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 Attorney (John J. Kelly, United

States Attorney, with him on the brief), Albuquerque, New Mexico, appearing for

Plaintiff-Appellee.
1Under RFRA, government action that burdens the free exercise of religion

must further a “compelling government interest” and be “the least restrictive

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb1(b). Congress passed RFRA in response to the Supreme 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 allowed the government to enforce

neutral laws of general applicability even when such 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 exercise of religion is

substantially burdened” and “to provide a claim or defense to persons whose

religious exercise is substantially burdened by government.” 42 U.S.C. §

2000bb(b).

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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 eagle skin and other

migratory bird parts to a federal undercover agent on several occasions in 1996. 

Based on these sales and the information gathered during 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 under the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1, 1 and on alleged outrageous
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government conduct. The district court denied both motions, finding that RFRA

did not apply to the federal government and that the 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 violation 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 question 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 motion 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 district court’s

denial of motion to dismiss indictment on double jeopardy grounds de novo). 

In 1996, the United States Fish and Wildlife Service 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 member took the agent to meet
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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 wildlife 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. Sandia 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 parts 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 applied to the states, the

district court ruled that RFRA did not apply and therefore 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 dismiss because the offense of

conviction – the commercial sale of protected wildlife – does not implicate any 

religious rights. “[W]e are free to affirm a district court decision on any grounds

for which there is a record sufficient to permit conclusions of law, even grounds

not relied upon by the district court.” Medina v. City & County of Denver , 960
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F.2d 1493, 1495 n.1 (10th Cir. 1992) (internal quotation marks and citation

omitted). We need not reach the RFRA question because defendant took or

possessed the eagle in violation of federal law and never claimed his sale of the

golden eagle to the government agent had any religious significance.

In essence, defendant’s RFRA defense is that he did not 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. Sandia claims that he trapped

and possessed protected wildlife solely for religious ceremonial purposes. The

taking of the birds for religious purposes, he asserts, 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 upon 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 subsequently 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 protected religious activity. When

defendant decided to sell the birds, he no longer possessed them for a religious

purpose and therefore possessed them in violation of federal law. Allowing

defendant to defeat an indictment simply by claiming he originally took the birds

for religious purposes would render the Lacey Act nugatory and permit people,
2At 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, petitioner did 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,

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under the guise of religion, to stockpile protected species for commercial sale. 

Simply stated, a defendant may not claim First Amendment or RFRA protection

for the taking and possession of a protected bird when 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 [Bald and Golden Eagle Protection

Act] for purely commercial rather than religious activities may not assert a claim

that the free exercise of religion has been infringed by the Act.”) 

Defendant also did not claim on appeal that his sale 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 district 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, at 5 (“Mr. Sandia does not claim

‘any right to engage in commercial transactions with eagles.’”). 2
1510 n.5 (10th Cir. 1997).

3

In his opening brief, defendant raises this issue in only the most cursory

manner. Generally, the failure to raise an issue in 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 sufficiently raised and will

consider it on the merits.

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In sum, defendant’s actions in this case were commercial activity prohibited

by law and unprotected by RFRA. An evidentiary hearing would not have

changed this conclusion, as defendant could not have altered the essential

commercial nature of his actions. Thus, the district 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 constitute 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 investigation 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 ‘considering the totality of the
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circumstances in any given case, the government’s conduct 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 conduct 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 time the

government acts deceptively or participates in a crime that it is investigating.” 

United States v. Mosely , 965 F.2d 906, 910 (10th Cir. 1992).

Mr. Sandia asserts that the government’s cash offer was 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 to sell eagles until the

government agent came into his community and that the crime was therefore 

created entirely by the government. According to defendant, an evidentiary

hearing would have provided additional evidence supporting this theory. 

However, neither the record nor Mr. Sandia’s proffered information reveals any

conduct meeting the outrageous conduct standard. 

The facts show that a government undercover agent came to the Jemez

Pueblo pretending to be interested in purchasing eagle parts. By defendant’s
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account, the agent claimed he was Native American and was purchasing the parts

for traditional ceremonial purposes. The agent sought out a Jemez Pueblo

member, possibly offered him an inducement, and asked him if he knew of anyone

selling eagle parts. The pueblo member took the agent 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 direct[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 agent initiated the

transactions, defendant participated in them by providing 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 Tenth 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 undercover agent allegedly
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claimed he was a Native American seeking ceremonial components. This cover

story supposedly took advantage of defendant and exacerbated the outrageousness

of the conduct. We disagree with this conclusion and refuse to prohibit

government agents from assuming fictitious roles in the course of an

investigation. Finally, the government’s use of a pueblo member to initially

contact defendant was not improper. “[I]t does not become outrageous [conduct]

simply because the investigation includes a paid informant 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 criminal activity, and the government

did not engineer the entire crime from start to finish.

The government also did not coerce defendant into committing the crime. 

“Only governmental coercion that is particularly egregious 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 addressed a similar argument in

United States v. Martinez , 749 F.2d 601, 605 (10th Cir. 1984), a case in which

government agents investigating abuse in the food stamp 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 defendants’ difficult financial
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circumstances, we found no outrageous government conduct 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 scenario, and we

reach the same result. While the plight of many in the Jemez Pueblo may be

serious, financial need does not excuse criminal conduct or give rise to a claim of

unconstitutional government conduct. Accordingly, the government did not 

improperly coerce defendant into engaging in the criminal activity. The district

court correctly denied defendant’s motion to dismiss for outrageous government

conduct.

Based on the foregoing analysis, we AFFIRM the rulings of the district

court denying defendant’s motions to dismiss. Appellant’s motion for leave to

submit record references is GRANTED.