United States v. Steven Seibert , 695 F. App'x 746 ( 2017 )

Case: 16-41151 Document: 00514028953 Page: 1 Date Filed: 06/12/2017
REVISED June 12, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-41151 FILED
Summary Calendar June 9, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STEVEN MICHAEL SEIBERT,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:15-CR-47-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Steven Michael Seibert appeals his convictions for false labeling and
unlawfully transporting and selling an endangered species, in violation of
16 U.S.C. §§ 3372(d)(2) and 1538(a)(1)(E) and (F). He argues that the evidence
is insufficient to support either count of conviction.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-41151
Because Seibert preserved his challenge to the sufficiency of the evidence
by moving for a judgment of acquittal at the close of the Government’s case and
at the close of all of the evidence, the standard of review is de novo. United
States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013). We must determine whether,
viewing the evidence and the inferences that may be drawn from it in the light
most favorable to the verdict, any rational trier of fact could have found that
the essential elements of the crime were proved beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
When viewed in the light most favorable to the verdict, a rational trier
of fact could have found that the evidence established that Seibert knowingly
sold an endangered species through interstate commerce and knowingly
created false paperwork regarding the sale. See id.; see also 16 U.S.C.
§§ 3372(d)(2), 3373(d)(3)(A)(ii), 1538(a)(1)(E) and (F), 1539, 1540(b)(1); United
States v. Fountain, 277 F.3d 714, 717 (5th Cir. 2001); United States v. Ivey,
949 F.2d 759, 766-67 (5th Cir. 1991). The trial testimony and evidence showed
that Seibert had purchased an African leopard from auction; that he advertised
an African leopard for sale on his website from his ranch in Oklahoma; that he
negotiated the sale of the leopard to a buyer in Texas; that he physically loaded
the leopard onto the ranch’s truck in Oklahoma for direct delivery to Texas;
that he asked to use Shane Clement’s address in Bonham, Texas, to make the
sale appear to be legal, then created a receipt which falsely listed Clement as
the seller; that his employee drove the truck carrying the leopard from
Oklahoma to the delivery point in Denton, Texas, without stopping in Bonham;
and that he instructed both Clement and his employee to lie and say, if asked,
that the leopard came from Clement’s address in Bonham.
The thrust of Seibert’s appellate argument is that the jury should have
credited his testimony over the testimony of the Government’s witnesses.
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However, this court will not revisit that credibility determination. United
States v. Kuhrt, 788 F.3d 403, 413 (5th Cir. 2015), cert. denied, 136 S. Ct. 1376
(2016).
Seibert also contends, for the first time on appeal, that trial counsel was
ineffective in failing to pursue an entrapment defense and in failing to request
a jury instruction on entrapment. The record is not sufficiently developed to
allow us to make a fair evaluation of the claim; we therefore decline to consider
the claim without prejudice to collateral review. See United States v. Isgar,
739 F.3d 829, 841 (5th Cir. 2014).
AFFIRMED.
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