FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    January 29, 2009
                                TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,
              Plaintiff–Appellee,                        No. 08-8016
 v.                                            (D.C. No. 07-CR-00066-WFD-1)
 MICHAEL DAVID BELDERRAIN,                                 (D. Wyo.)
              Defendant–Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, McKAY, and McCONNELL, Circuit Judges.


      Defendant was indicted on charges stemming from his unlawful killing of a

bull elk while within Yellowstone National Park in southwestern Montana. 1 He

filed a motion to dismiss the indictment based on a plea agreement he had

previously entered into with the State of Montana, the United States Fish and



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
         The bull elk was standing just outside of the park’s boundary when it was
shot. However, Defendant fired the fatal shot from within the park, and he
subsequently transported the elk’s head and antlers into and through the park.
Because Defendant thus possessed a firearm and transported and possessed
illegally taken wildlife within Yellowstone National Park, albeit in Montana, the
United States District Court for the District of Wyoming has jurisdiction over the
charges at issue in this case. See 28 U.S.C. § 131.
Wildlife Service and, by extension, the United States Attorney’s Office for the

District of Montana. The district court denied the motion, holding that the

agreement was not binding on the U.S. Attorney’s Office for the District of

Wyoming. The court additionally held that the agreement had not been breached

because the federal charges were based on information obtained by law

enforcement officials after Defendant entered into the Montana plea agreement

and therefore fell within the agreement’s exception for prosecution based on new

or future information.

      Following the denial of his motion to dismiss, Defendant entered a

conditional plea of guilty to being a felon in possession of a firearm, unlawfully

transporting illegally possessed wildlife, and unlawfully possessing illegally taken

wildlife. On appeal, he challenges the district court’s denial of his motion to

dismiss.

      Whether a plea agreement has been violated is a question of law that we

review de novo. United States v. Guzman, 

, 1195 (10th Cir. 2003).

“[T]he party who asserts a breach of a plea agreement has the burden of proving

the underlying facts that establish a breach by a preponderance of the evidence.”

Allen v. Hadden, 

, 1534 (10th Cir. 1995). Assuming for purposes of

appeal that the Montana plea agreement was binding on the U.S. Attorney’s

Office for the District of Wyoming, we hold that Defendant has not established by

a preponderance of the evidence that the government violated the plea agreement

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by filing the instant charges against him.

      The Montana plea agreement provided that “once the state court accepts

Mr. Belderrain’s plea agreement to the charges arising from information currently

held by the Montana Department of Fish, Wildlife and Parks, the USFWS/OLE

will not refer this case to the U.S. Attorney for the District of Montana for

prosecution.” (R. Doc. 17, Ex. E.) The agreement further provided that “any new

or future information concerning Mr. Belderrain’s violation of federal wildlife

and/or federal criminal statutes” would be investigated and referred for federal

prosecution. (Id.)

      At the time Defendant entered into the Montana plea agreement, the

government knew that an elk head had been discovered in a local taxidermist’s

shop in January 2006. Defendant, the taxidermist, and other individuals

informed the government that Defendant had killed this elk in the Buffalo Horn

Drainage, an area outside of Yellowstone, on a November 2005 outfitting trip.

Based on this information, his nolo contendere pleas with the State included a

charge of possessing unlawfully taken elk antlers in the Buffalo Horn Drainage as

well as two charges related to illegalities in the outfitting operation. The

government was also aware at the time of the plea that a headless elk carcass had

been found near Yellowstone in December 2005. However, Defendant has

introduced no evidence indicating that the government knew Defendant was

responsible for this kill. According to the evidence in the record, the government

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did not learn that Defendant had killed the Yellowstone elk until months after

Defendant’s nolo contendere pleas were entered, when the taxidermist reported

that Defendant had killed an elk in Yellowstone as well as in the Buffalo Horn

Drainage and that the elk head came from the Yellowstone kill. 2

      Defendant argues that the government should have drawn a connection

between the headless elk carcass found in Yellowstone and the elk head

discovered in the taxidermist’s store within the next month. He argues that this

information, known by the government at the time of the Montana plea, was

sufficient to link him to the Yellowstone incident and therefore that the instant

charges are not based on new information. However, particularly in light of the

fact that his lies regarding the source of the elk head led the government to

believe it came from another location, we are convinced that Defendant’s

involvement with the Yellowstone poaching was not information held by the

government at the time he entered into the Montana plea agreement. At that time,

the government possessed no information indicating that Defendant was involved

with that incident. Furthermore, his lies effectively deterred the government from

suspecting or investigating any such link. Given these circumstances, we

conclude that the instant charges were based on new information that was not

known to the government at the time Defendant entered into the plea. We


      2
       A DNA test subsequently confirmed that the elk head came from the
Yellowstone elk.

                                         -4-
therefore hold that the plea agreement was not violated by the government’s

bringing of these charges.

      For the foregoing reasons, we AFFIRM the district court’s denial of

Defendant’s motion to dismiss. Defendant’s sentence and conviction are

AFFIRMED.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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