U.S. v. Leveque

• Decision Date: 15 March 2002
• Docket Number: No. 00-30386.,No. 00-30385.,00-30385.,00-30386.
• Citation: 283 F.3d 1098
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis LeVEQUE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John Kevin Moore, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.3d 1098

UNITED STATES of America, Plaintiff-Appellee, v. Dennis LeVEQUE, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. John Kevin Moore, Defendant-Appellant.

No. 00-30385.

No. 00-30386.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2001.

Filed March 15, 2002.

COPYRIGHT MATERIAL OMITTED

Gregory A. Jackson, Jackson Law Firm, Helena, MT, for defendant-appellant Dennis LeVeque.

Peter A. Leander, Bigfork, MT, for defendant-appellant John Moore.

Kris A. McLean, Assistant United States Attorney, Missoula, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Charles C. Lovell, District Judge, Presiding.

Before: TASHIMA, and TALLMAN, Circuit Judges, and MOLLWAY,^* District Judge.

OPINION

TALLMAN, Circuit Judge.

This case arises from a six-day outfitted archery elk hunt in Montana. Dennis LeVeque and John Moore were convicted by jury on one count of mail fraud for devising a scheme to obtain money or property, namely outfitting or guiding fees and a hunting license, under 18 U.S.C. §§ 2 & 1341. Moore was also convicted on one count of conspiracy and one count of violating the Lacey Act, under 18 U.S.C. § 371, 16 U.S.C. §§ 3372(a)(2)(A) & 3373(d)(1)(B), in connection with taking a prohibited type of elk during the hunt. On appeal, LeVeque and Moore challenge the sufficiency of the evidence and the district court's jury instructions. Moore also challenges the validity of the Superseding Indictment. We have jurisdiction under 28 U.S.C. § 1291. We reverse on all counts and remand the mail fraud count for retrial.

I

Dennis LeVeque was licensed by the State of Montana to provide outfitting services for hunting expeditions under the name of DL Elk Outfitters, Inc. Kevin Moore was licensed by the State of Montana to provide guide services. Moore, while not a licensed outfitter, nonetheless recruited hunters, organized hunts, and collected monies for the hunts under the name "Whitetail Classics." In September 1998, in concert with LeVeque, Moore organized a six-day outfitted elk hunt in Montana for archery hunters Rex Easton, R.E. McMaster, and Kevin and James Warning. LeVeque, who had been leasing hunting rights from Montana rancher Bill Galt for almost two decades, told Galt that the archery season hunters were his clients and that they were hunting under his outfitting license. LeVeque agreed to pay Galt one-third of the total value he received from the 1998 archery season. Moore, in turn, agreed to pay LeVeque $10,000 to bring hunters onto Galt's ranch to hunt elk. Moore was to retain any sum beyond the $10,000 he paid to LeVeque.

Moore's successful solicitation of Easton, McMaster, and the Warnings did not include informing the hunters that LeVeque, not Moore, was the outfitter licensed for their hunt. One of the hunters, McMaster, while not fully aware of the relationship between LeVeque and Moore, did learn prior to the hunt that LeVeque was providing some outfitting services.

Montana requires all non-residents who wish to take game from the State to obtain a hunting license, either by being chosen in a random lottery drawing or by hiring an outfitter. All of the hunters except McMaster obtained hunting licenses from Montana through the lottery process. When he was not randomly drawn for an out-of-state hunter's license, McMaster, on Moore's advice, obtained his hunting license through the outfitter process. LeVeque thus sponsored the non-resident license application with McMaster's knowledge. LeVeque falsely certified to Montana fish and game officials on the license application that he had received a deposit from McMaster and that he had provided McMaster with a statutorily required rate sheet and deposit refund policy. McMaster obtained an outfitter-sponsored Montana non-resident hunting license on the basis of this fraudulent application.

During the September 1998 season, Galt's ranch was designated as a "brow tine bull only" hunting area. The term "brow tine" refers to the antler configuration of a mature bull elk that has visible points of four inches or greater on the lower half of its antlers. The guides failed to inform the hunters of the "brow tine bull only" restriction. On the third day of the hunt, McMaster killed a non-brow tine bull elk. He was guided at the time by Howard Negri, who was guiding for Moore. Neither Negri nor McMaster was aware that the elk was illegal.

When the bull was brought back to the camp, several of the hunters questioned the legality of the kill. One hunter decided to check his regulation book. While the small group of hunters ultimately concluded that the bull was illegal, they kept this information to themselves. Accordingly, no one, including Moore, informed McMaster that he had killed an illegal elk. Under Montana law, Moore was obligated to report the taking of an illegal elk to the game warden. The kill was not reported. McMaster left camp the following day with the elk. He then had the hide tanned and shipped to his home in Texas.

Following McMaster's departure, several game wardens entered the hunting camp to investigate Moore's illegal outfitting. Approximately one year later, Moore learned that the game wardens were questioning the legality of McMaster's kill. Moore then left a voice mail message for McMaster asking him what he had learned from the game wardens. Moore stated: "I don't understand what all the hassle is about. As far as I know, they don't have a clue where that elk was killed. And it happened to border two other areas that are either sex, so the brow tine rule wouldn't apply. Nevertheless, I believe this is a legal bull and will stand by it."

LeVeque and Moore were subsequently indicted on one count of mail fraud. A Superseding Indictment, on which defendants stood trial, did not allege as the basis for fraud that Moore was outfitting without a license. The Superseding Indictment instead charged LeVeque and Moore with devising "a scheme ... to obtain ... money or property, namely outfitting or guiding fees and a State of Montana Outfitter sponsored nonresident big game combination hunting license, by means of false or fraudulent pretenses, representations, or promises...." (Emphasis added.) The Superseding Indictment further charged that the predicate mailing was the transmittal of McMaster's fraudulent application to the State for the outfitter-sponsored hunting license.

Moore was also indicted on one count of conspiracy to violate the Lacey Act, aiding and abetting a violation of the Lacey Act when McMaster took the elk for taxidermy and later shipment to Texas in violation of fish and game regulations, and another count of violating the Lacey Act when McMaster took the illegal elk across state lines to Texas.

At the close of trial, the district court instructed the jury that a "central issue" in this case was whether Moore was outfitting without a license. The court also instructed the jury that "an outfitter need not personally perform all outfitting duties. However, an outfitter may not delegate away to an unlicensed person those functions which only a licensed outfitter may perform." Both LeVeque and Moore objected to these instructions.

The jury convicted both defendants of mail fraud, and it convicted Moore of conspiracy, and violation of the Lacey Act predicated on the illegal transportation violation. Moore was acquitted of the Lacey Act count predicated on the alleged fish and game regulation violation. On December 8, 2000, LeVeque was sentenced to a two-year term of probation. On the same date, Moore was sentenced to six months in custody, three years' supervised release, plus monetary penalties. LeVeque and Moore timely appeal.

II

We review de novo claims of insufficient evidence. See United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.2001). The evidence is sufficient to support a conviction if, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A.

LeVeque and Moore challenge the sufficiency of the evidence to sustain the mail fraud convictions, contending that the Government based its fraud theory on the false statements contained in McMaster's application for an outfitter-sponsored hunting license, and that, under Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), a government-issued license is not "property" for the purposes of the mail fraud statute, 18 U.S.C. § 1341. We agree, in part.

Section 1341 prohibits the use of the mails to further "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." Cleveland holds that a government-issued license does not constitute property for purposes of § 1341. See Cleveland, 531 U.S. at 26-27, 121 S.Ct. 365 (holding that § 1341 did not cover a scheme in which the defendants misrepresented the ownership of a partnership in order to obtain a state gambling license because the license was not property under § 1341). See also United States v. Kato, 878 F.2d 267 (9th Cir.1989) (holding that § 1341 did not cover a flight training school owner's scheme to defraud the FAA into issuing pilot licenses to unqualified candidates because the licenses were not property); United States v. Lew, 875 F.2d 219 (9th Cir.1989) (holding that § 1341 did not cover an attorney's misrepresentations in applications for alien employment certifications because the certifications were not property and the Government offered no evidence that the clients of the attorney, the aliens, were defrauded in any way).

Thus, to the extent that the Government's theory of mail fraud was based upon a government-issued license it is invalid. Unfortunately, we are unable to determine...