United States v. George J. Alexander, United States of America v. Henry W. Peele

938 F.2d 942 UNITED STATES of America, Plaintiff-Appellee, v. George J. ALEXANDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Henry W. PEELE, Defendant-Appellant. Nos. 89-30253, 89-30259. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 2, 1990. Decided July 5, 1991. Shawn J. Holliday, Groh, Eggers & Price, Anchorage, Alaska, for defendant-appellant Peele. Sidney K. Billingslea, Asst. Fed. Public Defender, Anchorage, Alaska, for defendant-appellant Alexander. Joseph W. Bottini, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee. Appeal from the United States District Court for the District of Alaska. Before KOZINSKI, O'SCANNLAIN and FERNANDEZ, Circuit Judges. KOZINSKI, Circuit Judge. 1 Defendants Alexander and Peele were convicted of trafficking in herring roe on kelp--fish eggs on seaweed. 1 This, it turns out, is an exotic delicacy that fetches as much as $60 per pound in Japan. In fact, global demand for this gustatory delight has endangered Alaska's fisheries, inducing the state to prohibit all harvesting except for subsistence uses. Unhappily for the government, this fish tale, like so many others, is about the…

dissenting:

Let it first be said that we are not dealing with a person who simply sought to subsist on a fishery closed to all but subsistence users. We deal with individuals who sought to make a great deal of money by taking an enormous quantity of herring spawn on kelp, and who only failed in their goal because they were as inept as they were greedy. The question is whether they can do such a thing and avoid a conviction for transporting their booty in interstate commerce. See 16 U.S.C. §§ 3372-73 . I think not.

Defendants claim that they were improperly convicted because Alaska’s limits on the amount of spawn on kelp they can take are invalid and because the Alaska limitations on sales are also invalid. I believe they are incorrect on both scores.

*950 The suggestion that it is somehow improper for Alaska to adopt limits on the amount that can be taken, because those limits may not encompass the vast amount that the defendants would like to sell under the “customary trade” guise, is hardly worthy of consideration. ANILCA assumes that any regulatory scheme will, indeed, be designed to protect fisheries, and may even restrict all subsistence use taking, if that is deemed…

Defendants Alexander and Peele were convicted of trafficking in herring roe on kelp — fish eggs on seaweed. 1 This, it turns out, is an exotic delicacy that fetches as much as $60 per pound in Japan. In fact, global demand for this gustatory delight has endangered Alaska’s fisheries, inducing the state to prohibit all harvesting except for subsistence uses. Unhappily for the government, this fish tale, like so many others, is about the ones that got away.

Facts

The facts that spawned this controversy are relatively straightforward. Defendants Alexander and Peele are Haida Indians. Peele harvested over half a ton of herring roe on kelp in Southeastern Alaska and enlisted Alexander’s help in selling it. However, they had permits for only 444 pounds. Undeterred, they loaded an old Dodge station wagon to the gills with the contraband and trawled Canada for a buyer. Their plan began to flounder when they were unable to hook a buyer and the herring roe began to rot. They then attempted to enter the United States, hoping to unload their now malodorous cargo in the state of Washington. Alerted by Cana *945 dian officials, United States Customs agents snared the purloiners of prenatal…