Scudero v. Municipality of Anchorage (5/31/96) ap-1469
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correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN A. SCUDERO, JR., )
) Court of Appeals No. A-5854
Appellant, ) Trial Court No. 1KE-S94-1081CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1469 - May 31, 1996]
______________________________)
Appeal from the District Court, First Judicial
District, Ketchikan, George L. Gucker, Judge.
Appearances: Phillip Paul Weidner and Nicole
D. Stucki, Weidner & Associates, Inc.,
Anchorage, for Appellant. Trevor N. Stephens,
Assistant District Attorney, Ketchikan, and
Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
On July 17, 1994, John A. Scudero, Jr., deployed a gill
net from his commercial fishing vessel and caught several salmon in
state waters approximately 1.2 nautical miles from Annette Island.
The area was outside the 3000-foot boundary of the Annette Island
waters reserved for Metlakatlans and was closed to salmon fishing.
Scudero did not have an entry permit to fish commercially for salmon
in state waters. Scudero was charged with commercial fishing in
closed waters in violation of AS 16.05.723(a) and 5 Alaska Adminis-
trative Code (AAC) 33.310(c)(1)(B), commercial fishing without a
permit in violation of AS 16.43.140, and trailing a gill net in
closed waters in violation of AS 16.05.723(a) and 5 AAC 39.250(a).
A jury convicted Scudero of all three charges.
On appeal Scudero first argues that the district court
erred in refusing to take "judicial notice" of pleadings from two
other cases.
Five months after being arraigned on the current charges,
Scudero filed a motion seeking to have the district court in
Ketchikan take judicial notice of thirteen documents that he had
filed in two Juneau cases in which he had previously been charged
with fishing violations. While referring to his request as one for
judicial notice, Scudero actually wanted the court to deem the
Juneau pleadings filed in his Ketchikan case. However, Scudero did
not submit copies of the pleadings to the Ketchikan court, or
explain his failure to do so. Nor did he otherwise state good cause
for the Ketchikan court to take "judicial notice." Furthermore,
although Scudero's motion for judicial notice was untimely under
Alaska Criminal Rule 12(c) (generally requiring pretrial motions to
be filed within twenty days of arraignment), Scudero failed to
explain the late-filing of his request.
District Court Judge George L. Gucker denied Scudero's
request, ruling that the Juneau pleadings had not been properly
submitted to the Ketchikan court and that Scudero's request was in
any event untimely. On appeal, Scudero claims error. But his
motion for judicial notice plainly requested relief beyond that
normally contemplated under Alaska's rules governing judicial notice
of fact and law. See A.R.E. 201, 202. Although Judge Gucker was
vested with broad discretion to relax procedural rules and might
conceivably have been authorized to treat the Juneau pleadings as
if they had also been filed in the Ketchikan case, absent a
convincing showing of necessity for "judicial notice," without
copies of the pleadings themselves, and given no justification for
the untimeliness of Scudero's request, the judge certainly did not
abuse his discretion in denying Scudero's motion.
Scudero nevertheless alleges that the district court erred
"in failing to permit counsel, in the alternative, the opportunity
to amend the motion." But the record provides no indication that
Scudero ever requested or attempted to amend or refile his request
for judicial notice, or that the district court did anything to
thwart any such efforts. Nor does Scudero provide any meaningful
argument or authority to support this allegation. We conclude that
the argument is meritless.
Scudero next argues that the trial court erred in refusing
to instruct the jury on Scudero's primary theory of defense. The
day before trial, Scudero notified the court that, as a defense to
his charges, he intended to assert that the conduct for which he was
arrested involved "political acts which are part of his exercise of
his right to free speech," as guaranteed under the First Amendment
to the United States Constitution and Article I, Section 5 of the
Alaska Constitution. Scudero, who is a Metlakatlan, claimed that
at the time of the alleged violations, he was engaged in an act of
civil disobedience to protest the state's enforcement of fishing
regulations against Metlakatlans; he asserted that his intent was
not to fish but to protest, and that this protest was protected
under the constitutional right to freedom of speech. Scudero sought
to have this defense heard by the jury and proposed jury
instructions accordingly. (EN1) Judge Gucker declined to instruct
the jury on Scudero's civil disobedience defense, ruling that
Scudero's actions had not amounted to speech. On appeal, Scudero
contends that he was entitled to present his defense to the jury.
We reject Scudero's argument. At the outset, we note
that, to the extent Scudero had a potentially viable claim of First
Amendment protection, the claim raised issues for resolution by the
court as a matter of law, not by the jury as a matter of fact. See
Paul H. Robinson, Criminal Law Defenses  5(d) (1984). Scudero's
constitutional defense may well have included preliminary factual
issues whose resolution was necessary before the ultimate legal
issue of First Amendment protection could be passed on by the court.
But Scudero had no right to insist on a jury resolution of these
preliminary factual matters.
The right to a jury trial entitles the accused to have a
jury pass on all the essential elements of the offense but does not
extend to the resolution of extrinsic factual issues that bear on
legal defenses that are not directly tied to an essential element
of the crime charged -- defenses that apply regardless of whether
all necessary elements of an offense have been established. Cf.
Model Penal Code  1.12(4)(b) (in applying the Code, any fact not
an element of an offense can be tried to the court or jury); Alaska
Criminal Rule 12(b) ("Any defense . . . which is capable of
determination without the trial of the general issue may be raised
before trial by motion.").
Thus, for example, it is settled that a claim of selective
prosecution is a defense of law for the court, not one of fact for
the jury. Woodward v. State, 855 P.2d 423, 429 (Alaska App. 1993).
And entrapment has been recognized as a legal defense tried by the
court, not the jury. Yates v. State, 681 P.2d 1362 (Alaska App.
1984). So too, we have held that mistake of law is a defense
decided by the court. Cornwall v. State, ____ P.2d ____, Op. No.
1460 at p. 15 (Alaska App., February 16, 1996); Ostrosky v. State,
704 P.2d 786, 792 (Alaska App. 1985).
Scudero's political protest defense falls squarely within
the same category as selective prosecution, entrapment, and mistake
of law. None of these defenses are premised on proof of factual
circumstances negating a necessary element of the alleged crime; all
apply, as a matter of extrinsic legal policy, even when the elements
of a crime have been proved beyond a reasonable doubt. To the
extent that his political protest defense raised issues of fact
beyond those necessarily included in the jury's consideration of the
necessary elements of the charged offenses, Scudero was required to
seek resolution of those issues by the district court, not by the
jury. Thus, the district court did not err in declining to instruct
the jury on Scudero's defense.
Of course, Scudero was entitled to present his defense to
the jury insofar as it related to the existence of an essential
element of any of the offenses with which he was charged. An
integral aspect of Scudero's constitutional defense was his
assertion that he had no intent to fish commercially, but instead
intended only to engage in an act of political protest. This aspect
of Scudero's defense had an intimate bearing on an essential element
of two of the three violations charged in Scudero's case.
Two of Scudero's charges -- commercial fishing in closed
waters and commercial fishing without a permit -- alleged violations
of commercial fishing law and thus necessarily required proof that
Scudero engaged in commercial fishing. As defined in AS
16.05.940(5), "'commercial fishing' means the taking, fishing for,
or possession of fish . . . with the intent of disposing of them for
profit, or by sale, barter, trade, or in commercial channels."
(Emphasis added.) Proof of a knowing act of fishing thus would not
have sufficed to establish these charges; rather, to show that
Scudero engaged in commercial fishing, the state was required to
prove that he specifically intended to dispose of his fish in
commercial channels.
Since Scudero's claim of civil disobedience asserted that
he acted with intent to protest an unfair or unjust law, not with
intent to take fish for commercial disposition, his defense, if
accepted by the jury, would have negated an essential element of the
two commercial fishing offenses. To this extent, Scudero was
plainly entitled to assert his defense before the jury.
But the record establishes that he did just that. At
trial, Scudero was given free reign to develop evidence of and
present argument on the underlying purpose of his conduct, as well
as the effect of that purpose on the necessary elements of the
commercial fishing offenses. Scudero did in fact argue for
acquittal on the theory that his intent was to engage in protest,
not commercial fishing. The court properly instructed the jury on
the statutory definition of commercial fishing. And, as we conclude
in a later portion of this decision, although the trial court
declined to give Scudero's proposed instructions on civil
disobedience, it fully and appropriately instructed the jury on the
essential elements of the charged offenses and on the definition of
intent. Accordingly, the trial court's rejection of Scudero's
proposed civil disobedience defense instructions had no adverse
effect on the jury's consideration of the charged offenses.
Since resolution of Scudero's constitutional defense was
a matter for the court rather than the jury, and since Judge Gucker
rejected the defense on its legal merits, we must decide whether
that ruling was erroneous. We conclude that it was not.
We assume for purposes of this decision that Scudero's
conduct was "sufficiently imbued with elements of communication to
fall within the scope of the First and Fourteenth Amendments."
Texas v. Johnson, 491 U.S. 397, 404 (1989). Since the statutes and
regulations under which Scudero was prosecuted were unrelated "to
the suppression of free expression," id. at 403, the pertinent issue
becomes whether their application to Scudero's case can be justified
under the standard set out in United States v. O'Brien, 391 U.S. 367
(1968). See Texas v. Johnson, 491 U.S. at 404. This standard
allows criminal sanctions to apply to conduct that has a
communicative element when the challenged statute or regulation "is
within the constitutional power of the [g]overnment; . . . it
furthers an important or substantial governmental interest; . . .
the governmental interest is unrelated to the suppression of free
expression; and . . . the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest." O'Brien, 391 U.S. at 377. More
recently, in Clark v. Community for Creative Non-Violence, 468 U.S.
288, 293 (1984), the Supreme Court likened the O'Brien standard to
time, place, or manner restrictions on the exercise of speech, which
"are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information."
In the present case, there can be no serious doubt that
the fishing laws under which Scudero was charged pass muster under
the O'Brien standard. These laws are content neutral as to any
expressive element of a violation; they further an important or
substantial state interest that is unrelated to the suppression of
free expression; (EN2) any incidental restriction on First Amendment
freedoms is no greater than is essential to the furtherance of that
interest; and they leave open alternative channels for communication
of the protest message. We conclude that the district court did not
err in rejecting Scudero's civil disobedience defense.
Scudero separately challenges three jury instructions
relating to intent. Over Scudero's objection, the trial court
instructed the jury:
When the evidence shows that a person
voluntarily did that which the law declares to
be a crime, it is no defense that the person
did not know that his or her act was unlawful
or that the person believed it to be lawful.
Scudero argues that this instruction improperly defeated his
constitutional defense, since the instruction "made it impossible
for jurors . . . to find in favor of Mr. Scudero even if they were
convinced that [his] actual intent was to protest." But nothing in
this instruction prevented the jurors from acquitting Scudero if
they found that he had fished with the sole intent to protest, and
not for commercial purposes. The instruction, which is a verbatim
version of Alaska Pattern Jury Instruction 81.620(a), is simply a
correct statement of the well-established rule that mistake of law
is ordinarily no defense to a criminal act. See Ostrosky v. State,
704 P.2d 786 (Alaska App. 1985). The district court did not abuse
its discretion in giving this instruction.
Scudero next challenges the definition of "intentionally"
that the jury received in the instructions:
A person acts "intentionally" with respect
to a result described by a provision of law
defining an offense when the person's conscious
objective is to cause that result; when
intentionally causing a particular result is an
element of an offense, that intent need not be
the person's only objective.
This language tracks, verbatim, the definition of "intentionally"
that is used in Alaska's revised criminal code. See AS
11.81.900(a)(1). Scudero failed to object to it below, and he
advances no argument or authority to support his claim of error on
appeal. Scudero's challenge is meritless.
The last instruction challenged by Scudero dealt with
proof of intent:
State of mind may be proved by
circumstantial evidence. It rarely can be
established by any other means. . . . [W]hat a
defendant does or fails to do may indicate[]
the defendant's state of mind.
This instruction simply mirrors Alaska Pattern Jury Instruction
1.44. It is an accurate statement of the law. See Gray v. State,
463 P.2d 897, 905 (Alaska 1970); Simpson v. State, 877 P.2d 1319,
1320 (Alaska App. 1994); State v. McDonald, 872 P.2d 627, 654-55
(Alaska App. 1994). Again, Scudero did not object to this
instruction below and presents no coherent explanation for his claim
on appeal that the trial court erred in giving the instruction to
the jury. Scudero's claim is meritless.
Scudero's last issue relates to his sentence. One of
Scudero's offenses, fishing without a valid entry permit, carried
a mandatory minimum penalty: AS 16.43.970(g)(1) provides that a
first offender convicted of this offense may be sentenced to
forfeiture and jail time of up to 90 days at the sentencing court's
discretion, and, in addition, "shall be sentenced to a fine of not
less than $5,000 nor more than $10,000 and loss of commercial
fishing privileges for a period of one year after the date of
conviction." At Scudero's sentencing hearing, Judge Gucker imposed
the mandatory minimum $5,000 fine and one-year loss of fishing
privileges; in so doing, the judge concluded that the court had no
authority to suspend any portion of the fine or loss of privileges.
Scudero argues that the sentencing court was mistaken in its belief
that the one-year loss of fishing privileges could not be suspended.
The state concedes error. The concession is well-founded. See
Curtis v. State, 831 P.2d 359, 361 (Alaska App. 1992). Accordingly,
we must remand this case to the district court for reconsideration
of its sentencing order in light of its authority to suspend all or
part of the one-year loss of fishing privileges.
Scudero's convictions are AFFIRMED. This case is REMANDED
for reconsideration of the sentencing order as provided for herein.
ENDNOTES:
1. In relevant part, Scudero proposed to instruct the jury as
follows:
If you find that the defendant, Mr. Scudero,
intended to make a political protest statement
and was not actually fishing for salmon, then
you can find him "not guilty" of Count I,
"commercial fishing in waters closed to
commercial fishing."
If you find that the defendant, Mr. Scudero,
intended to make a political protest statement
and was not actually fishing for salmon, then
you can find him "not guilty" of Count II,
"commercial fishing for salmon without a
commercial fisheries entry commission
permit."
If you find that the defendant, Mr. Scudero,
placed his gillnet web in the water . . . as
part of a political protest then you can find
him "not guilty" of Count III, "trailing a
gillnet in waters closed to commercial
fishing."
2. Addressing this aspect of the O'Brien standard, Scudero argues
that the state has little interest in fishing practices of
Metlakatlans because Metlakatlans are "a relatively small group
. . . [who] probably could not fish a resource to extinction." But
this argument misses the point: the O'Brien standard requires that
the challenged regulation or statute itself serve an important or
substantial state interest, not that its enforcement in the
particular circumstances charged necessarily serve that interest.
The challenged provision "need not be judged solely by reference to
the demonstration at hand." Clark, 468 U.S. at 296-97.
