U.S. v. Thomas

• Decision Date: 13 October 1989
• Docket Number: No. 88-3288,88-3288
• Citation: 887 F.2d 1341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward A. THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1341

887 F.2d 1341

UNITED STATES of America, Plaintiff-Appellee, v. Edward A. THOMAS, Defendant-Appellant.

No. 88-3288.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 8, 1989.

Decided Oct. 13, 1989.

John P. Atkins, Bozeman, Mont., for defendant-appellant.

Kris A. McLean, Asst. U.S. Atty., Helena, Mont., for plaintiff-appellee.

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

Before ALDISERT ^*, WRIGHT and BEEZER, Circuit Judges.

ALDISERT, Circuit Judge:

The issue in this case is whether Edward A. Thomas, a Montana hunting guide and outfitter, may be found guilty by jury of two counts of conspiracy to violate the Lacey Act, 16 U.S.C. Secs. 3371 et seq. The alleged object of the conspiracy was "to transport, receive and acquire elk in interstate commerce ... in violation of Montana state hunter's law." Although this court has previously established that a prosecution under the Act may not properly be had for the substantive acts of selling guiding services and hunting permits, United States v. Stenberg, 803 F.2d 422 (9th Cir.1986), the issue of whether prosecution may be maintained for conspiracy to violate the Act through such acts has not yet been decided by this court.

The Lacey Act prohibits transportation or acquisition in interstate commerce of wildlife in violation of state, tribal and federal wildlife laws. A United States District Court found Thomas guilty of conspiracy to violate the Act, imposed a fine upon him, sentenced him to three years probation, and required him to forfeit all hunting, fishing, trapping and guiding privileges during the probation period.

Thomas contends that the Lacey Act does not apply to guiding/outfitting services, that the government failed to present sufficient evidence to support a connection conspiracy under either count, that it failed to prove the jurisdictional qualification of interstate transportation, and that the court applied an improper statute of limitations.

Jurisdiction was proper in the trial court based on 18 U.S.C. Sec. 3231. Jurisdiction on appeal is proper based on 28 U.S.C. Sec. 1291, and the appeal was timely filed under Rule 4(b) Fed.R.App.P.

The standards of review are familiar. Whether the informations alleged a violation of law, whether the lower court properly interpreted the Lacey Act, and whether the district court's instructions to the jury misstated elements of a statutory crime are questions of law which are reviewed de novo. Julian v. United States Dept. of Justice, 806 F.2d 1411, 1416 (9th Cir.1986), aff'd, 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether, "after 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." United States v. Lane, 765 F.2d 1376, 1381 (9th Cir.1985) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

I.

Late in 1986, Gene Meister, a Wisconsin resident, contacted Thomas to arrange two Montana elk hunts, one for Dale Hibbard and Mark Braden and the other for Meister's nephew, Jim Cotterman. Montana requires both a non-resident special elk hunting license and a late season permit, which neither Braden nor Hibbard had.

Thomas testified he is licensed as an outfitter by the State of Montana and has known Gene Meister for approximately three years. Hunters from Lake Geneva, Wisconsin, would often communicate with him through Meister. He acknowledged that to become a Montana licensed outfitter one must take and pass an extensive test, including a section on the state's hunting laws and that he was aware that a person may hunt in Montana only with a valid license issued in his or her name. Brief for appellee at 13. He testified he had obtained approximately $7,000 worth of business from Gene Meister over the years and that repeat business is important to an outfitter. Id. at 12. We will address the two hunts separately.

A.

Because Braden and Hibbard did not have the necessary Montana hunting licenses and late season permits, Meister arranged for them to use licenses and permits belonging to two other men, John Register and Larry Otto. Meister mailed these licenses and permits to Thomas in advance so that Thomas and his guides could arrange to have the licenses and permits validated by the Montana Fish and Game Department and obtain a preferred hunting area. On the evening of January 16, 1987, Hibbard and Braden arrived at the Thomas residence, paid their guide fee to Mrs. Thomas, and accepted the hunting permits made out in the names of John Register and Larry Otto. It is unclear how the two men introduced themselves. Mr and Mrs. Thomas each testified that they did not look at the names on the permits, and did not know the two men were hunting on other hunters' licenses while Hibbard and Braden testified that they "assumed" Thomas knew this. Thomas understood that Braden was going to take any elk he shot back to Wisconsin with him.

Sometime prior to January 18, 1987, Montana Game Warden James Heck learned that a person posing as Larry Otto would be hunting in Montana during the late elk hunting season. He informed his personnel to notify him if they encountered anyone known as Larry Otto. On January 18, a Larry Otto appeared at the Gallatin Check Station. An employee notified the warden that a person claiming to be Otto was there along with a John Register. The warden then communicated with the real John Register who was in Wisconsin. Braden and Hibbard then admitted that they were hunting with improper documentation. The warden issued tickets fining Hibbard and Braden a total of $600 for closed season elk hunting.

B.

Meister also forwarded to Thomas the license and permit belonging to William Wheeler of Illinois for the use of Meister's nephew, Jim Cotterman. When Cotterman arrived at the house, a permit in the name of Wheeler was waiting for him. Cotterman introduced himself to Thomas using his real name. Thomas then handed Cotterman a Montana special elk hunting permit issued to William Wheeler and told him, "That's who you are." When Cotterman asked the defendant what to do if he got caught, the defendant replied, "Don't worry about it," he would take care of it. On the first morning of his hunt, Cotterman killed a cow elk and Thomas placed Wheeler's hunting license on it. Jim Cotterman then gave the dead elk to a hunting companion, Gordon Iverson, who happened to be the father of the William Wheeler whose hunting license Cotterman was using.

At the time of the alleged conspiracy, William Wheeler lived in Harvard, Illinois, and owned and operated a trailer truck. He obtained licenses to hunt both regular and late seasons in Montana as a graduation present from his parents. Meister had filled out the required application to obtain the Montana non-resident licenses for him and accompanied him on a fall 1987 hunt in Montana, but Wheeler did not hunt elk in Montana during the late season of 1987. Even so, a full grown cow elk with William Wheeler's license attached appeared alongside William Wheeler's driveway in Illinois several days after Wheeler's father, Gordon Iverson, came home from hunting elk in Montana with Cotterman.

II.

By information Thomas was charged with two counts of conspiring to violate the Lacey Act, 16 U.S.C. Secs. 3372(a)(2)(A) and 3373(d)(2), which prohibits transportation or acquisition in interstate commerce of wildlife possessed, transported or sold in violation of any state law. It is central to this appeal that Thomas was charged with conspiracy only and not charged with committing the substantive offenses. The Montana laws underlying this action provide in relevant part:

License required. It is unlawful for any person to: ... (3) ... pursue, hunt, trap, take, shoot, or kill ... any game animal ... without first having obtained a proper license or permit ...

Mont.Code Ann. Sec. 87-2-103.

Alteration of transfer of license. No person may at any time alter or change in any material manner or loan or transfer to another any license, nor may any person other than the person to whom it is issued use it.

Mont.Code Ann. Sec. 87-2-110.

The federal Lacey Act provides in relevant part:

It is unlawful for any person--

(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce--(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law ...

16 U.S.C. Sec. 3372(a)(2)(A).

Any person who--

* * *

(B) violates any provision of this chapter ... by knowingly engaging in conduct that involves the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase, fish or wildlife or plants with a market value in excess of $350, knowing that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in any manner unlawful under, any underlying law, treaty or regulation, shall be fined not more than $20,000, or imprisoned for not more than five years, or both....

16 U.S.C. Sec. 3373(d)(1)(B).

Any person who knowingly engages in conduct prohibited by any provision of this Act ... and in the exercise of due care should know that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation shall be fined not more than $10,000, or imprisoned for not more than one year, or both.

16 U.S.C. Sec. 3373(d)(2).

III.

Thomas first argues that the Lacey Act's prohibition against transporting, receiving, or acquiring wildlife taken in violation of state law does not extend to providing guiding services. In support of this argument, he relies on United States v. Stenberg, 803 F.2d 422...