Appeal from a judgment of the District Court for the Western District of New York, Honorable John T. Curin, Judge, convicting FMC Corporation, after a jury trial, of unlawfully by means of toxic and noxious waters killing migratory birds, in violation of 16 U.S.C. § 703. FMC Corporation was fined $100 on each of eighteen counts, but the fine was remitted on all but five counts. Affirmed.
MOORE and GURFEIN, Circuit Judges, BONSAL,*fn* District Judge.
This is an appeal from a judgment of conviction entered after a jury trial against FMC Corporation ("FMC"), for violation of the Migratory Bird Treaty Act, by killing 92 migratory birds in violation of 16 U.S.C. § 703. The jury convicted defendant FMC of 18 counts of the 36 counts in the indictment.
The indictment charged that FMC between April 23, 1975 and June 25, 1975 (exact dates unknown) "did unlawfully by means of toxic and noxious waters kill migratory birds included in the terms of the conventions between [specifically naming treaties between the United States of America and Great Britain (1916), the United Mexican States (1936), and the Government of Japan (1972)], all in violation of Title 16, United States Code, Section 703".
Each count of the indictment specifies the date of discovery of the alleged killing, the number of birds killed, ranging from 1 bird in each of 24 counts to 2 to 26 birds in the remaining 12 counts. The varieties of birds were described in the indictment by their ornithological and more common titles and included the Eremophila alpestris (Horned Lark), the Butorides virescens (Green Heron) and Brata canadensis (Canada Goose). They will be referred to herein as "birds".
Defendant was fined $100 on each of the 18 counts, but the fine was remitted on all but 5 counts.
The 18 counts selected by the jury for conviction covering alleged killings between April 25, 1975 and June 9, 1975 and the 18 counts for acquittal between April 23, 1975 and June 25, 1975, present no clue useful on appellate review unless there were jurors disposed favorably to the Ringbilled Gull and Shortbilled Dowicher (Counts 10 and 13) and less favorably to the Least Sandpiper and the Migratory Fringllid (Counts 8 and 36). Equally baffling is the trial court's remission of the fines except for 5 birds found dead between April 25 and May 7 (counts 3, 4, 5, 7 and 9), because fines were imposed on 18 counts between April 25 and May 29.
So far as pertinent, the Migratory Bird Treaty Act ("MBTA") provides:
"... it shall be unlawful at any time, by any means or in any manner, to... kill... any migratory bird... included in the terms of the conventions between the United States and Great Britain... [Mexico]... [and Japan]...." 16 U.S.C. § 703.*fn1
A separate section provides for the penalties under the MBA
"(a)... any person... or corporation who shall violate... section 703... shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500 or be imprisoned not more than six months, or both." 16 U.S.C. § 707.
The issue before us, as it was before the trial court and as charged to the jury, is clearly framed: does the statute require that the violation be intentional or in other words, where a crime is involved and a criminal penalty imposed ...