## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 23 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. JOHNNY SANDIA,

Defendant-Appellant.

-------------------------- COALITION FOR THE FREE EXERCISE OF RELIGION IN SUPPORT OF THE CONSTITUTIONALITY OF THE RELIGIOUS FREEDOM RESTORATION ACT,

Amicus Curiae. No. 98-2248

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CR 96-717-MV)
John F. Moon Samore, Albuquerque, New Mexico, appearing for DefendantAppellant. Jonathon Miles Gerson, Assistant United States Atto rney (John J. Kelly, United States Attorney, with him on the brief), Albuquerqu e, New Mexico, appearing for Plaintiff-Appellee.1 Under RFRA, government action that burdens the free exercise of religion

must further a “compelling government interest” andbe “the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb1(b). Congress passed RFRA in response to the Supr eme Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith , 494 U.S. 872 (1990), which held that the First Amendment allowedthe government to enforce neutral laws of general applicability even when suc h laws burdened the free exercise of religion. See City of Boerne v. Flores , 521 U.S. 507, 512-16 (1997). The purposes of RFRA are to “restore the compelling interest test . . . and to guarantee its application in all cases where free e xercise of religion is substantially burdened” and “to provide a claim or defense to persons whose religious exercise is substantially burdened by gov ernment.” 42 U.S.C. § 2000bb(b). -2- Marc D. Stern, American Jewish Congress, New York, New York, filed a brief on behalf of the Amicus Curiae.

Before ANDERSON , TACHA , and BALDOCK , Circuit Judges.

TACHA , Circuit Judge.

Defendant-Appellant Johnny Sandia sold a golden eag le skin and other migratory bird parts to a federal undercover agent on several occasions in 1996. Based on these sales and the information gathered d uring its investigation, the government charged Sandia with eleven violations of the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq ., the Bald and Golden Eagle Protection Act, 16 U.S .C. § 668, and the Lacey Act, 16 U.S.C. § 3371 et seq . Mr. Sandia moved to dismiss the indictment based on his free exercise rights un der the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1, 1 and on alleged outrageous-3-

government conduct. The district court denied bothmotions, finding that RFRA did not apply to the federal government and that th e government did not engage in outrageous conduct with respect to Mr. Sandia. Mr. Sandia then pled guilty to one violation of the Lacey Act, 16 U.S.C §§ 3372(a) (1), 3373(d)(1)(B), admitting that he illegally sold a golden eagle taken in viol ation of the Migratory Bird Treaty Act. Defendant reserved his right to appeal the district court’s rulings on his motions to dismiss and now exercises that right . We affirm.
I. The district court’s decision to deny the motion to dismiss based on defendant’s religious rights under RFRA is a questi on of law that we review de novo. Cf. United States v. Wittgenstein , 163 F.3d 1164, 1170 (10th Cir. 1998) (reviewing de novo district court’s ruling on motio n to dismiss indictment due to alleged due process violations in underlying immigration proceedings); United States v. Cordoba , 71 F.3d 1543, 1545 (10th Cir. 1995) (reviewing di strict court’s denial of motion to dismiss indictment on double je opardy grounds de novo). In 1996, the United States Fish and Wildlife Servic e carried out an undercover investigation of illegal trafficking in protected wildlife in northern New Mexico. During the course of the investigation , an undercover agent met with several members of the Jemez Pueblo and told them he was interested in purchasing eagles and eagle parts. One pueblo memb er took the agent to meet-4-

Mr. Sandia. Through several transactions, the agent purchased a golden eagle skin and other bird parts from Mr. Sandia. The Lacey Act prohibits, inter alia, the sale of wi ldlife taken or possessed in violation of federal law with a value in excess of $350. See 16 U.S.C.A. §§ 3372(a)(1), 3373(d)(1)(B) (West Supp. 1999). Mr. S andia admitted taking the golden eagle without a permit, in violation of the Migratory Bird Treaty Act. He sold the eagle for $800. Before the district court , defendant claimed a protected right under RFRA to possess the birds and bird part s because the Jemez Pueblo considers the eagle and other birds sacred and uses them in religious ceremonies. Based on the Supreme Court’s recent ruling in City of Boerne v. Flores , 521 U.S. 507 (1997), which found RFRA unconstitutional as ap plied to the states, the district court ruled that RFRA did not apply and th erefore denied defendant’s motion to dismiss. Both the government and defendant contend that the district court erred in finding RFRA inapplicable to the federal government . The government, however, urges that we affirm the denial of the motion to di smiss because the offense of conviction – the commercial sale of protected wildl ife – does not implicate any religious rights. “[W]e are free to affirm a distr ict court decision on any grounds for which there is a record sufficient to permit co nclusions of law, even grounds not relied upon by the district court.” Medina v. City & County of Denver , 960-5-

F.2d 1493, 1495 n.1 (10th Cir. 1992) (internal quot ation marks and citation omitted). We need not reach the RFRA question beca use defendant took or possessed the eagle in violation of federal law andnever claimed his sale of the golden eagle to the government agent had any religi ous significance. In essence, defendant’s RFRA defense is that he didnot take and possess the disputed birds “in violation of any law, treaty , or regulation of the United States,” as required by 16 U.S.C. § 3372(a). Mr. S andia claims that he trapped and possessed protected wildlife solely for religio us ceremonial purposes. The taking of the birds for religious purposes, he asse rts, is itself imbued with religious significance and comes under the aegis of RFRA. Thus, he argues he legally took the birds and any indictment based upo n an illegal taking of the birds must therefore fall. We do not decide whether Mr. Sandia’s taking of the birds was, in the first instance, legal under RFRA because Mr. Sandia subse quently sold the birds he claims to have taken for religious purposes. This subsequent sale of the birds destroys defendant’s claim that he engaged in prote cted religious activity. When defendant decided to sell the birds, he no longer p ossessed them for a religious purpose and therefore possessed them in violation o f federal law. Allowing defendant to defeat an indictment simply by claimin g he originally took the birds for religious purposes would render the Lacey Act n ugatory and permit people,2 At oral argument, defendant’s counsel suggested that the sale and/or barter

of sacred bird parts to other Native Americans was a tradition and might itself have religious significance. According to counsel, the government agent to whom Mr. Sandia sold the eagle represented himself as a Native American seeking eagle parts for ceremonial purposes. However, petitionerdid not specifically raise this argument before the district court or in his briefs to this court. Therefore, petitioner has waived the argument. See Thomas v. Denny’s Inc. , 111 F.3d 1506, -6- under the guise of religion, to stockpile protectedspecies for commercial sale. Simply stated, a defendant may not claim First Amen dment or RFRA protection for the taking and possession of a protected bird w hen he subsequently sells it for pure commercial gain. Cf. United States v. Hugs , 109 F.3d 1375, 1377-78 (9th Cir. 1997) (“A defendant prosecuted under the [Baldand Golden Eagle Protection Act] for purely commercial rather than religious ac tivities may not assert a claim that the free exercise of religion has been infring ed by the Act.”) Defendant also did not claim on appeal that his sal e of the golden eagle skin had religious significance. In Hugs , the district court found that the defendants, who had purchased golden eagles from a government agent, might have made the purchase for religious purposes. See 109 F.3d at 1378. By contrast, Mr. Sandia expressly stated to the distri ct court that he was not claiming a religious right to make a commercial sale. See Appellant’s Opening Br. at 18 (“At no time has Mr. Sandia asserted a . . . right . . . to give him permission to ‘engage in trafficking.’”); R., Vol. I, Doc. 30, at5 (“Mr. Sandia does not claim ‘any right to engage in commercial transactions with eagles.’”). 21510 n.5 (10th Cir. 1997).

3 In his opening brief, defendant raises this issue i n only the most cursory manner. Generally, the failure to raise an issue i n the opening brief waives the issue. See, e.g. , State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). While one could make a good case that defendant has waived the outrageous government conduct claim, we deem it suf ficiently raised and will consider it on the merits. -7- In sum, defendant’s actions in this case were comme rcial activity prohibited by law and unprotected by RFRA. An evidentiary hearing would not have changed this conclusion, as defendant could not hav e altered the essential commercial nature of his actions. Thus, the distri ct court did not err in denying the motion to dismiss the indictment based on RFRA.
II. Mr. Sandia also claims that the government agent’s activities in inducing him to sell the eagle were so extreme as to constit ute outrageous government conduct that violated due process and required dismissal of the charges. 3 The district court denied defendant’s motion to dismiss on this claim. We review the district court’s ruling on government misconduct de novo. See, e.g. , United States v. Pedraza , 27 F.3d 1515, 1521 (10th Cir. 1994). “When the government’s conduct during an investigat ion is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct.” Id. (internal quotation marks and citation omitted). “Government conduct is outrageous if ‘co nsidering the totality of the-8-

circumstances in any given case, the government’s c onduct is so shocking, outrageous and intolerable that it offends the universal sense of justice.’” United States v. Gell-Iren , 146 F.3d 827, 831 (10th Cir. 1998) (quoting United States v. Lacey , 86 F.3d 956, 964 (10th Cir. 1996)). Outrageous c onduct generally requires government creation of a crime or substantial coercion to induce the crime. See,
e.g. , id. ; Pedraza , 27 F.3d at 1521. “The outrageous conduct defense , however, is an extraordinary defense that will only be applied in the most egregious circumstances.” Pedraza , 27 F.3d at 1521. “It is not to be invoked each t ime the government acts deceptively or participates in a cr ime that it is investigating.” United States v. Mosely , 965 F.2d 906, 910 (10th Cir. 1992). Mr. Sandia asserts that the government’s cash offerwas so powerful to a person living in an impoverished community that it coerced him into the illegal sale. He also claims that he was not predisposed t o sell eagles until the government agent came into his community and that t he crime was therefore created entirely by the government. According to d efendant, an evidentiary hearing would have provided additional evidence sup porting this theory. However, neither the record nor Mr. Sandia’s proffe red information reveals any conduct meeting the outrageous conduct standard. The facts show that a government undercover agent c ame to the Jemez Pueblo pretending to be interested in purchasing ea gle parts. By defendant’s-9-

account, the agent claimed he was Native American a nd was purchasing the parts for traditional ceremonial purposes. The agent sou ght out a Jemez Pueblo member, possibly offered him an inducement, and ask ed him if he knew of anyone selling eagle parts. The pueblo member took the ag ent to Mr. Sandia. The transaction ensued. Even assuming the facts defendant sought to proffer , the government here did not create a crime by “‘engineer[ing] and direc t[ing] the criminal enterprise from start to finish.’” Gell-Iren , 146 F.3d at 831 (quoting Mosley , 965 F.2d at 911 ( internal quotation marks omitted)). Though the ag ent initiated the transactions, defendant participated in them by pro viding the contraband for sale. The government, as a part of a sting operation, can suggest or initiate illegal activity. See, e.g. , United States v. Sneed , 34 F.3d 1570, 1577-78 (10th Cir. 1994); United States v. Harris , 997 F.2d 812, 816 (10th Cir. 1993); Mosley , 965 F.2d at 911-12; see generally United States v. Diggs , 8 F.3d 1520, 1523-25 (10th Cir. 1993) (listing cases from Supreme Court and Te nth Circuit). Like the government agents in Sneed and Harris , the agent in this case initiated the transaction, but did not engineer the crime. See Sneed , 34 F.3d at 1578; Harris , 997 F.2d at 816. The defendant, not the government , arranged the capture of the birds and chose to sell them for commercial gain. Mr. Sandia makes much of the fact that the undercov er agent allegedly-10-

claimed he was a Native American seeking ceremonial components. This cover story supposedly took advantage of defendant and ex acerbated the outrageousness of the conduct. We disagree with this conclusion and refuse to prohibit government agents from assuming fictitious roles inthe course of an investigation. Finally, the government’s use of a pueblo member to initially contact defendant was not improper. “[I]t does notbecome outrageous [conduct] simply because the investigation includes a paid in formant who shares the suspect’s cultural heritage and religious faith.” Gell-Iren , 146 F.3d at 831. In sum, Mr. Sandia actively participated in the crimin al activity, and the government did not engineer the entire crime from start to fin ish. The government also did not coerce defendant into c ommitting the crime. “Only governmental coercion that is particularly eg regious rises to the level of outrageous conduct.” Pedraza , 27 F.3d at 1521. Mr. Sandia argues that the agent’s financial inducement to someone with as little annual income as him was an improper offer he could not refuse. We addresse d a similar argument in United States v. Martinez , 749 F.2d 601, 605 (10th Cir. 1984), a case in whi ch government agents investigating abuse in the food s tamp program sold food stamps at a deep discount to defendants who were “at, or below, the poverty level and needed food stamps to help feed their families. ” The agents offered the stamps, and the defendants accepted. Despite the d efendants’ difficult financial-11-

circumstances, we found no outrageous government co nduct in the sale, concluding “[w]hat prompted the defendants to . . . acquire the food stamps is not really relevant.” Id. at 605. The instant case presents a similar scena rio, and we reach the same result. While the plight of many in the Jemez Pueblo may be serious, financial need does not excuse criminal co nduct or give rise to a claim of unconstitutional government conduct. Accordingly, the government did not improperly coerce defendant into engaging in the cr iminal activity. The district court correctly denied defendant’s motion to dismis s for outrageous government conduct. Based on the foregoing analysis, we AFFIRM the ruli ngs of the district court denying defendant’s motions to dismiss. Appe llant’s motion for leave to submit record references is GRANTED.