                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2394
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Minnesota.
Timothy Patrick Kornwolf,             *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: November 12, 2001
                                Filed: January 16, 2002 (Corrected 3/4/02)
                                                        (Corrected 4/3/02)
                                 ___________

Before LOKEN, LAY, and HEANEY, Circuit Judges.
                           ___________
LAY, Circuit Judge.

       Timothy P. Kornwolf pled guilty to violating the Bald and Golden Eagle
Protection Act, 16 U.S.C. § 668(a), and the Migratory Bird Treaty Act, 16 U.S.C.
§ 703, by attempting to sell two Native American artifacts containing eagle feathers.
Kornwolf entered a conditional plea of guilty to four counts of the indictment,
reserving the right to withdraw the plea if, on appeal, the acts were found
unconstitutional as applied to Kornwolf. At sentencing, the Government asked the
district court1 for an order requiring Kornwolf to return the $12,000 paid to him for

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, presiding.
the artifacts. The district court refused to issue such an order. Kornwolf has appealed
the district court’s holding that the acts do not cause an unconstitutional taking of his
property.2 We affirm.

                                         Facts

       Kornwolf owned an American Indian headdress and Sioux dance shield. Both
of the artifacts contain golden eagle feathers. Kornwolf came into possession of the
artifacts through his great uncle before October 24, 1962, the effective date of the
Bald and Golden Eagle Protection Act.3 A regulation, authorized by the Migratory
Bird Treaty Act, became effective after the Bald and Golden Eagle Protection Act.
See 50 C.F.R. §§ 22.1, 22.2(a)(1)-(2) (2001).4 Under the acts, it is unlawful to sell
or attempt to sell eagle feathers even though they were lawfully acquired prior to the
effective dates of the acts.

       On November 1, 1999, Kornwolf sold the dance shield for $7000 to an
undercover Norwegian law enforcement officer working with the United States Fish
and Wildlife Service. Later, the undercover agent made two wire transfers to
Kornwolf for the headdress totaling $5000. The headdress was later seized pursuant
to a search warrant on January 19, 2000.

      2
        Kornwolf was sentenced to three years probation with a special condition that
he participate for a period of 180 days in a home detention program, which may
include electronic monitoring, a fine of $2000 and a special assessment of $400. The
district court stayed Kornwolf’s sentence pending this appeal.
      3
        “Whoever . . . shall knowingly . . . take, possess, sell, purchase, barter, offer
to sell . . . any bald eagle commonly known as the American eagle, or any golden
eagle, alive or dead, or any part . . . shall be fined not more than $5,000 or imprisoned
not more than one year or both . . . .” 16 U.S.C. § 668(a).
      4
        “The import, export, purchase, sale, trade, or barter of bald and golden eagles,
or their parts, nests, or eggs is prohibited.” 50 C.F.R. § 22.1 (2001).

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                                        Analysis

      This case, at least on its face, is strikingly similar to Andrus v. Allard, 444 U.S.
51 (1979). In Allard, the Supreme Court upheld the constitutionality of the Bald and
Golden Eagle Protection Act and Migratory Bird Treaty Act against a Fifth
Amendment takings claim. Kornwolf contends this case is not governed by Allard
because the recent takings cases “demonstrate both a greater solicitude to the burdens
placed on property owners by governmental regulations and less willingness to
assume a justifying nexus between those burdens and public purpose.”

      The Supreme Court has stated, “‘[i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.’” Agostini v.
Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989)). Our court has adhered to this directive.
See, e.g., United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th Cir. 2001);
United States v. Maynie, 257 F.3d 908, 918 (8th Cir. 2001); see also United States v.
Singletary, 268 F.3d 196, 205 (3rd Cir. 2001); Montana Chamber of Commerce v.
Argenbright, 226 F.3d 1049, 1057 (9th Cir. 2000); Figueroa v. Rivera, 147 F.3d 77,
81 n.3 (1st Cir. 1998). Thus, the issue is whether Allard is directly controlling. See
Agostini, 521 U.S. at 237.

      The facts of the present case essentially mirror Allard. Kornwolf asserts one
crucial factual distinction: Allard did not directly address feathers owned by an
individual prior to the effective dates of the acts. However, in Allard, the Court’s
ruling extends to include feathers acquired prior to the passing of the Bald and
Golden Eagle Protection Act:




                                           -3-
      The prohibition against the sale of bird parts lawfully taken before the
      effective date of federal protection is fully consonant with the purposes
      of the Eagle Protection Act. It was reasonable for Congress to conclude
      that the possibility of commercial gain presents a special threat to the
      preservation of the eagles because that prospect creates a powerful
      incentive both to evade statutory prohibitions against taking birds and
      to take a large volume of birds. The legislative draftsmen might well
      view evasion as a serious danger because there is no sure means by
      which to determine the age of bird feathers; feathers recently taken can
      easily be passed off as having been obtained long ago.

Allard, 444 U.S. at 58. This rationale also applies to the Migratory Bird Act, thereby
enabling the ban of “commercial transactions in covered bird parts in spite of the fact
that the parts were lawfully taken before the onset of federal protection.” Id. at 63.
Therefore, the Court’s holding in Allard, “that the simple prohibition of the sale of
lawfully acquired property in this case does not effect a taking in violation of the
Fifth Amendment,” id. at 67-68, encompasses bird feathers acquired prior to the
effective date of the acts, even though not directly addressed.

       Kornwolf also attempts to distinguish this case from Allard on procedural
grounds. Kornwolf argues the difference between the facial challenge in Allard and
Kornwolf’s as applied challenge removes the present dispute from the rubric of
Allard. The first alleged distinguishing characteristic is the provenance of the
feathers; the artifacts, which contain eagle feathers, were acquired prior to the
effective dates of the acts. As earlier demonstrated, the provenance of the artifact
does not remove the present case from the confines of the ruling. See id.

      The second alleged distinguishing characteristic is the value of the feathers.
As demonstrated by Allard, the value is immaterial. See id. (“[T]he simple
prohibition of the sale of lawfully acquired property in this case does not effect a
taking in violation of the Fifth Amendment.”). However, if a court were to examine
the value of the feathers, which the lower court did not, it would only lend further

                                         -4-
credence to the constitutional finding. See Williamson County Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) (stating that
if just compensation is received then no claim exists against the Government);
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013(1984)(stating if just compensation
were to be received, “then Monsanto would have no claim against the Government
for a taking”). Although the reasonable value of the artifacts with and without the
feathers has not been established, Kornwolf did receive compensation. See, e.g.,
Farmland Pres. Ass’n v. Goldschmidt, 611 F.2d 233, 237-38 (8th Cir. 1979); United
States v. 91.90 Acres of Land, Situated in Monroe County, Mo., 586 F.2d 79, 86 (8th
Cir. 1978). Kornwolf was paid $7000 for the dance shield and $5000 for the
headdress. The district court refused to order Kornwolf to disgorge the $12,000. If
a court were to examine the value of the artifacts, it would be an exercise in
determining whether additional compensation, beyond the $12,000, was required in
order to suffice as “just compensation.” Thus, instead of removing the case from the
control of Allard, Kornwolf’s receipt of compensation for the artifacts dictates it is
more likely not to be deemed a taking without just compensation. See Allard, 444
U.S. at 67 (awarding no compensation); Williamson County, 473 U.S. at 194;
Monsanto, 467 U.S. at 1013.

       Kornwolf’s last alleged distinguishing characteristic is that the asserted claim
is in defense to criminal prosecution.5 Although Allard did not involve criminal
prosecution, it did address the constitutionality of statutes that prohibited enumerated
actions and even noted the prior criminal conviction of one of the appellees under the
Bald and Golden Eagle Protection Act. Allard, 444 U.S. at 54 n.2. Therefore, the
Court clearly envisioned the acts’ enforcement within a criminal context.
Furthermore, analyzing this allegedly distinguishing fact in light of the test for
takings illustrates it is a difference without a distinction. See Penn Central Transp.


      5
       The parties have neither cited any authority, nor has any been found, that
applies the takings clause as a defense to criminal prosecution.

                                          -5-
Co. v. City of New York, 438 U.S. 104, 124 (1978) (stating the factors in determining
a taking are the economic impact of the regulation on the claimant, the extent to
which the regulation has interfered with distinct investment-backed expectation, and
the character of the government regulation with regard to whether the invasion is
physical or a necessary readjustment of economic benefits and burdens).

                                  Conclusion

       Because Allard is directly controlling, this court need not examine the present
case in light of recent takings cases.

      Judgment AFFIRMED.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -6-
