i had an agreement with the government that they would be able to challenge the issue of whether a feather is a bird everyone understood what the agreement was the they then pled guilty to selling a feather a feather fan that's all that they pled guilty to and further it would be a violation of their you process rights under president to increase the maximum penalty for the crime based on the fact that the government has not proven beyond a reasonable doubt it's should be the  a tree act which by selling a bird parts and but the only conduct that they have admitted to selling a family heirloom feather fan and a defendant should not be in a position of learning for the first time from the courts that selling a item containing a few feathers a felony if the court is to read the statute as a whole which is required to do it it's clear that congress do a distinction between birds and bird parts seventy three section seven four as i've seen some a five bird and bird parts are each used in each of those sections because in section seven zero seven b which court is to presume that its absence of migratory birds in seven o seven b is intentional now the suggestion that the felony section was added to address all commercial violation of the act is again undercut by the plain language of the statute a close reading the statute shows that it's not a felony to offer to purchase to purchase to import export to ship these other violations of the commercial violations of the act are not felons mr murphy could at some point in your argument address to one extend beyond the pla meaning argument the principle of the rule of lenity has any bearing on this case and also respond to the the arguments relating to first must must ask or decide whether congress has directly addressed that issue if congress has done so on ambiguously that's the end of the matter the courts and agency muscular affects the language used by by mr johnson yes your honor may it please the court leaves johnson for the united states i need to begin my presentation today clarifying something that i stated in the brief it page i and i did not do justice to what the court actually stated in that opinion and actually the court in maquis said as part of its opinion that the felony provisions of the migratory birds react prohibit  both statutes was were either of these defendants charged under seven o three or seven o five the seven o three and seven o seven are the felony provision so those two defendants were charged into the felony provisions for essentially the same type of conduct at issue here i had thought they were charged under seven zero seven b two yes that's the felony provision that relates to the sale of evil parts  does the indictment recite seven o three a or seven o five in this case yes no the indictment here you get what you're referring to is two sections of the act where congress said not only bird but i quote any migratory bird any part nest or egg of any such mern or any product whether or not manufactured which consist or is composed  or part of any such murder or any part nest or egg there of yes so congress knew what to do knew what language to use yes when it talks about something other than a verb right yes and our response to that your honor is exactly what the st your court held in its case which is you read seven zero three seven three seven zero four and seven zero five are all the substantive provisions that prohibit just told us doesn't charge these defendants with violating seven o three or seven o five it does charge the defendants with violating seven o three and seven o seven b that's what the indictment charges here and that was eighty three south dakota district court yes why should we think and simply because the reasoning is sound and it relied on it basically for states that it was relying on this court's decision in maquis the court did state that the felony provisions of the act apply to feathers so i just want to point that out now i understand that that wasn't the central holding of macky here are but it was what s and examine the question of whether or not the defendant had a right to beach to be charged under the lesser penalties of one and it concluded in fact that he did not i also want to quickly address this issue of the definition of criminals for one very good reason and that is that congress has of mended the statute two times since then and it did not correct the agency's mis interpretation and sale of feathers that were gathered prior to the act and in doing that it looked at you know the act itself in the legislative history and also the agency's interpretation couldn't we just as easily conclude that the failure of congress to import the expanded definition under seven hundred thirty and seven o five into seven zero seven v two is indicative of its intent that only a position on whether count one saves the government in any event you know this is something i blundered into in drafting the brief i had no idea that the parties had had discussions about what arguments we would would not make on appeal i guess my my solution or didn't hear that as your opponent's argument i heard i still heard him say when we play ed yes we played with the understanding that we retained the argument yes that  conduct it minutely criminal sounded and misdemeanor only not family our position is the adverse your honor our position is that count one did involve the baiting and killing of eagles and that we are prepared to question for you about the conspiracy claim yes it's is under the general conspiracy statute three seventy one yes you know if i'm recalling that correct misdemeanors but that there would still be conduct alleged in there that could satisfy the felony and i think under that circumstance the district court would say surely offer or instruct on a lesser included offense and so if the government transcends this case and relates to many other cases just what's the government's position on what is the proper role of the rule of law and t and a case like this because i mean looked at this read those provisions together and we believe that's the only way that you can read this statute and when you do that it even says a very clear purpose so fell in the eyes that commercialisation of migrat line that would be created by a restricted definition of migratory bird is anything but a clear and bright line it is in fact a very fuzzy line because then we get into as we expressed in our brief what exactly is a migratory bird but more importantly or what is the whole word and what is a piece of a bird and when does the whole bird cease to be whole bird when you start to remove parts but aside from that anomaly there is another anomaly here in the statute that i want the courts to be it would also apply the seven zero seven the one which prohibits the taking of a migratory bird with intends to sell and i'm quoting here any such bird ok so if we restrict my car bird in that way that would mean that a person could shoot an eagle with intent to sell that eagle and be guilty of a felony but he could shoot that same illegal with intent to merely sell its tail feathers and be guilty of only a misdemeanor so if you need an extra minute well yeah thank you your honor what's your response to the government's argument on count one which does as counsel argued specifically refer to seven o three a and seven hundred seventy both of which include the expanded  bird parts o three a day is says it sets out all the violations of the migratory birds for the act so you can violate the the act in many different ways by offering to purchase by shipping by killing by doing all sorts of things the punishments that are set out in seven zero seven so all violations are in seven us three in the in the punishments are in seven or seven seven seven b sets out the felony conduct which says it's a felony to take appeal yet because it's not particularly relevant because here the defendants have only pled guilty to conduct according to plain language a statute is a misdemeanor and they cannot be punished just phones for conduct that has not been proven that swordfish selfish i thought the fish get so polluted with mercury and things like that it's a health risk and the government pass statute saying but the guys who commercialized and created the demand and sell it would only be guilty of a mystery it's our position is that the tax that congress used should be t that may be a case and i think that would be that might be one of those cases for a jury to decide whether selling just the had a person who orders ahead of an eagle and sells it as it is actually selling a bird in this case that's not what is what the cases but there may be a situation where a middleman is as sentences a a felon or a mystery or based off of how involved they were and in the conduct or an it may be i'm actually it's possible i don't know not sure what the exact definition of take is but if you're ordering if you're hiring a hunter to go kill birds there there may be an argument that  agency they were your agent that's pretty simple friend but if they want your agent and you have the business and they brought him in that that's what's kind of bother me about like as your side of the case although i  because we have a ready and available market for the heads of these these birds could the government sharjah the store owner with conspiracy yes i think i think so your honor i think they could make guilty to conspiracy but that be a felony