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United States v. Senchenko

ELR Citation: 28 ELR 20506
Nos. 96-30241, 133 F.3d 1153/(9th Cir., 01/08/1998)

The court affirms a jury conviction against a hunter for unlawfully snaring bears and for knowingly engaging in conduct involving an intent to sell bear parts with a market value in excess of $350 in violation of the Lacey Act. The court first holds that the government's evidence that the hunter sold or intended to sell bear parts was sufficient to link the hunter to snaring on a commercial scale. A bear caught in a snare attributable to the hunter was harvested only for commercially valuable parts. The hunter's wife testified that when he hunted bears for the family, he would bring the meat home as well as the commercially valuable parts, but no bear meat was found by the government. The government showed that the amount of bear gall bladders possessed by the hunter exceeded his family's personal needs. The court next holds that the government's drawing an analogy, during its closing argument, to possession of large quantities of narcotics, inviting the jury to infer from the volume of bear parts that they were intended for sale, did not affect the jury's ability to judge the evidence fairly. Immediately after introducing the analogy, the prosecutor told the jury that the defendant is not involved in drugs, and the judge properly instructed the jury that closing arguments are not evidence. Even if permitting the analogy to be offered was error, it was harmless. The analogy was not used as a substitute for proof, because, relying solely on the wife's testimony, a reasonable jury could decide that the three gall bladders in the hunter's briefcase exceeded an amount intended for personal use.

The court then holds that the three gall bladders, valued at $625 to $750, had "enough relationship" to be charged as a single offense. The hunter's conduct of setting snares, harvesting trapped bears, and taking the parts to his house comprises a series of acts forming a single continuing scheme. And where the acts forming conduct constituting commercial activity are closely related, the total value of the parts involved is properly taken into account. The court also holds that admitting the testimony of the government's expert witness regarding market values of bear parts was not error. The expert was qualified by training and experience to testify. The testimony was not irrelevant because sufficient evidence existed to establish the sale of gall bladders, and the testimony clearly related to the price of the organ. In addition, there is sufficient evidence of the value of the unprocessed bear parts to sustain the verdict.

The court next finds that the hunter's contention that the regulation which he is charged with having violated is unconstitutional, because it allows the violation of state law to become the basis of a federal offense, is without merit. The court then holds that there was probable cause to search the hunter's house and car. The challenged statements in the affidavit supporting the search warrant were neither knowingly nor recklessly false. Finally, the court holds that the testimony that the hunter was unemployed was not prejudicial, because it was relevant to support an inference that the hunter had a commercial intent to sell bear parts.

Counsel for Plaintiff
Timothy J. Ohms, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse.
920 W. Riverside Ave., Ste. 300, Spokane WA 99201
(509) 353-2767

Counsel for Defendant
Leslie R. Weatherhead
Witherspoon, Kelley, Davenport & Toole
110 U.S. Bank Bldg.
W. 422 Riverside Ave., Spokane WA 99201
(509) 624-5265

Before Wright and Schroeder.