Vaden v. State , 768 P.2d 1102 ( 1989 )

COMPTON, Justice.

This petition arises out of convictions of two hunting guides, Douglas Vaden and Floyd Saltz, Jr., following undercover operations by the State of Alaska. The primary issue we address is whether allegedly illegal conduct by the undercover agents warrants reversal of the convictions. The court of appeals, in a plurality decision with one judge dissenting, affirmed Va-den’s conviction. Vaden v. State, 742 P.2d 784 (Alaska App.1987). It also affirmed Saltz’s conviction. Saltz v. State, MO & J No. 1510 (Alaska App.1987). We granted hearing pursuant to Appellate Rule 304.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. VADEN

In November 1983, a horse wrangler employed by Douglas B. Vaden during the fall 1983 hunting season informed Fish and Wildlife Protection officers of illegal hunting methods allegedly used by Vaden while guiding a foreign hunter. In the spring of 1984, John Snell, an undercover agent for the Alaska Department of Fish & Game¹ posing as a hunter, contracted for guiding services from Vaden. Snell was instructed on how to conduct himself on the hunt.²

During the hunt Snell shot and killed four foxes from Vaden’s aircraft. The season on foxes was closed at that time. Va-den provided Snell with the shotgun used to shoot the foxes, and maneuvered the aircraft so Snell could shoot the foxes. The fox carcasses were then transported to Anchorage by Vaden.

Vaden was convicted, as an accomplice,³ on four counts of taking foxes from an aircraft (5 AAC 81.072(4) now 5 AAC 92.-080(5)) and four counts of taking foxes during closed season (5 AAC 81.330(4) now 5 AAC 88.160(2)).⁴ He was also convicted in his own right on three counts of possession and transportation of illegally taken game (5 AAC 81.140(c) now 5 AAC 92.-140(c)). He was acquitted on several other counts, including solicitation of the agent’s takings.

Vaden appealed his convictions, contending that no illegal acts were committed by Snell and thus no criminal liability could attach to Yaden for “aiding and abetting” or transportation of illegally taken game, and alternatively, if crimes had been committed by Snell, such law enforcement tactics amounted to entrapment as a matter of law and violated due process.⁵ Vaden v. State, at 786-86. The court of appeals upheld Vaden’s convictions. Id.

The court of appeals concluded that Snell had “committed the offense” of taking foxes from the air out of season, but that Snell had a personal defense of justification, which Vaden would not be able to avail himself of under AS 11.16.120.⁶ 742 P.2d at 786. The court further concluded that "convicting Vaden as an accessory, when the principal was an agent for the government, is a cause for concern.” However, “any government overreaching is adequately covered by the defense of entrapment,” which relieves a defendant of liability where police conduct has induced a defendant to commit an offense by such persuasion or inducement as would be effective to persuade an average person to commit the offense. Id. at 787; see also AS 11.81.450. The court concluded that since Vaden had failed to show such inducement, his convictions should be affirmed. Id.

Judge Singleton, in a concurring opinion, agreed that Snell’s actions were without proper legal authorization and were, therefore, illegal. 742 P.2d at 788.⁷ He took exception, however, to the court’s suggestion that the entrapment defense alone was adequate to protect against government overreaching. Judge Singleton concluded that unconscionable police conduct not involving inducement might, by itself, justify the dismissal of a charge, but only where the police conduct “shock[ed] the universal sense of justice and violat[ed] the concept of fundamental fairness.” Id. at 789 (quoting Anchorage v. Flanagan, 649 P.2d 957, 963 (Alaska App.1982)). He concluded that no such shocking police conduct was present and that the convictions should be affirmed. Id.

Chief Judge Bryner dissented, observing that “[t]he state’s effort to ferret out crime consisted of Snell’s shooting foxes as a means of convicting Vaden vicariously for the shooting of those very same foxes.” Id. at 789. Such conduct, Judge Bryner asserted, “[falls] below an acceptable standard for the fair and honorable administration of justice” and thus justified dismissal of the charges against Vaden. Id. (quoting Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978)).

We granted Vaden’s petition for hearing.

B. SALTZ

In October 1984, undercover agent Thomas Pagel,⁸ posing as a client, accompanied licensed assistant guide Floyd Saltz into the bush.

Initially Pagel had contracted for a fishing trip. Pagel apparently expressed a desire to hunt on the trip also and questioned Saltz about hunting. Pagel testified that Saltz responded by saying “you could not kill a caribou the same day you were airborne but that once you got in the bush you did basically what the hell you wanted to.”

On October 6 the pair flew out to Talarik Creek. Pagel testified that Saltz told him the area was limited to flyfishing only and gave him a fly rod. A short time later Saltz decided the fishing was slow and gave Pagel a baited spinning rod. The pair then caught about thirty trout on spinning gear.

Pagel also testified that after the trout stopped biting the pair began catching Northern Pike. According to Pagel, Saltz caught 20 to 30 pike, killed them and threw them into the lake.

On October 7 Saltz flew Pagel into an area with little air traffic for a caribou hunt. Saltz handed Pagel a rifle and pointed out which bull caribou to shoot. Pagel shot and killed the bull. Saltz also pointed out a cow caribou for Pagel to shoot. However, Pagel gave Saltz the rifle and Saltz shot the cow. They did not salvage the meat from the cow. Saltz allegedly shot at another bull, but it is not clear whether it was killed.

After the two took pictures of the bull Pagel shot, they started to skin it. While working on the hindquarters, Saltz told Pa-gel the meat was not worth salvaging because the caribou “smelled as if it was in rut.” Pagel indicated he wanted the antlers and Saltz salvaged them. The pair left the meat.

Saltz testified to a different version of facts. He claimed Pagel initiated the fishing violations. He also claimed Pagel was left alone and shot the caribou while Saltz was not present, and that it was Pagel’s idea to leave the meat behind.

The offenses with which Saltz was charged grew out of three basic incidents: (1) Pagel’s killing and wasting of a bull caribou the same day he was airborne, (2) Saltz’s killing and wasting of a cow caribou the same day he was airborne, and (3) both parties’ use of illegal fishing gear and waste of fish.

Saltz’s pretrial motions to dismiss were denied by the trial court. At trial, the jury believed Pagel’s version and convicted Saltz on all 16 counts alleged against him, including soliciting the violations.⁹

Saltz appealed, arguing inter alia that his convictions must be reversed because of Pagel’s illegal acts. The court, citing its earlier decision in Vaden v. State, rejected Saltz’s argument. The court did conclude, however, that there were “three groups of three counts in which the same conduct forms the basis for all three counts: one based on aiding by a guide, another based on aiding and abetting and the other based on solicitation.” The court concluded that conviction on all three counts violated double jeopardy principles, and thus ordered the trial court to vacate two of the three counts in each group. Chief Judge Bryner, separately concurring, would have also stricken those convictions “predicated on Pagel’s illegal acts;” however, he concurred in the result since each of the convictions had been accompanied by “parallel convictions for solicitation based on Saltz’s own conduct.”

We granted Saltz’s. petition for hearing, but limited our review to those issues already before us in Vaden.

II. DISCUSSION

A. LEGALITY OP THE UNDERCOVER AGENT’S ACTIVITIES.

Initially Vaden challenged his “aiding and abetting” and transportation convictions on the ground that the undercover agent’s actions were legal. Saltz challenged his guide “aiding and abetting” and transportation convictions on the same grounds. They argue that for these convictions to be sustained, someone must have committed an illegal act. See United States v. Sanford, 547 F.2d 1085 (9th Cir. 1976). (To sustain convictions under Lacey Act interstate transportation of illegally killed game, undercover agent’s actions must be illegal). We agree with the court of appeals that the agents committed the offenses. See 742 P.2d at 786. However, it is irrelevant whether the agents’ acts were authorized. As explained below, if the agents had a justification defense it was personal to them.

B. APPLICABILITY OF JUSTIFICATION DEFENSES TO ACCOMPLICES’ LIABILITY.

Both Vaden and Saltz argue that they could avail themselves of the public authority justification defense available to Snell and Pagel. It is not necessary to decide whether an undercover agent in these circumstances may utilize a public authority justification defense. See AS 11.-81.420.¹⁰ As the court of appeals concluded, a justification defense is personal to the undercover agent and not transferable to the accomplice. 742 P.2d at 786. It is clear from our statutory scheme that a principal does not need to be found guilty or even prosecuted in order to convict the accomplice.¹¹ Further, it has been said that “it is the abettor’s state of mind rather than the state of mind of the perpetrator which determines the abettor’s guilt or innocence.” R. Perkins & R. Boyce, Criminal Law 743 (3d ed.1982) (hereinafter Criminal Law). Because the accomplice’s state of mind is the focus, defenses of entrapment, duress and heat of passion are not imputed to the accomplice. United States v. Azadian, 436 F.2d 81 (9th Cir. 1971) (entrapment); State v. Harvey, 303 Or. 351, 736 P.2d 191, 193 (1987) (per curiam) (duress); Parker v. Commonwealth, 180 Ky. 102, 201 S.W. 475, 478 (1918) (heat of passion).

The entrapment defense has been likened to an immunity from prosecution based on government conduct. Azadian at 82-83 (quoting Carbajal-Portillo v. United States, 396 F.2d 944, 948 (9th Cir.1968)). The public authority justification defense operates to immunize the public official from criminal liability for acts within the scope of the officials’ authority. See, Criminal Law, supra, at 1093. Because entrapment and the public authority justification defense are similar in this regard, even if the public authority defense were available to the undercover agents, neither Vaden nor Saltz could avail himself of the agent’s defense.

C. THE ACTIONS OF SNELL AND PAGEL DO NOT CONSTITUTE ENTRAPMENT.

Vaden raised the defense of entrapment before the trial court. The trial judge rejected the defense after a pretrial hearing. The court of appeals upheld the trial judge’s determination. 742 P.2d at 787. Vaden did not pursue the entrapment issue in this court.

Saltz also raised an entrapment defense in the trial court. The trial judge similarly rejected the defense. Saltz appealed the issue to the court of appeals, which upheld the trial court. Saltz v. State, supra. Saltz continues to pursue this issue.

The availability of the entrapment defense in a particular case is a question for the trial court. Folsom v. State, 734 P.2d 1015, 1017 (Alaska App.1987). The defendant must show, by a preponderance of the evidence, that the police employed tactics of “persuasion or inducement such as would be effective to persuade the average person ... to commit the offense.” AS 11.81.450, Id. Here there is no indication in the record that Pagel employed such tactics.¹² On the basis of the record, the trial judge could reasonably conclude that Saltz failed to establish entrapment by a preponderance of the evidence. 734 P.2d at 1017. Therefore, we affirm the court of appeals on this issue.

D. THE CONDUCT OP THE UNDERCOVER AGENTS DID NOT VIOLATE DUE PROCESS.

Both Vaden and Saltz challenge their convictions on due process grounds. They rely on dictum of the United States Supreme Court in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Russell, the Supreme Court indicated that at some point government involvement in detecting criminal activity could rise to a level of outrageousness “shocking to the universal sense of justice.” 411 U.S. at 432, 93 S.Ct. at 1643, 36 L.Ed.2d at 373 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 41 L.Ed.2d 268, 276 (1960)). Under this approach, illegal conduct of the government is not a per se bar to prosecution; the test is whether the government’s conduct is outrageous enough to warrant dismissal of the charges. See Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113, 119 (1976) (Powell, J., concurring).

The court of appeals divided over whether the due process defense was incorporated into our entrapment defense. Compare 742 P.2d at 786, 787 with 742 P.2d at 789 (Singleton, J., concurring). Generally, police conduct that is outrageous or below the level of “an acceptable standard for the fair and honorable administration of justice” will be encompassed by the entrapment defense. Pascu, 577 P.2d at 1067. There may be other times when police conduct is so unacceptable that it rises to a “demonstrable level of outrageousness” that warrants dismissal. Hampton, 425 U.S. at 496, n. 7, 96 S.Ct. at 1653, n. 7, 48 L.Ed.2d 113, 122 n. 7 (Powell, J., concurring).

Both Vaden and Saltz cite numerous cases in which federal and state courts found government conduct to. be outrageous enough to bar prosecution. The majority of these cases involve government conduct in drug sales or manufacture. They support the proposition that at some point government conduct can be outrageous enough to warrant a dismissal. See, e.g., United States v. Twigg, 588 F.2d 373 (3rd Cir.1978); State v. Hohensee, 650 S.W.2d 268 (Mo.App.1982).

Hohensee presents a more egregious set of facts than the instant case. Hohensee was convicted as an accomplice to a burglary. 650 S.W.2d at 269. The actual burglary was carried out by two paid informants and a police officer. Hohensee merely acted as a lookout. Id. at 268-269. In reversing Hohensee’s conviction, the court held that sponsoring the break in was outrageous conduct on the part of the government and barred prosecution. Id. at 274. The court observed that Hohensee’s only conduct was standing watch as lookout one-half block from the building burglarized. Id.

In the instant case, we conclude that the government’s conduct is not outrageous enough to bar prosecution. However, we reject the implication in the opinion of the court of appeals that outrageous government conduct is subsumed within the entrapment defense. It alone may justify judicial intervention.

In searching for a standard by which government conduct, or misconduct, is to be measured, we find persuasive the reasoning of the Ninth Circuit Court of Appeals in United States v. Williams, 791 F.2d 1383 (9th Cir.1986) cert. denied, Sears v. United States, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986). There the court suggested that in general, to be outrageous enough to bar prosecution “the government must have ‘engineered and directed the criminal enterprise from start to finish.’ ”¹³ Id. at 1386.

In neither Vaden's nor Saltz’s case did the government “engineer and direct the criminal enterprise from start to finish.” Williams at 1386.

In Vaden’s case, the state had information that Vaden had used illegal hunting practices the previous fall.¹⁴ Vaden was in control of the aircraft when Snell shot the foxes. Vaden maneuvered the aircraft to provide Snell with a platform from which to shoot. Vaden also provided the shotgun used to shoot the foxes. This was not a government engineered crime from start to finish. Id. Nor was Vaden merely standing watch while the government agents perpetuated the crime as in Hohensee. Instead, Vaden was an active participant.

In Saltz's case, the jury found that he “engineered” the crimes. His convictions demonstrate that the jury believed he provided the rifle and pointed out the bull caribou Pagel should shoot. The jury also believed that he indicated the meat was bad and suggested that they salvage only the antlers. The government did not engineer Saltz’s criminal conduct from start to finish, either. The jury implicitly found he was a willing instigator of the crimes.¹⁵

We are not persuaded by Vaden and Saltz’s argument that the charges in this case be dismissed solely because the government agents engaged in illegal hunting and fishing activity. In the plurality opinion in Hampton, the Supreme Court suggested that the correct remedy when police go outside the scope of their duties is to “prosecute the police,” not “free the equally culpable defendant.” Hampton, 425 U.S. at 490, 96 S.Ct. at 1650, 48 L.Ed.2d at 119. This remedy has been used in other states to curb offensive conduct. See, e.g., Reigan v. People, 120 Colo. 472, 210 P.2d 991, 120 (1949) (prosecution of game wardens for conspiracy for entrapping 18 and 19-year olds to unlawfully trap beaver).

III. CONCLUSION

For the above reasons we AFFIRM the convictions of Vaden and Saltz.

1 . Snell was "on loan” from the Wyoming Attorney General’s Office, and had apparently carried out similar fish and game "sting” operations for the State of Wyoming.

2 . INSTRUCTIONS TO HUNTERS:

1. During your scheduled guide hunt you are considered an agent of the State, this however, does not permit you to take game contrary to State statutes or regulations.

2. Your assignment during all phases of your guided hunt is to observe, record and determine the method of operation used by the guide in providing his guide service to a client.

3. You are to follow all instructions provided to you by your guide.

4. You are not to take any game without first being instructed to do so by your guide.

5. Do not at any time or under any circumstances induce a guide to commit any crime.

6. All game taken on your hunt is the property of the State.

3 . AS 11.16.110 provides:

A person is legally accountable for the conduct of another constituting an offense if

(2) with intent to promote or facilitate the commission of the offense, the person

(B) aids or abets the other in planning or committing the offense; or (3) acting with the culpable mental state that is sufficient for the commission of the offense, the person causes an innocent person or a person who lacks criminal responsibility to engage in the proscribed conduct.

4 . Vaden was also charged with additional offenses under the "guide aiding” statute, AS 08.-54.210. These charges were later dismissed as a result of Vaden’s motion to dismiss “duplicitous/multiplicitous” counts.

5 . Vaden preserved these defenses by a timely pretrial motion to dismiss, which was denied.

6 . AS 11.16.120 provides in part:

(a) In a prosecution for an offense in which legal accountability is based on the conduct of another person;

(2) it is not a defense that

(A) the other person has not been prosecuted for or convicted of an offense based upon the conduct in question or has been convicted of a different offense or degree of offense;

(B) the offense, as defined, can be committed only by a particular class of persons to which the defendant does not belong, and the defendant is for that reason legally incapable of committing the offense in an individual capacity; or

(C)the other person is not guilty of the offense:

7 . He expressed "grave reservations," however, as to whether Snell’s acts would fall within the "justification” exception to criminal liability. 742 P.2d at 788.

8 . Pagel was apparently on contract from the State of Wyoming.

9 . Specifically, the counts were:

Count I: Soliciting taking bull caribou same-day airborne

Count II: Soliciting taking cow caribou same-day airborne

Count III: Soliciting waste of bull caribou

Count IV: Aid taking bull caribou same-day airborne

Count V: Taking cow caribou same-day airborne

Count VI: Attempt take bull caribou same-day airborne

Count VII: Aid waste bull caribou

Count VIII: Wasting cow caribou

Count IX: Guide aiding taking bull caribou same-day airborne

Count X: Guide aiding waste of bull caribou

Count XI: Transportation of illegally-taken game

Count XII: Solicit fishing with illegal gear

Count XIII: Using illegal fishing gear

Count XTV: Aid use of illegal fishing gear

Count XV: Waste of fish

Count XVI: Guide aiding illegal fishing.

10 . The public authority justification defense is codified as AS 11.81.420 which reads:

(a) Unless inconsistent with AS 11.81.320— 11.81.410, conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order.

(b) The justification afforded by this section also applies when

(1) the person reasonably believes the conduct to be required or authorized by a decree, judgment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or (2) the person reasonably believes the conduct to be required or authorized to assist a peace officer in the performance of the officer’s duties, notwithstanding that the officer exceeded the officer’s authority.

As noted by Judge Singleton, this defense may or may not be available to an undercover agent in the position of Snell or Pagel. 742 P.2d at 788.

11 . See supra note 6.

12 . Indeed, at trial Saltz was convicted of soliciting the offenses committed by Pagel. See supra note 9.

13 .The court also said that outrageous conduct barring prosecution would be found when the government’s involvement was "malum in se ”. Williams at 1386.

In the instant case, the government involvement was not malum in se. “Malum in se” is defined as follows:

A wrong in itself; an act or case involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law. An act is said to be malum in se when it is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences, without any regard to the fact of its being noticed or punished by the law of the state. Such are most or all of the offenses cognizable at common law (without the denouncement of a statute); as murder, larceny, etc.

Black’s Law Dictionary 865 (5th ed. 1979) (citations omitted). Acts merely prohibited and not rising to the level of malum in se are malum prohibitum, which is defined as follows:

A wrong prohibited; a thing which is wrong because prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law; an act involving an illegality resulting from positive law. Contrasted with malum in se.

Id.

Because fish and game violations are not inherently evil or immoral and are proscribed only by statute, they are malum prohibitum and not malum in se.

14 . Vaden was targeted for investation based on information supplied by an employee who allegedly had observed illegal hunting practices during fall hunts in 1983.

15 . See supra note 9 (solicitation charges).