No. 87-235
IN THE SUPREME COURT OF THE STATEOF MONTANA 1987

STATE OF MONTANA, Plaintiffand Appellant,-vsPHIL SWORD, Defendantand Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, Inand for the County of Flathead, TheHonorable Leif Erickson, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Hon. Mike Greely,Attorney General, Helena,Montana John Paulson,Asst. Atty. General,Helena Ted Lympus,CountyAttorney,Kalispell, Montana Ed Corrigan, DeputyCountyAttorney, Kalispell
For Respondent: GaryA. Crowe,Kalispell,Montana

Submitted on Briefs: Aug. 27, 1987 Decided: December 15, 1987
Filed: 

## FdEC

## 151987

ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

The Eleventh Judicial District, Flathead County, dismissed charges against defendant on the basis of double jeopardy. The State appeals. We affirm. The issue is: Did the District Court err in concluding that the State prosecution of defendant for subscribing to a materially false statement on an application for a grizzly bear trophy license was barred by double jeopardy where defendant had previously been convicted in federal court of knowingly possessing, carrying, and transporting a grizzly bear taken unlawfully? The defendant, Mr. Sword, killed a grizzly bear in the Great Bear Wildernesswhich at that timewas closed to grizzlybear hunting. Section 87-2-701(2), MCA, requires onewho kills a grizzly bear to purchase a trophy license which authorizes the hunter to possess and transport the trophy. WhenMr. Sword purchased his trophy license,he reported that he killed the bear in the Bob Marshall Wilderness which at the time was open to grizzly bear hunting. He then stored thehide. Approximately seven to eight months later,authorities learned through an informant thatMr. Sword had lied on his trophy license application and actually had killed the bear in the Great Bear Wilderness. Mr. Sword was charged by information in United States District Court with two counts of violating the Endangered Species Act of 1973. As the result of a plea agreement, he pled guilty to count two of the information. Mr. Sword was then sentenced: hewas fined $8,500, was placed on probation for two years, and was ordered to forfeit the grizzly bear hide and skull.Mr. Sword then was charged in justice court for violation of 5 87-2-106(5), MCA, (1985). That subsection provides,

It is unlawful to subscribe to any statement, on any application or license, that is materially false. Any material false statement contained in an application renders the license issued pursuant to it void. Any person violating any provision of this statute isguilty of amisdemeanor. The application or license referred to in this instance is the trophy license required by S 87-2-701(2), MCA, when Mr. Sword killed the grizzlybear. Mr. Swordwas found guilty in justice court so he appealed to state district court for trial

### -- de novo. The DistrictCourt granted Mr. Sword's motion to dismisswith prejudice.

Did the District Court err in concluding that the State prosecution of defendant for subscribing to a materially false statement on an application for a grizzly bear trophy license was barred by double jeopardy where defendant had previously been convicted in federal court of knowingly possessing, carrying, and transporting a grizzly bear taken unlawfully? Count two of the federal information alleged, "That

# . .. Phil Sword did knowingly possess, carry and transport a grizzly bear taken unlawfully, in violation of 16 U.S.C. S 1538(a)(1)(G)

# .. . .I1 Section 1538(a) (1)(G) provides in part,
[Ilt is unlawful for any person subject to the jurisdiction of the United States to

# .

# ..violate any regulationpertaining to any threatened species of fish orwildlife listedpursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.The parties here propose two different readings of the statute. Mr. Sword believes that the language "any regulation" must include state as well as federal statutes which pertain to threatened species. He argues that 

### 55 87-2-106(5) and 87-2-701(2), MCA, the statutes which support the state charge,would constitute regulations within the meaning of S 1538(a)(1)IG)

# . The State District Court agreed with Mr. Sword:

It is apparent then that it was anticipated by the Federal prosecutor and by this Defendant that when he pled guilty to the Federal charge suchplea included the falsification of the Trophy Application. Accordingly, it would constitute double jeopardy to require this Defendant to answer to that offense in the StateCourt. The sentence in question reads that it is unlawful to "violate any regulation pertaining to any threatened species



# . . . listed pursuant to section 1533

# . . . and promulgated by the Secretary pursuant to authority provided by this chapter." The statuteprovides that onemay not violate any regulation (1) which pertains to any threatened species, listed pursuant to section 1533,and (2)which ispromulgated by the Secretary. "Regulation" as used in that statute contemplates only those regulations put into effect by the Secretary. The language of the federal statute then does not of itself bar subsequent state prosecution for violation of state statutespertaining to threatened species. Generally, two chargeable offenses may arise from the same transaction although Montana statute provides some exceptions to the rule. Section 46-11-502, MCA. In this case, however, we must first look to S 46-11-504, MCA, to determine whether the prosecution in federal court is a bar to the subsequent prosecution in state court.When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or of two courts of separate, overlapping, or concurrent jurisdiction in this state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this state under the following circumstances: (1)The first prosecution resulted in an acquittal or in a conviction as defined in 46-11-503 and the subsequent prosecution is based on an offense arising out of the same transaction.

Section 46-11-504(1)

### ,MCA. This statute requires answers to two questions: 1) Did Montana and the United States have concurrent jurisdiction? 2) Is theMontana prosecutionbased on an offense arising out of the same transaction? In State v. Zimmerman (1977), 175 Mont. 179, 187, 573 P.2d 174, 179,we held, "Themeasure of concurrent jurisdiction iswhether defendant's conduct subjected him toprosecution inboth jurisdictions." If the conduct gives rise to an offense chargeable in both jurisdictions, concurrent jurisdiction lies regardless of the particular offense ultimately charged in each jurisdiction. Zimmerman, 573 P.2d at 179. Zimmermanpresented a legal question remarkably similar to this case. In that case the defendant's conduct constituted embezzlement under both federal and state law. The federal prosecutors, however,prosecuted him formaking false statements to secure funds rather than for embezzlement. The State then sought to charge the defendant for embezzlement. This Court concluded that the two jurisdictions need not charge and convict for the same offense for concurrent jurisdiction to exist. Rather, concurrent jurisdiction existsbecause both jurisdictionshad authority toprosecute for the same offense 

## -- embezzlement. Zimrnerman, 573 P.2d at 179. In this case, when Mr. Sword killed the bear, transported it from the mountain, made false statements on the trophy application, and stored the hide, his conduct was a violation of 16 U.S.C. S 1583(a)(1)(G)in that he possessed, carried, and transported a grizzly bear taken unlawfully. This was the charge in count two of the federal information which finds its source in 50 C.F.R. $ 17.40 (b)(ii)(A)

(1985). Section 87-1-102(2)(a),MCA,usesvirtually the same languageas the federal regulationby making it amisdemeanor for "unlawfully taking, killing,possessing, transporting, or wasting of

# .. . a grizzly bear 

# . ..." The United States and the State of Montana have concurrent jurisdiction by virtue of 50 C.F.R. $ 17.40(b)(ii)(A) and § 87-1-102(2)(a)

### , MCA, respectively. We now turn to whether the Montana prosecution is based
on an offense arising out of the same transaction as the federalprosecution.
The term "same transaction" includes conduct consistingof: a seriesof acts or omissions which are motivated by a purpose to accomplish a criminal objective and which are necessary or incidental to the accomplishment of that objective

# ... Section 46-11-5011 a 

## , MCA. Mr. Sword's conduct consisted of thepossessing, carrying,and transportingof abear taken unlawfully. This is the charge to which he pled guilty in federal court. He also made false statements on his trophy license application. The trophy license authorized him to possess and transport the trophy. Thus,his false statements as well as his other acts were motivated and necessary or at least incidentalto the accomplishmentof the criminal objective of possessing, carrying, and transporting of a grizzlybear taken unlawfully. Clearly the Montana prosecution is based on an offense arising out of the same transaction as the federal prosecution within the meaning of the statute. The State argues that this Court must apply the Blockburger rule and cites State v. Pierce (1982), 199 Mont. 57, 647 P.2d 847, as authority. The State contends that Blockburger and Pierce together allow the State's prosecution in thepresent case. InBlockburger v. United States (19321, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the Unites States Supreme Court was asked to determine whether the defendant committed two offenses or only one offense by a single sale in violation of the federal narcotic act. The Court stated what hasbecome known as the Blockburger rule:

The applicable rule is that where the same act or transaction constitutes aviolation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a factwhich the other does not. Blockburger, 284U.S. at 304. In Pierce, this Court quoted § 46-11-504,MCA, which we
now consider. In Pierce the defendant caused a serious automobile accident and fled the scene. He laterpled guilty in justice court to driving under the influence of alcohol. Severaldays after thatplea, Piercewas charged in the state district court with two counts of aggravated assault and one count of failure to stop at the scene of the accident. He pled guilty to the charge of failure to stop and was found guilty of one count of aggravated assault and one count of misdemeanor assault. On appeal Pierce argued that the charges of aggravated assault arose from the same accident as the earlier DUI charge and placed him in double jeopardy. Inanalysis of that issue, this Court applied the Blockburger rule and allowed the subsequent prosecution. Pierce, 647 P.2d at 850. We have concluded that Blockburger and Pierce are not controlling in the present case. Rlockburger involved two charges filed in the same federal court. Pierce involved charges filed in two different courts of the State of Montana system. In contrast, in the present case the defendant was charged in a district court of the United States and in a district court of the State of Montana and so comes within the express provisions of $ 46-11-504(1), MCA,which applies when conduct constitutes an offense within the concurrent jurisdiction of Montana and the United States. That portion of the statute was not involved in either Blockburger or Pierce. We therefore distinguish both of those cases and conclude they are not binding authority in the present case. Blockburger as rule of law applicable to double jeopardy in Montana, has been applied numerous times in the past to S 46-11-502, MCA. In contrast, $ 46-11-504, MCA, grants the defendant greater protection from double jeopardy than provided in Blockburger. If Blockburger were applied to the portion of 

### 5 46-11-504, MCA, which applies in the present
case the result would be to strip the defendant of the statutory protectiongranted to him. We have previously concluded that the federal district court and the state district court had concurrent jurisdiction and that state prosecution would be based on an offense arising out of the same transaction as the federal prosecution. We therefore hold that subsequent prosecution by the State of Montana was barred in this case by S 46-11-504(1), MCA

# . In our review of Pierce and that portion of S 46-11-504(1), MCA, applicable to Pierce,we found the statuteto be confusing. The portion of 

### 5 46-11-504(I),MCA, which applied in Pierce states in substanceas follows:
When conduct constitutes an offense within the concurrent jurisdiction 

# . . . of two courts of separate, overlapping, or concur'rentjur?tiEE in this state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this state

# ... (Emphasisadded.)
We are not able todetermine 

### If the intention of the legislature was to bar a felonyprosecution in district courtwhere there had been a prior misdemeanor prosecution in justice or municipal court. It would be appropriate that the Montana Legislature reconsider the wording of this code section. We affirm the dismissal of charges against the defendant
on the basis of double jeopardy.

We Concur: f /--

ChiefJustic



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Justices