USA v. Alexander

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, 	) 	4:14-po-0002-SAO
)
Plaintiff, 	) 	MEMORANDUM OPINION
)
vs. 	) 	(Trial by Court)
)
CLARENCE ALEXANDER, 	)
)
Defendant. 	)
) 	____
INTRODUCTION
The 	United 	States 	charged 	Mr. 	Clarence 	Alexander 	(“Clarence
Alexander”) 	with 	one 	count 	of 	violating 	50 	Code 	of 	Federal
Regulations (C.F.R.) § 100.19(g)(1) for violating a closure order
on or about July 14, 2013 within the Yukon River Slough near Fort
Yukon, Alaska.1 	Prior to trial, Clarence Alexander indicated his
intent 	to 	challenge 	the 	validity 	of 	the 	underlying 	regulation.2
However, 	Clarence 	Alexander 	moved 	the 	court 	to 	hold 	a 	trial 	to
determine 	whether 	he 	was 	guilty 	of 	the 	allegation 	first, 	but 	if
found guilty, to provide him an opportunity to prove the underlying
1 Alexander was charged by Violation Notice from the U.S. Fish and
Wildlife Service, Violation Number W0981382.
2 	Defense 	asserts 	“the 	regulation 	that 	is 	the 	basis 	for 	the
citation issued to him is invalid as applied to this case because
of 	the 	failure 	of 	the 	Federal 	Subsistence 	Board 	to 	implement 	the
priority 	for 	subsistence 	used 	mandated 	by 	the 	Alaska 	National
Interest 	Lands 	Conservation 	Act 	(ANILCA) 	Section 	804.” 	Unopposed
Motion to Bifurcate Trial and For Continuance, Dkt. 13, p. 1-2.
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regulation 	is 	invalid.3 	The 	court 	granted 	Clarence 	Alexander’s
request 	and 	conducted 	a 	bench 	trial, 	ordered 	arguments 	submitted
in writing, and issues this memorandum opinion.
At 	trial, 	the 	following 	testified 	for 	the 	United 	States:
Officer 	Mimi 	Thomas 	(“Officer 	Thomas”), 	a 	wildlife 	officer 	for
Yukon 	Flats 	National 	Wildlife 	Refuge; 	Mr. 	Paul 	Williams, 	Sr.
(“Williams”), the boat pilot; and Mr. Fred Bue (“Bue”), the Yukon
Area In-Season Fisheries Manager. 	Clarence Alexander testified in
his defense, along with witnesses Robert Alan Rosenfeld and Edward
Clarence 	Alexander 	(“Edward 	Alexander”). 	The 	court 	admitted
Government 	Exhibits 	1-4 	and 	Defense 	Exhibits 	A-C 	at 	trial. 	In
argument, defense subsequently moved for a finding that the United
States 	violated 	Brady4 	and 	Federal 	Rule 	of 	Criminal 	Procedure
16(a)(1)(E)(i) and (ii).
Upon 	due 	consideration 	of 	the 	evidence 	and 	the 	arguments 	of
the 	parties, 	the 	court 	finds 	reasonable 	doubt 	as 	to 	whether
Clarence Alexander violated 50 C.F.R. § 100.19(g)(1) and therefore
finds 	Clarence 	Alexander 	Not 	Guilty 	of 	violating 	50 	C.F.R. 	§
100.19(g)(1). 	The 	court 	does 	not 	find 	a 	violation 	of 	the
prosecutor’s 	duty 	to 	disclose 	Brady 	material. 	The 	court 	finds 	a
3 Unopposed 	Motion 	to 	Bifurcate 	Trial 	and 	For 	Continuance, 	Dkt.
13, 	p. 	3. 	and 	minute 	entry 	from 	Hearing 	on 	Motion 	to 	Bifurcate
trial, Dkt. 17.
4 Brady 	v. 	Maryland, 	373 	U.S. 	83, 	87 	(1963). 	See 	also 	Hein 	v.
Sullivan, 601 F.3d 897, 906 (9th Cir. 2010)
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violation of F.R.C.P. 16 occurred. 	As a remedy, the court did not
consider Government Ex. 3 as evidence in this case.
FINDINGS OF FACT
The U.S. Department of the Interior Fish and Wildlife Service
Federal Subsistence Board (“Federal Subsistence Board” or “Board”)
is 	responsible 	for 	administering 	the 	subsistence 	taking 	and 	uses
of 	fish 	and 	wildlife 	on 	public 	lands,5 including 	the 	Yukon 	Flats
National 	Wildlife 	Refuge.6 	Clarence 	Alexander 	is 	charged 	with
violating 50 C.F.R. § 100.19(g), which bars the taking of fish and
wildlife 	“in 	violation 	of 	any 	restriction, 	closure, 	or 	change
authorized by the Board.”
On 	July 	12, 	2013, 	the 	Federal 	Subsistence 	Board 	issued 	an
announcement that divided Subdistrict 5-D of the Upper Yukon River
into 	the 	Lower, 	Middle, 	and 	Upper 	areas.7 	“The 	Announcement” 	or
“Closure 	Order” 	included 	a 	closure 	of 	subsistence 	salmon 	fishing
on 	portions 	of 	the 	Upper 	Yukon 	River 	and 	provided, 	in 	relevant
part:
Subsistence salmon fishing is currently open 7 days per week,
24 	hours 	a 	day 	and 	gillnets 	are 	restricted 	to 	6-inch 	or
smaller 	mesh 	size. 	Effective 	6:00pm 	Sunday, 	July 	14,
5 50 C.F.R. § 100.10(a)
6 50 C.F.R. § 100.3(c) The regulations contained in this part apply
on 	all 	public 	lands, 	excluding 	marine 	waters, 	but 	including 	all
inland 	waters, 	both 	navigable 	and 	non-navigable, 	within 	and
adjacent 	to 	the 	exterior 	boundaries 	of 	the 	following 	areas:… 	50
C.F.R. § 100.3(c)(29)Yukon Flats National Wildlife Refuge;”
7 Government Ex. 2 at 2.
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subsistence 	salmon 	fishing 	will 	close 	to 	protect 	the 	first
pulse of Chinook salmon and will remain closed until further
notice.8
The 	Announcement 	also 	provided 	“[d]uring 	subsistence 	salmon
fishing 	closures, 	fish 	wheels 	may 	not 	be 	operated 	and 	gillnets
with 	a 	mesh 	size 	greater 	than 	four 	inches 	and 	a 	length 	greater
than 60 feet must be removed from the water.” 9
The 	Announcement 	from 	July 	12, 	2013 	was 	a 	joint 	State 	and
Federal 	news 	release 	announcing 	a 	fisheries 	management 	action 	to
be 	implemented, 	stating 	the 	fishing 	closure 	and 	areas 	covered.10
The 	announcement 	was 	issued 	under 	the 	authority 	of 	the 	Federal
Subsistence Board even though the announcement was listed on joint
letterhead. 	The state is the lead management agency, but the U.S.
8 Government Ex. 2 at 2.
9 Government Ex. 2 at 3.
10 The 	Federal 	Subsistence 	Board 	delegates 	authority 	to 	the 	in-
season 	Fisheries 	Manager 	for 	U.S. 	Fish 	and 	Wildlife 	Service 	to
carry 	out 	federal 	regulations 	and 	make 	decisions 	regarding
closures in season. 	The in-season fisheries manager for U.S. Fish
and Wildlife Service works closely with the in-season manager for
the 	State 	of 	Alaska 	to 	coordinate 	their 	management 	because 	the
Yukon 	River 	covers 	a 	series 	of 	State 	and 	Federal 	water
jurisdictions. 	The Announcement, at Government Ex. 2, has in bold
above 	the 	letterhead, 	“The 	Alaska 	Department 	of 	Fish 	and 	Game
Division 	of 	Commercial 	Fisheries.” 	The 	letterhead 	on 	the 	notice
lists 	the 	Alaska 	Department 	of 	Fish 	and 	Game 	and 	the 	U.S.
Department of Interior Fish and Wildlife Service and the last line
of 	the 	notice 	on 	page 	3 	states 	“This 	has 	been 	an 	announcement 	by
the 	Alaska 	Department 	of 	Fish 	and 	Game 	in 	cooperation 	with 	the
U.S. Fish and Wildlife Service.”
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Fish 	and 	Wildlife 	service 	can 	supersede 	state 	authority 	if
necessary.
Clarence Alexander is seventy-five years old and lived in
Fort Yukon his whole life. 	Clarence Alexander is Chief Clarence
Alexander, one of the co-founders of the Yukon River Intertribal
Watershed Council and is currently chairman.11 	The Watershed
Council was formed to keep the Yukon River clean for future
generations so that all life can thrive; it is comprised of 70
indigenous governments from one end of the Yukon River to the
other.
During 	much 	of 	his 	life, 	Clarence 	Alexander 	fished 	in 	the
area, 	primarily 	for 	others 	in 	the 	community. 	Clarence 	Alexander
frequently caught 30 to 40 fish a day with Ed Alexander, his son,
and would distribute them to members of the community. Ed Alexander
frequently 	helped 	Clarence 	Alexander 	fish, 	especially 	in 	2013
because Clarence Alexander suffered from a heart condition and had
stints placed in his heart in the spring of 2013. 	In July, 2013,
Clarence Alexander was taking several medications and was not able
to 	lift 	over 	five 	pounds 	because 	of 	his 	medical 	conditions. 	In
previous 	years, 	Ed 	and 	Clarence 	Alexander 	shared 	the 	workload 	of
fishing, but in 2013 most of the workload fell to Ed Alexander.
11 Several 	members 	of 	his 	community 	have 	a 	high 	regard 	for 	the
character and truthfulness of Clarence Alexander.
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Ed 	and 	Clarence 	Alexander 	harvested 	declining 	numbers 	of
salmon 	each 	year 	since 	approximately 	2008.12 	Ed 	and 	Clarence
Alexander 	caught 	very 	little 	or 	no 	salmon 	in 	2013, 	with 	2013 	and
2014 being the worst two years for taking salmon. 	Closure orders
were 	used 	steadily 	on 	that 	portion 	of 	the 	Yukon 	River 	from 	2008
through 2013. 	Usually the closures were announced on a sign or on
the radio.
The 	2013 	Yukon 	River 	Summer 	Salmon 	Fishery 	News 	Release 	#58
Summer 	Announcement 	#53, 	Subdistrict 	5-D 	Subsistence 	Fishing
Schedule was issued on Friday, July 12, 2013.13 	The press release
issued through the State of Alaska distribution system. 	The Tribal
Council 	contacted 	Fred 	Bue 	through 	email 	and 	requested 	delaying
the 	fishing 	closure. 	Several 	individuals 	usually 	knew 	of 	any
closure or upcoming closure information in Fort Yukon in addition
to 	the 	State 	of 	Alaska 	distribution 	system. 	James 	Kelly, 	in 	the
Natural 	Resources 	Department 	of 	The 	Council 	of 	Athabascan 	Tribal
Governments was usually aware of closures or upcoming closures and
resided in the area. 	Andrew Firmin, Director of Natural Resources
for the Native Village of Fort Yukon was also knowledgeable about
closures 	or 	upcoming 	closures 	and 	resided 	in 	the 	area. 	A 	toll-
12 2008 	was 	the 	first 	year 	there 	was 	a 	subsistence 	closure, 	but
even 	in 	2008 	the 	Alexanders 	caught 	seventy-five 	percent 	of 	their
subsistence harvest.
13 Government Ex. 2.
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free number listed on the Closure notice itself could have provided
information 	about 	the 	closures; 	the 	toll-free 	number 	was
attainable 	from 	either 	Mr. 	Kelly 	or 	Mr. 	Firmin 	or 	the 	Alaska
Department of Fish and Game website.14
No 	one 	contacted 	Clarence 	Alexander 	personally 	regarding
the 	closure 	notice 	prior 	to 	6:00pm 	on 	July 	14, 	2013. 	Clarence
Alexander did not see the closure notice, Government Ex. 2, prior
to July 14, 2013 nor heard of the closure notice on the radio.
Ed Alexander had difficulty identifying a posting of the July
12, 	2013 	closure. 	Ed 	Alexander 	knew 	a 	closure 	for 	July 	14, 	2013
existed 	however 	before 	6:00pm 	he 	did 	not 	know 	the 	time 	of 	the
closure.15 	Ed Alexander tried to see a posting of the notice prior
to 	6:00pm 	on 	July 	14, 	2013, 	but 	could 	not 	find 	one 	posted 	in 	the
usual places. 16 	When Ed Alexander asked other fishermen about the
notice, 	Ed 	heard 	different 	times 	for 	the 	July 	14, 	2013 	closure
14 The 	closure 	release 	was 	issued 	on 	a 	Friday, 	possibly 	in 	the
afternoon. 	It 	was 	unknown 	whether 	Mr. 	Firmin 	or 	Mr. 	Kelly 	were
actually 	available 	to 	answer 	questions 	on 	Friday, 	Saturday, 	or
Sunday.
15 Ed Alexander did not contact the village council office to obtain
the 	800 	number 	regarding 	closures, 	or 	call 	the 	village 	contact
office 	to 	obtain 	Officer 	Thomas’s 	phone 	number 	to 	ask 	her 	the
closure 	time, 	or 	try 	to 	contact 	the 	City’s 	natural 	resources
department.
16 Ed Alexander found copies of past closures routinely located at
the local ‘AC store’, radio station, or gas station. 	However, Ed
Alexander could not find a copy of one at either of those locations
or the Fish and Wildlife Service station on July 14, 2013.
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such 	as 	6:00pm, 	8:00pm, 	and 	even 	midnight. 	Ed 	and 	Clarence
Alexander decided late in the day on July 14, 2013 they would try
to take down the net before 6:00pm.
Ed 	Alexander 	served 	as 	second 	chief 	of 	the 	Gwichyaa 	Zhee
Gwich’in 	Tribal 	Government 	in 	2013. 	He 	was 	heavily 	involved 	in
tribal 	government; 	he 	attended 	council 	meetings 	and 	provided
guidance 	on 	various 	issues. 	The 	Tribal 	Government 	frequently
discussed fishing closure issues and did so at their July 12, 2013
meeting. 	The 	Gwichyaa 	Zhee 	Gwich’in 	Tribal 	Government 	passed 	a
resolution 	on 	July 	12, 	2013 	requesting 	an 	extension 	for 	the
subsistence 	fisheries 	for 	Fish 	Wheels 	and 	7.5 	Inch 	Fish 	nets 	in
Subdistrict 	5-D. 17 	Ed 	Alexander 	attended 	the 	July 	12, 	2013
meeting, 	but 	did 	not 	recall 	discussing 	the 	Announcement 	at 	any
time between July 12, 2013 and July 14, 2013 at 6:00pm.
Officer 	Thomas 	did 	not 	see 	any 	other 	fishermen 	in 	violation
of 	the 	6:00pm 	closure 	on 	July 	14, 	2013 	in 	Subdistrict 	5-D 	Middle
while she was traveling on the River.
Clarence and Ed Alexander placed two nets on the Yukon River
and 	one 	at 	the 	mouth 	of 	the 	Porcupine 	River 	for 	the 	purpose 	of
17 Government Ex. 4, Resolution No. 13-19, Fisheries Extension July
15-17, 2013. 	It was unclear whether the Resolution passed on July
12, 	2013 	requested 	an 	extension 	of 	Summer 	Announcement 	#53. 	The
Resolution requested an extension “for subsistence Fisheries from
Monday 	to 	Wednesday 	(July 	15-17, 	2013) 	for 	Fish 	Wheels 	and 	7.5
Fish 	nets 	in 	Subdistrict 	5-D.” 	However, 	none 	of 	the 	Closures
listed in Government Ex. 2 began on Monday, July 15, 2013.
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catching fish. 18 	Clarence and Ed Alexander checked their fishnets
twice 	daily 	so 	the 	fish 	did 	not 	spoil 	or 	the 	net 	fill 	with 	silt.
On the morning of July 14, 2013, Clarence and Ed Alexander checked
their nets around 7:00am or 8:00am. 	The net on the Porcupine was
located 	on 	Clarence 	Alexander’s 	property 	on 	the 	opposite 	side 	of
Joe 	Peter’s 	Slough.19 	Clarence 	and 	Ed 	Alexander 	added 	homemade
weights to the bottom of the net including a big piece of steel at
the end, which weighed over 100 pounds. 	These weights were on the
line 	in 	the 	water 	when 	Clarence 	and 	Ed 	Alexander 	checked 	the 	net
in 	the 	morning. 	However 	they 	saw 	the 	net 	“not 	sitting 	right” 	so
they reset the net, which only took a few minutes.20 	The Porcupine
River at the time appeared clear and free of debris.
Clarence 	and 	Ed 	Alexander 	returned 	to 	the 	same 	net 	later 	in
the 	day 	to 	check 	it.21 	Under 	normal 	circumstances, 	they 	thought
15 	minutes 	would 	be 	sufficient 	time 	for 	them 	to 	remove 	the 	net
18 Depicted in Government Ex. 1 and Defense Ex. C. 	All nets were
located in the Yukon Flats National Wildlife Refuge. 	A sign placed
on 	the 	shore 	identified 	the 	net 	as 	Clarence’s 	and 	ownership 	was
not disputed during trial.
19 Defense Ex. C shows the layout drawn by Ed Alexander.
20 A set net has to hang loosely so the fish can get into the net.
If the net is set too tightly, because the current is too fast or
the net is full of debris, it will not be able to catch fish. 	It
took 	Clarence 	and 	Ed 	Alexander 	approximately 	fifteen 	minutes 	to
travel between their residence and the net location.
21 	Ed 	and Clarence 	Alexander 	recall 	leaving 	Fort Yukon 	in 	their
boat 	around 	5:30pm 	and 	arriving 	at 	the 	site 	of 	the 	net 	around
5:45pm. 	However, 	neither 	Ed 	nor 	Clarence 	Alexander 	had 	a 	time
keeping piece on them.
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from 	the 	water. 	However, 	the 	channel 	had 	changed 	and 	it 	forced 	a
great amount of drift debris into the net.22 Once Clarence saw his
net 	with 	all 	the 	wood 	in 	it, 	he 	knew 	he 	would 	not 	have 	it 	out 	of
the water in fifteen minutes and that it would take much longer.23
Clarence 	Alexander 	drove 	the 	boat, 	while 	Ed 	Alexander 	rode 	as 	a
passenger to the side of their net. 	When they approached the net
they 	saw 	the 	net 	was 	so 	full 	of 	debris, 	they 	were 	surprised 	the
net was still there.24 	Ed Alexander had never seen that much debris
in 	a 	net 	before; 	their 	net 	contained 	whole 	willow 	branches 	and
trees, some with the bark still on them.25
Ed and Clarence Alexander pulled up portions of the net into
their 	boat 	and 	tried 	to 	get 	some 	of 	the 	debris 	loose. 	They
dislodged 	some 	pieces 	of 	debris, 	but 	not 	most 	of 	it. 	They 	tried
to untie one side so the debris could fall out downstream, but the
22 Officer 	Thomas 	states 	by 	the 	time 	she 	arrived 	the 	net 	was 	not
pinned 	up 	against 	the 	bank, 	but 	out 	far 	enough 	in 	the 	water 	to
catch 	a 	fish 	if 	a 	fish 	came 	toward 	it. 	She 	also 	stated 	she 	did
not 	see 	huge 	logs 	and 	trees 	in 	the 	net 	and 	that 	it 	did 	“not 	look
that bad” and that the clean part of the net was going back in the
water – but they were cleaning the net. 	The Alexanders had already
been working on retrieving the net by this time.
23 They 	saw 	the 	main 	flow 	of 	the 	river 	with 	lots 	of 	drift 	coming
down, 	meaning 	trouble 	for 	the 	net. 	On 	this 	particular 	day 	the
‘drift’ 	floating 	down 	contained 	regular 	drift 	and 	larger 	debris.
These 	items 	did 	not 	appear 	to 	be 	in 	the 	water 	when 	they 	visited
the net in the morning of July 14, 2013.
24 In 2013 the rivers contained more drift debris than prior years
because of high water.
25 Ed 	Alexander 	estimated 	the 	net 	contained 	over 	1,000 	pounds 	of
drift materials and was surprised the anchoring rope had held.
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net was so heavy they could not untie it and swing the end around
to let the debris fall out.26 	With Clarence Alexander driving the
boat, 	Ed 	Alexander 	tried 	a 	couple 	different 	methods 	to 	empty 	the
net 	so 	they 	could 	retrieve 	it 	and 	remove 	it 	from 	the 	water, 	but
they were unsuccessful.27
Ed 	Alexander 	and 	Clarence 	Alexander 	were 	trying 	to 	get 	the
net out of the water because they were aware of a pending closure.
Ed 	and 	Clarence 	Alexander 	tried 	to 	remove 	the 	debris 	as 	fast 	as
they 	could. 	They 	started 	by 	removing 	most 	of 	the 	big 	pieces 	so
they could put the net into the boat and then clean out the debris
later. 	Ropes 	tied 	the 	net 	to 	an 	anchor 	near 	the 	shore 	and 	an
anchor 	in 	the 	river.28 	Clarence 	Alexander 	sat 	in 	the 	boat 	while
Ed Alexander stood up and removed debris from the net, starting on
the side closest to the shore. 	He removed sticks and debris from
the 	net 	by 	pulling 	the 	net 	up 	briefly 	to 	remove 	the 	debris 	then
setting that portion of the net back down into the river.29
26 Swinging 	the 	net 	out 	to 	release 	the 	debris 	was 	not 	an 	option
because 	of 	the 	great 	amount 	of 	weighted 	debris 	the 	net 	held.
Swinging 	the 	net 	out 	would 	likely 	have 	lost 	the 	net. 	In 	that
instance the net would form into a giant ball, sink to the bottom
of the river and roll downstream.
27 To 	remove 	the 	net 	that 	is 	that 	full, 	you 	have 	to 	unweave 	the
debris. The way you usually take out the net is to come up to the
end 	of 	the 	net, 	you 	pull 	the 	weight 	in, 	then 	you 	just 	work 	your
way up the net-taking the fish out of the net as pulling it out.
28 A net in this fashion is also called a ‘setnet.’
29 It 	would 	have 	been 	immensely 	difficult 	to 	pull 	the 	net 	out 	of
the water while it was laden with debris.
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When a net was in this condition it was incapable of catching
fish, despite the fact it was in the water because it was so laden
with debris and pulled against the shore. 	Even during the process
of 	removing 	debris, 	it 	is 	highly 	unlikely 	a 	fish 	would 	swim 	into
a 	net 	in 	the 	process 	of 	being 	vigorously 	removed 	from 	the 	water
while attempting to remove the debris contained in the net, as Ed
Alexander 	was 	doing. 	It 	would 	be 	unheard 	of 	for 	a 	fish 	to 	swim
into 	the 	net 	while 	it 	was 	against 	the 	bank, 	but 	remained 	in 	the
water. 	Once 	Ed 	and 	Clarence 	Alexander 	reached 	the 	net 	they
continuously 	tried 	to 	retrieve 	it 	and 	were 	not 	trying 	to 	catch
fish with the net.
Ed Alexander had worked his way up to about one third to one
half of the way up the net, when Williams and Officer Mimi Thomas,
of 	the 	United 	States 	Fish 	and 	Wildlife 	Service, 	pulled 	up 	to 	the
Alexander’s boat and asked what they were doing.30 	Officer Thomas
believed nets larger than four 	inches had to be pulled out of the
water, partly because a gillnet can usually still catch fish if it
is in the water. 	Officer Thomas believed that even when a gillnet
30 	On July 14, 2013, Paul Williams, Sr. worked for the U.S. Fish
and 	Wildlife 	service 	as 	a 	riverboat 	driver. 	At 	approximately
10:00am, 	Williams 	left 	Fort 	Yukon 	with 	Officer 	Mimi 	Thomas 	and
traveled 	down 	the 	Yukon 	River 	to 	check 	fish 	wheels 	and 	nets 	to
make sure they were in compliance with the July 12, 2013 closure.
Williams 	did 	not 	see 	anyone 	else 	fishing 	after 	6:00pm 	during 	his
trip. Officer Thomas was not considering whether those who fished
were 	qualified 	as 	rural 	subsistence 	fishermen 	under 	the 	federal
subsistence 	provisions. 	Officer 	Thomas 	was 	in 	her 	duty 	uniform
and wore her sidearm.
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is choked full of driftwood or washed up to the bank it may still
be capable of catching fish.
Around 	approximately 	6:30pm, 	Williams 	and 	Officer 	Thomas
drove 	into 	an 	area 	of 	the 	river 	where 	the 	main 	channel 	of 	the
Porcupine 	River 	goes 	into 	the 	Yukon 	River. 	The 	rivers 	were 	high
and contained a lot of debris. Williams drove Officer Thomas into
the lower mouth of the Porcupine River. 	Williams then landed the
boat below the site near where they saw Clarence and Ed Alexander
cleaning debris from a fishnet set in the water.31 	Officer Thomas
exited 	the 	boat 	to 	contact 	the 	Alexanders 	to 	ascertain 	whether
their net was in compliance with the 6:00pm closure.32
Ed Alexander responded that he was trying to get the net out
of 	the 	water, 	but 	it 	was 	filled 	with 	debris. 	Officer 	Thomas
approached the Alexanders from the nearest point on the beach and
stood on the beach and asked them questions. 	Officer Thomas first
31 Officer 	Thomas 	recalled 	the 	time 	as 	being 	7:30pm. 	She 	carried
a watch and two cell phones each of which had a clock and she wrote
down 	the 	contact 	time 	on 	the 	citation. 	She 	is 	in 	the 	habit 	of
checking 	the 	time 	before 	she 	contacts 	anyone. 	Additionally, 	a
pilot contacted her at 6:00pm on July 14, 2013 to inform her that
all the fish wheels in the area were shut down and she specifically
recalled that she was downstream, more than an hour travel time by
boat 	away 	from 	the 	site 	of 	Clarence 	Alexander’s 	net 	when 	she
received that that call.
32 The officer testified “my goal 	that day was to 	check to see if
all 	fisherman 	were 	in 	compliance 	with 	the 	6:00pm 	closure.”
Transcript at 32. 	The closure notice meant to Officer Thomas that
if 	the 	net 	was 	four-inch 	and 	less 	was 	okay, 	but 	anything 	larger
than four was closed.
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said 	“Hello, 	how 	are 	you?” 	or 	words 	to 	that 	effect 	and 	then 	told
them she was there to check net sizes. 	Officer Thomas asked what
size 	their 	net 	was, 	and 	Ed 	Alexander 	answered 	“I 	don’t 	know” 	and
“Why did you [Officer Thomas] want to know?” so she explained about
the 6:00pm closure. 	It was approximately 7:30pm at this time.33
Ed 	Alexander 	continued 	cleaning 	the 	net, 	while 	Clarence 	was
sitting 	in 	the 	boat. 	Officer 	Thomas 	asked 	them 	again 	“what 	size
was 	the 	net?” 	or 	words 	to 	that 	effect. 	Ed 	Alexander 	became
irritated 	and 	responded 	to 	Officer 	Thomas 	that 	the 	net 	was
completely 	filled 	with 	debris 	and 	they 	had 	not 	caught 	anything
because there was no way the net could have caught anything since
it 	was 	pressed 	against 	the 	bank 	full 	of 	debris. 	Ed 	Alexander
also 	started 	complaining 	about 	commercial 	fishing 	in 	the 	lower
river. 	Officer 	Thomas 	asked 	Ed 	Alexander 	to 	measure 	the 	net 	for
her 	and 	he 	refused.34 	Officer 	Thomas 	waited 	until 	they 	completed
cleaning 	the 	net, 	were 	untying 	it, 	and 	then 	she 	asked 	the
Alexanders 	to 	talk 	with 	her 	about 	the 	net 	size. 	However, 	they
refused to answer her questions about the net size.
33 Ed 	Alexander 	estimates 	the 	time 	was 	roughly 	6:00pm, 	however 	he
was not wearing a watch or other timepiece.
34 Ed Alexander was irritated that she had asked him to measure the
net and did not understand her question or how she wanted the net
measured. 	Ed 	Alexander 	believed 	just 	by 	looking 	at 	the 	type 	of
net, 	which 	was 	partially 	out 	of 	the 	water, 	Officer 	Thomas 	could
tell it was a six-inch mesh net.
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Officer 	Thomas 	measured 	the 	net 	and 	found 	it 	was 	a 	six-inch
gillnet. 	Officer 	Thomas 	found 	the 	net 	violated 	the 	closure 	and
told 	them 	so 	and 	told 	them 	she 	would 	be 	contacting 	them 	the 	next
day. 	Officer 	Thomas 	found 	a 	sign 	attached 	to 	a 	Willow 	tree,
growing in the ground, near where the net was tied to it; the sign
stated 	“Clarence 	Alexander’s 	Fish 	Net.”35 	At 	no 	time 	did 	Officer
Thomas see any fish in Clarence Alexander’s net.
It took Clarence and Ed Alexander over an hour and a half to
clear their net of debris and fully retrieve it.
DISCUSSION
The 	July 	12, 	2013 	the 	Announcement, 	Government 	Ex. 	2, 	was 	a
fisheries 	management 	action 	issued 	under 	the 	delegated 	authority
of the Federal Subsistence Board and the closure of Subdistrict 5-
D 	Middle 	was 	effective 	July 	14, 	2013 	at 	6:00 	P.M.36 	On 	July 	14,
2013, 	Clarence 	Alexander’s 	net 	was 	located 	in 	the 	Yukon 	Flats
National 	Wildlife 	Refuge 	in 	the 	mouth 	of 	the 	Porcupine 	River, 	on
federal 	public 	lands. 	The 	location 	of 	Clarence 	Alexander’s 	net
35 Officer 	Thomas 	recognized 	Clarence 	Alexander’s 	sign. 	A 	week
earlier, Officer Thomas found a few unmarked nets in the area and
told 	Clarence 	Alexander 	to 	identify 	his 	net. 	When 	she 	saw 	the
nets 	a 	few 	days 	later, 	Officer 	Thomas 	saw 	a 	similar 	sign, 	on 	a
cardboard 	box, 	handwritten 	with 	a 	marker, 	with 	similar
handwriting, on one of Clarence Alexander’s nets.
36 	The closure for Subdistrict 5-D Middle included “from the
Hadweenzic River upstream to 22 Mile Slough and including the
Porcupine River and all other adjacent tributaries, which
includes the communities of Venetie, Fort Yukon, and
Chalkyitsik.” 	Government Ex. 2 at 2. 	This included the
location of Clarence Alexander’s net.
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fell 	under 	the 	jurisdiction 	of 	the 	Federal 	Subsistence 	Board 	and
as a result was subject to any restrictions, closures, or changes
authorized by the Federal Subsistence Board.
Clarence 	Alexander 	is 	alleged 	to 	have 	violated 	the
Announcement, 	Government 	Ex. 	2, 	issued 	on 	July 	12, 	2013 	in 	two
ways. 	First, that Clarence Alexander fished after 6:00 P.M. in an
area 	closed 	to 	subsistence 	fishing. 37 	Second, 	that 	Clarence
Alexander operated a gillnet in the water with a mesh size greater
than four inches and a length greater than 60 feet after 6:00 P.M.
on July 14, 2013.38
As to the first alleged violation, the United States charges
Clarence 	Alexander 	violated 	50 	C.F.R. 	§ 	100.19(g) 	barring 	the
taking 	of 	fish 	and 	wildlife 	in 	violation 	of 	any 	Board-authorized
closure. 	Clarence 	Alexander 	argues 	that 	he 	was 	not 	fishing 	and
not 	trying 	to 	“take” 	fish 	as 	described 	in 	50 	C.F.R. 	§ 	100.25(a),
which 	provides 	in 	relevant 	part 	“Take 	or 	Taking 	means 	to 	fish,
pursue, 	hunt, 	shoot, 	trap, 	net, 	capture, 	collect, 	kill, 	harm, 	or
attempt to engage in any such conduct.”39
37 Government Ex. 2 at 2.
38 Government Ex. 2 at 3.
39 50 C.F.R. § 100.25(a) [Italics in original]. 	He also argues the
closure 	announced 	on 	July 	12, 	2013 	did 	not 	apply 	to 	him 	for
procedural 	reasons, 	including 	because 	the 	notice 	was 	a 	“state”
closure 	notice 	instead 	of 	a 	federally-authorized 	notice 	and 	that
the 	notice 	did 	not 	follow 	procedural 	requirements 	of 	50 	C.F.R. 	§
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The 	United 	States 	argues 	violating 	a 	closure 	is 	a 	“strict
liability” 	criminal 	offense.40 	Quoting 	Staples 	v. 	United 	States,
511 U.S. 600, 607 (1994), the United States argues “the defendant
has 	the 	burden 	to 	ascertain 	at 	his 	peril 	whether 	[his 	conduct]
comes 	within 	the 	inhibition 	of 	the 	[law].” 	The 	United 	States
concludes 	it 	had 	no 	duty 	to 	put 	the 	defendant 	on 	notice 	that 	the
defendant’s 	conduct 	violated 	the 	law. 41 	Also 	citing 	Staples,
Clarence 	Alexander 	argues 	there 	must 	be 	proof 	of 	Clarence
Alexander’s mens rea to find him guilty of the offense.
In the Staples case, the defendant was charged with possession
of 	a 	machine 	gun. 	The 	court 	addressed 	whether 	the 	National
Firearms Act, 26 U.S.C. § 5861(d), required proof that a defendant
knew 	the 	characteristics 	of 	his 	weapon 	such 	that 	it 	qualified 	as
a 	“firearm” 	regulated 	under 	the 	Act.42 	The 	United 	States 	argued
that no mens rea element was required because the type of offense
fit 	in 	the 	category 	of 	“public 	welfare” 	or 	“regulatory” 	offenses
for 	which 	Congress 	imposed 	a 	form 	of 	strict 	criminal 	liability.43
242.17(a) – (d). 	Because of the disposition of this matter, these
issues need not be reached in this case.
40 Plaintiff’s Argument at 5.
41 Plaintiff’s 	Argument 	at 	5, 	citing 	Staples, 	511 	U.S. 	at 	607
(quoting United States v. Balint, 258 U.S. 250, 254 (1922)).
42 Staples, 511 U.S. at 623.
43 Staples, 511 U.S. at 606.
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The Staples court founds mens rea was a required element to prove
a violation of the National Firearms Act, however noting that the
holding was a “narrow one.”44 	The court noted “the small penalties
attached to such offenses logically complemented the absence of a
mens rea requirement,” and contrasted such typical penalties with
the maximum possible penalty of ten years imprisonment.45
Here, 	Clarence 	Alexander 	faces 	a 	much 	less 	severe 	maximum
possible 	penalty, 	as 	he 	is 	charged 	with 	one 	count 	of 	a 	petty
offense. 	Because 	the 	Staples 	holding 	was 	a 	narrow 	one, 	it 	is
inapplicable 	here 	and 	the 	court 	concludes 	mens 	rea 	is 	not 	a
required 	element 	of 	proof 	whether 	Clarence 	Alexander 	was 	taking
fish.46 	However, 	because 	the 	regulations 	also 	bar 	an 	attempt 	to
take 	fish, 	and 	attempt 	is 	a 	specific 	intent 	crime, 	the 	United
States would need to prove intent to take fish to prove an attempt
to do so.47
44 Staples, 511 U.S. at 619.
45 Staples, 511 U.S. at 616, 619.
46 	The 	United 	States 	asserts 	“taking” 	also 	means 	“to 	fish.”
Plaintiff’s Rebuttal argument, at 2. 	However, the C.F.R. does not
use the term “fishing” when describing subsistence taking of fish;
“fishing” 	is 	only 	used 	to 	describe 	commercial 	fishing 	operations
in 	the 	C.F.R. 	The 	C.F.R. 	uses 	both 	“taking 	fish” 	or 	“attempting
to 	take 	fish.” 	Although 	the 	Announcement 	imprecisely 	used 	the
term “fishing,” the regulation is sufficiently clear.
47 In 	an 	attempt 	case 	there 	is 	no 	crime 	apart 	from 	the 	attempt,
which is the crime itself. 	A defendant must act with the purpose
of 	violating 	the 	substantive 	offense 	even 	though 	mens 	rea 	is 	not
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19
At 	trial, 	there 	was 	no 	evidence 	offered 	that 	Clarence
Alexander 	in 	fact 	took 	any 	fish. 	Accordingly, 	although 	no 	mens
rea is required to prove violation of the closure order, there was
not 	proof 	beyond 	a 	reasonable 	doubt 	that 	Clarence 	Alexander 	took
fish in violation of the closure order.
The United States also contends that Clarence Alexander, who
had 	a 	net 	in 	the 	water 	after 	6:00 	P.M. 	on 	July 	14, 	2013, 	was
attempting 	to 	take 	fish. 	To 	prove 	this 	claim, 	the 	United 	States
was 	required 	to 	prove 	beyond 	a 	reasonable 	doubt 	that 	Clarence
Alexander 	(1) 	knew 	of 	the 	terms 	and 	conditions 	of 	the 	closure
order; 	and 	(2) 	intended 	to 	take 	fish 	after 	6:00 	P.M. 	on 	July 	14,
2013. 	It 	is 	a 	close 	question 	as 	to 	whether 	Clarence 	Alexander
knew 	of 	the 	terms 	and 	conditions 	of 	the 	closure 	order. 	The
evidence 	reflected 	that 	the 	closure 	order 	was 	not 	posted 	in 	the
usual 	places, 	and 	Ed 	Alexander 	had 	conflicting 	information 	from
other 	fishermen 	about 	the 	times 	to 	which 	the 	closure 	order 	would
apply. 	However, 	the 	evidence 	also 	reflected 	that 	Clarence
Alexander understood that there was a closure order, that it would
apply some time that evening, and that he intended to have his net
out 	of 	the 	water 	by 	6:00 	PM. 	Based 	on 	these 	facts, 	the 	court
required 	for 	the 	substantive 	offense. 	United 	States 	v. 	Garcia,
400 F.3d 816, 819 (9 th Cir. 2005).
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20
concludes 	that 	Clarence 	Alexander 	had 	sufficient 	notice 	that 	the
closure order would apply as of 6:00 PM.48
The 	court 	finds 	reasonable 	doubt 	as 	to 	whether 	Clarence
Alexander 	intended 	to 	take 	fish 	after 	6:00 	P.M. 	in 	violation 	of
the closure order. 	The court relies on the testimony of Clarence
Alexander, Ed Alexander, and Williams, all experienced fishermen,
and finds that the river had a high level of debris such that the
net 	was 	full 	of 	branches 	and 	incapable 	of 	holding 	fish. 	Clarence
Alexander 	had 	checked 	the 	net 	earlier 	in 	the 	day 	and 	it 	appeared
to 	be 	working 	with 	no 	issues. 	Subsequently, 	a 	vast 	amount 	of
debris filled the net, and it was full as of 6:00 P.M. and incapable
of 	taking 	fish. 	It 	required 	longer 	than 	an 	hour 	and 	a 	half 	for
Clarence 	Alexander 	to 	remove 	debris 	and 	the 	net 	from 	the 	water.
Ed 	and 	Clarence 	Alexander 	were 	actively 	trying 	to 	retrieve 	their
net during this time period.
48 The 	court 	does 	not 	reach 	the 	procedural 	issue 	of 	whether 	the
notice was appropriate or sufficient under the law. 	As a factual
matter, however, the court notes with some concern the short time
period 	afforded 	subsistence 	fishermen 	in 	this 	case. 	Many 	of 	the
procedural 	protections 	proffered 	by 	the 	United 	States 	here,
including offering that those with questions could call an office,
may 	not 	be 	workable 	in 	rural 	Alaska. 	It 	appears 	that 	the 	normal
course of dealing between the Government and tribal concerns, which
Clarence Alexander has asserted were not followed here, may address
the 	unique 	relationship 	of 	rural 	Alaskans 	with 	the 	subsistence
lifestyle 	and 	address 	notice 	requirements 	expected 	when 	the
Government 	will 	affect 	the 	ability 	of 	residents 	to 	provide 	for
their communities.
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Their 	activity 	included 	attempting 	different 	methods 	of
removing the debris such as dislodging the largest pieces of debris
then attempting to retrieve the net. 	When that failed they tried
to untie and swing the net to let the debris fall out downstream.
When 	that 	failed 	they 	started 	removing 	the 	individual 	pieces 	of
debris 	working 	from 	one 	side 	to 	the 	other. 	The 	evidence 	showed
that 	Clarence 	Alexander 	and 	Ed 	Alexander 	were 	in 	the 	process 	of
cleaning the net and removing it from the water during this time.
It appears even if Officer Thomas made contact with Ed and Clarence
Alexander 	as 	late 	as 	7:30pm, 	there 	is 	certainly 	reasonable 	doubt
as to whether Clarence intended to take fish after 6:00pm.
In 	light 	of 	Clarence 	Alexander’s 	efforts 	to 	arrive 	at 	and
retrieve 	the 	net 	before 	6:00 	P.M., 	and 	demonstrated 	efforts 	to
remove 	the 	net 	thereafter, 	the 	court 	finds 	illogical 	the 	United
States’ 	argument 	that 	Clarence 	Alexander 	was 	intentionally
protesting 	the 	closure. 	For 	these 	reasons, 	this 	court 	finds 	the
United 	States 	did 	not 	prove 	that 	Clarence 	Alexander 	attempted 	to
take 	fish 	after 	6:00 	P.M. 	on 	July 	14, 	2013, 	in 	violation 	of 	the
closure order.
The 	United 	States 	also 	asserts 	a 	violation 	of 	the 	Closure
Order in Government’s Ex. 2, specifically, the provision providing
that “during subsistence salmon fishing closures, fish wheels may
not 	be 	operated 	and 	gillnets 	with 	a 	mesh 	size 	greater 	than 	four
inches and a length greater than 60 feet must be removed from the
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22
water.”49 	The 	United 	States 	argues 	Clarence 	Alexander 	violated
this 	section 	by 	having 	his 	gillnet 	in 	the 	water 	after 	6:00 	P.M.
regardless 	of 	his 	intent 	or 	purpose 	for 	having 	his 	net 	in 	the
water.50
To 	prove 	this 	theory, 	the 	United 	States 	must 	prove 	beyond 	a
reasonable 	doubt 	(1) 	the 	area 	was 	closed 	to 	subsistence 	salmon
fishing; (2) Clarence Alexander had a gillnet in the water with a
mesh 	size 	greater 	than 	four 	inches 	and 	longer 	than 	60 	feet. 	The
court 	has 	found 	that 	the 	area 	was 	closed 	to 	subsistence 	salmon
fishing. 	The remaining issue is whether Clarence Alexander had a
gillnet in the water with a mesh size greater than four inches and
longer than 60 feet.
Officer 	Thomas 	measured 	the 	net 	on-site 	and 	determined 	the
mesh was six inches. 	The court finds the United States has proven
the 	mesh 	size. 	However, 	there 	was 	no 	clear 	evidence 	offered 	at
trial 	as 	to 	the 	length 	of 	the 	net. 	Clarence 	Alexander 	and 	Ed
Alexander 	testified 	they 	had 	pulled 	their 	boat 	alongside 	the 	net
and 	were 	pulling 	up 	a 	portion 	of 	the 	net 	and 	cleaning 	it 	as 	they
went, 	and 	they 	were 	about 	one 	third 	to 	one 	half 	complete 	on 	the
49 See Government Ex. 2 at 3.
50 “Defendant’s 6-inch mesh net had to be out of the water by 6:00pm
regardless of net length.” 	Plaintiffs Argument at 2.
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task, 	when 	Officer 	Thomas 	arrived 	in 	the 	area.51 	Officer 	Thomas
testified 	that 	they 	were 	eight 	to 	nine 	feet 	from 	one 	end 	of 	the
net when she arrived in the area.52 	Even considered in the light
most 	favorable 	to 	the 	United 	States, 	that 	they 	were 	one 	third
complete, 	which 	would 	leave 	16 	to 	18 	feet 	remaining 	on 	the 	net,
for 	a 	total 	length 	of 	24 	or 	27 	feet. 	This 	is 	far 	less 	than 	60
feet.
The United States argues that page three of the Announcement
barred 	the 	use 	of 	nets 	with 	a 	mesh 	size 	in 	excess 	of 	four 	inches
or 	a 	length 	in 	excess 	of 	60 	feet. 	Changing 	the 	use 	of 	the 	word
“and” to “or” would, in the United States’s argument, require proof
only 	of 	the 	mesh 	size. 	This 	is 	not 	supported 	by 	the 	plain 	and
unambiguous 	language 	used.53 	The 	conjunction 	“and” 	immediately
follows 	one 	qualifier 	(mesh 	size) 	and 	precedes 	another 	qualifier
(length) 	without 	break, 	punctuation, 	or 	intervening 	noun. 	It 	is
conjunctive, 	and 	both 	qualifiers 	are 	required 	under 	the 	plain
language of the Announcement.
51 Transcript at 125.
52 Transcript at 208-209.
53 	Generally, 	the 	plain 	meaning 	of 	a 	regulation 	governs 	its
interpretation 	and 	other 	interpretive 	materials, 	such 	as 	the
agency’s 	interpretation 	of 	the 	regulation, 	should 	not 	be
considered when the regulation has a plain meaning. 	Safe Air for
Everyone 	v. 	U.S.E.P.A., 	488 	F.3d1088, 	1097 	(9 th 	Cir. 	2007). 	See
also 	Wards 	Cove 	Packing 	Corp. 	v. 	Nat’l 	Marine 	Fisheries 	Servs.,
307 F.3d 1214, 1219 (9 th Cir. 2002).
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The evidence reflects that Clarence Alexander had a six-inch
mesh 	net. 	However, 	the 	length 	of 	the 	net 	was 	not 	established 	at
trial. 	Because 	the 	Announcement 	barred 	the 	use 	of 	nets 	with 	a
mesh 	size 	in 	excess 	of 	four 	inches 	and 	a 	length 	of 	60 	feet, 	the
United 	States 	has 	failed 	to 	prove 	beyond 	a 	reasonable 	doubt 	that
the 	net 	used 	by 	Clarence 	Alexander 	was 	in 	violation 	of 	this
provision on page 3 of the Closure Order.
BRADY VIOLATION
During 	defense 	cross 	examination 	of 	Officer 	Thomas, 	the
defense discovered the agent had taken additional photographs and
had recorded additional notes, none of which were provided to the
defense. 	The 	photographs 	were 	taken 	on 	scene, 	and 	the 	notes 	were
made 	contemporaneously 	with 	Officer 	Thomas’ 	discussions 	with
Clarence 	Alexander. 	Although 	these 	facts 	came 	to 	light 	during
cross examination, the defense did not request additional time for
the officer to gather the photographs, or make a proffer regarding
the content of the photographs, or how the failure to disclose the
photographs or notes prejudiced the case.
For lack of disclosure to constitute a true Brady violation,
“[t]he evidence at issue must be favorable to the accused, either
because 	it 	is 	exculpatory, 	or 	because 	it 	is 	impeaching; 	that
evidence must have been suppressed by the State, either willfully
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or 	inadvertently; 	and 	prejudice 	must 	have 	ensued.”54 	Failure 	to
turn 	over 	Brady 	materials 	is 	a 	constitutional 	violation 	if 	it
deprives the defendant of a fair trial.55
Because 	of 	the 	context 	of 	the 	taking 	of 	the 	photographs 	and
notes, and obvious subject matter, it is clear the materials would
have been discoverable to the defense. 	It could even be that the
photographs had recorded the date and time they were taken, which
could 	have 	been 	relevant 	to 	the 	disputed 	timing 	issues 	in 	this
case. 	The notes could have been used by the defense in preparing
its witnesses and cross examination. 	However, when the information
came 	to 	light 	during 	trial, 	the 	defense 	did 	not 	request 	a 	break
with adequate time to examine the materials, or a continuance, and
defense did not make a proffer what the photographs or notes would
show. 	The 	materials 	were 	not 	submitted 	as 	evidence 	in 	the 	case.
Because the court can only speculate as to what prejudice could be
suffered, 	the 	court 	does 	not 	find 	failure 	to 	disclose 	materials
deprived 	Clarence 	Alexander 	of 	a 	fair 	trial. 	Although 	the 	court
agrees the material obviously was discoverable, there was no Brady
violation.
54 United States v. Howell, 231 F.3d 615, 624 (9 th Cir. 2000).
55 United States v. Bagley, 473 U.S. 667, 675 (1985).
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VIOLATION OF FEDERAL RULES OF CRIMINAL PROCEDURE 16(a)(1)
In relevant part, FRCP 16(a)(1) requires:
(E) 	Documents and Objects. 	Upon a defendant's request, the
government 	must 	permit 	the 	defendant 	to 	inspect 	and 	to 	copy
or 	photograph 	books, 	papers, 	documents, 	data, 	photographs,
tangible objects, buildings or places, or copies or portions
of any of these items, if the item is within the government's
possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-
in-chief at trial; or
(iii) 	the 	item 	was 	obtained 	from 	or 	belongs 	to 	the
defendant.
Here, Defendant requested photographs and notes, and some of which
were 	provided 	to 	defense 	counsel. 	Government 	counsel 	“assured
counsel 	for 	Alexander 	that 	the 	United 	States 	had 	produced 	the
entire 	case 	file.” 56 	The 	additional 	notes 	and 	photographs
identified 	during 	cross 	examination 	were 	in 	the 	possession,
custody, 	or 	control 	of 	the 	government 	(even 	if 	only 	in 	the
possession of the government agent), but were not disclosed. 	These
items were material to preparing the defense, either in preparing
a cross-examination of the lead government witness, or because as
an 	on-scene 	witness, 	Officer 	William’s 	observations 	and
photographs taken at the time would have a significant relationship
to key issues in the case affecting the outcome.
56 Defense Argument at 7. 	The United States did not contest defense
counsel’s assertion.
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When 	a 	Rule 	16 	violation 	occurs, 	the 	court 	has 	several
options.57 	As a remedy for the discovery violation, the court will
not 	consider 	the 	one 	photograph 	provided 	by 	the 	United 	States,
Government Exhibit 3. 	This is just in these circumstances, because
other photographs existed, but were not disclosed, and the United
States selected the photograph that it believed supported its case
to the exclusion of other, potentially exculpatory materials.
57 Federal 	Rule 	of 	Criminal 	Procedure 	16(d)(2)(D) 	(the 	court 	may
order 	an 	inspection; 	grant 	a 	continuance, 	prohibit 	use 	of 	the
materials, 	or 	enter 	any 	other 	order 	that 	is 	just 	in 	the
circumstances).
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CONCLUSION
The 	court 	finds 	reasonable 	doubt 	whether 	Clarence 	Alexander
took any fish or attempted to take fish in violation of the Closure
order. 	The United States did not prove beyond a reasonable doubt
that 	Clarence 	Alexander 	had 	a 	net 	with 	a 	mesh 	in 	excess 	of 	four
inches 	and 	length 	of 	60 	feet 	in 	the 	water 	after 	6:00 	P.M. 	in
violation of the closure order. 	For these reasons, the Court finds
Clarence Alexander not guilty of violating 50 C.F.R. § 100.19(g)(1)
on July 14, 2013.
Although the defense did not prove a violation of Brady, the
United 	States 	did 	violate 	Federal 	Rule 	of 	Criminal 	Procedure
16(a)(1), and a remedy is ordered as set forth herein. 	The court
finds because of the disposition of this case, it does not need to
reach 	the 	procedural 	adequacy 	of 	the 	notice 	provided 	when 	the
Government issued the Announcement.
DATED this 24th day of May, 2016 at Fairbanks, Alaska.
/s/ 	Scott A. Oravec___________
SCOTT A. ORAVEC
United States Magistrate Judge
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