United States v. Hale, Franklin , 113 F. App'x 108 ( 2004 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0042n.06
Filed: October 22, 2004
NOS. 03-5508/5509
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
)
Plaintiff-Appellee, )
)
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF TENNESSEE
)
FRANKLIN HALE and )
CAROLYN SUE HALE, )
)
)
Defendants-Appellees. )
______________________________________
BEFORE: DAUGHTREY and SUTTON, Circuit Judges, and COOK,* District Court
Judge.
PER CURIAM. The defendants, Frank and Carolyn Hale, were originally charged
in an 11-count indictment with conspiracy to violate and ten substantive violations of the
Lacey Act, which makes it a federal crime, under certain circumstances, to violate state fish
and wildlife laws. See 16 U.S.C. § 3371-3378 (1981). After the government dismissed
Counts 8 through 11, the Hales went to trial before a jury and were convicted on six of the
seven remaining counts. They now appeal, contending that several of the counts on which
*
The Hon. Julian A. Cook, Jr., United States District Judge for the Eastern District of Michigan, sitting
by designation.
they were convicted fail to charge an offense and that the jury instructions were faulty in
at least two respects. We find no reversible error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Hales, a married couple, owned and operated a wholesale caviar business,
Royaloff Caviar, in Tennessee and Kentucky. They utilized the roe of paddlefish (Polyodon
spathula), which are large, shark-like river fish with long, flat blade-like snouts. Because
paddlefish populations are declining, many states have either limited the season for
catching paddlefish or banned fishing for them altogether. The defendants were charged
with purchasing and selling the eggs of paddlefish that were caught during the closed
season, with falsifying records relating to the caviar, and with operating a wholesale fish
business without the requisite state license.
At trial, there was extensive testimony regarding the illegal nature of the defendants’
business. Fishermen and their relatives testified that they sold the Hales paddlefish caviar
obtained during closed season and that the Hales knew that the fish had been caught
illegally. There was also overwhelming evidence that the Hales had purposefully put false
names on the records to hide the fact that they were buying the fish eggs illegally. The
Hales engaged in other deceptive behavior, such as instructing fishermen to park their cars
so that their Tennessee license plates would not show when they were selling paddlefish
eggs in Kentucky while the season was closed in Tennessee. Several fishermen testified
that Frank Hale told them that he would “take care of them” if they were ever caught fishing
illegally. Two fishermen testified that the Hales helped them obtain Illinois commercial
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fishing licenses as a cover-up, in case they were ever stopped transporting eggs while the
season was closed in Tennessee. Finally, the evidence showed that the Hales were not
licensed with the Tennessee Wildlife Resource Agency, as required by state law, between
1995 and 1998, despite the advice of several state agents who testified that they had
informed the Hales of the need to obtain such a commercial license.
Following the jury’s verdict acquitting the defendants on one count and convicting
them of conspiracy and five substantive violations, the district court sentenced Franklin
Hale to 24 months on each of the counts, to run concurrently, and Carolyn Hale to 21
months on each of the counts, to run concurrently. This appeal followed.
DISCUSSION
The Hales were convicted of violating Tennessee fishing and wildlife laws under the
Lacey Act, which “assists the states in enforcing their wildlife protection laws by making it
a federal crime ‘to import, export, transport, sell, receive, acquire, or purchase in interstate
or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation
of any law or regulation of any State . . . .’ 16 U.S.C. § 3372(a)(2)(A) (1981).” United
States v. Bryant, 716 F.2d 1091, 1093 (6th Cir. 1983).
The defendants argue that Count 1 failed to allege a criminal offense because, under
Tennessee law, no license was required to operate a wholesale fish dealership prior to
2000. This question was not raised as a challenge to the indictment prior to trial, and it is
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therefore reviewed on appeal under the standard set out in United States v. Gatewood, 173
F.3d 983, 986 (6th Cir. 1999) (emphasis added):
We review the sufficiency of an indictment de novo. See United States v.
DeZarn, 157 F.3d 1042, 1046 (6th Cir. 1998). . . . Under Rule 12(b)(2) of the
Federal Rules of Criminal Procedure, however, a defendant who contends
that the indictment fails to establish jurisdiction or to charge an offense may
raise that challenge at any time. See United States v. Hart, 640 F.2d 856,
857 (6th Cir. 1981). But when an indictment is not challenged until appeal, as
in this case, the indictment must be construed liberally in favor of its
sufficiency. See United States v. Gibson, 513 F.2d 978, 979 (6th Cir. 1975).
"Furthermore, unless the defendant can show prejudice, a conviction will not
be reversed where the indictment is challenged only after conviction unless
the indictment cannot within reason be construed to charge a crime." Hart,
640 F.2d at 857-58.
The first count of the indictment charged that the defendants conspired to violate the
Lacey Act by operating a wholesale fish dealership without a license, in violation of the
following provision of Tennessee Code Annotated §70-2-206 (1990):
Wholesale fish dealers and boat dock operators - License requirements -
Fees. (a) Before any person, firm or corporation engages in the business of
a “wholesale fish dealer” or a “wholesale mussel dealer,” as defined in this
subsection, such person, firm or corporation shall make application to the
state wildlife resources agency upon forms provided by it.
(1) “Person” includes the plural as well as the singular, as the case demands,
and includes individuals, partnerships, associations, or corporations;
(2) “Places of business,” as used in this title includes the place where orders
for aquatic products are received, or where aquatic products are purchased
or sold;
(3) “Wholesale fish dealer” means any person in the business of buying for
the purpose of selling, canning, preserving or processing, or buying for the
purpose of handling for shipment or sale, fish or other edible aquatic life or
products, to retailers and/or hotels, restaurants or cafes. Each separate
place of business shall require a separate license . . . ;
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(b) The license and fee to be paid for the same are hereby provided for and
are as follows:
(1) Wholesale fish dealer’s license...................$ 250.00
(2) Wholesale mussel dealer’s license.............$ 250.00
Tenn. Code Ann. §70-2-206 (1990) (emphasis added).
In claiming that Count 1 failed to state an offense, the defendants cite only to
subsection (a) of the statute, arguing that prior to its amendment in 2000, the statute
required merely an “application,” not an actual license. Interpreted as a whole, however,
it is clear that § 70-2-206 required a license for wholesale fish dealers at the time the
offense in this case occurred. Although he described the language of the section as
“inartful,” the district judge so held. Construing the indictment “liberally in favor of
sufficiency,” we agree with this assessment and therefore find no deficiency with respect
to the first count of the indictment.
The defendants also contend that Counts 4, 5, 6, and 7 of the indictment failed to
allege an essential element of the offense charged. This assignment of error was likewise
not raised in advance of trial, and we find it equally unavailing. Each of those counts
alleges that the defendants prepared records falsifying the identity and address of the seller
of the paddlefish, in violation of 16 U.S.C. §§ 3372(d)(2) and 3373(d)(3)(A)(ii). Sixteen
U.S.C. §3372(d) prohibits the “mak[ing] or [submission of] any false record, account, or
label for, or any false identification of any fish, wildlife, or plant which has been, or is
intended to be . . . transported in interstate or foreign commerce.” The defendants argue
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that because the indictment did not allege that the allegedly false record involved a false
identification of fish, it failed to allege an essential element of the offense.
This argument is so obviously without merit that it borders on being frivolous. The
statute clearly criminalizes making and submitting false records relating to fish that are sold
in interstate commerce. It does not, as the defendants suggest, criminalize only the false
identification of fish (i.e., passing off paddlefish caviar as sturgeon caviar). Even without
a standard of review that requires us to construe the indictment liberally in favor of
sufficiency, we find no legal deficiency in the counts in question.
We turn, then, to the defendant’s challenges to the jury instructions, reviewing
the failure of the district court to give special instructions to the jury for plain error only,
because the defendant made no contemporaneous objections to the instructions. See
United States v. Dedhia, 134 F.3d 802, 808 (6th Cir. 1998).
The defendants argue that the district court plainly erred because it did not
instruct the jury that the Lacey Act required specific knowledge, i.e., that the defendants
knew that their actions were in violation of the underlying statutes. Instead, the district
court instructed the jury that “‘knowingly’ means to act voluntarily and deliberately rather
than mistakenly or inadvertently.” This instruction is not only consistent with the language
of the statute but also with the legislative history of the Lacey Act, which indicates that the
government’s burden is to show that a defendant had knowledge that his or her conduct
was illegal, not actual knowledge of the exact underlying statutes that were violated. In this
regard, the Senate report describes “knowing violations” of the Lacey Act as those
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“violations that are committed by engaging in volitional conduct.” S. REP. NO. 97-123, at
11 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1758.
The failure to give a special instruction in this case was not error because
implicit in the court’s charge was a requirement that the government prove that the
defendants knew they were violating state law. Moreover, any failure to give a special
instruction in this case could not have affected the defendants’ substantial rights or the
fairness, integrity, or public reputation of the trial, given the overwhelming evidence of the
defendants’ guilt. See Dedhia, 134 F.3d at 808.
The defendants also argue for the first time on appeal that the district court should
have instructed the jury on a lesser-included misdemeanor offense. Under United States
v. Camejo, 333 F.3d 669, 673 (6th Cir. 2003), such an instruction is required only if:
(1) a proper request is made; (2) the elements of the lesser offense are
identical to part of the elements of the greater offense; (3) the evidence
would support a conviction on the lesser offense; and (4) the proof on the
element or elements differentiating the two crimes is sufficiently disputed so
that a jury could consistently acquit on the greater offense and convict on the
lesser.
In this case, the jury was instructed on the felony offense set out in 16 U.S.C.
§ 3373(d)(1)(B), which prohibits “the sale or purchase of, the offer of sale or purchase of,
or the intent to sell or purchase, fish or wildlife or plants with a market value in excess of
$350, knowing that the fish or wildlife or plants were taken, possessed, transported, or sold
in violation of, or in a manner unlawful under, any underlying law, treaty or regulation.”
Citing United States v. Parker, 991 F.2d 1493, 1496 (9th Cir. 1993), the defendants
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contend that the jury should also have been instructed on the lesser-included misdemeanor
charge, which prohibits non-commercial violations of the Lacey Act. See 16 U.S.C. §
3373(d)(2).
We disagree. First, there was no request for such an instruction. More importantly,
because there was overwhelming evidence at trial on which the jury could have convicted
the defendants of the felony offense under §3373(d)(1)(B), an instruction on the
misdemeanor offense was not required. Certainly, we cannot say that it was plain error not
to include an instruction on the lesser included offense sua sponte.
CONCLUSION
For the reasons set out above, we find no reversible error and AFFIRM the judgment
of the district court.
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