United States v. Fejes

No. 99-30144 (232 F.3d 696) (9th Cir. November 14, 2000)

ELR Digest

The court upholds a hunting guide's felony convictions under the Lacey Act for providing guide services to two hunters who took caribou in violation of an Alaskan regulation that prohibits hunting on the same day a hunter is airborne. In return for his guiding services, the hunters gave the guide a 30-second advertising spot on their television show. The court first holds that "sale" for purposes of 16 U.S.C. § 3373(d)(1)(B) includes both the agreement to receive consideration for guiding or outfitting services and the actual provision of such guiding or outfitted services. The plain language of the statute indicates that the provision of guide services for the illegal taking of wildlife constitutes a sale, not merely making financial arrangements for such services. The fact that the guide was not aware of the illegal activity until after the financial arrangements were made is immaterial. The district court, therefore, did not erroneously instruct the jury on this issue. The court next holds that the district court did not err in instructing the jury that felony liability could be imposed for either the transportation or sale of wildlife taken in violation of state law. The jury was properly instructed that the underlying violation could be either the knowing sale or transportation of caribouin interstate commerce. In addition, the court holds that the district court did not commit plain error by failing to give a unanimity instruction. The guide failed to demonstrate that the facts are so complex as to require a special instruction. Similarly, the court holds that the district court did not abuse its discretion by refusing to give the guide's proposed instruction to the jury because there was no foundation for the jury to find that the sale did not involve interstate commerce. Last, the court holds that the district court did not err in failing to instruct on lesser included misdemeanor violations of the Lacey Act. There was no evidence on which the jury could reasonably conclude that the guide had not "sold" wildlife with a market value of at least $ 350.

The full text of this opinion is available from ELR (11 pp., ELR Order No. L-295).

Counsel for Plaintiff
Evelyn S. Ying
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Andrew M. Parnes
Law Offices of Andrew M. Parnes
160 Second St. E., Ste. 216, Ketchum ID 83340
(208) 726-1010

[31 ELR 20241]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]