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United States v. Doyle

ELR Citation: 16 ELR 20519
Nos. No. 85-3015, 786 F.2d 1440/(9th Cir., 04/15/1986)

The court holds that a Montana statute, upon which a Lacey Act conviction is based, that forbids transport of raptors without a permit, is not unconstitutionally vague, but the government failed to meet its burden of proof for a conviction under the Endangered Species Act. The court first rules that the court reporter's failure to record the content of tapes played at defendant's trial is not reversible error. The court then rules that the Montana statute prohibiting the purchase, possession, or transportation of a raptor without a permit issued by the state gives a person fair notice of the forbidden conduct. Defendant's argument that the statute does not clearly prohibit a person with a fraudulently obtained permit from transporting falcons is without merit. Montana law requires that the illegal act be committed knowingly, and the government provided sufficient evidence that defendant knew not only that the permits were unlawfully obtained, but that the falcons were not captive-bred. The court rules that an ambiguous jury instruction concerning the legality of trapping anatum peregrine falcons for falconry use was not prejudicial error. The court also holds that the government did not prove beyond a reasonable doubt that the falcons in question were anatum peregrine falcons protected under the Endangered Species Act. The government informant's testimony was hearsay, his identification was contradicted by other evidence in the record, and the government could have conclusively proven the species' identity through evidence it chose not to submit.

Counsel for Defendant-Appellant
Allan K. Butcher, Tom E. Hill
Zachry, Kearney, Hill, Shaw, Beatty & Butcher
One Tandy Ctr., 100 Throckmorton St., Fort Worth TX 76102
(817) 336-3600

Counsel for Plaintiff-Appellee
Christopher Nuechterlein
Land and Natural Resources Division
Department of Justice, Washington DC 20537
(202) 724-7378

Before Wright and Reinhardt, JJ.