1. Memorandum
To: Associates in LARW II Section A3 (Last names M – W)
From: Professor Goering
Date: February 3, 2009
Re: Appellate Brief Assignment: United States of America v. Apollo Energies, Inc. and Dale
Walker d/b/a Red Cedar Oil.
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We have been retained to assist with an appellate brief to be filed in the United States
Supreme Court later this spring. Our clients are Apollo Energies, Inc. and Dale Walker d/b/a Red
Cedar Oil. Each defendant has been convicted and sentenced for one misdemeanor count of
violating the Migratory Bird Treaty Act, 16 U.S.C. § 703. Defendants own oil leases in south
central and southwest Kansas, and the Government prosecuted them after dead birds were found
in “heater/treaters.” You’ll see pictures of the equipment in the files.
The defendants both agreed to a trial before a federal magistrate judge (without a jury).
Both filed pretrial Motions to Suppress certain evidence seized by the U.S. Fish and Wildlife
Service. You’ll find those motions in the file. After a motion hearing in September, in which
several witnesses testified, the magistrate judge denied both defendants’ Motions to Suppress.
The case then proceeded to trial, on the very same day as the motion hearing.
At the conclusion of the Government’s case-in-chief, the magistrate judge denied defense
counsel’s motion for judgment of acquittal. The defense then presented its case. After
deliberating a short time, the magistrate issued a ruling convicting both defendants, following up
with a written Memorandum and Order memorializing the decision. Our clients were later
sentenced to pay fines in the amount of $500 (Walker) and $1,500 (Apollo Energies, Inc.). Trial
counsel appealed those decisions (and the sentence) to the federal district court, which affirmed
on January 28, 2009. Both defendants immediately filed notices of appeal. Just yesterday, on
February 2, the Tenth Circuit summarily affirmed the district court’s decision in a one-sentence
order, citing U.S. v. Corrow, 119 F.3d 796 (10th Cir. 1997) as the controlling case.
Our clients want us to pursue an appeal to the United States Supreme Court from the
Tenth Circuit’s summary affirmance. Among other errors, they believe they were denied due
process under the U.S. Constitution because the Government had no evidence whatsoever to
prove scienter. The district court agreed with the magistrate’s ruling that the statute does not
require proof of scienter to convict for a misdemeanor violation. I can take care of the petition
for certiorari, but because this is a case of first impression, we believe the Supreme Court will
take the case. We want to keep this appeal moving, so we’ve been asked to prepare a brief on
behalf of the petitioners (our clients) to be submitted to the United States Supreme Court after
the petition for certiorari is granted. They want to do everything possible to get this conviction
reversed because they are concerned about negative public relations, and fellow oil producers are
very concerned that this case could set a bad precedent. If all oil producers risk criminal

2. prosecution when some bird finds its way into oil production equipment, the producers are going
to have to spend a good deal of money, and they would like to avoid that if at all possible. The
oil industry is all about profits, so that’s why this is a very good case for us to take even though
the stakes for our two clients are relatively small.
The attached file contains all the documents in the record that we currently have
available. The exhibits admitted at trial are on the way from trial counsel. I have posted the
transcript of the motion hearing and the subsequent trial on TWEN. In addition, two hardcopies
of the transcript have been placed on reserve in the firm’s law library if you would prefer to read
the printed version.
Be sure to check the appropriate Supreme Court rules for filing appellate briefs. The
Supreme Court requires appellate briefs to be printed, but we’ll take care of that later. Right now
I want you to prepare a typed draft for my review no later than February 27, 2009. I expect you
to use the appropriate word processing format for the brief for now, until we have it printed.
Your final appellate brief should be no longer than 7,500 words double-spaced on letter-
sized paper, excluding the Cover Page, Table of Contents, Table of Authorities, and Certificate
of Service. Your title page, margins, pagination, and other format issues must be consistent with
all applicable Supreme Court rules.
I will need your draft no later than 5:00 p.m. on Friday, February 27, so we will have
time to review it together and make necessary revisions before the filing deadline in early April.
For your draft brief only, you may omit the Table of Contents, Table of Authorities, Summary of
Argument, and Certificate of Service. Of course, all those sections (and anything else required
by the Supreme Court rules) are necessary in your final appellate brief, which should be ready
for printing and filing in mid-April.
Thank you for your assistance with the brief. I look forward to reviewing your work.
PLEASE NOTE: You may discuss the assignment and your research with other
associates in our firm only (LARW Section A3), but do not show your written work or your legal
analysis to anyone but me or my junior partner, Jared Muir. The Honor Code applies to this
assignment and all others in this course. If you have questions, please refer to the Washburn
University School of Law Honor Code, or ask me for clarification. Feel free to ask either Mr.
Muir or me if you have any questions about this assignment or the Honor Code.
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