United States v. Belderrain, 10th Cir. (2009)
United States v. Belderrain, 10th Cir. (2009)
Elisabeth A. Shumaker
Clerk of Court
No. 08-8016
(D.C. No. 07-CR-00066-WFD-1)
(D. Wyo.)
DefendantAppellant.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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The bull elk was standing just outside of the parks boundary when it was
shot. However, Defendant fired the fatal shot from within the park, and he
subsequently transported the elks head and antlers into and through the park.
Because Defendant thus possessed a firearm and transported and possessed
illegally taken wildlife within Yellowstone National Park, albeit in Montana, the
United States District Court for the District of Wyoming has jurisdiction over the
charges at issue in this case. See 28 U.S.C. 131.
Wildlife Service and, by extension, the United States Attorneys Office for the
District of Montana. The district court denied the motion, holding that the
agreement was not binding on the U.S. Attorneys Office for the District of
Wyoming. The court additionally held that the agreement had not been breached
because the federal charges were based on information obtained by law
enforcement officials after Defendant entered into the Montana plea agreement
and therefore fell within the agreements exception for prosecution based on new
or future information.
Following the denial of his motion to dismiss, Defendant entered a
conditional plea of guilty to being a felon in possession of a firearm, unlawfully
transporting illegally possessed wildlife, and unlawfully possessing illegally taken
wildlife. On appeal, he challenges the district courts denial of his motion to
dismiss.
Whether a plea agreement has been violated is a question of law that we
review de novo. United States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003).
[T]he party who asserts a breach of a plea agreement has the burden of proving
the underlying facts that establish a breach by a preponderance of the evidence.
Allen v. Hadden, 57 F.3d 1529, 1534 (10th Cir. 1995). Assuming for purposes of
appeal that the Montana plea agreement was binding on the U.S. Attorneys
Office for the District of Wyoming, we hold that Defendant has not established by
a preponderance of the evidence that the government violated the plea agreement
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did not learn that Defendant had killed the Yellowstone elk until months after
Defendants nolo contendere pleas were entered, when the taxidermist reported
that Defendant had killed an elk in Yellowstone as well as in the Buffalo Horn
Drainage and that the elk head came from the Yellowstone kill. 2
Defendant argues that the government should have drawn a connection
between the headless elk carcass found in Yellowstone and the elk head
discovered in the taxidermists store within the next month. He argues that this
information, known by the government at the time of the Montana plea, was
sufficient to link him to the Yellowstone incident and therefore that the instant
charges are not based on new information. However, particularly in light of the
fact that his lies regarding the source of the elk head led the government to
believe it came from another location, we are convinced that Defendants
involvement with the Yellowstone poaching was not information held by the
government at the time he entered into the Montana plea agreement. At that time,
the government possessed no information indicating that Defendant was involved
with that incident. Furthermore, his lies effectively deterred the government from
suspecting or investigating any such link. Given these circumstances, we
conclude that the instant charges were based on new information that was not
known to the government at the time Defendant entered into the plea. We
A DNA test subsequently confirmed that the elk head came from the
Yellowstone elk.
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therefore hold that the plea agreement was not violated by the governments
bringing of these charges.
For the foregoing reasons, we AFFIRM the district courts denial of
Defendants motion to dismiss. Defendants sentence and conviction are
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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