Petition for Writ of Certiorari — Hale v. United States (No. 04-1362)
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ome Court, U.,
6 Ss
041562 pee z ~ 2005
N°.
Jn The
Supreme Court of the GAnited States
4
FRANKLIN HALE AND CAROLYN HALE,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
¢
On Petition For A Writ Of Certiorari
To The United States Court of
Appeals For The Sixth Circuit
+
PETITION FOR A WRIT OF CERTIORARI
with Appendix
+
* Charles P. Dupree
ATTORNEY AT LAW
101 Robinson Bldg.
622 Georgia Avenue
Chattanooga, TN 37402
z (423) 756-1841
* Counsel of Record
Counsel for Petitioners
March, 2005
LEGAL ADVANTAGE @ 432 Walnut Street @ Cincinnati, OH 45202
(800) 581-2252
ESTI ENTE VIEW
This Petition is filed on behalf of husband and wife
Defendants convicted of violations of the Lacy Act, 16 USC
3372 and 3373
The conviction was in a jury trial, and the sentencing
was done by the Trial Court after overruling Motion(s) for
New Trial by Defendant.
The Questions Presented for review are:
I. On counts | and 3, the court’s charge as to the
required knowledge of the defendant was
insufficient.
Il. The district court erred by not charging the
jury the provisions of 16 U.S.C. § 3373(2).
Iii. | Count 1 as pleaded and charged does not
allege a criminal offense.
IV. The indictment in counts 4, 5, 6 and 7
charging a violation of Title 16 U.S.C. §
3372(d)(2) and § 3373(d)(3)(a)(ii) and Title
18 U.S.C. § 2 fails to allege an essential
element of the offense in violation of the 5"
Amendment of the United States constitution.
The sentencing in this case violated the
holdings of this Court In Blakely v
Washington and_U.S. v Booker in that the
Court Considered relevant conduct evidence
not found by the jury, including that from the
dismissed Counts and sentenced Appellants to
sentences he felt were mandated by the
Federal Sentencing Guidelines
il
PARTIES TO THE PROCEEDING
The Caption of this Petition completely and precisely
reflects all parties to the proceeding. There are no Corporate
interests subject to disclosure.
LP AEA tee we
_— OC TE OOM IER Tn
— Ss es
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TABLE OF CONTENTS
Issues Presented for Review ..............ceeeeeeee i
SRO IE 6. 04056 0400c0nekeinewteeen ill
Table of Contents ..... ecnenésesunsnnbsneaeceaees iv
SEE AA 6 nc cecrnrcnccsusesiéecedeet v-Vil
Citations of Guimioms Belew 2... ccccccccccccccccns 1
UE EE SU ib. i vid cccdkcdkacdeiestetesseen 1
Constitutional Provisions Involved .................. 2
se TTT TT ITT TT etre re 3
PTE 6 :i.o.c cca ccsckevesscissaseseseonannee 15
COED ov ccconcescesedoreusbaeiewatsee 29
iv
TABLE OF AUTHORITIES
Cases Cited
Blakely v Washington,
2004 WL 1402697, 1264 S.Ct. 2531 (2004) ....... 15, 27
Hamlin v United S
206 F. 3°. 960 (OOD)... cc ccccccccccccccccccccccs 24
fact Virsini
vyviig 7 Seer. 19
Russell v United States
SED UG. PAD CIGEED 0c ccccccccccccoscccscecsscses 25
US. v Booker
$43 U.S.__, (January 12, 2005) ............5+. 15, 27
U.S. vy Brown,
995 F.2d. 1493 (10 Cir., 1993)... 2.0... cece eee eeee 25
US. vy Bryant,
716 F.2d. 1091 (6 Cir., 1983) ..........ceeeeeeeees 18
US. v Crockett,
812 F.2d. 626 (10 Cir. 1987) ............ceeeeeeee 26
US. v Dale,
178 F.3d. 429 (6* Cir. 1987) .........ceceeeeeeeees 20
US. vy Dashney,
117 F. 3d. 1197 ( 10" Cir. 1997) .... 2... .0000 eee eee 24
U.S. v Feola,
PES Seep ee OES ee Oe Ars 17
967 F.2d.483 (11 Cir. 1992) ...................... 25
841 F.2d. 1225 (4* Cir. 1988) ..................... 25
742 F.2d. 493 (9" Cir. 1984) ......... 2.00... 17
283 F.3d. 1098 (9* Cir. 2002) ..................... 19
991 F.2d. 1943 (9* Cir. 1993) ..................... 19
U.S. v Prentiss,
206 F.3d. 960 (10" Cir. 2000) ..................... 24
US. v Radetsky,
ee 25
U.S. v Thomas,
887 F.2d.1341 (9* Cir. 1989)...................... 17
Yates v United States,
IE i che coerce ese eo ee 22
vi
Statutes and Rules
ll ad a ok oe oe a a ae ee 15, 18, 23
ae weed 15, 18, 19,23
Ee eee ee ee 3, 15, 23
I ic cee enc uene nade kecwnen wa 23, 18, 20
Tennessee Code Annotated, 70-2-206 ............ 19, 21
Constitutional Provisions
Vil
The Opinions of the District Court are contained in the
Joint Appendix of the Record before the Sixth Circuit Court
of Appeals. The decision of the Sixth Circuit Court of
Appeals, from which this Writ is Prayed, is Not
Recommended for full text Publication and has been assigned
the citation of 2004 Fed App 0319p (6" Cir.)
The Sixth Circuit decision is contained in the
Appendix to this Petition.
STATEMENT OF JURISDICTION
The decision of the Sixth Circuit Court of Appeals
from which this review is requested was entered on October
22, 2004 . A Petition for Rehearing was timely requested, and
that petition was denied on January 6, 2005.
This Court has Jurisdiction for this Petition under 28
USC 1254(1) and 28 USC 2101).
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the due process and trial rights
provisions of the Fifth and Sixth Amendments to the United
States Constitution, which read as follows:
AMENDMENT V
No person shall ... be deprived of life, liberty, or
property, without due process of law ...
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his
defense.
CAS Re RESIN REBAR ase kidd amid anes : 3 aa '
- Wiki otewe ene nthe oy Ait, Sh BER Lott Sehnert wee Pia hbet OSM adadl ral ee ee we Oe ae a
STATEMENT OF THE E
The parties will be referred to as they appeared below:
that is Appellants Carolyn and Franklin Hale as "Defendants"
or Hales and the Appellee United States as "Government" or
USA. The hearings involved in this appeal are the trial of the
case beginning on May 7, 2002 and the sentencing held on
March 21, 2003. References to these hearing transcripts will
be referred to as "TR", and references to the technical record
will be referred to as "RE".
The Appellants have run and operated a paddlefish
purchasing and re-selling business for several years, locating
in Kentucky and in Savannah, Tennessee. Their business
name is Royaloff Caviar.
The Hales, who are husband and wife, and two other
individuals were indicted in a 10-Count Indictment. (RE 1,
Indictment). Count 1 charged the Appellants with conspiracy
to violate the Lacey Act in violation of Title 18 United States
Code § 371. Counts 2 and 3 charged the Appellants with
violations of the Lacey Act, Title 16 United States Code §
3372(a)(2)(A) and 3373(d)(1)(B) and Title 18 United States
Code § 2. Counts 4 through 10 charge violations of the Lacey
Act relative to false documents, Title 16 United States Code
§ 3372(a)(2)(A) and § 3373(d)(1)(B) and Title 18 United
States Code § 2.
Prior to trial, on motion of the Government, Counts 8,
9 and 10 were dismissed. (RE 85, Order).
3
At the trial, a stipulation was introduced that several
individuals would testify that they were located outside the
state of Tennessee and operated wholesale and retail
businesses selling paddlefish caviar from Royaloff Caviar
located in Savannah, Tennessee, Chattanooga, Tennessee, and
Morganville, Kentucky. (TR 5-7-02, The Court, pp. 176-
177).
Steve Nifong, Chief of Law Enforcement for
Tennessee Wildlife Resources Agency, introduced several
proclamations passed by the Wildlife Resources Commission.
Also, Tennessee Code Annotated § 72-206, Part A, which
States:
Before any person, firm, or corporation
engages in the business of a wholesale fish
dealer or 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.
He then read the definition set forth of wholesale fish dealers
which is:
Wholesale fish dealer means any person in
business of buying for the purpose of selling,
canning, preserving, or process, or buying for
the purpose of handling for shipment or sale
fish or other edible aquatic life or products to
a ae i aa’
retainers and/or hotels, restaurants or cafes,
each separate place of business shall require a
separate license paid in.
He was present during the execution of a search at the Hales’
residence in Chattanooga, and observed they were operating
a wholesale fish dealership there. (TR 5-7-02, Nifong, pp.
179-190). The statute did not specify that a wholesale fish
dealer had to have a license. (TR 5-7-02, Nifong, pp. 192-
221).
A stipulation was introduced that the Defendants
purchased caviar from fishermen, processed caviar, sold and
shipped caviar from their residence in Chattanooga,
Tennessee, to buyers outside of Tennessee. (TR 5-7-02, The
Court, p. 222).
Billy Wishard, of Oklahoma, had two convictions for
illegal paddlefishing and testified for the government. After
his first arrest, he obtained $14,000.00 for bail money from
the Hales. After the State of Oklahoma was closed to further
paddlefish harvesting by law, he sold eggs to the Hales from
there prior to being arrested in Chattanooga. He traveled the
interstate from Memphis to Chattanooga. He made several
sales, all but two of which were in Kentucky where he tried to
park his car so no one could see his license plate. He never
told the Hales where he obtained the eggs. He received
receipts in the name of Bill Deals. He used that name for tax
purposes and did not know if the Hales knew Oklahoma was
closed. (TR 5-9-02, Wishard, pp. 636-646). He fished in
Alabama, Tennessee and Oklahoma. (TR 5-9-02, Wishard,
pp. 656-661).
Vernon Green, a Game Warden from Oklahoma,
testified that the state was closed for paddlefish since 1991.
He claimed he met the Hales at a symposium and advised
Carolyn Hale that Oklahoma was closed. (TR 5-9-02, Green,
pp. 663-672).
Craig Preston, a commercial fisherman in Kentucky,
testified that he took caviar to Chattanooga and sold it on
numerous occasions over a three (3) year period. The Hales
sold caviar in Chattanooga. He lived with the Hales about
one month and saw others bring caviar there. He fished with
Byron Mann in the closed Wabash River, and sold eggs to the
Hales. Their real names were used for records. (TR 5-9-02,
Preston, pp. 674-683). He was present when Frank Hale
bought illegally snagged paddlefish. (TR 5-9-02, Preston, pp.
690-692). The Hales were aware he fished in closed waters.
Carolyn Hale would give him a ticket for the eggs. He heard
her talk about using false names. He had an arrangement with
Frank Hale over the raising of paddlefish. (TR 5-9-02,
Preston, pp. 694-723); (TR 5-9-02, Craig Preston, pp. 726-
731).
Yvonne Preston occasionally fished with her husband
in closed waters and sold the eggs to the Hales in Chattanooga
for four (4) or five (5) years. (TR 5-9-02, Yvonne Preston,
732-736). She stated they would use false names on the
6
yl ae ee
documents. She kept a set of records of her husband’s
fishing. (TR 5-9-02, Yvonne Preston, pp. 739-750). She did
not know if Carolyn Hale was putting the correct name on the
documents or not. (TR 5-9-02, Yvonne Preston, pp. 754-
757).
Dennis Defriese of Chattanooga, a commercial
fisherman, sold eggs to Frank Hale and others. He had a
conviction for violation of the Lacey Act in 1989. He went to
Arkansas, fishing with Bill Wallace, but as he was not an
Arkansas citizen, he lost his license, which Frank Hale knew.
He used Bill Wallace’s license and sold caviar under his name
to Frank Hale. He told the Hales he had a license. The Hales
provided money for him to process eggs in Arkansas. (TR 5-
9-02, Dennis Defriese, pp. 759-771). He admitted to tape
recording a meeting with his wife, Carolyn Haie and himself.
(TR 5-9-02, Dennis Defriese, pp. 779-783) (TR 5-9-02,
Dennis Defriese, pp. 789-793).
Janice Defriese testified that she was in Arkansas with
her husband and introduced checks and faxes from Frank
Hale used to buy caviar. The caviar was taken to Chattanooga.
She has a check fraud conviction. (TR 5-9-02, Janice
Defriese, pp. 795-807).
William Wallace, a Dunlap, Tennessee commercial
fisherman, sold to Frank Hale in Kentucky, Arkansas and
Tennessee. He sold eggs from Arkansas to Frank Hale in
Arkansas and eggs from Tennessee in Chattanooga. Receipts
were made in his correct name. He did not know Defriese
7
was using his name. (TR 5-9-02, William Wallace, pp. 809-
815).
Molly Wallace testified she helped her husband and
they sold eggs to the Hales in Chattanooga, Kentucky and
Savannah. (TR 5-9-02, Molly Wallace, pp. 816-822).
James Mize had two burglary convictions and he was
potentially facing Federal charges. Due to an internet
advertisement, he went to the Hales’ residence in Chattanooga
and sold caviar. He gave the Hales a false name and was
never asked for identification. This relationship began in
1997 and continued for approximately three (3) years. He told
the Hales he was snagging fish, which was illegal. Carolyn
Hale helped him get an Illinois commercial fishing license,
but he never fished Illinois. He sold caviar to the Hales using
the name Gene Davis. He only brought eggs and not whole
fish. The Hales could not identify the eggs he brought as
having been from snagging as opposed to a net. At first the
Hales only knew him by the false name he gave them. It was
his decision not to get a commercial fisherman’s license. (TR
5-10-02, Mize, pp. 838-867) (TR S-10-02, Mize, pp. 872-
873). :
Gary Runions of Townsville, Tennessee was a
commercial fisherman and stated that between 1995 and 1999
he sold caviar caught in Tennessee to the Hales in
Chattanooga. A few times he sold eggs in Kentucky. Frank
or Carolyn Hale asked him to say he sold the eggs in
Kentucky when he had not. He knew they were moving to
Kentucky and wanted all their sales to go through there. (TR
5-10-02, Gary Runions, pp. 875-884).
Mary Runions delivered eggs for her husband to
Chattanooga, Tennessee and did not remember seeing Frank
Hale. She introduced a document which said sold in
Kentucky but she never sold to the Hales in Kentucky. (TR
5-10-02, Mary Runions, pp. 886-891).
Perry Chism, a commercial fisherman, previously
convicted of a the Lacey Act, sold caviar to the Hales in
Kentucky, where he saw Carolyn Hale write out a ticket and
put someone else’s name on it. (TR 5-10-02, Perry Chism,
pp. 893-897).
Sylvia Chism delivered eggs to Chattanooga on two or
three occasions, and used a false name, which the Hales were
aware of. (TR 5-10-02, Sylvia Chism, pp. 899-908).
Jimmy Harris worked for Mr. Linsman, who bought
and sold caviar and he delivered caviar on one occasion to
Chattanooga, and one time to Kentucky. (TR 5-10-02, Harris,
pp. 910-917).
Ricky Meison, a commercial fisherman who had
entered a guilty plea for a violation of the Lacey Act, testified
he sold eggs to the Hales in Chattanooga, Arkansas and
Kentucky. He fished the closed season, processed the eggs,
and sold them to Frank Hale, who knew they were caught
during the closed season. (TR 5-10-02, Ricky Melson, pp.
919-927). Sometimes Carolyn Hale put false names on the
paperwork for fish delivered in Kentucky. True and false
9
names were used on paperwork in Chattanooga. He
introduced numerous documents. He had Illinois fishing
license in the event he was stopped in Tennessee, as
instructed by the Hales. (TR 5-10-02, Ricky Melson, pp. 928-
947) (TR 5-10-02, Ricky Melson, pp. 948-952). His income
tax return showed false amounts and he made up some names
on the invoices which he did not report income from. He
believed the Hales cheated him out of money. The Hales
relocated to Savannah, Tennessee in 1999. He processed eggs
and kept them until after the season opened. It was a practice
to take other people’s caviar to the buyers and sell it on their
behalf. (TR 5-13-03, Ricky Melson, pp. 968-1063).
Barbara Turner went to Kentucky twice with Ricky
Melson and sold caviar to Frank Hale and Carolyn Hale did
the paperwork. The ticket had a false name. In early 1990,
she went to Chattanooga and someone handed her a ticket to
sign. (TR 5-13-02, Turner, pp. 1071-1076).
Patsy Cornelius saw Ricky and Anthony Melson
between 1995 and 1999 processing eggs during the closed
season. (TR 5-13-02, Cornelius, pp. 1077-1095).
Debbie Blackwelder observed Anthony and Ricky
Melson putting their boats in during closed season. She only
saw paddlefish in Ricky Melson’s boat during the spring of
1999, and the season had opened on April 15" that year. (TR
5-13-02, Blackwelder, pp. 1096-1110).
10
Maudie Melson, between 1995 and 1999, saw
Anthony and Ricky Melson go fishing during the closed
season. (TR 5-13-02, Maudie Melson, pp1 112-1132).
Shawn Karns, a Criminal Investigator for the State of
Tennessee, testified concerning an undercover operation
which he ran. He visited at Hales business in Kentucky, as
well as Savannah, Tennessee. (A different court reporter was
present, for this day of the trial, therefore a different page
numbering system was used). (TR 5-14-02, Karns, pp. 3-10).
John Rayfieid of the United States Fish and Wildlife
Services was involved in the search in Savannah. The records
show sales made inside and outside of the state of Tennessee
from 1995 through 1999. (TR 5-14-02, Rayfield, pp. 10-13).
After presenting this evidence, the Government rested.
Sharon Grove and Jane Haggard testified concerning
the Melson family relationships. (TR 5-14-02, Grove, pp. 68-
79); (TR 5-14-02, Haggard, pp. 78-86).
Bobby Joe Hale, brother of Frank Hale, said he
occasionally worked with the Hales in Chattanooga and Mr.
Melson brought in coolers of eggs with different names on
them. That these eggs were weighed and written up
separately in the names of the individuals on the coolers.
That other individuals brought in eggs in coolers with
different fishermen’s names on the coolers. (TR 5-14-02,
Bobby Joe Hale, pp. 87-100).
Albert A. French, commercial fisherman with a
partner named David White, sometimes signed David White’s
11
name to the documents. It was not uncommon for fishermen
to take other fishermen’s eggs in to sale. (TR 5-14-02,
French, pp. 100-110).
William Harris, commercial fisherman, stated he had
sold some eggs. (TR 5-14-02, Harris, pp. 110-116).
James Robertson testified he sold caviar to the Hales
and would take other fishermen’s caviar to be sold at the same
time. (TR 5-14-02, Robertson, pp. 116-126).
Frank Hale testified he has a home in Chattanooga and
been in the caviar business for approximately 32 years. He
was doing business as Royaloff Caviar, which was a sole
proprietorship at his residence when he bought a farm in
Kentucky and moved there. He testified about his hatchery
and supplying fish in Kentucky and Savannah. (TR 5-14-02,
Frank Hale, pp. 126-145). While operating in Kentucky, they
would come home to Chattanooga in the summer when the
season was over and there were situations where customers
would call Chattanooga and drop off caviar in Chattanooga.
He became aware in 1998 that Tennessee was giving out
applications for caviar licenses. He made inquiries to various
members of the Tennessee Wildlife Resources Association
concerning the need for a license, but did not believe they
needed one until approximately August of 1999, when Agent
Todd faxed them information while they were in Kentucky.
He never received an letter sent to them in Chattanooga in
1998, as they were in Kentucky. When his business moved to
12
Savannah, Tennessee, he filed an application with the state
and bought a license.
It was a common practice for one fisherman to bring
in the eggs of other fishermen and to collect on their behalf.
Whoever brought in the caviar would sign the names of the
other fishermen on the necessary invoices. In 1990, Hale and
his attorneys developed a form having fishermen sign that the
caviar came from legal waters. As fishermen could process
and preserve their own caviar, they could keep it stored for
months before they actually sold it. He did not know that
Neil Defriese, Jr. did not have a licence. Other times he was
present when Ricky Melson brought in caviar and he never
had any reason to believe that his eggs were from closed
waters or were out of season.
When individuals brought in large quantities of caviar,
they would put on the invoice the initials of the person who
actually delivered the caviar to their buying station. He
testified about his income from 1995 until 1999. He did not
obtain a list of the names of the commercial fishermen in a
state and had no reason to obtain their license numbers. In
1998, « fisherman could sell caviar eggs without being a
commercial fisherman. He talked to several members of the
Tennessee Wildlife Resources Association, and had they told
him what kind of license he would need.
Hale never told anyone to use a false name on a record
nor did he hear Carolyn Hale tell anyone to do so. When Mr.
Cartwright came to Chattanooga there was a discussion that
13
he could be in violation by not having a Tennessee license,
but that he responded that he did not know he had to have a
buyer’s license in Tennessee. (TR 5-14-02, Frank Hale, pp.
152-212).
After this proof, The defense rested.
The Court charges the jury, and then after the jury
spent some time deliberating without being able to reach a
verdict, the Court gave an Allen charge. The jury returned
with convictions of the Appellants as to Counts 1, 3, 4, 5, 6
and 7, with a verdict of not guilty as to Count 2. (RE 168,
169, 170, Minutes 3/21/03).
On March 21, 2003 Franklin Hale was sentenced to a
term of 24 months, 3 years of supervised release, a
$25,000.00 fine, and a $100.00 special assessment for each
Count. Carolyn Hale was sentenced to a term of 21 months,
a supervised release term of 3 years, a fine of $25,000.00, and
a $100.00 special assessment for each Count. (RE 172, 173,
Judgment).
A timely Notice of Appeal was filed for both
Appellants. (RE 174, Appeal).
The Appellant were allowed to remain on bond
pending this appeal. (RE 183, Motion for Release on Bond).
Notice of Appeal was timely filed to appeal the case
to the Sixth Circuit Court of Appeals, and the case, after
briefing and supplemental briefing was argued before a panel
of the Sixth Circuit on July 24, 2004.
14
The decision of the Court of Appeals denying the
appeal was filed on September 22, 2004. A timely Petition to
Rehear was filed, and the ruling denying the Petition to
Rehear was entered on January 6, 2005. The Petition and
Order denying are contained in the Appendix to this
Application.
BRIEF AND ARGUMENT
L. On counts | and 3, the court’s charge as to the
required knowledge of the defendant was
insufficient.
I. The district court erred by not charging the
jury the provisions of 16 U.S.C. § 3373(2).
Ill. | Count | as pleaded and charged does not
allege a criminal offense.
IV. The indictment in counts 4, 5, 6 and 7
charging a violation of Title 16 U.S.C. §
3372(dX(2) and § 3373(d)(3)(a\ii) and Title
18 U.S.C. § 2 fails to allege an essential
element of the offense in violation of the 5"
Amendment of the United States censtitution.
V. The sentencing in this case violated the
holdings of this Court In Blakely v
Washington and_U,S. v Booker in that the
15
Court Considered relevant conduct evidence
not found by the jury, including that from the
dismissed Counts and sentenced Appellants to
sentences he felt were mandated by the
Federal Sentencing Guidelines
I. On counts 1 and 3, the court’s
charge as to the required knowledge
of the defendant s was insufficient.
In defining knowingly, the Court instructed the jury as
follows:
“Knowingly” means to act voluntarily and deliberately
rather than mistakenly or inadvertently.
This was the sole definition of the term used in the
court’s instruction relative to the conspiracy and the
substantive violation of the Lacey Act. In this case, where a
violation of the Lacey Act requires knowledge such that the
Defendant knew his action was in violation of the law. (See
S. Rep. No.123, 97" Cong., 1% Sess. 12 (1981), reprinted in
1981 U.S. Code Cong. & Admin. News 1748, 1759), this
charge was insufficient. As was set out in earlier drug and
food stamp violation cases, the statute here does not simply
prohibit an action, it prohibits an action with knowledge of its
illegality. The question of Defendant’s alleged illegal
16
activities should be based upon the additional requirement of
scienter, or knowledge of the alleged illegality at the time the
actions were taken. This itself acts as an element of the
offence and should not be allowed to be eliminated. Here, the
failure tc require the proof of an element of the offence by the
jury and for the jury to be specifically charged as to the
element and proof required constituted Plain Error and has
such a significant effect in this hotly contested case that there
can be no real doubt that the failure to charge the element
directly affected the jury’s verdict.
In discussing the knowledge required for a conspiracy
to violate subsection (d)(2) of the Act, the Ninth Circuit has
stated:
The Supreme Court has held in order to
sustain a judgment of conviction on a charge
of conspiracy to violate a Federal statute, the
Government must prove at least the degree of
criminal intent necessary for the substantive
offense itself. United States v. Feola, 420 U.S.
671 (1975)...[Our prior decision in] Karr [742
F.2d 493 (9" Cir. 1984)] comports with ti
rule in Feola in that it requires the same
degree of intent for the conspiracy charge as is
required by the underlying statute.
United States v. Thomas, 887 F.2d 1341 (9" Cir. 1989).
17
The Sixth Circuit, in discussing the knowledge
requirements in United States v. Bryant, 716 F.2d 1091 (6"
Cir. 1983), said:
Nor is it unconstitutional by the fact that it,
unlike many other Federal laws, requires of a
person a knowledge of the underlying statutes.
Since the Court did not charge that the Government
had to prove that the Hales had a knowledge of the underlying
statutes and that the actions charges were illegal when done,
it committed reversible error. The Court of Appeals, in failing
to deal with the failure to prove scienter, tried to rely on the
clear knowledge argument. While that may apply to car theft,
there is no such easy analysis here. _
Il. The district court erred by not
charging the jury the provisions of
16 U.S.C. § 3373(2).
Count One of the Indictment charged the Hales with
conspiracy (Title 18 U.S.C. § 371) to violate Title 16 U.S.C.
§ 3372(ay(2)A) and 16 U.S.C. § 3372(d)(2), generally
referred to as the Lacey Act, while Count Three charged the
Hales with a substantive violation of the Lacey Act, Title 16
U.S.C. § 3372(d)(2).
18
The Court instructed the jury on the felony offenses
under the Lacey Act, which requires “actual knowledge” by
the Defendants (see section I as to the Knowledge argument),
but did not instruct the jury as to the lesser offense of 16
U.S.C. § 3373(2). This uncharged section is a misdemeanor
offense and a lesser included offence of the felony sections,
in that it requires proof that the Hales “in exercise of due care
should know” that the wildlife was taken in violation of law.
See United States v. Parker, 991 F.2d 1493 (9" Cir.
1993)(Court recognized 16 U.S.C. § 3373(2) as a lesser
included offense; applied the “plain error” standard of review
as to reverse the case because there was no request by defense
counsel at trial); United States v. Leveque, 283 F.3d 1098 (9"
Cir. 2002).
As 16 U.S.C. § 3373(2) is a lesser included offense,
the critical question is whether the failure to give the jury
instruction was highly prejudicial and whether there is a high
probability that the error materially affected the verdict.
Jackson v. Virginia, 443 U.S. 307, 319 (1969).
One of the factual and legal problems in the trial of
this case trial focused upon the ambiguity of Tennessee Code
Annotated § 70-2-206, the state law statute in effect at the
time. Where, as here, the Federal statute is drawn to borrow
or incorporate the state statute to provide and define the
prohibited criminal behavior, the Federal statute takes the
state statute as it is written; sometimes artfully, often not. By
the language of the Tennessee statute that was “borrowed” ,
19
it was unclear whether or not it was necessary pursuant to that
Code Section for the Hales to have a license or to simply have
an application for license on file with the appropriate
Tennessee Department to engage in the fish egg buying
business. Thus, a major issue of the trial was whether the
Government was required to prove the actual knowledge or
scienter of the Defendants as to which interpretation of the
statute was being used.
Because of the length of the jury deliberation, the
Court determined that it was necessary to give the jury an
“Allen” charge thereby making it readily apparent that this
was a Close issue. (TR 5-16-02, The Court, pp. 385-387). It
should also be noted that since Title 18 U.S.C. § 371 provides
that if the offense which is the object of the conspiracy is a
misdemeanor, then the punishment shall not exceed the
maximum punishment for the misdemeanor. Here the
Appellants have been substantially prejudiced in sentencing
by this issue as well. See United States v. Dale, 178 F.3d 429
(6" Cir. 1999)(for sentencing prejudice as to a conspiracy).
The failure to give the lesser included offense
. instruction to the jury was highly prejudicial, and it is easy to
see that the error materially affected the verdict.
20
III. Count 1 as pleaded and charged
does not allege a criminal offense.
Count 1 alleged a conspiracy to violate the Lacey Act
with the underlying State offense being a violation of
Tennessee Code Annotated § 70-2-206.
Under the Means and Methods of a Conspiracy
relative to the underlying Code, the Indictment states:
Franklin Hale and Carolyn Hale were not
licensed as wholesale fish dealers as required
by Tennessee Code Annotated...
(Emphasis added).
The pertinent section of the Tennessee Code in effect at the
time reads as follows:
Before any person, firm or corporation
engages in the business of a wholesale fish
dealer or wholesale mussel dealer, as defined
in this subsection, such person, firm or
corporation shall make application to the State
Wildlife Resources Agency upon the forms
provided by it.
Although it is clear from the statute that an application
was required, not a license, Barbara Carey, an accountant-
custodian of records for the Tennessee Wildlife Resources
21
Agency, testified there was no license issued to Franklin Hale
from 1995 until 1998. (TR 5-7-02, Carey, pp. 226-228). The
Chief Law Enforcement Agent Steve Nifong testified that the
statute does not specifically require a license. (TR 5-7-02,
Nifong, p. 221). 1. 3 interesting to note the Assistant United
States Attorney, in his closing arguments, stated that no
license was required by the Tennessee statute. (TR 5-15-02,
Grinalds, p. 309). Furthermore, the Government introduced
no evidence relative to an application for a license. It would
therefore appear that the Grand Jury only heard eviderice that
the Hales did not have a license, and did not receive any
evidence relative to the application for a license.
As the indictment alleged two objects of the
conspiracy, (to sale/receive wildlife in violation of state law
and to make a false record of the wildlife sold), a reversal is
required by this Court. Yates v. United States, 354 U.S. 298
(1957) (where one of the objects of the conspiracy is legally
inadequate and there is a general verdict, the conviction must
be reversed).
Appellants also specifically adopt the case citations
and arguments set forth in Issue IV of this brief in that this
misstatement of applicable Tennessee law violated their rights
under the 5" Amendment. Provided the Grand Jury was
advised that the Hales were not required to have a license, it
is conceivable the Grand Jury would not have found probable
cause.
22
IV. The indictment in counts 4, 5,6 and
7 charging a violation of Title 16
U.S.C. § 3372(d)(2) and § 3373(d)
3)(a)(ii) and Title 18 U.S.C. § 2 fails
to allege an essential element of the
offense in violation of the 5”
Amendment of the United States
constitution.
Counts 4, 5, 6 and 7 of the Indictment state, in part:
...did knowingly make a false record in that
the Defendants Franklin Hale and Carolyn Sue
Hale prepared records falsifying the identity
and address of the seller as...in violation of 16
U.S.C. § 3372(d)(2) and § 3373(d)(3 (Ai). '
16 U.S.C. § 3372(d)(2) reads as follows:
(d) False labeling offenses.
It is unlawful for any person to make or
submit any false records account, or label for,
or false identification of any fish, wildlife, or
plant which has been, or is intended to be
sold-
'Each count differs only as to the names of the seller and
dates of the acts.
23
The Indictment did not allege that the false record,
account or label was a false identification of fish, wildlife or
plant, it failed to allege an essential element of the offense.’
In a Federal prosecution “no person shall be held to
answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment or a grand jury” alleging all of
the elements of a crime. Constitution Amendment 5; Hamlin
v. United States, 418 U.S. 87, 117 (1974).
The 10" Circuit in United States v. Prentiss, 206 F.3d
960 (2000) reviewed the law in depth relative to the
sufficiency of an Indictment failing to allege an essential
element of the offense and stated:
We review a challenge to the sufficiency of an
indictment de novo. See United States v.
Dashney, 117 F.3d 1197, 1205 (10" Cir.
1997). Rule 7©)(1) of the Federal Rules of
Criminal Procedure provides “(t]he
indictment or the information shall be a plain,
concise and definite written statement of the
essential facts constituting the offense
charged.” Under this rule, “[c]onvictions are
no longer reversed because of minor technical
deficiencies which did not prejudice the
accused [and], [t]his has been a statutory
development in criminal law.” Russell v.
United States, 369 U.S. 749, 763 (1962).
*See 9" Circuit Model Criminal Jury Instruction.
24
However, “the substantial safeguards for those
charged with serious crimes cannot be
eradicated under the guise of technical
departures from the rules.” Id.
Focusing on the issue disputing this case, “[a] criminal
conviction will not be upheld if the indictment upon which it
is based does not set forth the essential elements of the
offense.” United States v. Gayle, 967 F.2d 483, 485 (11" Cir.
1992)(en banc); United States v. Brown, 995 F.2d 1493, 1505
(10" Cir. 1993). This requirement serves two fundamental
functions: ...Second, it fulfills the 5” Amendment’s
indictment requirement, insuring that a Grand Jury only return
an indictment when it finds probable cause to support all of
the necessary elements of the crime. Gayle, 967 F.2d at 485.
See also United States v. Hooker, 841 F.2d 1225, 1230 (4"
Cir. 1988).
[The requirement of the] inclusion of all
elements...derives from the 5" Amendment,
which requires that the grand jury have
considered and found all elements to be
present.”; United States v. Radetsky, 535 F.2d
556, 562 (10" Cir.)(holding that a sufficient
indictment “is of paramount importance” and
required ...to avoid [a] conviction on facts not
found or perhaps not even presented to, the
grand jury that indicted [the defendant].
25
The omission of an element is “such a critical
omission” that the Federal Rules of Criminal
Procedure require it to “be noted by an
appellate court sua sponte.” Brown,995 F.2d
at 1504.
However, even if challenged after verdict, the failure
of the indictment to allege all the essential elements of an
offense ...is a jurisdictional defect requiring dismissal, despite
citation of the underlying statute in the indictment. Id. (citing
United States v. Crockett, 812 F.2d 626, 629 and n.3 (10* Cir.
1987). This type of fundamental defect cannot be cured by the
absence of prejudice to the defendant or a jury instruction.
As the indictment failed to allege an essential element
of the offense, it violated the Defendant's right to be tried
upon charges found by a grand jury and which states the full
elements of an offence under the applicable statute; therefore
this Court should reverse the convictions as to counts 4, 5, 6
and 7 of the indictment.
Vv. The sentencing in this case violated
the holdings of this Court In
Blakely v Washington and_U.S. v
Booker in that the Court Con-
idered relevant conduct evidence
not found by the jury, including
that from the dismissed Counts and
sentenced Appellants to sentences
he felt were mandated by the
Federal Sentencing Guidelines
After the trial, sentencing and briefing of this case in
the Court of Appeals, the United States Supreme Court case
of Blakely v Washington, 2004 WL 1402697 was decided.
Subsequently, while this case was pending Certiorari Review,
this Court decided the cases of United States v Booker, 543
U.S.__, (January 12, 2005).
This Court, in Blakely v Washington, 2004 WL
1402697,1264 S.Ct. 2531 (2004), decided on June 24, 2004,
basically stated that any basis for an increase to a Defendant’s
sentence that was not supported by a finding of a jury beyond
a reasonable doubt is in violation of the Sixth Amendment to
the United States Constitution. Booker, supra, extended this
holding to Federal sentencing cases and also held that the
guidelines for sentencing were only Guidelines, not
mandatory sentence requirements.
In the sentencing here, the District Court considered
and found evidence of “relevant conduct” that was not proven
or found by the jury to the “beyond a reasonable doubt
27
standard” and also included some proof from the government
that came from evidence in Counts of the indictment that
were dismissed and not submitted to the jury. In addition, the
District Court sentenced Appellants within the Guideline
ranges as mandatory ranges rather than advisory.
These matters are first raised here because they were
found and developed by this Court while this case was on
appeal and after it had been closed to briefing at each prior
stage. It is clear from the sentencing that these cases apply,
these Appellants were adversely affected, and that there has
been no waiver of the rights set out in Booker, supra. For
these reasons, the case should be reversed and/or remanded,
if not for the prior errors alleged, then for the correction of the
sentence and re-sentencing pursuant to this Court’s directions.
28
CONCLUSION
For the above reasons, Petitioner requests this
Honorable Court to Accept this case for review and issue the
Writ of Certiorari to the Court of Appeals for the Sixth
Circuit, granting such additional and further relief to
Petitioner as this Court sees Proper.
Respectfully submitted,
Charles P. Dupree
Tenn. Bar No. 2177
Attorney for Petitioners
Franklin Hale and Carolyn Sue Hale
101 Robinson Bldg.
622 Georgia Ave.
Chattanooga, Tn 37402
(423) 756-1841
29
APPENDIX
6TH CIRCUIT FILINGS:
Order Denying Petition for Rehearing
and Petition for Rehearing En Banc,
SE iene eee rete es bene as Al - A2
Petition for Rehearing and Petition
for Rehearing En Banc,
i Freee eee EES eer eeee Bl- B16
Opinion,
ge fo ere Peer Trees ore C1-C9
WESTERN DISTRICT OF TENNESSEE FILINGS:
Judgement [Franklin Hale],
i cc cche ie cukn ss D1- D10
Judgement [Carolyn Hale],
SSS eco kek eric awakes El- E10
OTHER:
U.S. Code: Title 18: Section 371
Conspiracy To Commit Offense
or to Defraud United States ....... Fl - Fl
U.S. Code: Title 16: Section 3372
Premeees AGM 6k nk vice icwiads Gl - G3
U.S. Code: Title 16: Section 3373
Penalties and Sanctions ......... H1 - H5
°
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER, DENYING PETITION FOR REHEARING
AND PETITION FOR REHEARING EN BANC,
FILED JANUARY 6, 2005
A-1 through A-2
ee ee
Nos. 05-5508/55609
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
FRANKLIN HALE AND
CAROLYN SUE HALE,
Defendant-Appellant.
BEFORE: DAUGHTREY and SUTTON, Circuit
Judges; and COOK,’ District Judge.
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of
this court, and no judge of this court having requested a vote
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
'Hon. Julian A, Cook, Jr., Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.
A-1
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the petition
were fully considered upon the original submission and
decision of the cases. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/_Leonard Green
Leonard Green, Clerk
A-2
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR REHEARING AND
PETITION FOR REHEARING EN BANC,
FILED NOVEMBER 5, 2004
B-1 through B-16
NO. 03-5508, 03-5509
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT —
UNITED STATES OF AMERICA, ‘©n2rd Green,
Plaintiff - Appellee~—xLlerk
Vv.
FRANKLIN HALE and CAROLYN HALE,
Defendants - Appellants.
On Appeal from the United States District Court
For the Western District of Tennessee
Jackson Division
PETITION FOR REHEARING and
PETITION FOR REHEARING EN BANC
Charles P. Dupree
Tenn. Bar No. 2177
Attorney for Appellant
101 Robinson Bldg.
622 Georgia Ave.
Chattanooga, Tn 37402
(423) 756-1841
B-1
If it pleases this Court:
Defendants Carolyn Hale and Franklin Hale are
petitioning this Court for a re-hearing and/or rehearing en
banc of the decision in the appeal of this case, which was
rendered by the panel on October 22, 2004. The decision is
attached as exhibit to this petition.
Petitioners would urge the re-hearing for the following
reasons:
I. The Cumulative effect of the errors
complained of was illegal and prejudicial.
The brief in this cases cited trial errors and actions that
prejudiced the Defendants, running the gammet from
allegations that the indictment was not sufficient and
complete, to the lack of charge setting out the scienter, or
knowledge, requirement, the necessity of the specific
identification of the actions complained of as illegal to the
falsification of records, to the final effect of the failure of the
Court to charge the misdemeanor count of the law that
accompanies the felony count charged. The panel found that
each defect was not significant to constitute plain or
prejudicial error, but did not examine or attempt to review the
cumulative effect of the actions that had taken place.
Of course, part of the problem in this case is that the
Lacey Act, upon which this prosecution is based, borrows the
state law to establish the prohibited acts and the Court is
bound by the quality or lack of same of the underlying state
law. This does not mean that the court may incorporate only
part of the state law or should attempt to "fill in" where the
B-2
state law is not understandable or complete. With a full
examination of the entire prosecution and the effect ofthe
errors and omissions raised in the brief the cumulative effect
of all the errors will legally be much greater than the simple
analysis and denial of each issue complained of. For this
reason, we feel that the matter should be re-heard En Banc to
evaluate and review the total effect of all the issues raised on
direct appeal and their total effect on the fairness of the trial
and the resulting conviction of Petitioners.
Il. The hearing panel was incorrect in finding
that each error was either waived or not
sufficient to constitute prejudicial error
that would justify the reversal of the
conviction.
In the review of the decision of the panel as attached,
the reader will notice that the court has gone to great lengths
to both supply necessary elements of offences or find that they
were not necessary in order to uphold the conviction.
This was not the most artfully tried case that this court
will review.
The review effort, however, will not allow the Court
to eliminate elements (proof of knowledge or scienter on the
part of Defendant-Petitioners), hold that specificity in the
nature of the indictment or proof «s to the prohibited acts (the
question of whether the law prohibits falsification of records
of fish or about the fish or both, which is not clearly set out in
the state law which constitutes the basis of the prosecution) is
not necessary, or that there is no necessity to charge both
misdemeanor and felony offences contained in the same
stautory scheme when, as here, they basically track the same
elements and are contained in the "borrowed" state law. Not
B-3
only did the panel not appreciate the problems caused by
these issues, the panel also, as set out above, did not see the
total or cumulative prejudice caused and effected by the
issues complained of.
Ill. The issues raised in Blakely v. Washington
regarding evidence and sentencing were
not heard and should be addressed in this
appeal.
Because of the timing of the briefing schedule and
argument of this appeal, the decision of the United States
Supreme Court in Blakely v Washington, 124 S. Ct. 2531,
159 L.Ed. 403 (U.S. 2004), was announced after briefing and
the sentencing and evidentiary issues raised in that case were
not presented or argued. As well as the problems of relevant
conduct issues in the sentencing, the Blakely case itself can be
read to provide Defendants protection from the situation that
presented itself here, in that the jury was not presented all the
issues and that the decision may or should have been based on
illegal or improper information or lack of information. A
review of the transcript and the joint appendix shows that the
jury had great difficulty reaching a verdict in deliberations
and finally was charged by the Court with a modified version
of the U.S. v Allen, charge which led to the verdict of
conviction. These problems and discrepancies may and should
constitute a Sixth amendment violation under Blakely, both
in the evidentiary aspects of the guilt and innocence part of
the trial, but also in the sentencing of both
Petitioner-Defendants and the use of relevant conduct and
unproved matters to support the sentence.
Due to the timing of the decision and this case,
re-hearing and possibly re-briefing prior to the re-hearing
B-4
should be done to deal with the prior and pending issues not
addressed or addressed in an incomplete fashion, including
those raised by Blakely, supra.
Conclusion
For the reasons set out above, Petitioners request and
urge that the decision rendered in this appeal be withdrawn
and that a Rehearing and/or a Rehearing En Banc of the
argument of this case be set to address the issues presented.
Respectfully submitted,
/
Charles P. Dupree
Counsel for Franklin Hale
and Carolyn Hale
Tenn. Bar No. 2177
101 Robinson Bldg.
622 Georgia Avenue
Chattanooga, Tn 37402
(423) 756-1841
B-5
CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2004,1 served a copy
of the above Petition for Rehearing and Petition for Rehearing
En Banc on Assistant United States Attorney Leigh Grinalds
at his address of 3rd Floor, Federal Building 109 S. Highland
Ave, Suite 300 Jackson, TN 38301 by United States Mail
B-6
Appendix
Judgment of October 22, 2004
B-7
NOT RECOMMENDED FOR PUBLICATION
NOS. 03-5508/5509
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES _)
OF AMERICA, )
Plaintiff-Appellee, )
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) 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 1 1-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
*The Hon. Julian A. Cook, Jr., United States District Judge for
the Eastern District of Michigan, sitting by designation.
B-8
were convicted on six of the seven remaining counts. They
now appeal, contending that several of the counts on which
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.
FACT D 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
B-9
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
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 ita 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. ..
.16U.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
B-10
2000. This question was not raised as a challenge to the
indictment prior to trial, and it is 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
B-11
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...;
(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 | 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
B-12
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[ingl 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 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
indictmeni ‘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
B-13
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 "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
B-14
lesser-included misdemeanor offense. Under United Statesv.
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 ‘ury 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 piants 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 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
B-15
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.
B-16
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OPINION, FILED OCTOBER 22, 2004
C-1 through C-9
NOT RECOMMENDED FOR PUBLICATION
NOS. 03-5508/5509
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES _)
OF AMERICA, )
Plaintiff-Appellee, _)
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
V. ) 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 1 1-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
*The Hon. Juliass A. Cook, Jr., United States District Judge for
the Eastern District of Michigan, sitting by designation.
C-1
ee
were convicted on six of the seven remaining counts. They
now appeal, contending that several of the counts on which
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.
A PROCE N
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 weuld not show
when they were selling paddlefish eggs in Kentucky while the
C-2
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
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 ita federai 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
C-3
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 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
C-4
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...;
(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
C-5
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)(il). Sixteen U.S.C. §3372(d) prohibits the
"mak[ingl 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 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.
C-6
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 vioisted.
In this regard, the Senate report describes "knowing
violations" of the Lacey Act as those "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.
C-7
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 Statesv.
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 contend that
the jury should aisc 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
C-8
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 norreversible
error and AFFIRM the judgment of the district court.
C-9
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
JUDGMENT [FRANKLIN HALE],
FILED MARCH 24, 2003
D-1 through D-10
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
UNITED STATES OF AMERICA
-v- 01-10061-1-T
FILED
March 24, 2003
Western District
of Tennessee
FRANKLIN HALE
Louis R. Lucas. Retained
Defense Attorney
100 North Main Building,
Suite 3002
Memphis, TN 38103
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
The defendant was found guilty on Count $1, S3, $4, S5, S6
and S7 of the Superseding Indictment on May 16, 2002.
Accordingly, the court has adjudicated that the defendant is
guilty of the following offense(s):
18 USC §371
16 USC §
337200K2KA)
an
3373(d)(1 (B)
Purchase and
Sale of Any
Fish or Wildlife
in Interstate
Commerce
Take, Possessed
or Transported
in Violation of
any State Law
05/07/97
S3
16 USC §
3372(d)(2)
and
3373(d)(3)(A)
(ii)
Illegal Purchase
and Sale of
wildlife With a
Market Value
in Excess of
$350:00;
Making a False
Record in a
Said Wildlife
had been
Purchased and
Received in
Interstate
Commerce
03/12/97
S4
SS
Oe EAE NE TONE Op Bi! 50 we — A Sener nee
at ail a Be els eee Ee Reo tl
AARC:
.
ang a I) RR Le Aline 2 Faery oes 4 Lite >
16 USC § Illegal Purchase | 05/07/97
3372(d)(2) and Sale of
and wildlife With a
3373(d)(3)(A) | Market Value
(ii) in Excess of
$350.00;
Making a False
Record in a
The defendant is sentenced as provided in the following pages
of this judgment. The sentence is imposed pursuant to the
Sentencing Reform Act of 1984 and the Mandatory Victims
Restitution Act of 1996
The defendant has been found not guilty on count(s) S2.
Count(s) $8, S9, $10 and S11 dismissed on the motion of the
United States.
IT IS FURTHER ORDERED that the defendant shall notify
the United States Attorney for this district within 30 days of
any change of name, residence, or mailing address until all
fines, restitution, costs and special assessments imposed by
this judgment are fully paid.
Defendant's Soc. Sec. No. 415-58-9349
Defendant's Date of Birth: 06/09/1939
Deft's U.S. Marshal No.: 17729-076
Date of Imposition of Sentence: March 21, 2003
Defendant's Mailing Address:
50 Pilgrim's Rest Road
Savannah, TN 38372
/s/ Jam Re
JAMES D. TODD
CHIEF UNITED STATES DISTRICT JUDGE
March 24th , 2003
D-4
gris Lyte - ere
ESO I ete SB ae DR EE OM
fore ERR BASCOM
C8 att TR CRE Gane tien:
IMPRISONMENT
The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned for a
term of 24 Months on each of Counts $1, $3, S4, $5, S6 and
S7, to run concurrently.
The Court recommends to the Bureau of Prisons: FPC,
Millington as place for service of sentence.
The defendant shall surrender for service of sentence
at the institution designated by the Bureau of Prisons as
directed by the U.S. District Court Clerks Office in the
Order to Surrender.
RETURN
I have executed this judgment as follows:
Defendant delivered on to at
, with a certified copy of this judgment.
UNITED STATES MARSHAL
Deputy U.S. Marshal
D-5
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall
be on supervised release for a term of 3 years on each of
Counts $1, $3, $4, S5, S6 and S7, to run concurrently.
The defendant shall report to the probation office in
the district to which the defendant is released within 72 hours
of release trom custody of the Bureau of Prisons.
While on supervised release, the defendant shall not
commit another federal, state or local crime and shall not
possess a firearm, ammunition, or destructive device as
defined in 18 U.S.C. § 921.
The defendant shall refrain from any unlawful use of
a controlled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment and at
least two periodic drug tests thereafter, as directed by the
probation officer.
The defendant shall comply with the following
standard conditions that have been adopted by this court.
STANDARD CONDITIONS OF SUPERVISION
4 the defendant shall not leave the judicial district
without the permission of the court or probation
officer;
2. the defendant shall report to the probation officer as
directed by the court or probaUon officer and shall
D-6
submit a truthful and complete written report within
the first five days of each month;
the defendant shall answer truthful all inquiries by the
probation officer and follow the instructions of the
probation officer;
the defendant shall work regularly at a lawful
occupation unless excused by the probation officer for
schooling, training, or other acceptable reasons;
the defendant shall notify the probation officer ten
(10) days prior to any change in residence or
employment;
the defendant shall refrain from the excessive use of
alcohol and shall not purchase, possess, use,
distribute, or administer any narcotic or other
controlled substance, or any paraphernalia related to
such substances, except as prescribed by a physician,
and shall submit to periodic uninalysis tests as
directed by the probation officer to determine the use
of any controlled substance;
the defendant shall not frequent places where
controlled substances are illegally sold, used,
distributed, or administered;
the defendant shall not associate with any persons
engaged in criminal activity, and shall not associate
with any person convicted of a felony unless granted
permission to do so by the probation officer;
D-7
10.
11.
12.
13.
the defendant shall permit a probation officer to visit
him or her at any time at home or elsewhere and shall
permit confiscation of any contraband observed in
plain view by the probation officer;
the defendant shall notify the probation officer within
72 hours of being arrested or questioned by a Law
enforcement officer;
the defendant shall not enter into any agreement to act
as an informer or a special agent of a law enforcement
agency without the permission of the court;
as directed by the probation officer, the defendant
shall notify third parties of risks that may be
occasioned by the defendants criminal record or
personal history or characteristics, and shall permit the
probation officer to make such notifications and to
confirm the defendant's compliance with such
notification requirement.
if this judgment imposes a fine or a restitution
obligation, it shall be a condition of supervised release
that the defendant pay any such fine or restitution in
accordance with the Schedule of Payments set forth in
the Criminal Monetary Penalties sheet of this
judgment.
D-8
ADDITIONAL CONDITIONS OF
SUPERVISED RELEASE
The defendant shall also comply with the following
additional conditions of supervised release:
i. The defendant shall provide the Probation Officer
access to any requested financial information and
permit full financial disclosure.
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal
monetary penalties in accordance with the schedule of
payments set forth in the Schedule of Payments. The
defendant shall pay interest on any fine or restitution of more
than $2,500, unless the fine or restitution is paid in full before
the fifteenth day after the date of judgment, pursuant to 18
U.S.C. § 3612(f). All of the payment options in the Schedule
of Payments may be subject to penalties for default and
delinquency pursuant to 18 U.S.C. § 3612(g).
Total Assessment Total Fine Total Restitution
$600.00 $25,000.00
The Special Assessment shall be due immediately.
D-9
FINE
A Fine in the amount of $ 25,000.00 is imposed and
shall be due immediately.
RESTITUTION
No Restitution was ordered.
D-10
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
JUDGMENT [CAROLYN HALE],
FILED MARCH 24, 2003
E-1 through E-10
: re Gres ee Uae) A
sol fh Alt ech eae eo
ar 3
Meaas
eentas
orn eT,
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
FILED
UNITED STATES OF AMERICA March 24, 2003
-y- 01-10061-1-T Wester District
of Tennessee
CAROLYN SUE HALE |
Louis R. Lucas. Retained
Defense Attorney
100 North Main Building,
Suite 3002
Memphis, TN 38103
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
The defendant was found guilty on Count S1, $3, $4, $5, S6
and S7 of the Superseding Indictment on May 16, 2002.
Accordingly, the court has adjudicated that the defendant is
guilty of the following offense(s):
Title & Nature of Date
Section Offense Offense
Concluded
18 USC §371 | Conspiracy te 12/26/99 Sl
Violate the
Lacey Act
16 USC §
3372(ay(2A)
and
3373(d)(1)(B)
Purchase and
Sale of Any
Fish or Wildlife
in Interstate
Commerce
Take, Possessed
or Transported
in Violation of
any State Law
05/07/97
S3
16 USC §
3372(d)(2)
and
3373(d)(3 (A)
(ii)
Illegal Purchase
and Sale of
wildlife With a
Market Value
in Excess of
$350.00;
Making a False
Record in a
Wildlife
Transaction
Knowing that
Said Wildlife
03/12/97
CEL
E-2
16 USC § Illegal Purchase | 05/07/97
3372(d)(2) and Sale of
and wildlife With a
3373(d)(3)(A) | Market Value
(ii) in Excess of
$350.00;
Making a False
Record in a
Wildlife
Transaction
Knowing that
Said Wildlife
The defendant is sentenced as provided in the following pages
of this judgment. The sentence is imposed pursuant to the
Sentencing Reform Act of 1984 and the Mandatory
Victims Restitution Act of 1996
The defendant has been found not guilty on count(s) S2.
Count(s) $8, S9, S10 and S11 dismissed on the motion of the
United States.
IT IS FURTHER ORDERED that the defendant shall notify
the United States Attorney for this district within 30 days of
any change of name, residence, or mailing address until all
fines, restitution, costs and special assessments imposed by
this judgment are fully paid.
E-3
Defendant's Soc. Sec. No. 412-02-7618
Defendant's Date of Birth: 02/13/1957
Deft's U.S. Marshal No.: 17728-076
Date of Imposition of Sentence: March 21, 2003
Defendant's Mailing Address:
50 Pilgrim's Rest Road
Savannah, TN 38372
/
JAMES D. TODD
CHIEF UNITED STATES DISTRICT JUDGE
March 24th , 2003
E-4
IMPRISONMENT
The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned for a
term of 24 Months on each of Counts S1, S3, S4, S5, S6
and S7, to run concurrently.
The Court recommends to the Bureau of Prisons: FPC,
Millington as place for service of sentence.
The defendant shall surrender for service of sentence
at the institution designated by the Bureau of Prisons as
directed by the U.S. District Court Clerks Office in the
Order to Surrender.
RETURN
I have executed this judgment as follows:
Defendant delivered on to
at , with a certified copy of this judgment.
UNITED STATES MARSHAL
By:
Deputy U.S. Marshal
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall
be on supervised release fora term of 3 years on each of
Counts $1, $3, $4, S5, S6 and S7, to run concurrently.
The defendant shall report to the probation office in
the district to which the defendant is released within 72 hours
of release from custody of the Bureau of Prisons.
While on supervised release, the defendant shall not
commit another federal, state or local crime and shall not
possess a firearm, ammunition, or destructive device as
defined in 18 U.S.C. § 921.
The defendant shall refrain from any unlawful use of
a controlled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment and at
least two periodic drug tests thereafter, as directed by the
probation officer.
- The defendant shall comply with the following
standard conditions that have been adopted by this court.
STANDARD CONDITIONS OF SUPERVISION
. the defendant shall not leave the judicial district
without the permission of the court or probation
officer;
2. the defendant shall report to the probation officer as
directed by the court or probaUon officer and shall
E-6
submit a truthful and complete written report within
the first five days of each month;
the defendant shall answer truthful all inquiries by the
probation officer and follow the instructions of the
probation officer;
the defendant shall work regularly at a lawful
occupation unless excused by the probation officer for
schooling, training, or other acceptable reasons;
the defendant shall notify the probation officer ten
(10) days prior to any change in residence or
employment;
the defendant shall refrain from the excessive use of
alcohol and shall not purchase, possess, use,
distribute, or administer any narcotic or other
controlled substance, or any paraphernalia related to
such substances, except as prescribed by a physician,
and shall submit to periodic uninalysis tests as
directed by the probation officer to determine the use
of any controlled substance;
the defendant shall not frequent places where
controlled substances are illegally sold, used,
distributed, or administered;
the defendant shall not associate with any persons
engaged in criminal activity, and shall not associate
with any person convicted of a felony unless granted
permission to do so by the probation officer;
E-7
10.
11.
12.
ao:
the defendant shall permit a probation officer to visit
him or her at any time at home or elsewhere and shall
permit confiscation of any contraband observed in
plain view by the probation officer;
the defendant shall notify the probation officer within
72 hours of being arrested or questioned by a Law
enforcement officer;
the defendant shall not enter into any agreement to act
as an informer or a special agent of a law enforcement
agency without the permission of the court;
as directed by the probation officer, the defendant
shall notify third parties of risks that may be
occasioned by the defendants criminal record or
personal history or characteristics, and shall permit the
probation officer to make such notifications and to
confirm the defendant's compliance with such
notification requirement.
if this judgment imposes a fine or a restitution
obligation, it shall be a condition of supervised release
that the defendant pay any such fine or restitution in
accordance with the Schedule of Payments set forth in
the Criminal Monetary Penalties sheet of this
judgment.
ADDITIONAL CONDITIONS OF
SUPERVISED RELEASE
The defendant shall also comply with the following
additional conditions of supervised release:
: The defendant shall provide the Probation Officer
access to any requested financial information and
permit full financial disclosure.
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal
monetary penalties in accordance with the schedule of
payments set forth in the Schedule of Payments. The
defendant shall pay interest on any fine or restitution of more
than $2,500, unless the fine or restitution is paid in full before
the fifteenth day after the date of judgment, pursuant to 18
U.S.C. § 3612(f). All of the payment options in the Schedule
of Payments may be subject to penalties for default and
delinquency pursuant to 18 U.S.C. § 3612(g).
$600.00 $25,000.00
The Special Assessment shall be due immediately.
E-9
FINE
A Fine in the amount of $ 25,000.90 is imiposed and
shall be due immediately.
RESTITUTION
No Restitution was ordered.
E-10
APPENDIX F
U.S. CODE: TITLE 18: SECTION 371
CONSPIRACY TO COMMIT OFFENSE OR
TO DEFRAUD UNITED STATES
F-1 through F-1
Laws:
Cases and Codes:
U.S. Code: Title 18: Section 371
Section 371. Conspiracy to commit offense or to defraud
United States
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or
any agency thereof in any manner or for any purpose, and one
or more of such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or imprisoned
not more than five years, or both
If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
F-1
APPENDIX G
U.S. CODE: TITLE 16: SECTION 3372
PROHIBITED ACTS
G-1 through G-3
Laws:
Cases and Codes:
U.S. Code: Title 16: Section 3372
Section 3372. Prohibited acts
(a) Offenses other than marking offenses
It is unlawful for any person —
(1) to import, export, transport, sell, receive, acquire,
or purchase any fish or wildlife or plant taken, possessed,
transported, or sold in violation of any law, treaty, or
regulation of the United States or in violation of any Indian
tribal law;
(2) to import, export, transport, sell, receive, acquire,
or purchase in interstate or foreign commerce —
(A) any fish or wildlife taken, possessed,
transported, or sold in violation of any law or
regulation of any State or in violation of any foreign
law, or
(B) any plant taken, possessed, transported, or
sold in violation cf any law or regulation of any State;
(3) within the special maritime and territorial
jurisdiction of the United States (as defined in section 7 of
title 18) —
(A) to possess any fish or wildlife taken,
possessed, transported, or sold in violation of any law
or regulation of any State or in violation of any
foreign law or Indian tribal law, or
G-1
(B) to possess any plant taken, possessed,
transported, or sold in violation of any law or
regulation of any State;'
(4) to attempt to commit any act described in
paragraphs (1) through (4).’
(b) Marking offenses
It is unlawful for any person to import, export, or transport
in commerce any container or package containing any fish or
wildlife unless the container or package has previously been
plainly marked, labeled, or tagged in accordance with the
regulations issued pursuant to paragraph (2) of section
3376(a) of this title.
(c) Sale and pyrchase of guiding and outfitting services and
invalid licenses and permits
(1) Sale
It is deemed to be a sale of fish or wildlife in violation
of this chapter for a person for money or other consideration
to offer or provide —
(A) guiding, outfitting, or other services; or
(B) a hunting or fishing license or permit; for
the illegal taking, acquiring, receiving, transporting, or
possessing of fish or wildlife.
'So in original. Probably should be followed by “or”.
*So in original. Probably should refer to pars. (1) through (3).
G-2
(2) Purchase
It is deemed to be a purchase of fish or wildlife in
violation of this chapter for a person to obtain for money or
other consideration —
(A) guiding, outfitting, or other services; or
(B) a hunting or fishing license or permit; for
the illegal taking, acquiring, receiving, transporting, or
possessing of fish or wildlife.
(d) False labeling offenses
It is unlawful for any person to make or submit 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 -
(1) imported, exported, transported, sold, purchased,
or received from any foreign country;
(2) transported in interstate or foreign commerce.
APPENDIX H
U.S. CODE: TITLE 16: SECTION 3373
PENALTIES AND SANCTIONS
H-1 through H-5
Laws:
Cases and Codes:
U.S. Code: Title 16: Section 3373
Section 3373. Penalties and sanctions
(a) Civil penalties
(1) Any person who engages in conduct prohibited by
any provision of this chapter (other than subsections (b) and
(d) of section 3372 of this title) and in the exercise of due care
should know 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, and
any person who knowingly violates section 3372(d) of this
title, may be assessed a civil penalty by the Secretary of not
more than $10,000 for each such violation: Provided, That
when the violation involves fish or wildlife or plants with a
market value of less than $350, and involves only the
transportation, acquisition, or receipt of fish or wildlife or
plants taken or possessed in violation of any law, treaty, or
regulation of the United States, any Indian tribal law, any
foreign law, or any law or regulation of any State, the penalty
assessed shall not exceed the maximum provided for violation
of said law, treaty, or regulation, or $10,000, whichever is
less.
(2) Any person who violates section 3372(b) of this
title may be assessed a civil penalty by the Secretary of not
more than $250.
(3) For purposes of paragraphs (1) and (2), any
reference to a provision of this chapter or to a section of this
chapter shall be treated as including any regulatio. issued to
carry out any such provision or section.
H-1
(4) No civil penalty may be assessed under this
subsection unless the person accused of the violation is given
notice and opportunity for a hearing with respect to the
violation. Each violation shall be a separate offense and the
offense shall be deemed to have been committed not only in
the district where the violation first occurred, but also in any
district in which a person may have taken or been in
possession of the said fish or wildlife or plants.
(5) Any civil penalty assessed under this subsection
may be-remitted or mitigated by-the Secretary.
(6) In determining the amount of any penalty assessed
pursuant to paragraphs (1) and (2), the Secretary shall take
into, account the nature, circumstances, extent, and gravity of
the prohibited act committed, and with respect to the violator,
the degree of culpability, ability to pay, and such other matters
as justice may require.
(b) Hearings
Hearings held during proceedings for the assessment of civil
penalties shall be conducted in accordance with section 554
of title 5. The administrative law judge may issue subpenas
for the attendance and testimony of witnesses and the
production of relevant papers, books, or documents, and
may administer oaths. Witnesses summoned shall be paid the
same fees and mileage that are paid to witnesses in the courts
of the United States. In case of contumacy or refusal to obey
a subpoena issued pursuant to this paragraph and served upon
any person, the district court of the United States for any
district in which such person is found, resides, or transacts
business, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the
H-2
canner
administrative law judge or to appear and produce documents
before the administrative law judge, or both, and any failure
to obey such order of the court may be punished by such court
as a contempt thereof.
(c) Review of civil penalty
Any person against whom a civil penalty is assessed under
this section may obtain review thereof in the appropriate
District Court of the United States by filing a complaint in
such court within 30 days after the date of such order and by
simultaneously serving a copy of the complaint by certified
mail on the Secretary, the Attorney General, and the
appropriate United States attorney. The Secretary shall
promptly file in such court a certified copy of the record upon
which such violation was found or such penalty imposed, as
provided in section 2112 of title 28. If any person fails to pay
an assessment of a civil penalty after it has become a final and
unappealable order or after the appropriate court has entered
final judgment in favor of the Secretary, the Secretary may
request the Attorney General of the United States to institute
a civil action in an appropriate district court of the United
States to collect the penalty, and such court shall have
jurisdiction to hear and decide any such action. In hearing
such action, the court shall have authority to review the
violation and the assessment of the civil penalty de novo.
(d) Criminal penalties
(1) Any person who -
(A) knowingly imports or exports any fish or
wildlife or plants in violation of any provision of this
chapter (other than subsections (b) and (d) of section
3372 of this title), or
H-3
(B) violates any provision of this chapter
(other than subsections (b) and (d) of section 3372 of
this title) by knowingly engaging in conduct that
involves 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, shall be fined not more than
$20,000, or imprisoned for not more than five years,
or both. Each violation shall be a separate offense and
the offense shall be deemed to have been committed
not only in the district where the violation first
occurred, but also in any district in which the
defendant may have taken or been in possession of the
said fish or wildlife or plants.
(2) Any person who knowingly engages in conduct
prohibited by any provision of this chapter (other than
subsections (b) and (d) of section 3372 of this title) and in the
exercise of due care should know 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 shall he fined not more than $10,000, or
imprisoned for not more than one year, or both. Each
violation shall be a separate offense and the offense shall be
deemed to have been committed not only in the district where
the violation first occurred, but also in any district in which
the defendant may have taken or been in possession of the
said fish or wildlife or plants.
(3) Any person who knowingly violates section
3372(d) of this tithe —
H-4
(A) shall be fined under title 18 or imprisoned
for not more than 5 years, or both, if the offense
involves —
(i) the importation or exportation of fish or
wildlife or plants; or
(ii) the sale or purchase, offer of sale or
purchase, or commission of an act with intent to sell
or purchase fish or wildlife or plants with a market
value greater than $350; and
(B) shall be fined under title 18 or imprisoned
for not more than 1 year, or both, if the offense does
not involve conduct described in subparagraph (A)
(e) Permit sanctions
The Secretary may also suspend, modify, or cancel any
Federal hunting or fishing license, permit, or stamp, or any
license or permit authorizing a person to import or export fish
or wildlife or plants (other than a permit or license issued
pursuant to the Magnuson—Stevens Fishery Conservation
and Management Act (16 U.S.C. 1801 et seq.)), or to operate
a quarantine station or rescue center for imported wildlife or
plants, issued to any person who is convicted of a criminal
violation of any provision of this chapter or any regulation
issued hereunder. The Secretary shall not be liable for the
payments of any compensation, reimbursement, or damages
in connection with the modification, suspension, or
revocation of any licenses, permits, stamps, or other
agreements pursuant to this section.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.