is an illegal alien makes the person who transports him liable for violation of 8 U.S.C. 1324.

CONCLUSION In light of the United States arguments set out above, appellant requests forfeiture of the Helicopter used in the violation of the AHA, and imposition of a fine of no less than $5,000 or imprisonment for not more than one year.

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