United States v. Romano
Citation: 28 ELR 21013
No. 97-1630, 137 F.3d 677/(1st Cir., 03/09/1998)
The court holds that § 4(d) of the Lacey Act does not criminalize the purchase of lawful guiding and outfitting services to facilitate a taking of wildlife that if effectuated would be in violation of state law. False representations of Alaska residency made by a hunter from Massachusetts invalidated his hunting licenses, making his kills unlawful under Alaska law. The court first holds that a hunter who purchases guiding or outfitting services to assist him in a prospective unlawful taking of wildlife can neither know nor have reason to know at the time of his purchase that the wildlife he has constructively purchased by operation of § 3(c) "were taken" in violation of state law. For such conduct to constitute a crime under § 4(d), the accused must engage in the conduct with a statutorily prescribed knowledge base. It is clear that Congress' use of the word "were" in § 4(d) implies that, at the time of the purchase, the underlying taking, possession, or act of transport cannot still be in prospect, it must have already occurred. In the case at hand, where there was nothing unlawful about the repeated sales of guiding and outfitting services to the hunter, there is absolutely no basis for concluding that when he purchased these services, the hunter knew or had reason to know that the wildlife he constructively purchased were sold in violation of Alaska law. A buyer's private intention to use a purchased item for unlawful purposes does not, without more, make the sale of that item unlawful.
The court further holds that systematic considerations of Rule 52(b) of the Federal Rules of Criminal Procedure militate in favor of reversing the hunter's convictions. The word "were" plainly cannot encompass prospective conduct, and this defect affected the outcome of the hunter's trial. While the hunter is clearly guilty of having committed misdemeanor violations of certain Alaska hunting laws, he is just as clearly innocent of the felony charges for which he stands convicted. Furthermore, to the extent that this might be a test case, the court believes there is a strong institutional interest in informing the government that its construction of the Lacey Act is seriously flawed. Similarly, it is also important to inform Congress that should it wish to criminalize the type of conduct at issue in this case, it must amend the statute.
Counsel for Appellee
Nadine Pellegrini, Ass't U.S. Attorney
U.S. Attorney's Office
1003 J.W. McCormack Bldg., Boston MA 02109
Counsel for Appellant
Law Offices of Wendy Sibbison
26 Beech St., Greenfield MA 01301
Before Cyr and Lynch, JJ.