Thomas B. Rustad, Harvey R. Wyborny, Homer C. Skelley, Charles Diven and James Johnson v. United States

If a vessel sought to go south from the City of Wrangel situated on the northernmost tip of Wrangel Island- in southeast Alaska, it could proceed along the easterly side of the island through the Eastern Passage, Blake Channel, and Anan Creek area to a point immediately south of Wrangel Island and north of Deer Island in Ernest Sound, or, it could sail along the westerly side of Wrangel Island through Zimovia Strait to the same point in Ernest Sound north of Deer Island. All of these named bodies of water are in the Anan section of the “Sumner Strait Regulatory District,” as delineated on the Southeast Alaska Commercial Fisheries Maps, published by the United States Fish and Wildlife Service.

At about 12:30 p. m. on July 12, 1956, the defendants’ vessel was found fishing commercially at a point allegedly located within Zimovia Strait. The Captain and four members of the crew (appellants herein) were arrested, and charged with a violation of 48 U.S.C.A. § 222 , 1 which makes violations of regulations issued by the Secretary of Interior under the authority of 48 U.S.C.A. § 221 , criminal offenses. 48 U.S.C.A. § 226 2 provides for fine and imprisonment for any such violation, i. e.,…

(concurring).

I find myself in accord with substantially everything that is stated in the court’s opinion. The only qualification I would make is the statement that the date of Sec. 121.4 includes Zimovia Strait. Had the appellants raised the point I think it would be a serious question whether the prohibition stated in that section extended to Zimovia Strait, thus raising doubt as to whether there was any closed season in that strait. The section contains an express exception: “With the exception of Ernest Sound and the vicinity of Anan Creek”. But that area would appear to include Zimovia Strait, for the drafters of Sec. 121.3 found it necessary to make an express exclusion of this strait. That is, a reading of 121.3 seems to indicate that “Ernest Sound and * * * the vicinity of Anan Creek”, so described, would ordinarily include Zimovia Strait.

But such a point was not preserved at the trial nor made in the specifications of error here. If the matter were entirely clear, and if it were plain that the regulations simply did not provide any prohibitions as to Zimovia Strait, we might be called upon to notice the point as a plain error under Criminal Rule 52(b), 18 U.S.C. But I…

On Petition for Rehearing

The petition for rehearing is denied.

(dissenting).

In my concurring opinion of June 30, 1958, I noted the reason there is doubt as to whether there was any closed season in Zimovia Strait at the time stated in the information. However I stated my concurrence in the judgment of affirmance on the ground that the point had not been raised at the trial or on appeal here and I felt that under the circumstances we would not be called upon to notice the point as a plain error under Fed.Rules Crim.Proc. Rule 52(b), 18 U.S.C.

Upon the petition for a rehearing appellants have called attention to the fact that if the regulations did not provide any prohibition as to Zimovia Strait, then the information did not state an offense. They also note that under Criminal Rule 12(b) (2), the failure of an information to charge an offense shall be noticed by the court at any time. The petition further suggests that there is no substantial proof of an administrative construction of the regulations such as that which I refer to in my former opinion.

I am bearing in mind the proposition that a person should not be fined or imprisoned for violation of a statute or regulation which is ambiguous or uncertain. Since I think it is a serious…

258 F.2d 563 Thomas B. RUSTAD, Harvey R. Wyborny, Homer C. Skelley, Charles Diven and James Johnson, Appellants, v. UNITED STATES of America, Appellee. No. 15720. United States Court of Appeals Ninth Circuit. June 30, 1958. Rehearing Denied September 9, 1958. Certiorari Denied November 24, 1958. See 79 S.Ct. 222 . Faulkner, Banfield & Boochever, Juneau, Alaska, for appellants. Roger G. Connor, U. S. Atty., Jerome A. Moore, Asst. U. S. Atty., Juneau, Alaska, for appellee. Before POPE, BARNES and HAMLEY, Circuit Judges. BARNES, Circuit Judge. 1 If a vessel sought to go south from the City of Wrangel situated on the northernmost tip of Wrangel Island in southeast Alaska, it could proceed along the easterly side of the island through the Eastern Passage, Blake Channel, and Anan Creek area to a point immediately south of Wrangel Island and north of Deer Island in Ernest Sound, or, it could sail along the westerly side of Wrangel Island through Zimovia Strait to the same point in Ernest Sound north of Deer Island. All of these named bodies of water are in the Anan section of the "Sumner Strait Regulatory District," as delineated on the Southeast Alaska Commercial Fisheries Maps,…