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United States v. Pitrone

ELR Citation: 27 ELR 21322
Nos. 96-2090, 115 F.3d 1/(1st Cir., 05/22/1997)

The court affirms a taxidermist's conviction and sentence for violating the Migratory Bird Treaty Act (MBTA) by knowingly selling Harlequin duck mounts. The court first holds that the jury instructions were not defective even though they did not require the government to prove that the taxidermist knew he was selling a migratory bird rather than just a bird. The taxidermist failed to raise this argument below. Further, this omission, if error at all, did not seriously affect the fundamental fairness of the taxidermist's trial and, thus, did not constitute plain error. Next, the court holds that the government was not required to prove beyond a reasonable doubt that the taxidermist knew his conduct was unlawful. The court holds that MBTA §6(b) should be given its natural reading, under which the word "knowingly" applies to the putative offender's actions rather than to the legality of those actions. The term requires no more than that the defendant knew that he was engaging in the prohibited conduct. This reading comports with the plain meaning of the MBTA, with the usual canons of statutory construction, and with Congress' revealed intent. Because the district court's instructions to the jury followed this path, the court rejects the taxidermist's assignment of error. Next, the court holds that the district court did not abuse its discretion in allowing certain evidence to be admitted. Evidence regarding the taxidermist's hunting trip and subsequent sales of Harlequin skins and mounts comprises direct evidence that helps to establish the crime charged. The evidence of past and future intended sales of bird is plainly relevant to illumine the taxidermist's intent even though these sales are not themselves the basis of the charges against him. Because Fed. R. Evid. 404(b) evidence appropriately can be admitted for such a purpose, the taxidermist's claim that this is impermissible character evidence fails. The court further holds that the admission of the evidence does not violate Rule 403. The evidence possessed considerable probative value and neither evidentiary line carried with it an unacceptable risk of improper prejudice. Therefore, the conviction is affirmed.

Counsel for Appellant
Peter B. Krupp
Lurie & Krupp
125 Pearl St., Boston MA 02110
(617) 565-8335

Counsel for Appellee
Nadine Pellegrini, Ass't U.S. Attorney
U.S. Attorney's Office
1003 J.W. McCormack Bldg., Boston MA 02109
(617) 223-9400

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