8th Circuit Reverses Restitution Order In Eagle Feathers Sale Case

by John M. Simpson.

On July 26, 2019, the U.S. Court of Appeals for the Eighth Circuit issued a decision in United States of America v. Sheldon Tree Top, No. 18-1816 (8th Cir. July 26, 2019), a criminal case that had arisen under the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(a) and the Lacey Act, 16 U.S.C. §§ 3372(a)(1), 3373(d)(2).  Defendant pleaded guilty to selling eagle feathers in violation of the Eagle Protection Act, and the Lacey Act count was dismissed.  Defendant was sentenced to six months imprisonment and one year of supervised release.  As a condition of supervised release, the district court ordered that defendant pay $5,000 in restitution.  Defendant appealed and challenged the restitution order, and the Eighth Circuit reversed.

The case was based on two transactions.  In the first, the defendant sold a bald eagle feather to a confidential informant for $50 and, in the second, he sold 63 eagle and hawk feathers to the same informant for $80.   Under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, the restitution award is limited to the victim’s provable actual loss, which the government is required to establish by a preponderance of the evidence.  The district court set the amount at $5,000 which was a sum that neither party had proposed.  This amount was based on the court’s standing order on forfeiture of collateral in lieu of appearance in cases involving petty offenses, which listed the value of a whole or mounted bald or golden eagle as between $5,000 and $10,000.  Expert testimony showed that four of the feathers had come from a dead juvenile eagle.

The court of appeals reversed on the ground that a court can only order restitution for the offense for which the defendant had pleaded guilty, not for other charged or suspected conduct.  Here, the defendant had pleaded guilty, not to killing a bald eagle or rough-legged hawk, but to selling eagle feathers.  Therefore,

[B]ased on the existing record the actual loss caused by Tree Top’s offense of conviction is limited to the amount of money that the government expended to buy the eagle feathers.  As a result, we reverse the order of restitution and modify the judgment to decrease the restitution amount to $130.

Slip op. at 3 (footnotes omitted).  The court remanded for the district court to consider the imposition of a fine in the first instance since the denial of the government’s original request for a fine had been based on the sizeable restitution award.  The court also found no plain error in the district court’s decision to award the restitution to the National Fish and Wildlife Foundation, a foundation created by federal law, which was not the actual victim and which is not technically a governmental agency.