The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30021
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DEWEY BROWN,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(CR 94 30007 01)
( September 7, 1995 )
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM*:
A jury convicted Dewey Brown ("Brown") on three counts of
violating the Lacey Act, 16 U.S.C. §§ 3372 (a)(2)(A) and 3373
*
Local Rule 47.5 provides:
"The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
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(d)(2). The district court sentenced Brown to concurrent three-
year terms of supervised probation on each count, during which time
he is prohibited from hunting. The sentence also included
restitution in the amount of $1,500, a $5,000 fine, and a $75
special assessment. Brown timely appealed.
Brown argues that the court erred when it included diligent
search instructions in the jury charge. Second, he argues that the
phraseology of the instructions created prejudicial presumptions.
Brown appeals his conviction on the basis of these two contentions.
Finding no error, we affirm.
FACTS
As Brown never directly challenges his conviction on the basis
of insufficiency of evidence, the facts may be briefly summarized.
On September 13, 1991, Dewey Brown, Tommy Lee Ramage, and his son,
Tommy Lee Ramage, Jr., embarked on a hunting trip to Colorado from
Bastrop, Louisiana. Brown had a muzzle-loader elk hunting license
but no other licenses. On September 15, Brown shot and killed an
elk. On September 17, Brown shot and killed two mule deer. The
following morning Brown shot and killed a black bear, after which
he went to a convenience store to purchase a license for the bear.
The trio returned to Louisiana on September 19, 1991. Before
leaving Colorado, Brown did not have the bear inspected and sealed.
DISCUSSION
The standard of review we apply to jury instructions is
whether "the court's charge, as a whole, is a correct statement of
the law and whether it clearly instructs jurors as to the
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principles of law applicable to the factual issues confronting
them." United States v. Brown, 49 F.3d 135, 137 (5th Cir. 1995)
(quoting United States v. Pace, 10 F.3d 1106, 1120-21 (5th Cir.
1993), cert. denied,---U.S.---, 114 S. Ct. 2180, 128 L. Ed. 2d 899
(1994)).
The complained-of jury instructions given to the jury read as
follows:
Counts one, two, and three require you find a
violation of state law. You are instructed that the laws
of Colorado require that a license be obtained before a
person can take a mule deer. The laws of Colorado also
require that a license be obtained before a person can
take a black bear. The laws of the State of Colorado
also require that before a black bear is transported,
that it must be inspected and sealed.
If you find from the evidence that a diligent search
of the records maintained by the Colorado Division of
Wildlife showed that the defendant failed to obtain a
license and to take a mule deer, then you may find that
no license was obtained by the defendant to take the mule
deer. If you find from the evidence that a diligent
search of the records maintained by the Colorado Division
of Wildlife showed that the defendant failed to obtain a
license at the time he took a black bear, then you may
find that the defendant took the black bear without the
required license. If you find from the evidence that a
diligent search of the records maintained by the Colorado
Division of Wildlife showed that the defendant failed to
have the black bear inspected and sealed before it was
transported out of Colorado, then you may find that the
defendant transported the black bear out of Colorado
without having it inspected and sealed as required by
law.
INCLUSION OF DILIGENT SEARCH JURY INSTRUCTIONS
In order to establish the absence of a matter of which a
record was regularly made and preserved by a public office or
agency, evidence in the form of a Rule 902 certificate or testimony
that a diligent search failed to disclose the report is required.
See Fed. R. Evid. 803(10).
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Brown contends that the portion of the diligent search
instructions pertaining to the mule deer was inadequate because it
failed to distinguish between limited and unlimited licenses. In
Colorado, a limited license as to mule deer is strictly for muzzle-
loader hunting. An unlimited license for mule deer is only for
archery hunting. The defendant contends that since there was a
difference between limited and unlimited licenses, the jury
instruction should have reflected the difference. This argument is
without merit.
Brown has never contended that he had either license when he
killed the mule deer. A "court is not required to give an
instruction for which there is no evidentiary basis in the record."
United States v. Javino, 960 F.2d 1137, 1144 (2d Cir. 1992), cert.
denied, 113 S. Ct. 477 (1992). Consequently, the trial court's
diligent search instruction pertaining to the mule deer was
appropriate.
Next, Brown argues that the instruction as it relates to the
diligent search for the bear license was erroneous because there
was no testimony on this issue. The record reflects otherwise.
Henrietta Turner ("Turner"), who works for the State of Colorado,
Division of Wildlife, and whose title is staff assistant supervisor
to the limited licensing section, testified at trial. She stated
that in order to kill a black bear in Colorado, a hunter can obtain
two types of licenses. One is a limited license which is only for
the Spring season. The other one is an unlimited license which a
hunter can obtain over the counter. It is undisputed that Brown
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purchased an unlimited bear license at 9:00 a.m. on September 18,
1991. However, the jury found that Brown had killed the bear prior
to purchasing the license.
At trial, Turner testified that an unlimited license would not
show up in the initial record check she conducted. She also
described the process by which records of unlimited bear licenses
are maintained. She testified that a separate search revealed that
Brown had purchased an unlimited bear license on September 18,
1991, at 9:00 a.m. The government also offered the testimony of
Joe Oliveros ("Oliveros"), a special agent with the law enforcement
division of the U.S. Fish and Wildlife Service. Oliveros also
testified that a search of the records revealed that Brown had
purchased an unlimited license. However, there was no tesimony as
to the existence or nonexistence of a bear license, limited or
unlimited, prior to the one purchased by Brown on September 18.
In the determination of whether the evidence supports the
charge, the evidence and the inferences therefrom should be
examined in the light most favorable to the government. United
States v. Cartwright, 6 F.3d 294, 300-01 (5th Cir. 1993) (citing
Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86
L. Ed. 680 (1942)). While it must be conceded that none of the
government's witnesses expressly stated that a diligent search for
the bear license had been conducted, a reasonable inference to draw
from their testimony is that a diligent search was in fact
performed. Therefore, the trial court's diligent search
instruction pertaining to the bear hunting license was proper.
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Brown also contends that the diligent search instructions were
improper because there was no due diligence testimony as to the
inspection and sealing of the bear because the information was
germane only to limited licenses. Again, the record reflects
otherwise.
Turner testified that under Colorado law a bear is required to
be sealed and inspected before it can be taken out of the state.
When a bear is brought in for inspection, a questionnaire is filled
out, and the information is entered into a computer. Turner
testified that she conducted a computer search to determine whether
Brown had filled out the required questionnaire. Her search
indicated that he had not filled out a questionnaire prior to
taking the bear out of Colorado.
Contrary to Brown's assertion, this court, viewing the
evidence in a light most favorable to the government, concludes
that Turner's testimony established the existence of a diligent
search for evidence that Brown had the bear inspected and sealed
before leaving Colorado. See id. Consequently, the trial court's
diligent search instruction pertaining to the inspection and
sealing of the bear was proper.
PREJUDICIAL PRESUMPTIONS
Brown complains that the diligent search instructions created
prejudicial presumptions. The heart of his argument is that these
instructions erroneously allowed the jury to presume that he had
killed the animals in violation of state law if the diligent search
testimony indicated that he had not obtained the required licenses.
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This argument is unavailing.
"[T]he presence of an imprecise or misleading statement within
the jury instruction does not by itself entitle defendants to
reversal. Reversible error exists only if the jury charge,
considered as a whole, misled the jury as to the elements of the
offense." United States v. McCord, 33 F.3d 1434, 1447 (5th Cir.
1994), cert. denied, 1995 WL 94075 (U.S. June 12, 1995) (No. 94-
8192). The charge, considered as a whole, reflects that the
Government had to prove every element of a Lacey Act violation,
including that Brown had taken the animals without a license, in
violation of Colorado law.
CONCLUSION
Finding no merit in Brown's other points of error, the
judgment of the district court is AFFIRMED.
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