U.S. v. Pitrone

• Decision Date: 08 May 1997
• Docket Number: No. 96-2090,96-2090
• Citation: 115 F.3d 1
• Parties: 27 Envtl. L. Rep. 21,322 UNITED STATES of America, Appellee, v. William P. PITRONE. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

115 F.3d 1

27 Envtl. L. Rep. 21,322

UNITED STATES of America, Appellee, v. William P. PITRONE.

No. 96-2090.

United States Court of Appeals, First Circuit.

Heard May 8, 1997.

Decided May 22, 1997.

Peter B. Krupp, Boston, MA, with whom Lurie & Krupp LLP, was on brief, for appellant.

Nadine Pellegrini, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

This harlequinade requires us to examine a matter of first impression: the degree of scienter needed for a felony conviction under 16 U.S.C. § 707(b) (1994), a part of the Migratory Bird Treaty Act (MBTA). Detecting no reversible error in the district court's rejection of the defendant's proffered jury instruction or in any other respect, we affirm the judgment of conviction.

I. THE STATUTORY SCHEME

In 1916, the United States and Great Britain (acting for Canada) negotiated a treaty to protect migratory birds. See Convention for the Protection of Migratory Birds in the United States and Canada, Aug. 16, 1916, U.S.-Can., 39 Stat. 1702; see also S.Rep. No. 99-445 (1986), reprinted in 1986 U.S.C.C.A.N. 6113, 6114 (reviewing the MBTA's historical antecedents). The treaty provides for the safeguarding of migratory birds whose pilgrimages traverse international borders. To effectuate this commitment, ¹ Congress enacted the MBTA in 1918. The United States Department of the Interior is charged with administering the MBTA, see 16 U.S.C. § 701 (1994), and the Secretary has promulgated a web of regulations. The statute and the regulations offer substantial shelter to migratory birds within the United States.

This case pirouettes around a provision of the MBTA which criminalizes the taking and selling of migratory birds:

Whoever, in violation of this subchapter, shall knowingly--

(1) take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or

(2) sell, offer for sale, barter or offer to barter, any migratory bird shall be guilty of a felony and shall be [punished as provided].

16 U.S.C. § 707(b) (1994). Under this proviso, it is unlawful for a taxidermist to receive money or compensation in exchange for a migratory bird other than from a person who originally provided the bird and requested the taxidermy services. See 50 C.F.R. § 21.24(c)(1), (2) (1996). In other words, a taxidermist may receive, transport, possess, and mount migratory birds for another person, but he may not sell any migratory birds (mounted or not) which he has taken out of the wild.

II. BACKGROUND

Following accepted practice, we sketch the facts in the light most favorable to the jury verdict, consistent with record support. See United States v. Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996); United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993).

Defendant-appellant William P. Pitrone is a taxidermist by trade and a huntsman by choice. Pitrone frequented sportsmen's shows at which he offered for sale mounted game birds. In early 1993, a browser, Chris Giglio, spotted a protected migratory bird (a Common Eider) among the birds that Pitrone displayed for sale at a show held in Boston. When Giglio began questioning Pitrone about the Eider, Pitrone immediately inquired whether Giglio was "a warden" and, upon receiving an assurance that Giglio was not, freely discussed his operation and produced a business card. Giglio suspected that Pitrone was violating federal law and informed the Interior Department's Fish and Wildlife Service (FWS) of his suspicions.

At the behest of the FWS, Giglio contacted Pitrone by telephone and arranged to visit him at his home in Medford, Massachusetts. Once inside, Giglio observed that Pitrone maintained a large inventory of mounted waterfowl. Pitrone declared that all the mounts were for sale. When Giglio reported this information to the FWS, the agents smelled smoke. They outfitted Giglio with cash and a clandestine body recorder, and sent him back to Pitrone's residence in search of fire. During the ensuing conversation, Pitrone volunteered that he had recently been to Alaska to hunt Harlequin ducks (a protected species of migratory bird) and claimed to have bagged 42 of them. He also said that he sold standing mounts for $50 apiece, flying mounts for $60 apiece, and Harlequin mounts for $75 apiece.

On May 13, 1993, Giglio returned to Pitrone's abode, this time accompanied by an undercover FWS agent. During this meeting (which Giglio surreptitiously recorded), Pitrone crowed that he had sold the 42 Harlequin mounts for $75 each, and he described in colorful language the enthusiasm with which decoy carvers clamored to purchase them. When asked why Harlequins cost more than other mounts, Pitrone replied that the price differential reflected the additional cost he had incurred in travelling to Alaska to hunt them.

By the fall of 1995, the FWS had its ducks in a row and a federal grand jury returned an eight-count indictment. At trial, the prosecution relied, inter alia, on the testimony of Giglio, FWS agent Robert Garabedian, and four of Pitrone's customers. One customer, James Olenick, told Pitrone in advance of the Alaska hunting trip that he would be interested in purchasing a Harlequin duck if Pitrone bagged one. Olenick subsequently bought such a duck from Pitrone (a transaction that formed the basis for the count of conviction). After the FWS investigation surfaced, Pitrone contacted Olenick and suggested that, if approached, he should tell the FWS agents that the duck was merely a "leftover," implying that Pitrone gave it to him as a gift. James Boone, another customer, stated that he had purchased mounts from Pitrone and had provided him with a "wish list" of mounts he sought to purchase. A third customer, Donald Todd, testified that Pitrone contacted him after a sale of two mounts and requested that Todd, if questioned by the FWS, tell the agents that his payment to Pitrone had not been for merchandise received but for services rendered. A fourth customer, George Anzivino, said Pitrone bragged that he had sold all the Harlequin ducks he had shot in Alaska, that the hunt had cost him $2400, and that he had recouped the cost by selling the birds. Later, Pitrone admonished Anzivino not to mention their conversation to anyone.

The trial lasted for six days. In the end, the jury acquitted Pitrone on seven counts, but found him guilty on count 2 (the knowing sale of a Harlequin duck). Following the imposition of sentence, Pitrone sought refuge in this court.

III. ANALYSIS

On appeal, Pitrone grouses about two rulings. One complaint implicates the jury instructions and the other centers around the admission of evidence. We discuss these remonstrances separately.

A. The Jury Instructions.

If a party asserts that an error infected the instructions given to a trial jury, a reviewing court must determine if the instructions "adequately illuminate[d] the law applicable to the controlling issues in the case without unduly complicating matters or misleading the jury." United States v. DeStefano, 59 F.3d 1, 3 (1st Cir.1995). When, as now, the alleged error involves the interpretation of the elements of a statutory offense, it poses a question of law and sparks plenary review. See United States v. Carroll, 105 F.3d 740, 744 (1st Cir.1997).

In this instance, Judge Gertner instructed the jurors that, in order to convict on count 2, they must find that Pitrone acted knowingly. This meant, the judge explained, that "he was conscious and aware of his actions, realized what he was doing and what was happening around him, and did not act because of ignorance, mistake, or accident." The government, she added, did not need "to prove that the defendant knew that his actions were unlawful," but he "must know within the meaning of the statute that he was selling a bird." Pitrone requested a more lenient instruction and objected to the instruction actually given on the ground that it did not require the government to prove that the defendant knew his actions contravened federal law.

On appeal, Pitrone widens the scope of his barrage. While he renews his claim that the government should have been required to prove beyond a reasonable doubt that he knew his conduct was unlawful (and, therefore, that the jury should have been so instructed), he goes on to raise a new and entirely different point: that the instruction afforded the jury was defective because it did not require the government to prove that he knew he was selling a migratory bird. We address the second claim first.

Pitrone cannot duck one basic fact: he did not object below to the omission of a specific statement that the government must prove that he knew he was selling a migratory bird (as opposed to a bird, simpliciter). For all intents and purposes, that ends the matter. We have been steadfast in treating as forfeit objections to a judge's charge that might have been, but were not, raised below in the approved manner. ² See, e.g., United States v. Griffin, 818 F.2d 97, 99-100 (1st Cir.1987); United States v. Coady, 809 F.2d 119, 123 (1st Cir.1987); cf. Putnam Resources v. Pateman, 958 F.2d 448, 456 (1st Cir.1992) (holding, under substantially identical civil counterpart, that "[s]ilence after instructions ... typically constitutes a waiver of any objections").

To be sure, we still retain the power to grant relief under the plain error doctrine, notwithstanding that Pitrone did not preserve this claim of error. Fed.R.Crim.P. 52(b). Still, a party who asks an appellate tribunal to correct an error not preserved at the trial level must demonstrate "(1) 'error,' (2) that is 'plain,' and (3) that 'affects substantial rights.' " Johnson v. United States, --- U.S. ----, ----, 117 S.Ct. 1544, 1546, 137 L.Ed.2d 718 (199...