Petition for Writ of Certiorari — Todd v. United States

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NO.

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SUPREME COURT OF THE UNITED STATES

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TERM

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LARRY WELDON TODD,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

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PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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WALTER E. WILSON

Attorney at Law

507 North Lee

Odessa, Texas 79761

915/332-8221

ATTORNEY FOR LARRY WELDON TODD

QUESTIONS PRESENTED FOR REVIEW

QUESTION ONE:

Have the district court and the appellate

court in the instant case so far departed from the

accepted and usual course of judicial proceedings

as to call for an exercise of this Court's power of

supervision when it is shown by the record of

this case that the district court and the appellate

court have failed to reasonably construe, failed to

give any effect to, or judicially enlarged Acts of

Congress, 16 U.S.C. 742j-1(b) and 16 U.S.C.

3371 et seq. which, with proper construction,

would exonerate the accused?

i ai ii |

QUESTION TWO:

Has the Court of Appeals decided an import-

ant federal question in a way in conflict with

applicable decisions of this Court when it decided

that Petitioner's motion to dismiss indictment,

motions for directed ‘verdict, and motion for

judgment of acquittal had not raised an issue of

ex post facto judicial construction as defined in

the opinion of this Court rendered in Bouie v.

City of Columbia, 378 U.S. 347, 8&4 S.Ct. 1697,

12 L.Ed.2d 894, thereby becoming in direct

conflict therewith?

QUESTION THREE:

Has the Court of Appeals' decision that

"Since the claim of an ex post facto violation was

not urged in district court, this court may only

consider it on appeal if it constituted plain error

under Rule 52(b), Fed.R.Cr.P.", decided an

important question of federal law which has not

been, but should be decided by this Court in

that by the rendition of such decision, the

appellate court has imposed an impossible and

illogical burden upon the accused, by ruling

that he should be able to foresee and raise in

the trial court an unforeseeable judicial con-

struction?

LIST OF ALL PARTIES

APPELLANT:

ATTORNEY:

APPELLANT:

ATTORNEY:

APPELLEE:

ATTORNEY:

LARRY WELDON TODD

Walter E. Wilscn

JAMES CLYDE SHORT, JR.

Bill G. Alexander

UNITED STATES OF AMERICA

Christopher Nuechterlein

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

FOR REVIEW i-ili

LIST OF ALL PARTIES iv

TABLE OF CONTENTS Vv

TABLE OF AUTHORITIES Vi-Vviii

OFFICIAL AND "JNOFFICIAL

REPORTS OF OPINIONS DELIVERED

IN COURTS BELOW ix

STATEMENT OF THE GROUNDS

AND STATUTORY PROVISION

CONFERRING JURISDICTION X-xXii

CONSTITUTIONAL PROVISIONS

AND ALL STATUTES INVOLVED Xli- Xili

PREAMBLE 1-2

STATEMENT OF THE CASE 3-6

ARGUMENT AMPLIFYING REASONS

RELIED UPON FOR ALLOWANCE OF WRIT

Ba QUESTIONS ONE AND TWO 7-16

7 QUESTION THREE 17-26

CERTIFICATE OF SERVICE 26

APPENDICES

1. OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS A1-26

2. VERBATUM QUOTATIONS B1-16

TABLE OF AUTHORITIES

Bouie v. City of Columbia,

378 U.S. 347,

84 S.Ct. 1697,

12 L.Ed.2d 894 (1964)

Chapman v. California,

87 S.Ct. 824,

386 U.S. 18,

17 L.Ed.2d 705 (1967)

Curtis Publishing Co. v. Butts,

388 U.S. 130,

18 L.Ed.2d 1094,

87 S.Ct. 1975 (1967)

Douglas v. Buder,

412 U.S. 430,

93 S.Ct. 2199,

37 L.Ed.2d 52 (1973)

Huff v. United States,

192 F.2d 911 (Sth Cir. 1951)

Johnson v. Zerbst,

304 U.S. 458, 464,

58 S.Ct. 1019, 1923,

82 L.Ed. 1461

Jordan v. DeGeorge,

341 U.S. 223, 230,

71 S.Ct. 703, 707,

95 L.Ed. 886 (1951)

Lanzetta v. New Jersey,

306 U.S. 451, 453,

59 S.Ct. 618, 619,

83 L.Ed. 888

Marks v.United States,

430 U.S. 188,

97 S.Ct. 990,

51 L.Ed.2d 260 (1977)

Page

a, m8. GS. 7,

12-14, 15,

17, 20, 21,

22, 23, 24

20-21

14, 15

McBoyle v. United States,

283 U.S. 25, 27,

51 S.Ct. 340, 341,

75 L.Ed. 816

Pierce v. United States,

314 U.S. 306, 311,

62 S.Ct. 237, 239,

86 L.Ed. 226.

Silber v. U.S.,

370 U.S. 717,

8 L.Ed.2d 798,

82 S.Ct. 1287

Sykes v. United States,

373 F.2d 607, CCA 5,

1966, cert. denied,

87 S.Ct. 1172

United Brotherhood, C.J.

v. United States,

330 U.S. 395, 412,

91 L.Ed. 973, 987,

67 S.Ct. 775

United States v. Atkinson,

297 U.S. 157, 160,

80 L.Ed. 555, 557,

56 S.Ct. 391

U. S. v. Brown,

555 F.2d 407 (Sth Cir. 1977)

United States v. Campanale,

518 F.2d 352 (9th Cir. 1975)

United States v. Cardiff,

344 U.S. 174, 176-177,

73 S.Ct. 189, 190,

97 L.Ed. 200

Vii

United States v.Harris,

347 U.S. 612, 617,

74 S.Ct. 808, 812,

98 L.Ed. 989

Constitution of the United States,

Article 1, Section 9, Clause 3

Constitution of the United States,

Amendment V

Constitution of the United States,

Amendment XIV, Section 1

28 U.S.C. 1254(1)

18 U.S.C. 371

18 U.S.C. 29

18 U.S.C. 43

18 U.S.C. 52

16 U.S.C. 3371, 3372, and 3373

16 U.S.C. 742j-1(a) & (b)

16A Am Jur 2d,

Constitutional Law, §635

Wright, Federal Practice and

Procedure: Criminal 2d,

Sections 851-856

Vili

a a

13, 14

xi, 5, Bl

xiii, 5, 8,

15, 19, Bl

xili, 5,

Bl-2

xii

xiii, 3, 9,

12, B2

xiii, 3,

B16

xiii, B2-6

iii, Xii,

xili, 6, 17,

20, B15

= = FF

3, 8-9,

B7-14

i, Xi, xiii,

3-5, 8-11

B14-15

OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS

DELIVERED IN COURTS BELOW

The following pertinent documents have been

reproduced and are set forth in Appendix A.

Rs INDEX PAGE 5 from the

PROCEEDINGS RECORD

2. ORDER denying Petitioner's

Motion for Judgment of Acquittal

3. JUDGMENT AND PROBATION/

COMMITMENT ORDER - October 6,

4. ORDER denying Petitioner's

Motion for Reduction of Sentence

AMENDED JUDGMENT AND

PROBATION/COMMITMENT ORDER -

January 13, 1984

6. OPINION of the Court of Appeals

ORDER denying Petitioner's Petition

for Rehearing and Petition for Rehearing

En Banc

STATEMENT OF THE GROUNDS

The Judgment and _ Probation/Commitment

Order rendered by the Honorable Lucius D.

Bunton, United States District Judge for the

Western District of Texas, Midland-Odessa,

Division, was rendered on October oS, 1963,

and was amended on January 13, 1984. This

documentation is attached hereto as a part of

Appendix A.

The Opinion of the Court of Appeals

rendered on June 14, 1984, and the Order deny-

ing Petitioner's Petition for Rehearing and Petition

for Rehearing En Banc, dated August 3, 1984,

are also reproduced in Appendix A.

The statements of the grounds on which the

jurisdiction of this Court is invoked are as

follows:

1. The district court and the appellate court in

the instant case have so far departed from the

accepted and usual course of judicial proceedings

as to call for an exercise of this Court's power of

supervision when it is shown by the record of

this case that the district court and the appellate

court have failed to reasonably construe, failed to

give any effect to, or judicially enlarged Acts of

Congress, 16 U.S.C. 742j-1(b) and 16 U.S.C.

3371 et seq. which, with proper construction,

would exonerate the accused.

2. The Court of Appeals has decided an import-

ant federal question in a way in conflict with

applicable decisions of this Court when it decided

that Petitioner's motion to dismiss indictment,

motions for directed verdict, and motion for

judgment .f acquittal had not raised an issue of

ex post facto judicial construction as defined in

the opinion of this Court rendered in Bouie v.

City of Columbia, 378 U.S. 347, 84 S.Ct. 1697,

12 L.Ed.2d 894, and has thereby become in direct

conflict therewith.

3. The Court of Appeals' decision that "Since

the claim of an ex post facto violation was not

urged in district court, this court may only

consider it on appeal if it constituted plain error

under Rule 52(b), Fed.R.Cr.P.", has decided

an important question of federal law which has

not been, but should be decided by this Court

in that by the rendition of such decision, the

appellate court has imposed an impossible and

illogical burden upon the accused, by ruling

that he should be able to foresee and raise in

the trial court an unforeseeable judicial con-

struction.

STATUTORY PROVISION

CONFERRING JURISDICTION

Petitioner invokes the jurisdiction of this

Honorable Court pursuant to 28 U.S.C. 1254(1):

"By writ of certiorari granted upon

the petition of any party to any civil

or criminal case, before or after rend-

ition of judgment or decree. . . "

CONSTITUTIONAL PROVISIONS

AND ALL STATUTES INVOLVED

These citations pertain to all constitutional

provisions and statutes involved in this case.

The pertinent text is set forth in Appendix B.

CONSTITUTION OF THE UNITED STATES,

ARTICLE 1, SECTION 9, CLAUSE 3.

¢ xii

CONSTITUTION OF THE UNITED STATES,

AMENDMENT V.

CONSTITUTION OF THE UNITED STATES,

AMENDMENT XIV, SECTION 1.

18 UNITED STATES CODE ANNOTATED,

SECTION 371.

18 UNITED STATES CODE ANNOTATED,

SECTION 43.

16 UNITED STATES CODE ANNOTATED,

SECTIONS 3371, 3372, 3373.

16 UNITED STATES CODE ANNOTATED,

SECTIONS 742j-1(a) & (b).

FEDERAL RULES OF CRIMINAL PROCEDURE,

18 U.S.C.A. 52.

FEDERAL RULES OF CRIMINAL PROCEDURE,

18 U.S.C.A. 29.

Xiii

PREAMBLE

LARRY WELDON TODD, Petitioner for writ of

certiorari, respectfully prays that this Honorable

Supreme Court respond to his plea for justice.

All are taught from childhood to have faith in

a judicial system which bases its decisions on logic

and that the function of the United States Supreme

Court is to uphold the Constitution.

The legal profession and the court system are

often criticized by the news media and by laymen

because, too often, the rights of an individual are

ignored. This situation occurs because of the

enormity of the caseload and the inability of the

courts to hear each individual cane upon a case

by case basis. Therefore, the courts are forced

to hear only cases involving the masses or touch-

ing upon some tremendous social issue. Often

there is no one to hear the individual's complaint

and his right to be heard is ignored.

This failure of the system to hear the com-

plaints of individual persons creates contempt,

despair, and loss of faith in the judicial system,

and makes a mockery of justice.

Again, Petitioner prays that this Honorable

Court hear his plea.

C a, WELDON TOSD

STATEMENT OF THE CASE

The government indicted and tried LARRY

WELDON TODD, hereinafter called TODD, and

others for conspiring (under 18 U.S.C. 371) to

violate the LACEY ACT AMENDMENTS (16 U.S.C.

3371, et seq.) by engaging in commercial activity

dealing in wildlife that had been illegally taken by

the use of an airborne helicopter in violation of

the AIRBORNE HUNTING ACT, 16 U.S.C. 742j-1.

Prior to trial, TODD filed a motion to dismiss

the indictment and during trial filed motions for

directed verdict. At the conclusion of the trial

and the return of the jury's verdict of guilty,

TODD moved for a judgment of acquittal under

Rule 29, FRCrP. In each instance, the requested

relief was denied. TODD appealed and in the

Court of Appeals raised the issue of the ex post

facto application of the LACEY ACT and the AIR-

BORNE HUNTING ACT as they had been uniquely

and unforeseeably construed by the district court.

The record reflects that JAMES CLYDE

SHORT, JR., hereinafter called SHORT, helicopter

pilot and co-conspirator, was found by the

Court of Appeals to have a valid permit to hunt

coyotes from the air. TODD purchased coyote

pelts from SHORT to be taken in the future.

TODD'S reasonably intelligent construction of the

AIRBORNE HUNTING ACT is that 16 U.S.C.

742j-1(a) narrowly and precisely prohibits the

hunting of any animal, etc. from an airborne

aircraft, while Section (b) narrowly and precisely

provides that Section (a) shall NOT apply if such

person holds a permit issued by any state, there-

fore facially declaring that it shall NOT be a crime

TO TAKE a deer or any other animal if the taker

holds a permit. (All emphasis herein is added

unless the contrary is indicated. )

The district court, by denial of TODD'S

motion for dismissal of the indictment, denial of

his motions for directed verdict, and motion for

judgment of acquittal, construed 16 U.S.C. 742j-1

to mean that, regardless of the fact that SHORT

had a permit under 16 U.S.C. 742j-1(b), an offer

to take someone airborne hunting would be a

criminal act. ‘lhe Court of Appeals for the first

ofe

time in the case found SHORT had a permit

under Section (b), but gave it no effect except

as a basis of SHORT'S guilty knowledge. The

LACEY ACT, both before the amendment dated

November 16, 1981, and after, narrowly and

precisely deals with TAKEN game and further

provides that TAKEN game must have been

ILLEGALLY TAKEN. Thus, the construction

and enlargement by the district court of the

LACEY ACT to include wildlife TO BE TAKEN in

the future and the Court of Appeals' failure to

give any effect to the license or permit of SHORT

was complained of in the appellate court as being

in violation of the constitutional rights of TODD

by failing to give him fair notice of this construc-

tion and by becoming thereby ex post facto in

violation of the UNITED SYLATES ‘CONSTITUTION,

Article 1, Section 9, Clause 3, the FIFTH AMEND-

MENT, and the FOURTEENTH AMENDMENT.

The appellate court has ruled that TODD did

not raise the ex post facto issue in the district

court and that the ex post facto construction issue

did not warrant consideration under the plain error

oS—

doctrine, Rule 52(b), FRCrP. It thereby ruled

that TODD should have foreseen the unforeseeable

and imposed upon him an impossible burden.

After the rendition of the Court of Appeals'

ruling, Petitioner filed a petition for rehearing in

which he again specifically pointed out the errors

of construction, the judicial enlargement, and ex

post facto application of same, and the exoneration

of the accused which should have resulted from

the finding of the appeals court of the license or

permit held by SHORT. The petition for rehear-

ing was denied.

TODD now appeals to this court praying

that this Court will grant the writ of certiorari,

reverse the courts below and acquit Petitioner,

or remand this cause for further consideration

in the appropriate lower court in the light of the

decisions of this Court in Bouie and other cases

discussed, infra.

ARGUMENT AMPLIFYING REASONS RELIED UPON

FOR ALLOWANCE OF WRIT

QUESTIONS ONE AND TWO:

BOTH THE DISTRICT COURT AND COURT OF

APPEALS IN THE INSTANT CASE HAVE SO FAR

DEPARTED FROM THE ACCEPTED AND USUAL

COURSE OF JUDICIAL PROCEEDINGS TO CALL

FOR THE SUPERVISION OF THE UNITED STATES

SUPREME COURT and BOTH THE DISTRICT

COURT AND COURT OF APPEALS HAVE DECIDED

AN IMPORTANT FEDERAL QUESTION IN A WAY

IN CONFLICT WITH APPLICABLE DECISIONS OF

THIS COURT.

"No one may be required at peril of life, lib-

erty or property to speculate as to the meaning of

penal statutes. All are entitled to be informed as

to what the State commands or forbids." Lanzetta

v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618,

619, 83 L.Ed. 888, McBoyle v. United States, 283

U.S. 25, 27, 51 S.Ct. 340, 341, 7 L.Ed. 816;

United States v. Cardiff, 344 U.S. 174, 176-177,

73 S.Ct. 189, 190, 97 L.Ed. 200, Pierce v. United

States, 314 U.S. 306, 311, 62 S.Ct. 237, 239, 86

L.Ed. 226. cf. Bouie v. City of Columbia, 378

U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

It is a tenet of our jurisprudence that "crim-

inal statutes which fail to give due notice that an

oJo

act has been made criminal before it is done are

unconstitutional deprivations of due process of

law." Jordan v. DeGeorge, 341 U.S. 223, 230,

71 S.Ct. 703, 707, 95 L.Ed. 886 (1951).

Petitioner contends that both the district

court and the appellate court have, WITHOUT

FAIR NOTICE, in violation of his right to due

process of law as guaranteed him in the Fifth

Amendment to the Constitution, judicially enlarged

and expanded, retroactively, the clear, precise,

and narrow meaning of two statutes: 16 U.S.C.

742j-1 and 16 U.S.C. 3371, et seq. (AIRBORNE

HUNTING ACT and LACEY ACT of November 16,

1981, respectively).

The government, in its zeal to obtain a fel-

ony conviction of the accused, has successfully

urged upon the courts an illogical construction of

the two statutes. The government's position is

that TODD conspired to violate the LACEY ACT

(i.e., to commercially deal in wildlife which was to

be TAKEN by illegal means) and that the ILLEGAL

TAKING of said wildlife was accomplished by

the use of a helicopter piloted by an alleged

-8-

co-conspirator, SHORT, contrary to the AIR-

BORNE HUNTING ACT. 18 U.S.C. 371 (the

conspiracy statute) provides that if two or more

persons conspire to commit an offense against

the United States and one or more persons do

any act to effect the object of the conspiracy,

each shall be fined not more than $10,000 or

imprisoned not more than 5 years or both, but

if the objective crime of the conspiracy is a

misdemeanor, then the punishment shall be for

a misdemeanor. As overt acts, the government

alleged that TODD issued two checks payable to

SHORT and also made some offers to others to go

HUNTING. The government's case, for example,

did NOT prove that TODD offered to sell anyone

any "TAKEN" wiidlife or engaged in conduct

dealing in "TAKEN" wildlife. Under 16 U.S.C.

3371(i) the term "TAKEN" means CAPTURED,

KILLED, or COLLECTED. The evidence was,

therefore, insufficient to support a conviction

of conspiracy to violate the LACEY ACT. If

the conspiracy charged had been to violate the

AIRBORNE HUNTING ACT, the evidence was

=9-

apparently sufficient to convict TODD of a misde-

meanor, ASSUMING that SHORT had no license or

permit.

SHORT did not testify and TODD raised the

issue of the license or permit held by SHORT to

legally take wildlife which had been issued by the

State of Texas. The government has conceded

and the appellate court has found that SHORT did

in fact, have the required license or permit. /

Therefore, both the district court and the appel-

late court have construed the permit section of

the statute, 16 U.S.C. 742j-1(b), wherein it

states "this section SHALL NOT APPLY if a per-

son holds a license or permit issued by any state

"to have no effect whatsoever. (emphasis

added) This. ruling was first made by the

district court in its refusal to grant Petitioner's

motions for directed verdict and his motion for

judgment of acquittal in which he generally raised

the ex post facto issues. The appellate court's

FN1. BEFORE THIS JUDICIAL FINDING OF A DIS-

PUTED FACT ISSUE BY THE COURT OF

APPEALS, TODD HAD RAISED THE ISSUE

AS AN INSUFFICIENT EVIDENCE POINT.

-10-

construction of the statute is found in its ruling

that while SHORT held a permit to hunt coyotes,

its only effect was to prove the guilty knowledge

of SHORT. Neither the trial court nor the appel-

late court considered the precise and narrow

meaning of the permit exception and if it might

even apply to the facts of this case. 16 U.S.C.

742j-1(b) clearly and unambiguously grants and

gives to the helicopter pilot an unfettered exemp-

tion from the sanctions set forth in 742j-1(a).

The statute, 16 U.S.C. 742j-1(b) as enacted by

Congress, granting the exemption to hunt wildlife

while airborne, narrowly, precisely, and specif-

ically provides: "This section [16 U.S.C. 742j-1

(a)] shall NOT apply if such person .. . is

operating under a license or permit of, any State

" Had Congress intended for the exemption

to apply only to wildlife authorized by the license

or permit (such as coyotes), it should have so

specifically provided in order to put Petitioner on

FAIR NOTICE that his contemplated conduct in

allegedly offering hunts from the air for other

animals was to be illegal. Because Congress did

«jt.

not specifically provide that it would be illegal

TO TAKE from the air, in an airborne aircraft,

any other animals, such as deer, when such per-

son had the required license or permit, it must

be presumed that such TAKING would be legal.

Therefore, because SHORT had ‘the license or

permit, which the government conceded and the

appellate court found, under a proper construc-

tion of said Act there was no CRIME that TODD

agreed to commit in violation of 18 U.S.C. 371,

of which he has been convicted. Further, there

was no illegal game or wildlife to be commercially

sold in violation of the LACEY ACT. Therefore,

the application by the Court of Appeals of the

rule announced in Huff v. United States, 192

F.2d 911 (‘5th Cir. 1951) and United States v.

Campanale, 518 F.2d 352 (9th Cir. 1975), in

support of its decision, DOES NOT APPLY as

there was no objective crime for the continuing

conspiracy to bring to completion.

This Court in Bouie v. City of Columbia, 378

U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)

has specifically held:

"The basic principle that a criminal statute

must give fair warning of the conduct that

makes it a crime has often been recognized by

this Court. As was. said in United States v.

Harriss, 347 U.S. 612, 617, 74 S.Ct. 808,

812, 98 L.Ed. 989, 'The constitutional re-

quirement of definiteness is violated by a

criminal statute that fails to give a person of

ordinary intelligence fair notice that his con-

templated conduct is forbidden by the statute.

The underlying principle is that no man shall

be held criminally responsible for conduct

which he could not reasonably understand to

be proscribed'."

"It is true that in the Connally and Lan-

zetta cases, and in other typical applications

of the principle, the uncertainty as to the

statute's prohibition resulted from vague or

overbroad language in the statute itself, and

the Court concluded that the statute was ‘void

for vagueness’. The instant case seems dis-

tinguishable, since on its face. . (the statute

under question). . was admirably narrow and

precise; .. . . The thrust of the distinction,

however, is to produce a potentially greater

deprivation of the right to fair notice in this

sort of case, where the claim is that a statute

precise on its face has been unforeseeably

and retroactively expanded by judicial con-

struction, than in the typical 'void for vague-

ness' situation. When a statute on its face is

vague or overbroad, it at least gives a poten-

tial defendant some notice, by virtue of this

very characteristic, that a question may arise

as to its coverage, and that it may be held to

cover his contemplated conduct. When a

statute on its face is narrow and precise,

however, it lulls the potential defendant into

a false sense of security, giving him no

reason even to suspect that conduct clearly

outside the scope of the statute as written

will be retroactively brought within it by

judicial construction."

«tie

"There can be no doubt that a deprivation

of the right to fair warning can result not

only from vague statutory language but also

from an unforeseeable and retroactive judicial

expansion of narrow and precise statutory

language."

"The fundamental principle that '‘'the re-

quired criminal law must have existed when

the conduct in issue occurred,' (citation omit-

ted) must apply to bar retroactive criminal

prohibitions emanating from courts as well as

_from legislatures. If a judicial construction of

a criminal statute is ‘unexpected and indefen-

sible by reference to the law which had been

expressed prior to the conduct in issue,’ it

must not be given retroactive effect." (cita-

tion omitted)

The construction of the acts in question by

the district court and the appellate court was and

is clearly in error. Obviously, this construction

was not reasonably foreseeable by the appellant

or any other reasonably intelligent person, and

the denial of his claim of ex post facto relief by

the appellate court is in direct conflict with this

court's decisions in Bouie, supra; U.S. v. Harris,

347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954);

Lanzetta v. New Jersey, supra; Marks v.United

States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d

260 (1977); and Douglas v. Buder, 412 U.S. 430,

93 S.Ct. 2199, 37 L.Ed.2d 52 (1973).

-34-

"(A)n unforeseeable judicial enlargement of

a criminal statute, applied retroactively, oper-

ates precisely like an ex post facto law such

as Art. 1, sec. 10, Cin this case Art. 1,

sec. 9, cl. 3) of the Constitution forbids.

If a state legislature is barred by the Ex Post

Facto clause from passing such a law, it must

follow that the State Supreme Court is barred

by the Due Process Clause from achieving

precisely the same result by judicial con-

struction." Boule, supra, at 353, 354,

84 S.Ct. at 1703 and quoted in U. S. v.

Brown, 555 F.2d 407, (5th Cir. 1977).

Persons have a right to fair warning of that

conduct which will give rise to criminal penalties.

That right is protected against judicial action by

the Due Process Clause of the Fifth Amendment.

Marks v. United States, supra.

CONCLUSION

Therefore, the supervision of this Court is

called upon to rectify the clear error of the courts

below that departed from the usual and accepted

course of judicial proceedings by failing to prop-

erly construe the acts in question. Further

supervision of the Court is necessary as it relates

to the failure of the Court of Appeals to consider

the claimed error of the trial court in refusing the

motion to dismiss indictment, motions for directed

«ii.

verdicts, and motion for judgment of acquittal as

it relates to the issue of post-trial judicial enlarge-

ment or expansion of a narrowly and precisely

worded statute. It is submitted that counsel for

the accused and the courts were without the nec-

essary guidance because this Court has not ruled

on the necessary way or manner of bringing an

ex post facto unforeseeable judicial expansion

decision of a lower court's construction of a penal

statute to the attention of the appellate court.

For this reason, the Court should grant the

writ of certiorari and clarify, amplify, and estab-

lish the procedural steps to be taken to properly

bring before the Court the issue of an unforesee-

able ex post facto judicial enlargement question.

«it-

ARGUMENT AMPLIFYING REASONS RELIED UPON

FOR ALLOWANCE OF WRIT

QUESTION THREE:

THE COURT OF APPEALS HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW, i.e.,

THAT A CLAIMED ERROR OF EX POST FACTO

JUDICIAL CONSTRUCTION IN VIOLATION OF

CONSTITUTIONAL RIGHTS CAN BE CONSIDERED

ONLY UNDER THE PLAIN ERROR DOCTRINE AND

IF IT IS HARMLESS, DISREGARD IT, WHICH HAS

NOT, BUT SHOULD BE, DECIDED BY THE

UNITED STATES SUPREME COURT.

In the instant case, the Court of Appeals has

decided that TODD, under the logic of Sykes v.

United States, 373 F.2d 607, CCA 5, 1966, cert.

denied, 87 S.Ct. 1172, in failing to present the

ex post facto judicial expansion or enlargement

construction question to the trial court, failed to

preserve his error and that the appellate court

could only consider same under the plain error

rule set forth in 52(b) FRCrP, 18 U.S.C. This

ruling, in and of itself, violates or is contrary to

the reasoning in precedents of this Court as they

apparently apply to Bouie-type situations created

by an unforeseeable event.

The error committed in this case is so obvi-

ous and plain that the Court of Appeals should

have noticed it sua_ sponte. Silber v. U.S.,

370 U.S. 717, 8 L.Ed.2d 798, 82 S.Ct. 1287:

"While ordinarily we do not take note of errors

not called to the attention of the Court of Appeals

nor properly raised here, that rule is not without

exception. The Court has 'the power to notice a

"plain error" though it is not assigned or spec-

ified .' United Brotherhood, C.J. v. United

States, 330 U.S. 395, 412, 91 L.Ed. 973, 987, 67

S.Ct. 775. 'In exceptional circumstances, espe-

cially in criminal cases, appellate courts, in the

public interest, may, of their own motion, notice

errors in which no exception has been taken, if

the errors are obvious, or if they otherwise seri-

ously affect the fairness, integrity, or public

reputation of judicial proceedings.' United States

v. Atkinson, 297 U.S. 157, 160, 80 L.Ed. 555,

557, 56 S.Ct. 391."

The decision of the Court of Appeals in this

case places an impossible burden on the accused

to foresee and object to the unforeseeable. In

«18

the Court of Appeals, Petitioner in his motion for

rehearing again raised the ex post facto issue

and specifically pointed out to the Court that its

judicial finding of the fact that SHORT had the

required license or permit had exonerated him

from guilt. The denial of the motion for rehear-

ing is also complained of in this proceeding. The

rulings by the appellate court, in and of them-

selves, deny Petitioner due process of law in vio-

lation of the Fifth Amendment to the Constitution.

The decision of the Court of Appeals effectively

states that, by not raising the question presented

in the trial court balow, Petitioner waived the.

claim of ex post facto judicial construction. This

Court has held in Curtis Publishing Co. v. Butts,

388 U.S. 130, 18 L.Ed.2d 1094, 87 S.Ct. 1975

(1967) ". . . It is clear that even constitutional

objections may be waived by a failure to raise

them at a proper time . . . (citation omitted) but

an effective waiver must, as was said in Johnson

v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

1923, 82 L.Ed. 1461 be one of a ‘known right or

privilege'."

=19~

In this case, Petitioner has attempted, with

every procedural device within his knowledge and

command, to bring to the courts' attention the

obvious errors that were being committed. The

errors committed by the courts below are certainly

substantial and injurious to Petitioner and the

courts' rulings on same were, are, and continue

to be, erroneous. They are of such a nature as

to seriously affect the fairness, integrity, or

public reputation of judicial proceedings. The

obviously erroneous judicial construction of the

two acts in question has been held sufficient to

CONVICT TODD of the crime of conspiracy and

shall deprive TODD of his liberty for one year

and cost him a $10,000 fine. If ever an error

was "PLAIN" as set forth in Rule 52(b), FRCrP,

18 U.S.C., and unforeseeable as set forth in

Bouie, supra, it is apparent in the instant

case and should have been considered under

Rule 52(b).

In Chapman v. California, 87 S.Ct. 824,

386 U.S. 18, 17 L.Ed.2d 705 (1967), this Court

announced that "there are some _ constitutional

-20-

rights so basic to a fair trial that their infraction

can never be treated as harmless error." 87

S.Ct. at 827-828.

CONCLUSION

There are several categories of ex post facto

deprivations of constitutional rights generally seen

in the case law.” The three basic categories are:

Ri A statute which punishes as a crime

an act previously committed; and

2. Criminal statutes so vague that reason-

ably intelligent persons would be required to

speculate as to their meaning; and

3. Clear, precise, and narrow statutes

given an unforeseeable judicial interpretation

which expands the statute to punish an act of

an accused person.

On the above three categories, much has been

decided wy this Court concerning the first two.

The third category is specifically defined and dis-

tinguished in Bouie, supra. This Court has not

FN2. For a detailed categorization, see 16A AmJur2d,

§635 at pgs 585-586.

-21-

written on the implications of Bouie, supra, and

more particularly, has not yet concerned itself

with the relationship of this third category of

ex post facto deprivation to the plain error rule.

As discussed in Wright, Federal Practice and

Procedure: Criminal 2d, Sec. 851-856, pgs 294-

344, and specifically in Section 855, pg 330, after

discussing the types of constitutional violation of

rights which the courts have held to require auto-

matic reversal: "In which category other constitu-

tional violations fall cannot be definitely known

until the Surpeme Court has spoken about them."

This statement also applies to the application of

the plain error rule to a Bouie-type ex post facto

deprivation of rights -- a "potentially greater"

deprivation than that posed by merely vague

statutes or post dated ones. FAIR NOTICE is the

gravamen of the error. In the face of an unfore-

sceabie, potentially greater deprivation of con-

stitutional rights of the appellant herein, the

Court of Appeals has applied the plain error rule

as though the Bouie category ex post facto

problem were one of the other two categories

-22-

wherein it can be said that an accused has had at

least some notice that the statute may be applied

against him. Here, as in all Bouie situations, the

Petitioner had no notice, i.e., the interpretation

of a statute against him was unforeseeable, and

therefore it is notoriously and monstrously unfair

to apply a rule requiring him to preserve error at

the trial level in the district court. The Court of

Appeals has held that Petitioner must foresee the

unforeseeable. With the greatest respect to the

Court of Appeals, the lack of guidance from this

Court has caused them to apply an illogical and

unfair rule to Petitioner, and to do so in a deci-

sion which wanders and wallows in superficial

phraseology about the plain error rule. The

Court of Appeals almost appears to consciously

avoid the real questions: Was the trial court's

interpretation unforeseeable? If so, how could it

be fair to require its urging in the trial court?

If not, was the deprivation so great that the

question could be raised in the Court of Appeals,

and, procedurally, how do you raise the point, if

NOT done so in the present case?

-23-

The appeal court's decision deals with the

first of the three types of ex post facto depriva-

tions which were raised at trial. It is submitted

that the Court of Appeals fell into error in

attempting to apply those rules set down by this

Court to a Bouie situation, wherein those rules

are inappropriate and inapplicable. If Bouie were

amplified and explained by this Court, at least

insofar as is required to set up guidelines for the

application of the plain error rule as it relates to

unforeseeable, expansive, judicial interpretation

of a statute, then the error in this case will be

corrected, and perhaps those in the future better

avoided.

It is, therefore, respectfully submitted tha*

appropriate guidelines for applying the plain error

rule to Bouie ex post facto deprivations be estab-

lished by this Court.

It is submitted that because of the unfore-

seeability of the adverse finding inherent in a

Bouie situation, the Court of Appeals should first

determine whether Bouie applies, i.e., whether

the judicial construction is actually urforeseeable.

-24-

Then, if not, the plain error rule should be

applied as in other cases. If so, then this Court

should rule that an accused always be permitted to

raise for the first time on appeal an unforeseeable

judicial construction. Such a guideline, if applied

below, would have freed Petitioner, and if applied

henceforth, will help to avoid the illogical and

dangerous constitutional deprivations resulting

from application of the plain error rule to Bouie

situations where it cannot possibly produce a fair

result.

It is, therefore, respectfully prayed that

this Court decide this important question of

federal law which has not been, but should be

decided by this Court.

WHEREFORE, Petitioner prays that this Court

grant his application for a writ of certiorari; and

upon a hearing hereof, the Court reverse the

decision of the courts below and acquit Petitioner;

OR, in the alternative, that this Court reverse

and remand this case to the proper court for

further proceedings consistent with this Court's

decisions.

-25-

Respectfully submitted,

WALTER E. LSON, Attorney at law

507 North Lee, Odessa, Texas 79761

915/332-8221 Texas Bar No. 21729000

ATTORNEY FOR LARRY WELDON TODD

CERTIFICATE OF SERVICE

I hereby certify that on this LES aay of

September, 1984, a true and exact copy of the

foregoing Petition for Writ of Certiorari on behalf

of Larry Weldon Todd, has been mailed to:

Mr. Christopher Nuechterlein, Attorney

Wildlife & Marine Resources Section

Land & Natural Resources Division

U. S. Department of Justice

Room 639, Todd Building

550 - llth Street, N.W.

Washington, D. C. 20530

WALTER E. WILSON

-26-

EXCERPT FROM DOCKETING SHEET:

7: CR-83-0021-04

US V BELL ET AL

PROCEEDINGS

PAGE 5

09/13/83

31 Motion to dismiss filed (MOT#29) (Counts

1,4) (Filed Motion to dismiss indictment. )

(Dkt'd 09/22/83).

Motion to dismiss denied (MOT#29) (Dkt'd

09/22/83).

09/14/83

Motion made in open court for judgment of

acquittal (MOT#30) (Counts 1,4) (Dkt'd

09/22/83).

Motion for Judgment of acquittal denied

(MOT#30) (Dkt'd 09/22/83).

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

UNITED STATES OF AMERICA )

VS. ) MO-83-CR-21

LEE MILTON BELL, KARL )

DOUGLAS BROSIG, JAMES

CLYDE SHORT, JR., and

LARRY WELDON TODD

ORDER

On this date came on to be considered Defend-

ants' Motion for a Judgment of Acquittal in the

above-styled cause, and this Court, after fully

considering this Motion, is of the opinion that

this motion is without merit.

Accordingly,

IT IS, THEREFORE, ORDERED that Defendant's

Motion for a Judgment of Acquittal Notwithstand-

ing the Verdict is DENIED.

SIGNED and ENTERED this the Ist day of

October, 1983.

/s/ Lucius D. Bunton

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

UNITED STATES OF AMERICA vs.

DEFENDANT: LARRY WELDON TODD

Docket No. MO 83 CR 21 (4)

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government

the defendant appeared in person on this date:

October 6, 1983

COUNSEL: WITH COUNSEL, Walter Wilson

PLEA: NOT GUILTY

FINDING & There being a verdict of guilty by

JUDGMENT: jury trial on September 15, 1983.

Defendant has been convicted and

charged of the offense(s) of On or

about August, 1981 and continuous-

ly thereafter up to and including

July 26, 1983 defendant committed

offenses against the United States

in violation of the Lacey Act, 16

USC §3372(a)(1), 3373(1)(B) and

the Airborne Hunting Act, 16 USC

$741j-1 and 18 U.8.C., §371.

SENTENCE The court asked whether defendant

OR had anything to say why judgment

PROBATION should not be pronounced. Because

ORDER: no sufficient cause to the contrary

was shown, or appeared to the

court, the court adjudged the

defendant guilty as charged and

convicted and ordered that: The

COMMITMENT

RECOMMEN-

DATION:

defendant is hereby committed to

the custoy of the Attorney General

or his authorized representative

for imprisonment for a period of

One (1) year and pay a $10,000

committed fine.

The court orders commitment to the

custody of the Attorney General

and recommends, defendant is to

contact the U.S. Marshals Office

in Midland, Texas by 10:00 A.M.

on October 24, 1983 to ascertain

where he is to voluntarily commit

himself.

/s/ Lucius D. Bunton

LUCIUS D. BUNTON

October 6, 1983

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

UNITED STATES OF AMERICA

VS. NO. MO-83-CR-21(4)

LARRY WELDON TODD

ORDER

Came on this day for consideration Defend-

ant LARRY WELDON TODD's Motion for Reduction

of Sentence, filed pursuant to Rule 35 of the

Federal Rules of Criminal Procedure. The Court

continues to be of the opinion that the sentence

imposed was just and proper under the facts of

the case; accordingly,

IT IS ORDERED that Defendant's Motion for

Reduction of Sentence be and is hereby DENIED.

In response to Defendant's request for clari-

fication of whether he was sentenced for the com-

mission of a felony or a misdemeanor, the Court

hereby informs him that the sentence imposed falls

under a felony designation.

SIGNED and ENTERED this 13th day of

January, 1984.

/s/ Lucius D. Bunton

UNITED STATES DISTRICT JUDGE

etn wt

2 eke Ahan abate ee

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

MIDLAND-ODESSA DIVISION

UNITED STATES OF AMERICA vs.

DEFENDANT: LARRY WELDON TODD

Docket No. MO 83 CR 21 (4)

AMENDED

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government

the defendant appeared in person on this date:

October 6, 1983.

COUNSEL: WITH COUNSEL, Walter Wilson

PLEA: NOT GUILTY

FINDING & There being a verdict of guilty by

JUDGMENT: jury trial on September 15, 1983.

Defendant has been convicted and

charged of the offense(s) of on or

about August, 1981 and continuous-

ly thereafter up to and including

July 26, 1983 defendant committed

offenses against the United States

in violation of the Lacey Act, 16

USC §3372(a)(1), 3373¢d)(1)(B)

and the Airborne Hunting Act, 16

USC §741j-1 and 18 U.S.C., §371.

SENTENCE The court asked whether defendant

OR had anything to say why judgment

PROBATION should not be pronounced. Because

ORDER: no sufficient cause to the contrary

was shown, or appeared to the

court, the court adjudged the

defendant guilty as charged and

convicted and ordered that: The

COMMITMENT

RECOMMEN-

DATION:

defendant is hereby committed to

the custoy of the Attorney General

or his authorized representative

for imprisonment for a period of

One (1) year and pay a $10,000.00

committed fine.

The court orders commitment to the

custody of the Attorney General

and recommends, defendant is to

contact the U.S. Marshals Office

in Midland, Texas by 10:00 A.M.

on October 24, 1983 to ascertain

where he is to voluntarily commit

himself.

/s/ Lucius D. Bunton

LUCIUS D. BUNTON

January 13, 1984

(eeaeesieeee i sinaiedineei

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 83-1748

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

LARRY WELDON TODD and

JAMES CLYDE SHORT, JR.,

Defendants-Appeliants.

Appeal from the United States District Court

for the Western [strict of Texas

( June 14, 1984 )

Before GOLDBERG, RUBIN and REAVLEY, Circuit

Judges.

REAVLEY, Circuit Judge:

Larry Todd and James Short appeal their con-

victions for conspiracy, in violation of 18 U.S.C.

§ 371 (1976), to violate the Lacey Act, 16 U.S.C.

§§ 3372(a)(1), 3373(¢d)(1)B) (Supp. 1981), which

prohibits the sale of wildlife taken or possessed in

violation of federal law -- here, The Airborne

Hunting Act, 16 U.S.C. 742j-1 (1976). Short

appeals his convictions for substantive violations

of the Lacey Act and the Bald Eagle Protection

Act, 16 U.S.C. § 668(a) (1976). Both appellants

challenge the sufficiency of the evidence and con-

tend that their convictions under the Lacey Act

violated the constitutional prohibition of ex post

facto laws since the alleged conspiracy began prior

to amendments to the Act enhancing the penalties

for its violation. We affirm the decision of the

district judge except as to Short's substantive

violation of the Lacey Act in Count II of the

indictment.

es.

Todd, a gunshop owner, offered hunters a

package arrangement for airborne hunts of wild-

life. The package included a guaranteed, trophy-

size animal, transportation by helicopter, a guide

(Short), use of guns provided by Todd, and

services of a taxidermist. The cost of a hunt

ranged from $1,000 to $5,000, depending on the

type and number of game animals sought.

One hunter testified that on January 22, 1982,

he went on a hunt with Short, killing a barbado

sheep, for which pleasure he paid $600. Another

hunter on the same trip admitted killing a young

eagle, either golden or bald, a mule deer, and a

javelina. Because these animals were not trophy-

size he was not required to pay a fee for the hunt

but agreed to pay $250 for expenses. A gun

belonging to Todd was used on the hunt. Both

hunters testified on behalf of the government in

exchange for reduced sentences for violations of

the Lacey and Airborne Hunting Acts.

On April 1, 1982, Todd offered an airborne

hunt for elk, mule deer, and antelope to another

hunter. This conversation was captured on tape

and played to the jury. There was evidence of

other offers of hunts. In October or November

1981, for example, Todd offered a hunter an air-

borne hunt of whitetail deer, mule deer, big horn

sheep, and possibly mountain lion or cougar for

a price of $2,000. These events may have

occurred prior to the November 16, 1981 effective

date of the amendments to the Lacey Act enhanc-

ing the penalties for its violation. See 16 U.S.C.

§ 3373.

Todd and Short were each convicted of con-

spiracy to violate the Lacey Act and sentenced to

Al0

one year imprisonment and a $10,000 committed

fine. Short was convicted of a substantive viola-

tion of the sac Act, for which he received a

sentence of six months imprisonment, to run con-

secutively to the sentence for conspiracy, and a

$5,000 fine; he was also convicted of violating the

Bald Fagle Protection Act, for which he received

a suspended sentence of one year imprisonment.

II.

Todd and Short argue that their convictions

under the Lacey Act violated the constitutional

prohibition against ex post facto laws, U.S.

Const., art. I, § 9, cl. 3, and the Due Process

Clause of the Fifth Amendment. The conspiracy

began prior to November 16, 1981, the effective

date of the amendments enhancing the penalties

for violation of the Lacey Act. 16 U.S.C. § 3373.

Appellants maintain that their convictions were

void since the agreement to violate the Act ante-

dated the amendments. We disagree.

The former version of the Lacey Act, which

dates back to 1900, made illegal the transportation,

receipt, acquisition, or purchase of wild mammals

All

or birds "killed, taken, purchased, sold or other-

wise possessed in any manner contrary to any Act

of Congress .. . State [law] . . . or foreign

{law}]." 18 U.S.C. § 43, amended by 16 U.S.C.

§§ 3371, 3372, 3373 (Supp. V 1981). The act

imposed a penalty of not more than a $500 fine or

six months imprisonment. Id. The 1981 amend-

ments proscribed essentially the same conduct as

the prior version, 16 U.S.C. §§ 3372(a)(1)), (2),

but enhanced the penalty for violations. 16 U.S.C.

§ 3373. For knowing violations in which the

market value of the animals killed exceeded $350,

the amendments imposed a penalty not to exceed a

$20,000 fine or five years imprisonment. 16 U.S.C.

§ 3373(d)(1). For knowing violations involving

animals with a market value less than $350, the

amendments imposed a maximum penalty of a

$10,000 fine and one year imprisonment. Id.

§ 3373(d)(2).

The ex post facto clause applies to any law

that imposes punishment for an act which was

not criminal at the time it was committed or that

aggravates a crime making it greater than it was

Al2

when it was committed. See Marks v. United

States, 430 U.S. 188, 192, 97 S.Ct. 990, 993

(1977); United States v. Mann, 517 F.2d 259, 269

(Sth cir. 1975), cert. denied, 423 U.S. 1087

(1976). Since the amendments to the Act enhance

the penalty for its violation, prosecution of acts

occurring prior to its effective date under the

new felony provisions would violate the ex post

facto prohibition.

Since the claim of an ex post facto violation

was not urged in district court, this court may

only consider it on appeal if it constituted plain

error under Rule 52(b), Fed. R. Cr. P. Sykes

v. United States, 373 F. 2d 607, 612 (5th Cir.

1966), cert. denied, 386 U.S. 977 (1967). Plain

error is that which is "so obvious that failure to

notice it would 'seriously affect the fairness,

integrity, or public reputation of the judicial

proceedings.' " United States v. Brown, 634

F.2d 819, 829 (5th Cir. 1981), quoting United

States v. Musquiz, 445 F.2d 963, 966 (5th Cir.

1971); 3A C. Wright, Federal Practice and Proce-

dure § 856 at 340 (1982). Whether an appellate

A13

court should take notice of error not raised in the

district court must be determined on the basis of

the facts of the particular case. United States

v. Jones, 673 F.2d 115, 119, (5th Cir. 1982);

3A C. Wright, supra.

The specific error complained of here is that

the district judge failed to give proper instruc-

tions to the jury regarding the dates of the

alleged acts constituting the conspiracy, so that

the jury considered evidence of hunts or offers

of hunts occurring prior to the 1981 amendments

in reaching a guilty verdict. This court address-

ed a similar question in United States v. Brown,

555 F.2d 407 (5th Cir. 1977), cert. denied, 435

U.S. 904 (1978). There, several police officers

were accused of racketeering and conspiracy to

violate the racketeering act in a scheme spanning

a period of two decades. The scheme involved

numerous individuals and many of the acts took

place prior to the effective date of the Organized

Crime Control Act of 1970, which made racketeer-

ing illegal. The district judge did not advise the

jury of the effective date of the act or that it

Al4

must find evidence of a conspiracy of which the

accused was a member after the effective date of

the Act. Thus, the appellants were indicted and

tried for conduct which occurred prior to the

enactment of the statute which made it unlawful.

This court therefore found the convictions con-

stitutionally defective.

In Brown the conspiracy provisions of the act

were applied retroactively in the indictment and in

the jury instructions, thereby allowing appellants

to be convicted for acts that were innocent before

the law was passed. Id. at 420. By contrast,

the indictment in the case before us alleges only

two overt acts by the appellants that occurred

prior to the effective date of the Lacey Act

amendments; all of the other acts occurred during

the effective period of the amendments. ! Most of

: The indictment alleges the following overt acts.

Only items (b) and (e) occurred prior to the

effective date of the Act.

a. The Acts described on Count II through IV

of this indictment are incorporated herin by

,eference, and constitute overt acts.

b. In or about November 1981 LARRY WELDON

TODD, defendant, issued a check for

Al5

eS ee ee ee

the evidence focused on events that occurred

within the effective date of the amendments. The

record includes a tape recording of Todd making

an offer of an airborne hunt in April 1982. Wit-

nesses testified that Short took them on an air-

borne hunt in January 1982. Unlike Brown the

record here clearly establishes violations of the

amended act by the appellants during the relevant

time period. In light of this evidence we cannot

$9,000 to JAMES CLYDE SHORT, JR.,

defendant.

c. In or about December 1981 LARRY WELDON

TODD, defendant, issued a check for

$15,000 to JAMES CLYDE SHORT, JR.,

defendant.

d. In or about April 1982 LARRY WELDON

TODD, defendant, offered to Bruce Young

an airborne hunting trip for $2500 and

$3000. ,

e. In or abo at October 1981 LARRY WELDON

TODD, defendent, offered Brooks Harmon,

Jr., an airborne hunting trip for several

thousand dollars.

f. In or about November 1981 KARL DOUGLAS

BROSIG, defendant, had a conversation

with Jerry Taylor.

g. During the period of this conspiracy KARL

DOUGLAS BROSIG, defendant, did taxj-

dermy work on game animals killed by *

individuals.

Al16

say that failure to give the jury instruction was

so deficient as to result in the likelihood of a

grave miscarriage of justice or circumstances that

seriously affect the fairness, integrity, or public

reputation of judicial proceedings. See United

States v. Jones, 673 F.2d at 119.

Furthermore, (a conspiracy is a _ continuing

crime; it is not completed at the time the agree-

ment was entered. 18 U.S.C. § 371 (1976); Huff

v. United States, 192 F.2d 911, 914-15 (5th Cir.

1951). We have held that "where a crime is still

being carried on and continued after the date

when the act becomes effective," a statute impos-

ing a greater penalty for conspiracy does not

violate the constitutional prohibition of ex post

facto laws. Huff, 192 F.2d at 915. Accord

United States v. Campanale, 518 F.2d 352, 365

(9th Cir. 1975). In this case the conspiracy

clearly continued past the effective date of the

amendments enhancing the penalty.

III.

Todd and Short also claim that the evidence is

insufficient to sustain their convictions under any

Al7

eT eT TT

of the counts in the indictment. "It is not neces-

sary that the evidence exclude every reasonable

hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt, pro-

vided a reasonable trier of fact could find that

the evidence establishes guilt beyond a reasonable

doubt." United States v. Bell, 678 F.2d 547, 549

(5th Cir. 1982) (en banc).

Both Todd and Short contend that the evidence

is insufficient to establish a conspiracy. To prove

a conspiracy, the government must show beyond a

reasonable doubt that a conspiracy existed, that

the appellants had knowledge of it, and that with

this knowledge they voluntarily became a part of

it. United States vy. Bankston, 603 F.2d 528, 531

(5th Cir. 1979). In this case the testimony of

witnesses who participated in the conspiracy pro-

vided direct evidence of its existence. The

government produced a taped telephone convers-

ation in which Todd offered to provide an airborne

hunt of wildlife. Witnesses testified that Short

conducted a hunt in January 1982. Jurors could

A18

have reasonably inferred that the use of Todd's

gun on the hunt conducted by Short in January

provided evidence of a conspiracy between the

two. They may reasonably have inferred that

Short was the guide who conducted the hunts

offered by Todd. We hold that there was suffi-

cient evidence to support the jury finding of

guilty as to the conspiracy charge.

Todd and Short also contend that the govern-

ment failed to establish the ‘wo essential elements

of the Lacey Act: (1) that they knowingly pro-

moted airborne hunts of wildlife, and (2) that the

wildlife had a market value in excess of $350. To

warrant felony punishment the government must

prove that each appellant knew that wildlife with

a market value of $350 was taken in violation of

state or federal law. 16 U.S.C. § 3373(da)(1)(B).

The government need not prove that the appel-

lants knew of the existence of the Lacey Act

itself, only that they knew of the illegal nature of

the game. S. Rep. No. 123, 97th Cong., Ist

Sess. 11, reprinted in 1981 U.S. Code Cong. &

A19

Admin. News 1748, 1758.. Todd testified that he

knew that hunting from a helicopter was a viola-

tion of federal law. Short's knowiedge may be

inferred from the totality of the circumstances of

the case. See United States v. Fonseca, 490 F.2d

464, 470 n.5 (5th Cir.), cert. denied, 419 U.S.

1072 (1974). Short had a permit to hunt coyotes

from the air and had extensive experience as a

hunter. From these facts the jury could reason-

ably have inferred that Short was aware that

hunting animals from an aircraft violated federal

law. We see no deficiency in the proof of this

element.

The appellants also contend that the govern-

ment failed to establish that the game taken had

a market value in excess of $350. On the January

1982 hunt one hunter paid a fee of $600 and killed

a barbado sheep, which does not qualify as wild-

life under Texas law, see Tex. Parks & Wild.

Code § 63.001 (Vernon 1976), and therefore does

not constitute a violation of the Lacey Act. See

16 U.S.C. § 3372(a). The other hunter paid only

A20

$250 to cover the expenses of the hunt since the

eagle, deer, and javelina were not of sufficient

size to qualify as trophies under the terms of the

guaranty. Appellants therefore maintain that the

$350 market value was not established.

We have no difficulty with the convictions for

conepiracy to violate the Lacey Act. Under the

conspiracy charge the government is only requir-

ed to prove that at least one overt act was taken

by one of the conspirators in futherance of the

conspiracy; it need not prove that the substantive

offense was consummated. United States v.Jacobs,

451 F.2d 530, 539-40 (Sth Cir. 1971), cert.

denied, 405 U.S. 905 (1972). Both Todd and

Short offered airborne hunts of wildlife at prices

ranging from $1,000 to $5,000. A commercial

arrangement whereby a professional guide offers

his services to obtain wildlife illegally is an offer

to sell wildlife. S. Rep. No. 123, 97th Cong.,

lst Sess. 12, reprinted in 1981 U.S. Code Cong.

& Admin. News at 1759. The best indication of

the value of the game "sold" in this manner is

the price of the hunt. The evidence thus estab-

A21

Ase: «odie ee di mn ay Se? nd

lishes that the appellants conspired to take game

with a market value exceeding $350.

Short was convicted of a substantive violation

of the Lacey Act. To establish such a violation,

the government must prove that the market value

of the animals taken exceeded $350. 16 U.S.C.

§ 3373(d)(1). The only evidence the government

offered as to the actual value of the game taken

was the price of $1,200 quoted in the offer by

Short and the $250 amount actually paid for the

hunt by the hunter who killed the wildlife. The

government argues that this proof is adequate to

Support the conviction inasmuch as one hunter

paid $600 for the hunt, even though he did not

kill wildlife; and the hunt was part of a commer-

cial operation, the target of the felony provision

of the Act. See S. Rep. No. 123, 97th Cong.,

lst Sess. 11, reprinted in 1981 U.S. Code Cong.

& Admin. News at 1759.

We cannot agree. It is true that, had one of

the animals been large enough to mount as a

trophy, the proof would have supported a value

A22

of $1,200. Nonetheless, the statute requires

proof of the value of the wildlife actually taken.”

The government offered no evidence that the

value of the dead eagle, deer, or javelina

exceeded $350. Consequently, we hold that the

evidence was insufficient to support Short's con-*

viction under the substantive violation of the

Lacey Act. That conviction is reversed.

IV.

We affirm the conviction of Larry Todd on

count I of the indictment and affirm the conviction

of James Short on Counts I and III. The govern-

ment failed to prove a felony violation of the Lacey

2 Criminal Penalties

(1) Any person who --

(B) violates any provision of this chapter

(other than section 3372(b) 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 viol-

ation 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.

A23

eo tne aw area tl

Oe ees

Act against James Short under count II. Double

jeopardy bars his retrial. Burks v. United States,

437 U.S. 1, 10-11, 98 S.Ct. 2141, 2147 (1978).

The sentences imposed on Short are vacated and

we remand the case for resentencing of Short on

counts I and III of the indictment. The district

court, upon resentencing, may impose no more

than a maximum sentence of one year and six

months imprisonment, together with no greater

than $15,000 fine.

AFFIRMED as to Larry Weldon Todd; AFFIRMED

IN PART and REVERSED IN PART as to James

Clyde Short, Jr. and REMANDED FOR RESEN-

TENCING.

Aza é

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 83-1748

UNITED STATES OF AMERICA,

Plaintiff-Appellee ,

versus

LARRY WELDON TODD and

JAMES CLYDE SHORT, JR.,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

ON PETITIONS FOR REHEARING AND

SUGGESTIONS FOR REHEARING EN BANC

(Opinion 06/14/84, 5Cir., 198, F.2d )

(August 3, 1984)

Before GOLDBERG, RUBIN and REAVLEY,

Circuit Judges.

PER CURIAM:

The Petitions for Rehearing are DENIED and no

member of this panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and Local Rule 35)

the Suggestions for Rehearing En Banc are

DENIED.

ENTERED FOR THE COURT:

/s/ Thomas M. Reavley

United States Circuit Judge

A25

APPENDIX B

UNITED STATES CODE ANNOTATED,

CONSTITUTION OF THE UNITED STATES,

Article 1, Section 9, Clause 3.

Bill of attainer and ex post facto laws

No Bill of Attainer or ex post facto Law shall

be passed.

UNITED STATES CODE ANNOTATED,

CONSTITUTION OF THE UNITED STATES,

AMENDMENT V.

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be twice

put in jeoparty of life or limb; nor shall be com-

pelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or pro-

perty, without due process of law; nor shall

private property be taken for public use, without

just compensation.

UNITED STATES CODE ANNOTATED,

CONSTITUTION OF THE UNITED STATES,

AMENDMENT XIV, Section 1.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

18 UNITED STATES CODE ANNOTATED,

Section 371.

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

not more than $10,000 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 misde-

meanor only, the punishment for such conspiracy

shall not exceed the maximum punishment provided

for such misdemeanor. June 25, 1948, c.645, 62

Stat. 701.

18 UNITED STATES CODE ANNOTATED,

Section 43.

(a) Any person who--

(1) delivers, carries, transports, or ships,

by any means whatever, or causes to be deliv-

ered, carried, transported, or shipped for

commercial or noncommercial purposes or sells

or causes to be sold any wildlife taken, trans-

ported, or sold in any manner in violation of

any Act of Congress or regulation issued there-

under, or

(2) delivers, carries, transports, or ships,

by any means whatever or causes to be deliv-

ered, carried, transported, or shipped for

commercial or noncommercial purposes or sells

or causes to be sold in interstate or foreign

commerce any wildlife taken, transported, or

: sold in any manner in violation of any law or

regulation of any State or foreign country; or

(b) Any person who-

(1) sells or causes to be sold any products

manufactured, made, or processed from any

wildlife taken, transported, or sold in any man-

ner in violation of any Act of Congress or

regulation issued thereunder, or

(2) sells or causes to be sold in interstate

or foreign commerce any products manufac-

tured, made, or processed from any wildlife

taken, transported, or sold in any manner in

violation of any law or regulation of a State or

a foreign country, or

(3) having purchased or received wildlife

imported from any foreign country or shipped,

transported, or carried in interstate commerce,

makes or causes to be made any false record,

account, label, or identification thereof, or

: (4) receives, acquires, or purchases for

commercial or noncommercial purposes any wild-

life--

(A) taken, transported, or sold in viola-

tion of any law or regulation of any State or

foreign country and delivered, carried,

transported, or shipped by any means or

method in interstate or foreign commerce, or

(B) taken, transported, or sold in viola-

tion of any Act of Congress or regulation

issued thereunder, or

(5) imports from Mexico to any State, or

exports from any State to Mexico, any game

mammal, dead or alive, or part or product

thereof, except under permit or other author-

ization of the Secretary or, in accordance with

any regulations prescribed by him, having due

regard to the requirements of the Migratory

Birds and Game Mammals Treaty with Mexico

and the laws of the United States forbidding

importation of certain live mammals injurious to

agriculture and horticulture;

shall be subject to the penalties prescribed in

subsections (c) and (d) of this section.

(c)(1) Any person who knowingly violates, or

who, in the exercise of due care, should know

that he is violating, any provision of subsection _

(a) or (b) of this section may be assessed a civil

penalty by the Secretary of not more than $5,000

for each such violation. Each viglation shall be

a separate offense. No penalty shall be assessed

unless such person is given notice and opportun-

ity for a hearing with respect to such violation.

Any such civil penalty may be compromised by the

Secretary. Upon any failure to pay the penalty

assessed under this paragraph, the Secretary may

request the Attorney General to institute a civil

action in a district court of the United States for

any district in which such person is found or

resides or transacts business to collect the pen-

alty and such court shall have jurisdiction to hear

and decide any such action. In hearing such ac-

tion, the court shall have authority to review the

violation and assessment of the civil penalty de

novo.

(2) Any employee .uithorized by the Secre-

tary to enforce the provisions of this section, or

any officer of the customs, shall have authority to

execute any warrant to search for and seize any

wildlife, product, property, or item used or

possessed in violation of this section with respect

to which a civil penalty may be assessed pursuant

to paragraph (1) of this subsection. Such wild-

life, product, property, or item so seized shall be

held by such employee pending disposition of pro-

ceedings by the Secretary involving the assess-

ment of a civil penalty pursuant to paragraph (1)

of this subsection; except that the Secretary may,

in lieu of holding such wildlife, product, prop-

erty, or item, permit such person to post a bond

ie tl

or other security satisfactory to the Secretary.

Upon the assessment of a civil penalty pursuant

to paragraph (1) of this subsection for any non-

willful violation of this section, such wildlife,

product, property, or item so seized may be

proceeded against in any court of competent

jurisdiction and forfeited to the Secretary for

disposition by him in such manner as he deems

appropriate. The owner or consignee of any

such wildlife, product, property, or item so

seized shall, as soon as ‘practicable following

such seizure, be notified of that fact in accord-

ance with regulations established by the Secretary

or the Secretary of the Treasurer. Whenever

any wildlife, product, property, or item is seized

pursuant to this subsection, the Secretary shall

move to dispose of the civil penalty proceedings

pursuant to paragraph (1) of this subsection as

expeditiously as possible. If, with respect to

any such wildlife, product, property, or item so

seized, no action is commenced in any court of

competent jurisdiction to obtain the forfeiture of

such wildlife, product, property, or item within

thirty days following the disposition of proceed-

ings involving the assessment of a civil penalty,

such wildlife, product, property, or item shall

be immediately returned to the owner or the

consignee in accordance with regulations promul-

gated by the Secretary.

(d) Any person who knowingly and willfully

violates any provision of subsection (a) or (b) of

this section shall, upon conviction, be fined not

more than $10,000 or imprisoned for not more than

one year, or both.

(e) Any wildlife or products thereof seized

in connection with any knowing and willful viola-

tion of this section with respect to which a pen-

alty may be imposed pursuant to subsection (d)

shall, upon conviction of such violation, be for-

feited to the Secretary to be disposed of by him

in such manner as he deems appropriate. Any

other property or item so seized may upon

conviction, in the discretion of the court, be

forfeited to the United States or otherwise dis-

posed of. The owner or consignee of any such

wildlife, product, property, or item so _ seized

shall, as soon as_ practicable following such

seizure, be notified of that fact in accordance

with regulations established by the Secretary or

the Secretary of the Treasury. If no conviction

results from any such alleged violation, such

wildlife, product, property or item so seized in

connection therewith shall be immediately returned

to the owner or consignee in accordance with

regulations promulgated by the Secretary, unless

the Secretary, within thirty days following the

final disposition of the case involving such

violation, commences’ proceedings under sub-

section (c) of this section.

(f) For the purpose of this section, the

term--

(1) "Secretary" means the Secretary of

the Interior;

(2) "person" means any individual, firm,

corporation, association, or partnership;

(3) "wildlife" means any wild mammal,

wild bird, amphibian, reptile, mollusk, or

crustacean, or any part, egg, or offspring

thereof, or the dead body or parts thereof,

but does not include migratory birds for

which protection is afforded under the Migra-

tory Bird Treaty Act, as amended;

(4) "State" means the several States, the

District of Columbia, the Commonwealth’ of

Puerto Rico, American Samoa, the Virgin

Islands, and Guam; and

(5) "taken" means captured, _ killed,

collected, or otherwise possessed.

As amended Dec. 5, 1969, Pub.L. 91-135, § 7(a),

83 Stat. 279.

ois ooo ol town *

uit a tn

16 UNITED STATES CODE ANNOTATED,

Sections 3371, 3372, 3373

Section 3371. Definitions

For the purposes of this chapter:

(a) The term "fish or wildlife" means any wild

animal, whether alive or dead, including without

limitation any wild mammal, bird, reptile, amphib-

ian, fish, mollusk, crustacean, arthropod,

coelenterate, or other invertebrate, whether or

not bred, hatched, or born in captivity, and

includes any part, product, egg, or offspring

thereof.

(b) The term "import" means to land on, bring

into, or introduce into any place subject to the

jurisdiction of the United States, whether or not

such landing, bringing, or introduction constitutes

an importation within the meaning of the customs

laws of the United States.

regulation of, or other rule of conduct enforce-

able by, any Indian tribe, band, or group but

only to the extent that the regulation or rule

applies within Indian country as defined in section

1151 of Title 18.

(d) The terms "law," "treaty," "regulation,"

and "Indian tribal law" mean laws, treaties, reg-

ulations or Indian tribal laws which regulate the

taking, possession, importation, exportation,

transportation, or sale of fish or wildlife or

plants.

(e) The term "person" includes any individual,

partnership, association, corporation, trust, or

any officer, employee, agent, department, or

instrumentality of the Federal Government or of

any State or political subdivision thereof, or any

other entity subject to the jurisdiction of the

United States.

(f) The terms "plant" and "plants" mean any

wild member of the plant kingdom, including roots,

seeds, and other parts thereof (but excluding

common food crops and cultivars) which is indig-

enous to any State and which is either (A) listed

on an appendix to the Convention on International

Trade in Endangered Species of Wild Fauna and

Flora, or (B) listed pursuant to any State law that

provides for the conservation of species threat-

ened with extinction.

(g) The term "Secretary" means, except as

otherwise provided in this chapter, the Secretary

of the Interior or the Secretary of Commerce, as

program responsibilities are vested pursuant to

the provisions of Reorganization Plan Numbered 4

of 1970 (84 Stat. 2090); except that with respect

to the provisions of this chapter which pertain to

the importation or exportation of plants the term

means the Secretary of Agriculture.

(h) The term "State" means any of the several

States, the District of Columbia, the Common-

wealth of Puerto Rico, the Virgin Islands, Guam,

Northern Mariana Islands, American Samoa, and

any other territory, commonwealth, or possession

of the United States.

(i) The term "taken" means captured, killed,

or collected.

(j) The term "transport" means to move, con-

vey, carry, or ship by any means, or to deliver

or receive for the purpose of movement, convey-

ance, carriage, or shipment.

(Pub.L. 97-79, § 2, Nov. 16, 1981, 95 Stat. 1073.)

Section 33:%. 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 or possessed 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, trans-

ported, or sold in violation of 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

(B) to possess any plant taken, possessed,

transported, or sold in violation of any law or

regulation of any State;

(4) having imported, exported, transported,

sold, purchased, or received any fish or wildlife

or plant imported from any foreign country or

transported in interstate or foreign commerce, to

make or submit any false record, account, label,

or identification thereof; or

(5) to attempt to commit any act described in

paragraphs (1) through (4).

(a) Marking offenses

It is unlawful for any person to import, export,

or transport in interstate 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.

(Pub.L. 97-79, § 3, Nov. 16, 1981, 95 Stat. 1074.)

Section 3373. Penalties and sanctions

(a) Civil penalties

(1) Any person who engages in conduct pro-

hibited by any provision ,»of this chapter (other

than section 3372(b) 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, 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, 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

B10

including any regulation issued to carry out any

such provision or section.

(4) No civil penalty may be assessed under this

subsection unless the person accused of the viola-

tion 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

i also in any district in which a person may have

taken or been in possession of the said fish or

wildlife or plants.

£16 ie lage st ihe alain eh hdl ide

(5) Any civil penalty assessed under this

subsection may be remitted or mitigated by the

Secretary.

Dit AD tit St AB oI ag BEY

(6) In determining the amount of any penalty

assessed pursuant to paragraphs (1) and (2), the

Secretary shall take into account the nature, cir-

cumstances, 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.

PAA. a

(b) Hearings

Hearings held during proceedings for’ the

: assessment of civil penalties shall be conducted in

accordance with section 554 of Title 5. The admin-

istrative law judge may issue subpenas (sic) for

the attendance and testimony of witnesses and the

production of relevant papers, books, or docu-

ments, 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 subpena (sic) 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 trans-

acts business, upon application by the United

States and after notice to such person, shall have

jurisdiction to issue an order requiring such

Bll

person to appear and give testimony before the

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 con-

tempt thereof.

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 notice of appeal in such

court within thirty days from the date of such

order and by simultaneously sending a copy of

such notice by certified mail to the Secretary.

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 per-

son fails to pay an assessment of a civil penalty

after is 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 authority to

review 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 pro-

vision of this chapter (other than section

3372(b) of this title), or

(B) violates any provision of this chapter

(other than section 3372(b) of this title) by

knowingly engaging in conduct that involves

B12

the sale or purchase of, the offer of sale or

purchase of, or the intent to sell or pur-

chase, 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 under-

lying law, treaty or regulation, shall be fined not

more than $20,000, or imprisoned for not more that

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 con-

duct prohibited by any provisions of this chapter

(other than section 3372(b) of this title) and in

the exercise of due care should know that the fish

or wildlife or plants were taken, possessed, trans-

ported, or sold in violation of, or in a manner

unlawful under, any underlying law, treaty or

regulation shall be fined not more that $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.

(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 Fishery Con-

servation and Management Act [16 U.S.C.A. §1801

et seq.]), or to operate a quarantine station or

rescue center for imported wildlife or plants,

B13

issued to any person who is convicted of a crim-

inal violation of any provision of this chapter or

any regulation issued hereunder. The Secretary

shall not be liable for the payments of any com-

pensation, reimbursement, or damages in

connection with the modification, suspension, or

revocation of any licenses, permits, stamps, or

other agreements pursuant to this section.

(Publ. L. $7-79, §4, Nov. 16, 1981, 95 Stat. 1074.

16 UNITED STATES CODE ANNOTATED,

Sections 742j-1(a) & (b)

Airborne hunting--Prohibition; penalty

(a) Any person who--

(1) while airborne in an aircraft shoots or

attempts to shoot for the purpose of capturing

or killing any bird, fish, or other animal; or

(2) uses an aircraft to harass any bird,

fish, or other animal; or

(3) knowingly participates in using an air-

craft for any purpose referred to in paragraph

(1) or (2);

shall be fined not more than $5,000 or imprisoned

not more than one year, or both.

Exemption; report of State to Secretary

(b)(1) This section shall not apply to any

person if such person is employed by, or is an

authorized agent of or is operating under a license

or permit of, any State or the United States to

administer or protect or aid in the administration

or protection of land, water, wildlife, livestock,

domesticated animals, human life, or crops, and

each such person so operating under a license

or permit shall report to the applicable issuing

B14

” tc a i i it i ts nil te ti, Ne ie ene

authority each calendar quarter the number and

type of animals so taken.

(2) In any case in which a State, or any

agency thereof, issues a permit referred to in

paragraph (1) of this subsection, it shall file with

the Secretary of the Interior an annual report

containing such information as to the Secretary

shall prescribe, including but not limited to--

(A) the name and address of each per-

son to whom a permit was issued;

(B) a description of the animals autho-

rized to be taken thereunder, the number

of animals authorized to be taken, and a

description of the area from which the ani-

mals are authorized to be taken;

taken by such person to whom a permit was

issued; and

(D) the reason for issuing the permit.

FEDERAL RULES OF CRIMINAL PROCEDURE,

18 U.S.C.A.

Rule 52. Harmless Error and Plain Error

(a) Harmless Error. Any error, defect,

irregularity or variance which does not affect

substantial rights shall be disregarded.

(b) Plain Error. Plain errors or defects

affecting substantial rights may be noticed

although they were not brought to the attention

of the court.

B15

FEDERAL RULES OF CRIMINAL PROCEDURE,

18 U.S.C.A.

Rule 29.

(a) Motion before Submission to Jury. Motions

for directed verdict are abolished and motions for

judgment of acquittal shall be used in their place.

The court on motion of a defendant or of its own

motion shall order the entry of judgment of acquit-

tal of one or more offenses charged in the indict-

ment or information after the evidence on either

side is closed if the evidence is insufficient to

sustain a conviction of such offense or offenses.

If a defendant's motion for judgment of acquittal

at the close of the evidence offered by the

government is not granted, the defendant may

offer evidence without having reserved the right.

(b) Reservation of Decision on Motion. If a

motion for judgment of acquittal is made at the

close of all the evidence, the court may reserve

decision on the motion, submit the case to the

jury and decide the motion either before the jury

returns a verdict or after it returns a verdict of

guilty or is discharged without having returned

a verdict.

jury returns a verdict of guilty or is discharged

without having returned a verdict, a motion for

judgment of acquittal may be made or renewed

within 7 days after the jury is discharged or

within such further time as the court may fix

during the 7-day period. If a verdict of guilty

is returned the court may on such motion set

aside the verdict and enter judgment of acquittal.

If no verdict is returned the court may enter

judgment of acquittal. It shall not be necessary

to the making of such a motion that a similar

motion has been made prior to the submission

of the case to the jury.

As amended Feb. 28, 1966, eff. July 1, 1966.

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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.