has two provisions. Section (a) prohibits the sale of alcoholic beverages without a license or permit. Section (b) prohibits the solicitation or receipt of orders for the delivery of alcoholic beverages in local option areas. Importation into local option areas is separately prohibited by AS 04.11.496(b).10 Under AS 04.16.200(b)(3), a person convicted under AS 04.11.010(a) or (b) of selling, or of soliciting or receiving orders for alcoholic beverages in a local option area, is guilty of a felony if the quantity of alcohol involved is more than a specified amount. The specified amounts correspond to those in AS 04.16.200(e)(2), the penalty provisions for importation into a local option area in violation of AS 04.11.496, under which Harrison was convicted."1 However, one charged under AS 04.11.010 with sale or soliciting or receiving orders in a local option area has an affirmative defense. AS 04.16.200(c) provides:

It is an affirmative defense to a prosecution under (a) of this section that no profit was involved in the solicitation or receipt of an order for the delivery of an alcoholic beverage.

This defense is not available to one charged with importing alcoholic beverages into a local option area under AS 04.16.200(e). Harrison argues that restriction of the stat

is licensed under this title and the order is actually received by that person from the purchaser of the alcoholic beverage. A person who violates this subsection is punishable upon conviction under AS 04.16.200(a) or (b). 10. AS 04.11.496(b) provides, in pertinent part:

If a majority of the voters vote "yes" on the question set out in (a) of this section, a person, beginning on the first day of the month following certification of the results of the election, may not knowingly send, transport, or bring alcoholic beverages into the municipality or established village....

11. AS 04.16.200 states, in pertinent part:

Unlicensed persons. (a) A person who violates AS 04.11.010 is, upon conviction, guilty of a class A misdemeanor.

(b) A person who violates AS 04.11.010 in an area where the results of a local option election have, under AS 04.11.490-04.11.500, prohibited the board from issuing, renewing, or transferring one or more types of licenses

Alaska 343

utory defense of lack of profit constitutes a violation of due process.

[12, 13] We disagree. Harrison was charged with felony importation under AS 04.11.496 and 04.16.200(e) because he brought over forty-five liters of malt beverages into a local option area. The lack of profit defense in AS 04.16.200(c) applies only to misdemeanor prosecutions under AS 04.16.200(a). Thus, the defense is unavailable in a felony prosecution under either AS 04.16.200(b)(3) (sale, or solicitation or receipt of orders in a local option area for large quantities), or AS 04.16.200(e)(2) (importation into a local option area of large quantities). No person charged with a felony under any section of AS 04.16.200 can properly assert the defense of lack of profit. The statute treats all persons charged with felonies alike and, therefore, fairly.

[14, 15] The affirmative defense of lack of profit might be construed to apply to one charged with the misdemeanor sale of a small quantity of alcoholic beverages in a local option area and not to apply to the misdemeanor importation of the same quantity in a local option area. See AS 04.16.200(c) and (e)(1). However, Harrison, as a felon, has no standing to challenge the misdemeanor provisions. In any event, the legislature enacted the local option law to

or permits under this title in the area is, upon
conviction, guilty of a class C felony, if
(1) he has previously been convicted of a
violation of AS 04.11.010;

(2) the sale or offer for sale was made to a person under 19 years of age; or

(3) the quantity of alcoholic beverages sold or offered for sale is 12 liters or more of distilled spirits, 24 liters or more of wine, or 45 liters or more of malt beverages.

(e) A person who sends, transports, or brings alcoholic beverages into a municipality or established village in violation of AS 04.11.496 is, upon conviction,

(1) guilty of a class A misdemeanor if the quantity imported is less than 12 liters of distilled spirits, 24 liters of wine, or 45 liters or more of malt beverages; or

(2) guilty of a class C felony if the quantity imported is 12 liters or more of distilled spirits, 24 liters or more of wine, or 45 liters or more of malt beverages.

344 Alaska

regulate the importation of alcoholic beverages, not to regulate simple possession. The affirmative defense of lack of profit was meant to be available in cases of casual distribution that occurred as an incident of lawful possession, where the distributor did not unlawfully import the alcoholic beverages in his or her possession. It would not necessarily be irrational for the legislature to refuse to extend the defense to a person who unlawfully imports alcohol into a community that has voted to prohibit both the sale and importation of alcoholic beverages.

EX POST FACTO LAW

Alaska's local option statute was enacted in 1980. A local option election was held in St. Mary's on September 22, 1981. The community voted to ban importation; the prohibition became effective October 1, 1981. According to § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, Alaska must preclear all changes relating to "voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting." Alaska submitted the local option legislation on April 1, 1982, and obtained conditional clearance on May 17, 1982. Final approval was obtained soon after. When Harrison imported alcohol into St. Mary's on April 16, 1982, the local statute had been submitted but approval had not yet been obtained.

Article I, § 15 of the Alaska Constitution provides, "No bill of attainder or ex post facto law shall be passed." Judge Blair denied Harrison's motion to dismiss the indictment on ex post facto grounds, ruling:

There's no argument or finding of any deliberate defiance of the Voting Rights Act; there does not appear to be any discriminatory purpose or effect. The Supreme Court does have three cases that are on point: Allen v. State Board of Elections, 393 U.S. 544 [89 S.Ct. 817, 22 L.Ed.2d 1]; Perkins v. Mathews, 400 U.S. [379] at 379 [91 S.Ct. 431 at 431, 27 L.Ed.2d 476] and Berry v. Doles, 438 U.S. 190 [98 S.Ct. 2692, 57 L.Ed.2d 693].

The Supreme Court has adopted the rule that if the election is precleared by the Justice Department within 30 days of the Court's decision, then the election will not be invalidated. This case didn't have any approval prior to the criminal conduct but we have now had that clearance by the Justice Department. It would appear that the U.S. Supreme Court decisions would indicate that the appropriate or that it would be inappropriate to declare that the ordinance is not effective and that the election should be invalidated. Accordingly, that motion is denied. Harrison contends that since the local option statute had not been approved by the federal government when he brought alcoholic beverages into St. Mary's, his conduct was not criminal. In support of his argument, Harrison quotes Hotch v. United States, 212 F.2d 280, 284 (9th Cir.1954) (emphasis in original): “a law which has not been duly enacted is not a law, and therefore a person who does not comply with its provisions cannot be guilty of any crime." Relying on Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 L.Ed.2d 693 (1978), Harrison also contends that election results are invalid and unenforceable until approval is obtained.

[16] Harrison's analysis is not persuasive. In Hotch, the conviction was overturned because the regulation had not been published, as required by the Federal Register Act and the Administrative Procedure Act. The Federal Register Act expressly provided that a document was not valid until published. The Voting Rights Act, which Harrison claims was violated in this case, does not contain an analogous provision. Thus, the statutory interpretation in Hotch is not controlling.

[17] In addition, Berry does not support Harrison's position. At issue in that case was a 1968 statute that provided for a partial staggering of the terms of three posts of the Peach County Board of Commissioners of Roads and Revenues. Berry unsuccessfully tried to enjoin the 1976 primary election on the ground that § 5 preclearance for the 1968 law had not been

obtained. After the election, a district court enjoined the future enforcement of the 1968 statute until approval was obtained but refused to set aside the election because the electoral changes were "technical" and there was no discriminatory purpose or effect. Berry appealed. The United States Supreme Court remanded the case, holding that the district court should issue an order giving the state thirty days to obtain § 5 approval: "[I]f approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for simultaneous election of all members of the Board at the 1978 general election." Berry, 438 U.S. at 193, 98 S.Ct. at 2694, 57 L.Ed.2d at 696. Thus, under Berry, the failure to obtain preclearance does not automatically invalidate election results, at least where clearance is ultimately granted. See also Perkins v. Matthews, 400 U.S. 379, 396-97, 91 S.Ct. 431, 440-41, 27 L.Ed.2d 476, 489 (1971) (court finds § 5 violation and remands to district court to determine appropriate remedy); Crowe v. Lucas, 472 F.Supp. 937, 945 (N.D.Miss. 1979) (registration changes cleared after implementation but prior to election satisfied preclearance requirement of § 5).

[18] The purpose of the Voting Rights Act and the facts of this case also convince us that Judge Blair's ruling was proper. Congress enacted the Voting Rights Act of 1965 to prevent discriminatory practices that exclude minorities from the electoral process. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). As Judge Blair found, there was no allegation of any discriminatory purpose or effect or a deliberate defiance of the Voting Rights Act that may invalidate the election, Allen v. State Board of Elections, 393 U.S. 544, 571-72, 89 S.Ct. 817, 834-35, 22 L.Ed.2d 1, 20-21 (1969), and Harrison raises none on appeal. The record contains no indication that Alaska's local option law

12. We note Harrison's claim that the enactment of criminal sanctions makes this case different from those cases where the challenged statute merely changed an aspect of the electoral process. However, Harrison has not cited us to

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or the St. Mary's election were in any way improper under the Voting Rights Act except for the formality of not obtaining preclearance. Nor did Harrison allege any irregularities. In these circumstances, we think Justice Powell's concurrence in Berry is particularly apt:

[W]hen courts are called upon to decide whether to grant retroactive relief, they should distinguish the minor or technical change from the substantive change that is likely to result in discrimination....

It must be remembered that the Voting Rights Act imposes restrictions unique in the history of our country on a limited number of selected States. [Courts] need to bring a measure of common sense to its application.... Berry, 438 U.S. at 200-01, 98 S.Ct. at 269798, 57 L.Ed.2d at 701 (footnotes omitted).

We do not read the federal cases to hold that the results of an election are invalid or unenforceable until preclearance is obtained. Rather, these cases indicate that where a state has failed to obtain the required preclearance, the election results are subject to invalidation. Mere technical violations of the procedural requirements for preclearance, however, are an insufficient basis for invalidation: a substantive violation, one that could result in denial of preclearance under the act, must be shown. However, "[i]f approval is obtained, the matter will be at an end." Berry, 438 U.S. at 193, 98 S.Ct. at 2694, 57 L.Ed.2d at 696.

In the present case, the federal government ultimately approved Alaska's local option law. We hold that the prohibition against the sale and importation of alcoholic beverages into St. Mary's was in effect at the time Harrison brought alcoholic beverages into St. Mary's. Therefore we reject Harrison's claim that his conviction constitutes a violation of the constitutional prohibition against ex post facto laws.12 any case that makes this distinction or would require us to suspend the enforcement of the St. Mary's local option law while preclearance was pending.

346 Alaska

[19] Harrison argues in the alternative that even if the prohibition was in effect when he brought alcohol into St. Mary's, he was deprived of adequate notice that his conduct was criminal because preclearance for the election had not been obtained. This argument is without merit. Harrison does not allege that he detrimentally relied on a good faith belief that the St. Mary's election had not been precleared and was potentially invalid. In fact, Harrison admitted that he was fully aware of the illegality of his actions. He cannot now claim he lacked notice.

The conviction is AFFIRMED.

KEY NUMBER SYSTEM

Jeffery WELLS, Appellant,

V.

STATE of Alaska, Appellee.

Nos. 7479, 7663.

Court of Appeals of Alaska.

Sept. 7, 1984.

Defendant was convicted in Superior Court, First Judicial District, Juneau, Rodger W. Pegues, J., of fraudulent use of a credit card, and sentenced as a second felony offender based on prior Oregon conviction. Following his escape from prison, defendant was convicted in the Superior Court, Third Judicial District, Anchorage, Daniel A. Moore, Jr., J., of escape, sentenced as a third felony offender, and he appealed. The Court of Appeals, Singleton, J., held that: (1) escape under Alaska law is a continuing offense; defendant relying on necessity to justify escape must present some evidence justifying his continued absence from custody as well as his initial departure; (2) evidence was insufficient to establish necessity defense to justify defendant's escape; (3) decisions to treat

Evidence that defendant, while in prison, faced immediate threat of physical injury by gang of fellow prisoners outraged that he had warned another inmate of gang's intent to hijack some marijuana, without evidence indicating that defendant's continued absence from prison following escape resulted from duress, or otherwise justifying defendant's continued absence, did not warrant jury instruction on defense of necessity to justify escape. AS 01.10.010, 11.81.320.

4. Criminal Law 1202.7

Defendant who was convicted of escape while serving two-year presumptive sentence for fraudulent use of a credit card was properly treated as a second felony offender following fraudulent use of credit card conviction and third felony offender following escape conviction where he had been previously convicted of burglary in the second degree in Oregon under statute substantially identical to Alaska second-degree burglary statute, although Oregon court had reduced felony conviction to misdemeanor at sentencing. AS 11.46.285, 11.46.310, 11.56.310(a)(1)(A), 12.55.145(a)(2); ORS 161.705, 164.215.