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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS S. MILLMAN, )
) Court of Appeals No. A-4138
Appellant, ) Trial Court No. 3KO-91-76 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1259 - November 13,
1992]
________________________________)
Appeal from the District Court, Third Judi
cial District, Kodiak, Donald D. Hopwood,
Judge.
Appearances: Walter W. Mason, Jamin, Ebell,
Bolger, & Gentry, Seattle, for Appellant.
Peter C. Gamache, District Attorney, Kodiak,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
The Alaska Department of Fish and Game regulates the
taking of crab by dividing the state's waters into various areas.
Vessels fishing for crab must register for particular areas and
particular types of crab; once registered, vessels are authorized
to take crab only within their specified areas. 5 AAC 34.020
(governing king crab); 5 AAC 35.020 (tanner crab).
Normally, a vessel that has caught king crab must not
take the unprocessed crab outside the vessel's registration area,
5 AAC 34.090(a), and must land the crab (i.e., off-load the crab
for sale) within its registration area. 5 AAC 34.030(c). A
vessel may land the crab in another registration area only if the
vessel complies with 5 AAC 34.030(d)-(e):
(d) [The vessel] must contact by radio
a local representative of the department [of
Fish and Game] prior to leaving the statisti
cal area encompassing the [registration] area
for which the vessel is registered, and shall
submit to ... inspection [if the department
requires]. The [department] representative
contacted by the vessel must be located in
the registration area for which the vessel is
validly registered at the time. ...
(e) A vessel making radio contact pursu
ant to (d) of this section shall state to the
local representative of the department the
amount of king crab on board at the time.
When a vessel secures permission to land king crab at a location
outside its registration area, the amount of crab landed must
comport with the amount of crab the vessel had when it left the
registration area. If the department exercises its power under
5 AAC 34.030(d) to board and inspect the vessel, then the amount
of crab ultimately landed must be no greater than the amount of
crab observed during the inspection. 5 AAC 34.030(d). If the
department forgoes physical inspection and allows the vessel to
simply report its catch under 34.030(e), then the amount of crab
landed cannot vary more than ten percent from the amount of crab
reported to the department representative under section 030(e).
5 AAC 34.097.
In November and December of 1988, Millman participated
in the Adak area commercial crab fishery. Wishing to land the
crab in Kodiak (outside the Adak registration area), Millman
brought his boat to port in Dutch Harbor on December 5, 1988 and
telephoned Fish and Game biologist Kenneth Griffin (the
department representative in Dutch Harbor) to report the amount
of king and tanner crab Millman had aboard his vessel. Even
though 5 AAC 34.030(d) states that a vessel must contact the
department representative "by radio", Griffin testified that he
routinely accepted vessels' reports of their crab catches by both
radio and telephone.
Millman told Griffin that his vessel contained 1300
king crab. Eight days later, on December 13, Millman delivered
his crab to All-Alaskan Seafoods in Kodiak. Debra Sundberg, a
company employee, filled out a fish ticket recording the amount
of king crab that Millman had landed. Millman delivered 3398
king crab to All-Alaskan Seafoods, 2098 more than he had reported
to Griffin.
Millman was charged with violating 5 AAC 34.097, the
regulation that prohibits any variance of ten percent or greater
between the amount of crab reported under 5 AAC 34.030(e) and the
amount of crab ultimately landed. Following a bench trial in the
Kodiak district court, Millman was convicted.
The district court fined Millman $3000, of which $1500
was suspended, and also imposed a forfeiture of over $93,000.
Millman appeals his conviction, contending both that the district
court should have granted him a judgement of acquittal and that
the court should have dismissed the prosecution because of the
State's delay in bringing the charge. Millman also challenges
the forfeiture imposed on him by the district court. We affirm
Millman's conviction, but we modify the amount of the forfeiture.
At the conclusion of Millman's trial, he moved for a
judgement of acquittal. The regulation Millman was charged with
violating - 5 AAC 34.097 - prohibits a ten-percent variance
between the amount of crab landed and the amount of crab reported
to the department representative under 5 AAC 34.030(e). Millman
pointed out that 5 AAC 34.030(e) apparently requires a vessel to
report the amount of its catch only if the vessel makes "radio
contact" with the department's local representative. Millman
argued that, because he had contacted Griffin by telephone rather
than by radio, Millman's report of his catch had not been made
under 5 AAC 34.030(e). Thus, according to Millman, he could not
possibly have violated 5 AAC 34.097.
We reject Millman's reading of 5 AAC 34.030(e). Even
though the regulation refers to reports made by radio, it must be
read to encompass reports made by telephone. As explained above,
the Department of Fish and Game has attempted to regulate and
maintain Alaska's crab fishery by dividing the state's waters
into registration areas and restricting a vessel's crab
operations to specific areas. Not only must a vessel restrict
its crab operations to specified registration areas, but it is
illegal for a fishing vessel even to possess unprocessed crab
outside its registration area unless that vessel has secured
prior approval under 5 AAC 34.030(d)-(e) to transport its catch
to a seafood processor outside the registration area. 5 AAC
34.090(a).
This regulatory framework clarifies the purpose behind
section 34.030(e)'s requirement that a vessel must render a
strict account of its catch before leaving the registration area.
A vessel that has obtained the department's permission to leave
the registration area with unprocessed crab on board (ostensibly
to deliver its catch to an out-of-area processor) must not be
permitted to continue to take crab outside its specified area of
operations. To prevent this abuse, 5 AAC 34.097 requires that
the amount of crab ultimately sold by the vessel must agree
(within a ten-percent tolerance) with the amount of crab declared
by the vessel when it left its specified fishing area. For this
purpose, it is irrelevant whether the skipper reports the catch
by radio, or whether the vessel comes to port and the skipper
makes the report by telephone (as Millman did), or, indeed,
whether the skipper comes to the department office and makes the
report in person.
As the trial judge pointed out, the regulations'
reference to "radio contact" appears to serve two functions.
First, a vessel is allowed to remain at sea rather than come to
port to report its catch and request permission to leave the
registration area. Second, the local representative can be away
from the office, on the water or in the field, and still receive
the vessel's report. In the present case, however, Millman chose
to bring his vessel to port in Dutch Harbor and to use a
telephone to contact the resident department representative. The
local representative, Griffin, was present in his office to
receive Millman's call, and he chose to accept Millman's
telephone report rather than hew to the strict language of
34.030(d) by ordering Millman to return to his vessel to make his
report by radio.
Millman does not argue that, under these circumstances,
there is any rational distinction to be drawn between radio
reports and telephone reports. He nonetheless contends that,
because 34.030(e) clearly specifies "radio" contact, a skipper
cannot be punished for a later non-conforming sale of crab unless
the original report of the catch was made by radio. Millman
argues that, when the wording of a statute or regulation is so
clear, a court cannot redraft the statute even when the
legislature's (or agency's) choice may have been unwise or even
irrational. Copelin v. State, 659 P.2d 1206, 1211 (Alaska 1983);
Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App. 1981).
We agree with Millman that it is not a court's function
to rewrite bad statutes. However, we reject Millman's argument
that a court can do nothing when a statute's wording is "plain".
The guiding principle of statutory construction is to ascertain
and implement the intent of the legislature or agency that
promulgated the statute or regulation. Identifying the "plain
meaning" of a word or phrase used in a regulation does not end
the process of statutory construction:
Once the "plain meaning" of a term is
determined, however, the court should not
apply it mechanically. Alaska Public Employ
ees Assn. v. Fairbanks, 753 P.2d 725, 727
(Alaska 1988). Instead, the court uses a
sliding scale approach to statutory interpre
tation in which it also considers the legisla
tive history of the statute and whether the
history reveals a legislative intent and
meaning that is contrary to the plain
meaning.
Stephan v. State, 810 P.2d 564, 566 (Alaska App. 1991).
When a statute or regulation is part of a larger
framework or regulatory scheme, even a seemingly unambiguous
statute must be interpreted in light of the other portions of the
regulatory whole. Lake v. Construction Machinery, Inc., 787 P.2d
1027, 1030 (Alaska 1990); Hafling v. Inlandboatmen's Union of the
Pacific, 585 P.2d 870 (Alaska 1978); Hotel, Motel, Restaurant,
Construction Camp Employees & Bartenders Union, Local 879 v.
Thomas, 551 P.2d 942 (Alaska 1976). As noted earlier in this
opinion, 5 AAC 34.030(d)-(e) are indeed part of a larger
regulatory framework that maintains and preserves Alaska's crab
resources by restricting the operations of fishing vessels. The
regulatory requirement that a vessel report its catch is designed
to insure that a vessel does not continue to take crab after it
has been granted permission to land its catch outside its
registration area.
Local representative Griffin's acceptance of Millman's
telephone report was a common-sense and reasonable approach to
the problem posed by Millman's non-compliance with the strict
"radio" language of subsections (d) and (e) of the regulation.
When the department's local representative receives a vessel's
report by telephone, it would appear that all regulatory concerns
of the department are satisfied. Notably, the testimony
presented in this case shows that, when the department receives a
telephone report of a vessel's catch, the department views the
telephone report as compliance with 34.030(d)-(e). When the
construction of a regulation presents a question of law involving
an area of agency expertise or policy-making responsibility,
courts will defer to the agency's construction of the regulation.
Alaska Public Employees' Assn. v. State, 831 P.2d 1245, 1247
(Alaska 1992); Homer Electric Assn. Inc. v. City of Kenai, 816
P.2d 182, 184 n.10 (Alaska 1991); Tesoro Alaska Petroleum Co. v.
Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). Here, we
must defer to the Department of Fish and Game's willingness to
accept a telephone report as compliance with the regulatory
requirement.
Adoption of Millman's view of the regulation would lead
to absurd consequences. A local department representative like
Griffin who received a telephone report of a vessel's catch would
have to tell the skipper to re-board his vessel and make the same
report by radio, else the department would forfeit its right to
insist that the reported catch conform to the vessel's later
delivery of crab at the processor. Moreover, under Millman's
construction of the law, Millman would himself be guilty of
violating 5 AAC 34.030(d), because his telephone call to the
local department representative did not constitute "contact by
radio". This, in turn, would mean that Millman's subsequent act
of taking the unprocessed crab out of the registration area and
landing his catch in Kodiak would violate 5 AAC 34.090(a),
because Millman would not have been acting "pursuant to the
authorization of 5 AAC 34.030(d)". We find it inconceivable that
the law would support prosecution of a skipper who accurately
reported his or her catch but who made the report by telephone
instead of radio.
When the department's local representative receives a
vessel's report by telephone, punctilious observance of a distinc
tion between a radio report and a telephone report serves no
purpose, either for the department or for the skipper of the
vessel. Indeed, such close adherence to the strict wording of
the regulation would actually impede the functioning of the
regulatory scheme. Even though criminal statutes generally must
be construed in favor of the accused, a court is nevertheless
obliged to avoid construing statutes in a way that leads to
patently absurd results or to defeat of the obvious legislative
purpose behind the statute. Sherman v. Holiday Construction Co.,
435 P.2d 16 (Alaska 1967); Wylie v. State, 797 P.2d 651, 657
(Alaska App. 1990); Belarde, 634 P.2d at 568.
We therefore conclude that, although 5 AAC 34.030(d)
and 030(e) specify that a vessel shall make its report to the
department's local representative by "radio", the regulations are
satisfied when the department's local representative receives the
vessel's report by telephone. A report received by telephone is
equivalent to a report received by radio for purposes of determin
ing whether the vessel's reported catch conforms to the delivered
catch under 5 AAC 34.097.
Millman advances one additional argument. He notes
that the district court denied his motion for judgement of
acquittal on other grounds; in fact, the district court
explicitly rejected the argument that 5 AAC 34.030(d)-(e) could
be construed to encompass telephone reports as well as radio
reports. Millman asserts that the State is therefore precluded
from arguing that the district court's ruling should be upheld
under the reasoning contained in this opinion; he argues that the
district court's strict construction of the regulation must be
considered the law of the case.
Because it is within the special competence of an
appellate court to interpret statutes, this court need not defer
to the district court's interpretation of the regulations at
issue in this appeal. Conner v. State, 696 P.2d 680 (Alaska App.
1985). Moreover, an appellee can defend a trial court's decision
on any legal theory supported by the record. Russell v.
Anchorage, 626 P.2d 586, 588 n.4 (Alaska App. 1981). This rule
applies not only to legal theories that went unvoiced in the
trial court, but even to theories that were explicitly rejected
by the trial court. See Ransom v. Haner, 362 P.2d 282, 285
(Alaska 1961), where a trial court's evidentiary ruling was
upheld on appeal under a legal theory that the trial court had
rejected. This court is therefore authorized to rely upon our
construction of 5 AAC 34.030(d)-(e) to uphold the district
court's decision, even though the district court considered and
rejected this same construction of the regulations.
Millman raises a second attack on his conviction,
arguing that the State's delay in filing the charges against him
violated his constitutional right to due process. Millman
delivered his non-conforming crab catch to the seafood processor
in Kodiak on December 13, 1988; the State did not file charges
against him until February 5, 1991. The district court found
that this 26-month delay was unreasonable, but the court denied
Millman's motion to dismiss because Millman had failed to show
that he had been prejudiced by this delay.
The due process clauses of the United States and the
Alaska Constitutions protect the accused against unreasonable pre-
accusation delay.1 See United States v. Marion, 404 U.S. 307,
324; 92 S.Ct. 455, 465; 30 L.Ed.2d 468 (1971); State v. Mouser,
806 P.2d 330, 336 (Alaska App. 1991). But to prevail on a claim
of pre-accusation delay, the accused must establish both that the
delay was unreasonable and that it actually prejudiced the
accused's defense of the case; a showing of potential or possible
prejudice will not suffice.
By actual prejudice we mean a particularized
showing that the unexcused delay was likely
to have a specific and substantial adverse
impact on the outcome of the case. ... [T]he
generalized prospect of ... lost witnesses
does not amount to actual prejudice ... . At
the very least, the accused must show that[,]
but for the delay, he would have been able to
present favorable evidence. Mere speculation
about the loss of favorable evidence is insuf
ficient.
Mouser, 806 P.2d at 337-38 (quotations and citations omitted).
Millman's sole claim of prejudice concerns the
potential testimony of Debra Sundberg, the All-Alaskan Seafoods
employee who filled out the fish tickets with the amount of crab
Millman presented for processing in Kodiak. (A seafood processor
receiving seafood from a vessel must fill out fish tickets that
accurately record the amount of the delivered catch. 5 AAC
34.096.)
Sundberg did not testify at trial, having left the
Kodiak area before the start of the proceedings. Millman claims
that Sundberg would have presented "potentially exculpatory
information" at trial regarding the accuracy of the fish tickets.
Millman maintains that the accuracy of the fish tickets was
called into question at trial because the fish tickets contained,
in addition to the information recorded by Sundberg, notations
written by other people. Millman also contends there was some
confusion at trial over the type of crab recorded on each fish
ticket.
Millman has failed to specify precisely how Sundberg's
testimony would have established that the fish tickets were in
error. As noted above, 5 AAC 34.096 requires the processor to
accurately describe the quantity of crab presented by the vessel.
Moreover, since the quantity of crab determines how much money
the processor will pay to a crab fisherman, it is reasonable to
assume that Millman took some interest in the accuracy of
Sundberg's notations when she filled in the fish ticket. The
district court admitted the fish tickets into evidence at trial,
and Millman does not challenge this ruling on appeal.
Millman's conclusory allegation that Sundberg might
potentially have "exculpatory information" hardly qualifies as
the "particularized showing" of "specific and substantial"
prejudice required by Mouser. Accordingly, we find no error.
Millman challenges the forfeiture imposed by the
district court. The court ordered Millman to pay the market
value of the difference between the amount of crab he landed at
All-Alaskan Seafoods and the smaller amount of crab he reported
to Griffin before he left Dutch Harbor. Millman points out that
AS 16.05.722(b) requires forfeiture "of any fish, or its fair
market value, taken or retained as a result of the commission" of
a commercial fishing violation. Millman argues that his offense
did not involve the illegal taking or retention of crab, but only
the underreporting of his catch.
We disagree. Millman was convicted of violating 5 AAC
34.097, which prohibits "any vessel acting pursuant to the
authority of 5 AAC 34.030(d) to land an amount of king crab
10 percent greater ... than the amount stated under 5 AAC 34.
030(e)." The offense is committed, not by making a false report,
but by the act of landing a non-conforming quantity of crab.
When Millman presented these extra crab to the processor, this
extra portion of his catch, or its equivalent value in money that
Millman received from the processor, was "retained as a result of
the commission of the violation." It was therefore subject to
forfeiture.
Millman further faults the district court for ordering
forfeiture in the amount of $93,151.20. The district court
arrived at this figure by subtracting the number of king crab
Millman reported when he left Dutch Harbor (1300) from the number
of king crab he later presented to the processor in Kodiak
(3398), then multiplying this difference (2098) by the average
weight of the crab on Millman's vessel (8 lbs.) and by the market
price the processor paid for the crab ($5.55 per lb.).
Millman argues that this $93,151.20 was not all profit.
He asserts that he was only a fifty-percent shareholder of the
company that owned the vessel, and that, by the time his expenses
for fuel, food, and bait are considered, his actual profit was no
more than $30,465.00.
AS 16.05.022(b) specifies that the sentencing court
shall order forfeiture of the fair market value of the illegal
catch. The statute makes no provision for offsetting this fair
market value with the violator's operating costs. We believe
that the legislature is free to impose a forfeiture that reflects
the loss to the state's resource rather than the amount of profit
ultimately reaped by the violator.
Millman also claims the forfeiture order must be
vacated because the district court did not issue the order until
approximately thirty-two months after the commission of the
violations. He argues that it is unfair to order a forfeiture
when the proceeds from the illegal catch have long ago been
spent. Millman has cited no authority establishing that a
forfeiture order must be imposed within a certain period of time
after the commission of the offense. The case he relies on,
United States v. Eight Thousand Eight Hundred and Fifty Dollars
in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76
L.Ed.2d 143 (1983), is not on point; that case involved a delay
in the institution of civil forfeiture proceedings, akin to
Millman's pre-accusation delay argument that we have already
rejected. Given our conclusion that Millman's prosecution was
not barred by the State's delay in bringing charges, and because
the additional time between the filing of charges and the
imposition of the forfeiture was due entirely to the normal
demands of adjudicating those charges, we find no legal
impediment to the district court's imposition of the forfeiture.
We do, however, believe that the district court's
forfeiture order must be modified. The district court arrived at
the amount of forfeiture by calculating the fair market value of
2098 crab; this figure of 2098 crab represented the number of
crab Millman delivered (3398) minus the number of crab he
reported (1300). However, under 5 AAC 34.097, the quantity of
illegal crab was the difference between the amount delivered and
the amount reported, adjusted upward by ten percent. Thus, the
district court should have based its calculations on an illegal
landing of 1968 crab [3398 - (1300 + 130)]. Using the same
figures for the average weight of the crab and their market
value, the forfeiture should have equaled $87,379.20.
With this modification, the judgement of the district
court is AFFIRMED.
_______________________________
1 United States Constitution, Fourteenth Amendment; Alaska
Constitution, Art. I 7.
