United States v. Skeet

Alejandro B. Fernandez, Attorney for Mr. Skeet.

Novaline D. Wilson, Assistant United States Attorney.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE.

THIS MATTER is before the Court on Defendant George Skeet's Motion to Compel Discovery. Doc. 19. The government filed a response in opposition [Doc. 22] and Mr. Skeet filed a reply. Doc. 24. Having considered the briefs, exhibit, relevant law, and being otherwise fully informed, the Court finds that the motion is not well-taken and will be DENIED.

BACKGROUND

On April 23, 2021, the government filed a two-count indictment charging Mr. Skeet with one count of Sale and Offer for Sale of Any Migratory Bird, in violation of 16 U.S.C. §§ 703, 707(b)(2), and one count of a Class A Misdemeanor under the Bald and Golden Eagle Protection Act, in violation of 16 U.S.C. § 668(a). Doc. 1. Mr. Skeet allegedly, knowingly and without permission, sold and offered to sell red-tailed hawk feathers, golden eagle feathers, and bald eagle feathers. Id.

Mr. Skeet filed the instant Motion to Compel Discovery on August 6, 2021. Doc. 19. He asks the Court to order the government to disclose certain records pursuant to the Equal Protection Clause of the Fifth Amendment to make out a selective enforcement claim. Id. at 1. Specifically, he requests the disclosure of:

1. A list of all cases brought by the United States Attorney under 16 U.S.C. § 668(a) and 16 U.S.C. §§ 703 707 in the past 5 years

a. For such cases:

i. The defendant's race or ethnicity.

ii. Whether the defendant was an enrolled member or otherwise affiliated with a federally recognized tribe.

iii. The name of the operation, investigation, or any case designations that involved the naming of the target or characterizing the mission (e.g. Operation Smudge Feather).

iv. Whether the case involved undercover officers or confidential informants.

1. The race, ethnicity, and tribal affiliation, if any, of any undercover officer or confidential informant.

2. Whether any undercover officer or confidential informant disclosed their tribal affiliation to the target.

3. Whether any undercover officer or confidential informant fictitiously reported having tribal membership or affiliation.

v. Whether a purchase of prohibited parts was involved.

1. Whether the purchase was purportedly for obtaining items of religious or spiritual significance.

2. A list of cases referred to the United States Attorney under 16. U.S.C. § 668(a) and 16 U.S.C. §§ 703, 707 that the United States Attorney declined to prosecute in the past 5 years.

a. For such cases:

i. The target's race or ethnicity.

ii. Whether the target was an enrolled member or otherwise affiliated with a federally recognized tribe.

iii. The name of the operation, investigation, or any case designations that involved the naming of the target or characterizing the mission (e.g. Operation Smudge Feather).

iv. Whether the case involved undercover officers or confidential informants.

1. The race, ethnicity, and tribal affiliation, if any, of any undercover officer or confidential informant.

2. Whether any undercover officer or confidential informant disclosed their tribal affiliation to the target.

3. Whether any undercover officer or confidential informant fictitiously reported having tribal membership or affiliation.

v. Whether a purchase of prohibited parts was involved.

1. Whether the purchase was purportedly for obtaining items of religious or spiritual significance.

3. Any documents or other information relating to tips, complaints, referrals, or any other requests by any person or entity to any federal agency to investigate a suspected violation of 16 U.S.C. § 668(a) and 16 U.S.C. §§ 703, 707 that was not pursued in the past 5 years.

Id. ¶¶ 7-11.

Mr. Skeet argues that the requested records are “critical in establishing a claim of race-based enforcement.” Id. ¶ 12. In support of this motion, Mr. Skeet proffers evidence of the government's discriminatory intent and effect, arguing, here, that the two are “mingled.” Id. ¶ 14. Mr. Skeet argues that the discriminatory effect of selective enforcement is to prohibit “selling items that are sacred to a discreet ethnic and religious minority.” Id. He argues that discriminatory intent is established by the name of the U.S. Fish and Wildlife investigation: “Operation Smudge Feather.” Id. Mr. Skeet reasons that because “smudging is embedded in Native American cultural heritage, identity, and modern worship, ” this moniker reveals a “plain intent . . . to boldly enter the arena of religious, cultural, and ethnic repression.” Id. ¶ 15. He continues that the purported targeting of feather sales echoes the government's ignoble legacy of cultural genocide. Id. ¶ 16. Mr. Skeet argues that the Court must “pay special attention” because this purportedly selective enforcement restricts religious practice. Id. ¶¶ 17-21. Finally, he argues that his request would only impose a minor burden on the government, since it involves a small number of cases. Id. ¶ 23.

The government makes several arguments in response. See Doc. 22. First, the government asserts that Mr. Skeet fails to articulate a discriminatory effect because he does not provide “any meaningful statistical [or] anecdotal evidence, nor is he able to identify any other tribal member who sold protected bird feathers and then escaped prosecution because of the government's racial discrimination.” Id. at 8, 18-22. Second, it asserts that Mr. Skeet failed to articulate a discriminatory intent because it alleges that the investigation of Mr. Skeet was sparked by complaints from the Navajo Nation Department of Fish and Wildlife and members of the Facebook page “All Things NAC (Native American Church).” Id. at 1-2, 8.

Moreover, the government proffers examples of cases prosecuted under Operation Smudge Feather, allegedly involving non-tribal members. Id. at 10, 17 (citing United States v. Ruth Grande Olguin, 20-CR-1428 SCY; United States v. Amado Martin Vargas Hernandez, 20-CR-1443 MV; United States v. Joseph M. Chavez, CVB docket citation number W0801123). Additionally, it argues that the name “Operation Smudge Feather” is not a conclusory admission of religious or racial animus, given the widespread appropriation and commodification of the practice of “smudging” by non-tribal members. Id. at 10-11.

Next, the government argues that Mr. Skeet's religious freedoms were not targeted because Mr. Skeet allegedly made admissions indicating “that he knew it was impermissible to sell feathers based on his own beliefs, tribal law, and federal law, ” but did so anyway for pecuniary gain. Id. at 3, 6, 8, 11-13. The government argues that it explicitly protects tribal members' right to possess, gift, and trade bird feathers for religious practice, only restricting tribal members' right to sell protected feathers. Id. at 12-13, 16. Thus, it argues that a more accurate view is that its enforcement actions serve “to protect tribal members' religious beliefs by conserving the populations of wild birds and reserving the feathers of those that are killed for exclusive use by tribal members use. . . .” Id. at 16. The government asserts that to characterize Mr. Skeet's sale of protected feathers as religious practice is to misunderstand and disrespect tribal religious practices, as well as to undermine the Navajo Nation's autonomy to aggressively manage natural resources. Id. at 11, 15.

In his reply, Mr. Skeet first argues that a complaint originating from within the Navajo Nation does not disprove that the government acted with racial or cultural animus. Doc. 24 ¶ 1. Next, he asserts that his religious beliefs are genuinely held and disputes the government's argument that Navajo law, which prohibits the sale of feathers, accurately

represents legitimate Navajo beliefs and cultural expression. Id. ¶ 4. Mr. Skeet also argues that if the government truly intended to protect eagles, it would prosecute wind farm installations, which account for “over a half million” bird deaths per year, rather than individuals like him. Id. ¶¶ 6-7. Additionally, Mr. Skeet notes that, of the three allegedly non-tribal defendants prosecuted pursuant to Operation Smudge Feather, one defendant was “a...