U.S. v. Parker, s. 91-10461

• Citation: 991 F.2d 1493
• Decision Date: 20 April 1993
• Docket Number: Nos. 91-10461,91-10462,s. 91-10461
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul PARKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeannette PARKER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1493

991 F.2d 1493

UNITED STATES of America, Plaintiff-Appellee, v. Paul PARKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeannette PARKER, Defendant-Appellant.

Nos. 91-10461, 91-10462.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 10, 1993.

Decided April 20, 1993.

Annette R. Quintana, Las Vegas, NV, for defendant-appellant Paul Parker.

Lorraine J. Mansfield, Las Vegas, NV, for defendant-appellant Jeannette Parker.

Anne Kristina Perry, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee.

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

Before: NORRIS, HALL, and NOONAN, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Paul Parker ("Paul") and Jeannette Parker ("Jeannette") were convicted of (I) smuggling psittacine bird eggs from Australia, in violation of 18 U.S.C. § 545, (II) conspiracy to smuggle these eggs, in violation of 18 U.S.C. § 371, (III) aiding and abetting their smuggling, in violation of 18 U.S.C. § 2, and (IV) unlawful sale of the hatched baby birds, in violation of 16 U.S.C. §§ 3372(a)(1) and 3373(d)(1)(B). They raise numerous challenges to their convictions and sentences. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

CLAIMS RAISED JOINTLY BY PAUL AND JEANNETTE

I. Lesser Included Offense Instruction

Paul and Jeannette claim, for the first time on appeal, that they were entitled to a lesser included offense instruction on the unlawful sale of wildlife counts under the Lacey Act, 16 U.S.C. § 3372 et seq. The jury was instructed on the felony offense under the Lacey Act, a crime which requires actual knowledge that the wildlife was unlawfully taken or possessed. 16 U.S.C. § 3373(d)(1). The Parkers contend that the jury should also have been instructed on the lesser included misdemeanor charge, which requires that an individual "in the exercise of due care should know" that the wildlife at issue was unlawfully taken or possessed. Id. at § 3373(d)(2).

Because defense counsel did not request a lesser included offense instruction at trial, the court's failure to give such an instruction sua sponte is reviewed for plain error. Guam v. Ignacio, 852 F.2d 459, 462 (9th Cir.1988). "Plain error will be found only if the error was highly prejudicial and there was a high probability that the error materially affected the verdict." United States v. Bosch, 951 F.2d 1546, 1548 (9th Cir.1991) (internal quotation omitted). We believe the failure to give a lesser included offense instruction did not materially affect the verdicts here. The Parkers were convicted not only of the Lacey Act felonies, but also of smuggling under 18 U.S.C. § 545 and aiding and abetting smuggling under 18 U.S.C. § 2, both of which require that the defendants act with knowledge that the goods were imported contrary to

                law.   Hence, a jury could not rationally have found that the Parkers were guilty of smuggling the bird eggs, on the one hand, and then acted without knowledge that the eggs were unlawfully obtained when they sold the baby birds.   Accordingly, the court's failure to give a lesser included offense instruction did not rise to the level of plain error
                

II. Cross-Examination of Witness Jeff Fruits

The Parkers contend that they were deprived of the right to effectively cross-examine witness Jeff Fruits. Fruits, who sold birds for the Parkers, testified as a witness for the prosecution. He entered into a plea agreement whereby he received a misdemeanor conviction with a recommendation of probation in exchange for his testimony. Fruits has a license from the USDA for raising animals. On cross-examination, Fruits was asked, "What does that license allow you to do?" and then asked whether he had discussed the status of the license with Special Agent Dominguez, the Fish and Wildlife agent who was handling the Parkers' case. The government objected to these questions, and the court sustained the objections on the ground of relevance.

The Parkers argue that these questions were essential to showing Fruits' possible bias. They assert that the USDA license may have been the most important thing in Fruits' life and that he may have cut a deal with the prosecution in which he would be able to retain the license. But the Parkers present no evidence to support this assertion. "When the trial court excludes evidence tending to impeach a witness, it has not abused its discretion as long as the jury has in its possession sufficient information to appraise the biases and motivations of the witness." United States v. Lopez, 885 F.2d 1428, 1438 (9th Cir.1989) (internal citation omitted). Here, the jury heard that Fruits was an accomplice to the crime, and that he had entered into a favorable deal with the government that would allow him to preserve his teaching career by avoiding a felony conviction. The jury also heard about inconsistencies in Fruits' earlier testimony to agents. This was ample information on which to evaluate Fruits' possible biases and motivations.

III. The "Theory of Defense" Instruction

The Parkers claim the court erred by rejecting their proposed "theory of defense" instruction. We disagree. A "theory of defense" instruction need not be given when it is simply a recitation of the facts told from the defendant's perspective. United States v. Nevitt, 563 F.2d 406, 409 (9th Cir.1977). The instruction tendered by the Parkers, and rejected by the court, was more like a closing argument than a statement of applicable law. The Parkers' theory of defense--that they did not know the cockatoo eggs were from Australia--was adequately covered by the standard instruction on the meaning of "knowingly."

CLAIMS RAISED BY PAUL PARKER

IV. Application of the CITES Treaty to the Importation of Bird Eggs

Paul concedes that the Convention on International Trade in Endangered Species ("CITES") prohibits the importation of rose-breasted cockatoos, since it is included under the Order Psittaciformes. See 50 C.F.R. § 23.23(f). He argues, however that the CITES does not prohibit the importation of rose-breasted cockatoo eggs. We disagree. The CITES treaty, incorporated at 50 C.F.R. §§ 23.1 et seq., forbids commerce in "all living or dead animals [listed in the various appendices to the treaty] and all readily recognizable parts and derivatives thereof." 50 C.F.R. § 23.23(d). A bird egg is certainly a recognizable part or derivative of a live bird. Accordingly, there was no error in instructing the jury that the importation of rose-breasted cockatoo eggs is prohibited.

V. Duplicity in the Superseding Indictment

Paul claims that 23 counts in the 25-count superseding indictment were impermissibly duplicitous. Duplicity is defined as the combining of two or more distinct offenses into a single count. United States v. Uco Oil, Inc., 546 F.2d 833, 835 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). The indictment was not duplicitous here. Each count of which Paul complains described a single offense--either an unlawful sale under 16 U.S.C. § 3372, or an act of smuggling under 18 U.S.C. § 545. What makes these offenses different from the ordinary criminal offense is that they are triggered by a violation of a separate underlying law or regulation. Neither the prosecutor nor the court led the jury to believe that the underlying violations were additional offenses for which the defendants could be convicted.

VI. Unanimity Instruction

Paul contends, for the first time on appeal, that the jury should have been given a specific unanimity instruction because of the alleged duplicity in the indictment. Because we conclude that the indictment was not duplicitous, and because we do not believe there was "a genuine possibility of jury confusion or [of] a conviction [occurring] as the result of different jurors concluding that the defendant committed different acts," we hold that no specific unanimity instruction was necessary. See United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989). The general instruction that the jury's verdict must be unanimous was sufficient to protect the defendant's rights.

VII. Vouching Misconduct

In closing argument, the prosecutor made certain statements which Paul alleges were an improper attempt to vouch for the truthfulness of government witnesses. Because Paul did not raise this objection at trial, we review only for plain error. United States v. Molina, 934 F.2d 1440, 1444 (9th Cir.1991). We reverse only if, viewing the error in the context of the entire record, the impropriety "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings, or where failing to reverse a conviction would amount to a miscarriage of justice." United States v. Necoechea, 986 F.2d 1273 (9th Cir.1993), at 1254.

Paul complains primarily about statements made by the prosecutor in response to defense counsel's attacks on the credibility of government witnesses Deborah Campling and Paul Fruits, both of whom were accomplices to the Parkers' crimes. ¹ Defense counsel stated in closing that Campling and Fruits both had "a lot to gain from their testimony" because they hadn't yet been sentenced and because "[part] of the deal is that the United States government is going to advise the sentencing judge on Fruits and Campling as to how they did. Did they do what we wanted them to do?" Defense counsel also described Fruits and Campling as "liars." In response, the prosecutor said:

Ms. Campling and Mr. Fruits ... haven't been sentenced yet, and they made this deal with the government, and the government's going to go in there and tell the judge how good they did.

Well, I guess the suggestion is that if somebody came in and lied, we wouldn't tell the judge. As officers of the court, we have a duty to do that, ladies and gentlemen. If you know someone is up there lying, you've got to tell him. And so that's not a good deal either.

Paul argues that the prosecutor's...