NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring any
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K. Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS MCCANN, PAT DALY, )
DAVID MITTENEN, THOMAS ) Court of Appeals No. A-3629
MITTENEN, and BRAD PEARCE, ) Trial Court Nos. 3KO-S89-631/
) 32/33/34/35CR
Appellants, )
) O P I N I O N
v. )
)
STATE OF ALASKA, )
) [No. 1163 - September 27, 1991]
Appellee. )
______________________________)
)
CHHOEUM CHONG, ) Court of Appeals No. A-3626
) Trial Court No. 3KO-S89-636CR
Appellant, )
)
v. )
)
STATE OF ALASKA, )
)
Appellee, )
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Kodiak,
Roy H. Madsen, Judge.
Appearances: Michael N. White, Preston,
Thorgrimson, Shidler, Gates & Ellis,
Anchorage, for Appellants McCann, Daly, David
Mittenen, Thomas Mittenen, and Pearce. Brian
M. Doherty, Gilmore & Feldman, Anchorage, for
Appellant Chong. Carmen E. ClarkWeeks,
Assistant District Attorney, and Peter C.
Gamache, District Attorney, Kodiak, and
Charles E. Cole, Juneau, for Appellees.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Thomas McCann, Pat Daly, David Mittenen, Thomas
Mittenen, Brad Pearce, and Chhoeum Chong (hereinafter McCann)
were each convicted of violating AS 16.05.722, the strict
liability commercial fishing provision, for the possession of
undersized crab. See 5 Alaska Administrative Code (AAC) 34.065
and 5 AAC 34.820.1 District Court Judge Roy H. Madsen ordered
McCann to pay the maximum fine, as well as a forfeiture amount of
$23,042. On appeal, McCann contends the forfeiture order is
illegal and the maximum fine is excessive. We reverse.
On October 12, 1989, officers of the State Fish and
Wildlife Protection Agency boarded the F/V Margaret G. after its
arrival at Ursin Seafoods in Kodiak, and measured crabs to
determine whether they were at least six and one-half inches
wide. Officer Allen Hassan testified that he measured a total of
1,015 crabs from the ship and determined that 145, or 14%, were
under the legal size. The officers then dumped the live
undersized crabs back into the sea. The officers determined that
the total dead loss on the ship was approximately 10,000 pounds.
In sentencing McCann, the court noted both that the
percentage of undersized crabs found on his vessel was "high" and
that he had exhibited "extreme carelessness" in using a bent
measuring stick to measure the crabs. Consequently, in the
court's view, McCann's conduct bordered on criminal negligence
and McCann qualified as a "most serious type of offender." The
court then imposed the maximum fine of $3,000 on each of the crew
members and $6,000 on Captain Thomas Mittenen as a second
offender. The court also ordered a "forfeiture" of 14% of the
value of the dead loss, or $7,350. In addition, the court
ordered a "forfeiture" of half the value of the undersized crabs
which were returned to the sea, or $15,692. The court reached
this figure as follows:
I'd have to agree with [the district
attorney] that there's a question . . .
whether or not red king crab which are not
native to the waters here are likely to
survive. However, they were returned to the
sea and they were not retained, the
defendants did not receive compensation for
them. So, I think all I can do is
arbitrarily arrive at a figure and say that
assuming having travelled the distance from
Bristol Bay or the Bering Sea to Kodiak and
probably in a weakened state, it would be
lucky if fifty percent of them survived.
Thus, the court's forfeiture order totalled $23,042.
On appeal, McCann contends the court's forfeiture
order contravenes the plain meaning of AS 16.05.722. We agree.
Alaska Statute 16.05.722 provides in part:
Strict liability commercial fishing
penalties.
(a)A person who without any culpable
mental state violates AS 16.05.440 -
16.05.690, or a regulation of the Board
of Fisheries or the department governing
commercial fishing, is guilty of a
violation and upon conviction is
punishable by a fine of not more than
(1)$3,000 for a first conviction; and
(2)$6,000 for a second or subsequent
conviction.
(b)In addition, the court shall order
forfeiture of any fish, or its fair
market value, taken or retained as a
result of the commission of the
violation.
(Emphasis added.)
The provision states that fishers may be sanctioned in
two ways for their conduct -- fine and forfeiture. In providing
for the forfeiture of the fish or its fair market value, it seems
clear that the legislature sought to prevent violators from
profiting in any way from their illegal catch. Thus, the statute
allows the state to seize the illegal catch itself, or, if it has
already been sold, the statute allows the state to seize the
proceeds or fair market value of the sale.2
The court's forfeiture order in this case was improper
because the amount does not reflect any profit obtained by McCann
from the sale of the illegal catch. In effect, McCann was
punished three ways for his violation, in contravention of the
plain meaning of the statute. The state fined McCann the maximum
amount, seized the undersized crabs, and ordered him to pay
$23,042, a percentage of the fair market value of the seized
crabs. The state's seizure of the crabs effectively constituted
a forfeiture of the undersized crabs. The statute does not
provide for an additional "forfeiture" penalty.
The state contends the forfeiture payment was proper
because McCann was ordered to pay the fair market value of only
those crabs which were either dead or unlikely to survive. In
the state's view, the court's order was necessary to compensate
for the lost resource and "to make the state whole." The state
believes the plain meaning of the statute "ties the defendant's
potential monetary loss to the market value of the resource --
not his culpability or profit." We disagree.
Nothing in the statute allows for a forfeiture in order
to "make the state whole." Again, the clear intent of the
forfeiture language in the statute is to prevent the violator
from profiting in any way from the illegal catch. Not having
profited from his illegal catch, McCann is not subject to
forfeiture of its fair market value.
McCann also contends the imposition of the maximum fine
was excessive because there is nothing in the record to indicate
that he qualifies as a worst offender. McCann points out the
evidence established that the taking of undersized crabs resulted
from a bent measuring stick, and thus the violation was
accidental rather than intentional.
The court found that McCann's case came close to
qualifying as a misdemeanor offense (namely AS 16.05.723,
negligent violation of fishing regulations) because he exhibited
"extreme carelessness" in using a bent measuring stick to measure
the crabs. This finding, by itself, justifies the imposition of
the maximum sentence. See Benboe v. State, 698 P.2d 1230, 1232
(Alaska App. 1985) (fact that defendant's conduct would have
qualified as greater offense than that to which no contest plea
was entered increases seriousness of offense). Moreover, the
court's finding that McCann caught a "high percentage" of
undersized crabs likewise constitutes sufficient justification
for the imposition of the maximum fine.3
The forfeiture order is VACATED and the imposition of
the maximum fine is AFFIRMED.
_______________________________
1. 5 AAC 34.065 provides:
FEMALE AND UNDERSIZE KING CRAB. Male king
crab less than minimum size and female king
crab may not be taken or possessed. Such
king crab which have been taken must be
immediately returned unharmed to the sea.
5 AAC 34.820 provides in pertinent part:
SIZE LIMITS. (a) Male red and blue king
crab six and one-half inches or greater in
width of shell may be taken or possessed.
2. We likewise acknowledged prior to AS 16.05.722's
enactment that it would be improper to allow a fisher convicted
of a strict liability violation to profit in any way from the
illegal catch:
We also believe that it is clear that the
legislature intended to authorize the court
to order the forfeiture of any fish or game
obtained in violation of a regulation. We
see no reason to allow a defendant, even if
he or she acted without fault, to have a
valid claim to fish or game obtained in
violation of a regulation.
Constantine v. State, 739 P.2d 188, 190 (Alaska App. 1987)
(emphasis added).
3. Chief Judge Bryner and Judge Mannheimer concur
with the result on the sentencing issue. See Johnson v. State,
___ P.2d ____, Op. No. 1156 (Alaska App., September 6, 1991).
