No. 87-235 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsPHIL SWORD, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Ted Lympus, County Attorney, Kalispell, Montana 

Ed Corrigan, Deputy County Attorney, Kalispell 

For Respondent: 

Gary A. Crowe, Kalispell, Montana 

Submitted on Briefs: Aug. 27, 1987 

Decided: December 15, 1987 

Filed: FdEC 1 5 1987 

Clerk 
Mr. Justice Fred 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 Wilderness which at that time was closed to grizzly bear hunting. Section 87-2-701(2), MCA, requires one who 

kills a grizzly bear to purchase a trophy license which 

authorizes the hunter to possess and transport the trophy. 

When Mr. 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 

the hide. Approximately seven to eight months later, authorities learned through an informant that Mr. 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: he was 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 is guilty of a misdemeanor. 

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 grizzly bear. Mr. Sword was found guilty in 

justice court so he appealed to state district court for 

trial -- de novo. The District Court granted Mr. Sword's motion 

to dismiss with 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 regulation pertaining to any threatened species 

of fish or wildlife listed pursuant 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 such plea 

included the falsification of the Trophy Application. Accordingly, it would constitute double 

jeopardy to require this Defendant to answer to 

that offense in the State Court. 

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 statute provides that one may not violate any 

regulation (1) which pertains to any threatened species, 

listed pursuant to section 1533, and (2) which is promulgated 

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 statutes pertaining 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 the Montana prosecution based 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, "The measure of concurrent jurisdiction is whether defendant's conduct subjected him to prosecution in both 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. 

Zimmerman presented 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 for making 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 exists 
because both jurisdictions had authority to prosecute 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, uses virtually the same 

language as the federal regulation by making it a misdemeanor 

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 

federal prosecution. 

The term "same transaction" includes conduct consisting of: a series of 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 46-11-501 1 a , MCA. Mr. Sword's conduct consisted 

of the possessing, carrying, and transporting of a bear 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 incidental to the accomplishment of the criminal objective of possessing, carrying, and transporting of a grizzly 
bear 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 the present case. In Blockburger 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 has become known as the Blockburger rule: 

The applicable rule is that where the same act or 

transaction constitutes a violation 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 

fact which the other does not. 

Blockburger, 284 U.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 later pled guilty 

in justice court to driving under the influence of alcohol. 

Several days after that plea, Pierce was 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. In 
analysis 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 protection granted 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 statute 
to be confusing. The portion of 5 46-11-504 (I), MCA, which 

applied in Pierce states in substance as 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 . . . (Emphasis added.) 

We are not able to determine If the intention of the legislature was to bar a felony prosecution in district court where 

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 

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Chief Justic 

u 

Justices