U.S. v. Stenberg, s. 85-3031

• Citation: 803 F.2d 422
• Decision Date: 21 October 1986
• Docket Number: Nos. 85-3031,85-3033 and 85-3040,s. 85-3031
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Cray STENBERG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Loren Jay ELLISON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Earl K. FIKE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 422

803 F.2d 422

UNITED STATES of America, Plaintiff-Appellee, v. Terry Cray STENBERG, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Loren Jay ELLISON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Earl K. FIKE, Jr., Defendant-Appellant.

Nos. 85-3031, 85-3033 and 85-3040.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 6, 1985.

Decided Oct. 21, 1986.

James C. Kilbourne, F. Henry Habicht, II, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

James M. Ragain, Hendrickson & Everson, Billings, Mont., Christopher P. Thimsen, Brad Arndorfer, Cate Law Firm, Billings, Mont., for defendant-appellant.

Appeal from the United States District Court for the District of Montana.

Before ALARCON and REINHARDT, Circuit Judges, and STEPHENS, ^* District Judge.

REINHARDT, Circuit Judge:

In these consolidated cases, defendants Terry Cray Stenberg, Loren Jay Ellison and Earl K. Fike, Jr. appeal their convictions for violations of the Lacey Act, 16 U.S.C. Secs. 3372(a), 3373(d) (1985). Ellison and Fike also appeal their convictions for violations of the Eagle Protection Act, 16 U.S.C. Sec. 668 et seq. (1982). We affirm Ellison's conviction on all counts but reverse Stenberg's. We reverse Fike's conviction on the count involving guiding services and affirm his conviction on the remaining four counts.

I. BACKGROUND

A. Operation Trophykill

These three cases arose out of an undercover investigation by the United States Fish and Wildlife Service (FWS) into the illegal taking and sale of wildlife in interstate commerce. The investigation, known as Operation Trophykill, lasted from November 1981 to October 1984 and covered six states and several foreign countries. FWS Agent John Gavitt was the lead investigator in Operation Trophykill. Under the name of John Cummings, Gavitt acted as the business manager of a taxidermy operation located in Colorado. Operation Trophykill was extended to Montana after Gavitt received information from a local FWS agent and others, during the Fall of 1982, that protected wildlife was being sold and guiding services were being provided in and around Yellowstone National Park and the Livingston, Montana area.

B. Ellison

Gavitt first became aware that Loren Ellison might be involved in illegal activities as a result of a conversation with a man in Montana named Larry Myers. Gavitt had contacted Myers after receiving information that Myers was a "middle man" in the sale of elk antlers to K.L. Kim, who allegedly purchased the antlers for sale in the Orient. On November 3, 1982, Myers had told Gavitt that he knew of a frozen grizzly bear for sale, and, when Gavitt expressed interest, Myers stated that Ellison either had the bear or knew how to get it. When Gavitt telephoned Ellison on November 4, 1982 to discuss the possibility of obtaining the grizzly bear, Ellison stated that he did not have a grizzly but that, if he did, it would cost $5,000. ¹

Gavitt contacted Ellison again by phone on November 7, 1982. Ellison asked whether Gavitt worked for "Fish, Wildlife and Parks" and affirmed that he had been "gettin' a lot of heat around there." Ellison also stated that he knew of people with grizzly bear rugs for sale, but that grizzlies were "too hot to handle" and he had only elk antlers for sale. When Gavitt asked if Ellison would be willing to serve as a hunting guide for some of Gavitt's "clients" who did not have hunting licenses, Ellison expressed interest. As a result of several more exchanges, Ellison and two of his associates guided FWS Agent Adam O'Hara on an illegal elk hunt in January 1983. During the hunt, O'Hara killed a bull elk, and Ellison shipped the cape to Gavitt in Colorado.

Also in January 1983, Ellison accompanied Gavitt on a trip to Ennis, Montana, where Gavitt planned to sell a load of elk antlers. During the journey, Ellison stated that he had a reputation as a stealer of elk antlers from Yellowstone National Park, which fortunately kept the authorities from focusing on his wildlife hunting activities, and that he had made over $30,000 from selling antlers. He claimed that in one transaction two years ago he had sold over eight tons of antlers to K.L. Kim; he also said that in the most recent year he and his partners had taken over one ton of antlers from the Park. Ellison further told Gavitt that five years previously he and a friend had killed twenty-one mule deer and that such deer were his "specialty."

At the end of January 1983, Ellison contacted Gavitt and stated that he had recently killed two big horn sheep. Gavitt initially said he was interested, and during the next few weeks a possible sale of the sheep was discussed several times over the telephone. Ellison later told Gavitt he had sold the sheep to someone in Billings, Montana. At the trial, a Billings resident named Morris Nielson testified that he purchased one sheep's head from Ellison in February for $350. The sheep were killed out of season and Ellison had no license to kill them.

On August 30, 1983, Gavitt met Ellison at his trailer just as Ellison was leaving for an off-season, and therefore illegal, elk hunt. Ellison told Gavitt he would sell him the antlers and cape if he killed an elk. The hunt proved unsuccessful, but on September 2, 1983 Ellison sold Gavitt two sets of velvet antlers that he had acquired during previous illegal killings. Ellison told Gavitt he had originally intended to sell the antlers to K.L. Kim, but there had been too much "heat."

Ellison served as a guide for FWS Agent Pete Nylander, another of Gavitt's "clients," on a hunt in September 1983. During the hunt Ellison stated that he killed fifteen deer and ten elk each year. He also fired a double-barrelled shotgun into a tree and said that if a game warden confronted them he would "blow his fucking head off."

Ellison contacted Gavitt by phone on November 28, 1983 and offered to sell him two elk capes. Gavitt wired Ellison $180, and Ellison shipped the capes to Gavitt in Colorado where they arrived on December 12, 1983.

Operating on information from a hunting guide in Oklahoma that someone in Montana was selling eagles, Gavitt asked Ellison during a phone conversation February 12, 1984 whether he knew the individual to whom the guide referred. Ellison said he did not, but stated that he did know some people who had eagles and that he would attempt to get some for Gavitt. Between February 28, 1984 and June 5, 1984, in five separate transactions, Ellison sold Gavitt thirteen golden eagles for $200 each and one golden eagle for $75.

In May 1984 Gavitt phoned Ellison and asked if Ellison would have velvet antlers for sale again that year, and Ellison said "probably." Following subsequent discussions, Ellison sold Gavitt one set of velvet antlers for $600.

Over the course of the investigation, Ellison had become a central figure. He claimed to support himself entirely by his illegal wildlife transactions, and through him Agent Gavitt was introduced to many others engaged in similar activities.

Ellison was indicted for felony and misdemeanor violations of the Lacey Act and the Eagle Protection Act. ² Before trial, Ellison moved the court to dismiss all the charges against him or, in the alternative, to bar prosecution on the ground of excessive and outrageous government conduct during the course of the investigation. The court denied the motion. Ellison renewed this motion following the government's presentation of its case-in-chief and at the close of trial, and the court denied the motion each time.

Ellison contended during trial that he had been entrapped, and the issue was submitted to the jury. The jury found Ellison guilty of the charges relating to the sale of two sets of velvet antlers on September 2, 1983, the sale of fourteen eagles between February 28, 1984 and June 5, 1984, and the sale of one set of velvet antlers on July 20, 1984. The jury deadlocked on the charges relating to the hunt with Agent O'Hara in January 1983 and the sale of two elk capes in December 1983. The judge sentenced Ellison to consecutive prison terms totalling fifteen years and to five years of probation to be served at the expiration of the prison term.

C. Fike

Gavitt first met Earl Fike on January 7, 1983 when Ellison introduced the two. Ellison had previously told Gavitt of a friend of his who would be willing to serve as a guide for Gavitt's clients on illegal mountain lion hunts. When Fike met Gavitt he stated that he had served as a guide for several years and that for more than five years he had had neither a license to do so nor the tags required in connection with the killing of mountain lions. He also stated that he would be willing to serve as a guide for Gavitt's clients, despite the fact that neither he nor the clients would have any of the necessary licenses, and quoted a price of $500 per hunt. If a client failed to kill a lion, Fike would provide, for an additional $500, a skin from a lion he had killed previously. Fike stated that he had arranged to serve as a guide for an out-of-state client beginning January 9, but that he would be free to work for Gavitt after January 15. In addition, Fike stated that he had recently killed three mountain lions, although he usually had killed twelve by this point in the season, ³ and that two days earlier he had sold the skin from one. When Fike asked if Gavitt were interested in purchasing the remaining two skins, which, Fike warned, were untagged and therefore illegal, Gavitt said yes. Gavitt then proceeded with Fike and Ellison to Fike's house, where Fike produced two rolled-up lion skins and two skulls. He also produced the pelt of a mink he claimed to have killed that day; he said he had hidden the pelt because he believed that mink season had ended. ⁴ Fike initially asked for $1000 for the two skins and two skulls, but, after negotiations, eventually agreed to accept $600 for the skins, the...