U.S. v. Ivey
| Decision Date | 17 December 1991 |
| Docket Number | No. 90-8724,90-8724 |
| Citation | 949 F.2d 759 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jack IVEY and William "Rusty" Wallace, III, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dan Newsome, Marfa, Tex. (Court-appointed), for Jack Ivey.
Ronald J. Waska, Harry N. Monck, Houston, Tex., for William "Rusty" Wallace, III.
Joseph H. Gay, Jr., LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, WILLIAMS and BARKSDALE, Circuit Judges.
Appellants Jack Ivey and William "Rusty" Wallace, III were indicted and convicted of one count of conspiracy to buy bobcat hides brought into the United States from Mexico contrary to law and several counts of smuggling contrary to 16 U.S.C. § 1538(c)(1) and 50 C.F.R. § 23.11(b)(1). Both appellants assert that the jury verdict should be reversed due to defects in the indictment and the jury charge as well as insufficiency of the evidence. Appellant Ivey also appeals based on a claim of entrapment and outrageous government conduct. We find the appellants' arguments unpersuasive and affirm the district court's ruling.
The facts of this case are not in dispute. In 1986, the United States Fish and Wildlife Service received intelligence information that large numbers of bobcat hides were entering the country from Mexico in violation of United States law. In response, the government initiated an undercover operation to identify those individuals involved in the illegal fur trade. As part of the operation, the government opened a store named the "Van Horn Fur House." In addition, the government hired Tinsley Means, who had experience in the fur trade, to aid it in entering the stream of commerce of the fur trade.
John Keeler and Dan Marshall, agents of the Fish and Wildlife Service, were assigned to this project. They were to establish what is known as a "reverse sting." They were to purchase pelts they believed to have been trapped in Mexico and smuggled into the United States, and then they would resell those pelts to other fur buyers.
The investigation revealed the likelihood that Jack Ivey and William "Rusty" Wallace were involved in the trafficking of illegally smuggled furs. Ivey and Wallace were both employees of the D & W Fur Company in Alpine, Texas, and they had established an extensive network of trappers and other individuals to procure and smuggle Mexican bobcat furs into the United States. In order to conceal the illegal origin of the smuggled furs, Ivey and Wallace had established a pool of "trappers", some legitimate and others who had never trapped, to sign tags certifying that bobcat pelts were taken in accordance with state and federal law. The trappers were paid for their signatures.
At trial various government witnesses, including Hernandez, Pando, Cabezuela, and Estrada, testified that they received smuggled furs from Mexico and sold them to Ivey and Wallace. The witnesses also testified that Ivey and Wallace knew these furs came from Mexico. Ivey and Wallace contend, however, that many of these witnesses also trapped furs in the United States, and it is impossible to tell where a bobcat had been trapped merely by looking at its pelt.
On December 22, 1986, Tinsley Means and Agent Keeler purchased bobcat hides from Flavio Estrada, a known dealer in Mexican furs. Means called Ivey and Wallace to arrange a meeting and solicit their business. Means first spoke to Ivey. Means indicated that some of the bobcat hides were from Mexico, and Ivey stated, Ivey also mentioned that the phone was not the place to talk about it. Means later called and spoke to Wallace, and a meeting was arranged.
At 10:30 p.m. on December 22, Means and Keeler met Ivey and Wallace at the Van Horn Holiday Inn. At the meeting, Wallace commented that he previously had seen some of the hides at Estrada's house. Keeler then announced his belief that some of the furs were from Mexico, and Wallace stated, This statement surprised Keeler because Wallace had often bought furs from Estrada, and the tags showed the furs were from Estrada.
On January 15, 1987, Wallace and Ivey returned to the Fur House. The men helped Means and Keeler unload furs which were contained in white sacks with Spanish writing on them. The agents mentioned that they would have had more furs except that part of the load was intercepted by Customs. Wallace inquired whether the furs were from Mexico. When the agents said they were, he said he was leaving. Wallace told the agents, "If I would have known you better, if I had gone to high school with you, maybe we would be doing business right now." Ivey told the agents that the "words" they used were wrong, and if they used the right words, they could do business in the future.
On February 4, 1987, Ivey and Wallace returned to the Fur House and purchased furs. The furs had Texas bobcat tags on them which require the trapper to sign a document stating that the bobcat was trapped in the United States. Ivey and Wallace also required the agents to sign a waiver certifying that the furs were legally taken. Agent Marshall signed the form and stated,
At trial Amos Cooper, the bobcat files coordinator for the Texas Parks and Wildlife Department, testified that in February 1987 Wallace called him to verify a rumor that there were two undercover agents working for the Van Horn Fur Company. Numerous trappers also testified that Ivey and Wallace had warned them throughout the trapping season to be careful of federal agents.
On June 28, 1990, Ivey and Wallace were indicted in a seven-count superseding indictment charging them with:
Count 1--Conspiracy to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale, after importation of bobcat hides, knowing said hides had been brought into the United States from Mexico contrary to law.
Counts 4, 5, 7--Smuggling--violation of 18 U.S.C. § 545, receiving, concealing, buying, selling, and facilitating the transportation, concealment, and sale after importation of certain merchandise imported into the United States contrary to 16 U.S.C. § 1538(c)(1) and 50 C.F.R. § 23.11(b)(1). 1
A jury found Ivey and Wallace both guilty on counts one, five, and seven of the indictment and, in addition, found Wallace guilty on count four. The district court assessed terms of imprisonment for both Ivey and Wallace, and they now appeal.
Ivey and Wallace allege the indictment is defective for several reasons. First, they argue counts 4, 5, and 7 should have been dismissed for failing to state a criminal offense. In counts 4, 5, and 7, appellants were charged with violating 16 U.S.C. § 1538(c)(1) of the Endangered Species Act which states:
It is unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any species contrary to the provisions of the Convention, or to possess any specimens traded contrary to the provisions of the Convention, including the definitions of terms in Article I thereof.
As defined in 16 U.S.C. § 1532(4), "the term 'Convention' means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and the appendices thereto." (emphasis added).
At the time the Convention was signed, the only bobcat listed in Appendix II as an endangered species was the Felis lynx. The bobcats in question in this case were not Felis lynx. The bobcats purchased by Ivey and Wallace were the common bobcat, or the Felis rufus. But that species had been added to Appendix II in February 1977.
The Convention standing alone is not the law of the United States because it is not self-executing. It is the implementing legislation, and not the treaty itself, which is the law of the land. See Man Hing Ivory & Imports, Inc. v. Deukmejian, 702 F.2d 760, 762 (9th Cir.1983). Ivey and Wallace maintain that the statute is clear, and, therefore, buying the bobcats in question was not illegal because the bobcats were not part of the Convention signed on March 3, 1973.
This argument is unconvincing. Appellant's argument would undermine the purpose of the Endangered Species Act which was to protect endangered species "whatever the cost." See Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 2297, 57 L.Ed.2d 117 (1978). It would be contrary to the purpose of the act to view the Convention as a static document without the ability to add species as they become endangered or remove animals that are no longer endangered. Amendment of the appendices is necessary to guarantee that species may be added or deleted as required to ensure their protection.
Additionally, article XVII of the Convention specifically provides for amendments to the Convention. If 16 U.S.C. § 1532(4) defines the Convention as the Convention signed on March 3, 1973, and the Convention expressly made provisions for amendments, then the statute's definition included any amendments.
To our knowledge no court has addressed the issue of subsequent amendments with respect to the Endangered Species Act, but courts have addressed this issue in other contexts. The Ninth Circuit has held that when a federal statute adopts state law for an Indian reservation, the applicable law is the state law at the time an offense is committed, not the state law at the time the statute was enacted. United States v. Francisco, 536 F.2d 1293, 1295-96 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50...
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