Opposition Brief — Atkinson v. United States

No. 92-1170 >

pul t-2 x

Jn the Supreme Court of the Ciuted States

OCTOBER TERM, 1992

MELVILLE O'NEAL ATKINSON. PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

MYLES E. FLIN1

Acting Assistant Attorney General

EDWARD J. SHAWAKER

KVELYN S. YING

Attorneys

By, parton nt of Justice

Washington, 10.C. 20520

j I0)?) 514 DI)?

QUESTIONS PRESENTED

1. Whether, under the criminal penalty provision of

the Lacey Act, 16 U.S.C. 3373(d)(1)(B), the price paid for

guiding or outfitting services for unlawful hunting expe-

ditions may be considered in determining whether a vio-

lation of the Act involved goods having a market value in

excess of $350.

2. Whether the district court’s jury instruction that

defined “market value” for the purpose of applying the

penalty provision of the Lacey Act was vague and am-

biguous.

3. Whether petitioner’s sentence was properly en-

hanced under Sentencing Guidelines § 2Q2.1(b)(3)(A).

TABLE OF CONTENTS

Page

Sa TREN DE A ]

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ia RS 2

EER te ESE CST 5

SE ISI SA ee 11

TABLE OF AUTHORITIES

Cases:

Albernaz v. United States, 450 U.S. 333 (1981) ............ 7

Huddleston vy. United States, 415 U.S. 814 (1974) ........ 7

Miller v. Florida, 482 U.S. 423 (1987) ccccccccccccccocccc----.. i)

Russello v. United States, 464 U.S. 16 (1983) ............... 7

United States v. Combs, 762 F.2d 1343 (9th Cir. 1985) . 8

United States v. Stenberg, 803 F.2d 422 (9th Cir. 1986) ... 2,6

United States v. Todd, 735 F.2d 146 (5th Cir. 1984), cert.

denied, 469 U.S. 1189 (1985) ooocccccccccccccccceeecccccceceeeeceeee. 7

United States v. Wentz, 800 F.2d 1325 (4th Cir. 1986) .. ~

Constitution, statutes and regulations:

U.S. Const. Art. I, § 9, Cl. 3 (Ex Post Facto Clause) ....... i)

Rmeey Act, 16 U.G.C. GoTo of Bee. ......0..s.eccesesceseoresesseseosess 2

Lacey Act Amendments of 1988, Pub. L. No. 100-653,

IIE WOME, MONIES oo ,. csacucsenncaccacunnevesevsececveceseoucese 2

I IE cco cc ss ccccinacencrvevsuansnencoocsececeses 2

Nev cccncuncuucducesencenecsee 6

ss clsuceeebbenmensenacant 2

a I ss... cssassvissvnansceceecenceusccceuceeooece 5,8

ss vanacsukcebencranccaussdcsccececece 6, 7

Rie P MRR MP UMMEEPERPUED). coccsccsssssecsccoccasecssscrcsuacsesccscseee 2, 3, 4, 5, 6

aos... cccssvavusnenevinnnnsnsvaceseusavecees 2

Sentencing Guidelines:

Neen cscs ccauseseanomsceoca 5, 9, 10

soos. ccc cenwcunesiavandvcccesseecaccceace 4, 9, 10

ask oylcvsasncuivunnvvuncesorcnsanreacecacs 5, 10

IV

Regulations—Continued Page

App. C, Amend. 209, Commentary (Nov. 1, 1990) ...... 5, 10

App. C, Amend. 407 (Nov. 1, 1991) ..................cecceeeees 10

Miscellaneous:

S. Rep. No. 123, 97th Cong., Ist Sess. (1981) wou. 2

S. Rep. No. 563, 100th Cong., 2d Sess. (1988) .....00...cceee 2

Jn the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1170

MELVILLE O'NEAL ATKINSON, PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The amended opinion of the court of appeals (Pet. App.

A1-A19) is reported at 966 F.2d 1270. The judgment of

the district court (Pet. App. G1-G13) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. F1-F2)

was entered on July 22, 1992. A petition for rehearing

was denied on September 10, 1992. Pet. App. D1. The

petition for a writ of certiorari was filed on December 9,

1992. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District Court

for the District of Montana, petitioner was convicted on

21 counts of violating the Lacey Act and conspiring to do

so based on his role in organizing and guiding several il-

legal deer hunting expeditions. See 16 U.S.C.

3372(a)(2)(A), 3372(c)(1), 38738(d)(1)(B); 18 U.S.C. 371. He

was sentenced to 37 months in prison, to be followed by

three years’ supervised release, and he was ordered to

pay $21,000 in restitution. Pet. App. G4-G10. The court

of appeals affirmed.

1. The Lacey Act makes it unlawful to sell or trans-

port in interstate commerce wildlife taken in violation of

state law. 16 U.S.C. 3372(a)(2)(A). A person “sell[s]”

wildlife in violation of the Act whenever, for money or

other consideration, he offers or provides “guiding, out-

fitting, or other services” or a “hunting or fishing li-

cense or permit” for the illegal taking of wildlife. 16

U.S.C. 33872(¢)(1).' A violation of the unlawful sale of

wildlife provision under the Act is punishable by not

more than five- years’ imprisonment, a fine of not more

than $20,000, or both, provided it involves the “sale or

' In 1988, Congress amended the Lacey Act to overturn the de-

cision in United States v. Stenberg, 803 F.2d 422, 437 (9th Cir.

1986), which held that the Act’s prohibition against the “sale of

wildlife” did not apply to the sale of guiding services or hunting

permits. Lacey Act Amendments of 1988, Pub. L. No. 100-653, §

101(3), 102 Stat. 3825; see S. Rep. No. 563, 100th Cong., 2d Sess. 5

(1988) (amendment “defines the term ‘sale’ as it is used in the

Lacey Act to include, as set forth in the Committee’s report on the

1981 Act, the providing of guiding services used in the illegal

taking of wildlife”); see also S. Rep. No. 123, 97th Cong., Ist Sess.

12 (1981) (“a commercial arrangement whereby a_ professional

guide offers his services to illegally obtain wildlife is, in effect, an

offer to sell wildlife”).

3

purchase” of wildlife with a market value exceeding $350.

16 U.S.C. 8373(d)(1)(B).

Petitioner owned and operated a Jacksonville, Florida,

business that organized and outfitted deer hunting expe-

ditions in the State of Montana. Pet. App. AG. Petitioner

charged a base outfitting fee of at least $1,500 per

hunter.” In return, he provided meals, lodging, and guide

services, and he promised to supply each hunter with a

valid Montana state hunting license. Petitioner agreed

to split his outfitting fees with two others who provided

meals and lodging for the hunters at their Montana

ranch and assisted petitioner in guiding the hunts. /bid.

During November 1989, petitioner arranged for three

separate hunting expeditions. Knowing that it was a vio-

lation of Montana law to hunt deer without a valid li-

cense, petitioner nonetheless proceeded to provide guide

services for unlicensed hunters. Pet. App. A6-A8. He

also agreed to guide some of the hunters on illegal night-

time hunts. In addition, petitioner instructed the

hunters to tag their killed deer in violation of Montana

law. At the end of each hunt, petitioner either arranged

to ship the deer to the hunters’ homes outside of Mon-

tana or assisted the hunters in arranging for the ship-

ments. /bid.

The Montana Department of Fish, Wildlife, and Parks

became aware of petitioner’s activities and arranged for

two undercover officers to book a guided deer hunt with

petitioner’s agency. Pet. App. A8. Although each officer

paid the standard $1,500 outfitting fee, neither received a

valid Montana state hunting license. During the hunt,

two deer were killed, and one officer paid petitioner an

* Petitioner also charged $200 for a Montana state hunting li-

cense and an additional fee if the hunter killed a second deer. Peti-

tioner’s fees generally ranged from $1,500 to $3,000 per hunter.

Pet. App. A6-A8.

4

additional fee of $100 to ship his deer to South Carolina.

Ibid. Petitioner was subsequently arrested by Montana

state game wardens.

2. At sentencing, the probation officer reeommended a

sentence of 30 to 37 months’ imprisonment under the

Sentencing Guidelines for the 21 counts of conviction.

The recommendation was based in part on a four-level

increase for the market value of the illegally taken

wildlife under Sentencing Guidelines § 2Q2.1(b)(3)(A).

Petitioner challenged the probation officer’s calculation

of the offense level on several grounds, but the district

court rejected petitioner’s objections to the presentence

report and sentenced him to 37 months’ imprisonment.

Pet. App. G4-G9.

3. On appeal, petitioner challenged his felony convic-

tion by arguing, inter alia, that the government had

failed to present sufficient evidence that the wildlife al-

leged in each count had a market value in excess of $350

under 16 U.S.C. 3373(d)(1)(B), and that the district court

had erred in allowing the jury to consider the price of his

guide services in determining the market value of the

deer.* Petitioner also challenged his sentence, arguing

for the first time on appeal that Sentencing Guidelines

§ 2Q2.1(b)(3)(A) could not be used to enhance a sentence

for Lacey Act violations, because deer are not “specially

protected” wildlife within the meaning of that Guideline.

The court of appeals affirmed petitioner’s convictions

and sentence. Pet. App. Al-A19. Specifically, the court

held that, because an offer to provide guide services is an

offer to sell wildlife under the Act, the district court did

not err in allowing the jury to consider the amount a

% The district court had instructed the jury that it could de-

termine the market value of the deer sold by petitioner either by

the price each deer would bring if sold on the open market or by

the “price paid for guiding services for the hunt in which the

wildlife was taken.” Pet. App. A9.

\

5

hunter paid for petitioner’s guide services in determin-

ing the market value of the wildlife under the penalty

provision. /d. at A9-A11. The court also concluded that a

four-level increase was warranted under the version of

Sentencing Guidelines § 2Q2.1 that was in effect when

petitioner committed his crimes and when he was sen-

tenced. After reviewing the history of the Guideline,’

the court concluded that it applied to wildlife taken in

violation of the Lacey Act. Pet. App. A16-A19.

ARGUMENT

1. Petitioner’s principal contention (Pet. 9-32) is that

the district court erroneously allowed the jury to con-

sider the money paid for petitioner’s guiding or outfit-

ting services in determining “market value” under the

criminal penalty provision of the Lacey Act, 16 U.S.C.

3373(d)(1)(B). Petitioner does not dispute (Pet. 14-17)

that the sale of guiding and outfitting services is deemed

a sale of wildlife under the Lacey Act. See 16 U.S.C.

3372(c)(1)(A). He argues, however, that because

Congress enacted no “corresponding amendments to the

penalty provisions” in 16 U.S.C. 3373, it must not have

intended the price of such services to be used in calculat-

ing “market value” under the criminal penalty provision

of the Lacey Act.

The criminal penalty provision of the Lacey Act

states, in relevant part, that:

* The court of appeals noted that, prior to November 1, 1989,

the Sentencing Guidelines contained two separate provisions deal-

ing with unlawful offenses involving wildlife. Pet. App. A17. Sec-

tion 2Q2.1 applied to violations of statutes such as the Endangered

Species Act, which provide special protection to particular species

of wildlife. Section 2Q2.2 applied to violations of the Lacey Act.

Effective November 1, 1989, Section 2Q2.2 was deleted and

consolidated with Section 2Q2.1. See Sentencing Guidelines App.

C, Amend. 209 (Nov. 1, 1990); Pet. App. A17.

6

Any person who * * * violates any provision of this

chapter * * * by knowingly engaging in conduct

that involves the sale or purchase of * * * wildlife

* * * with a market value in excess of $350, * * *

shall be fined not more than $20,000, or imprisoned

for not more than five years, or both.

16 U.S.C. 3373(d)(1)(B). Congress has made clear that

the sale of guiding and outfitting services for the illegal

taking of wildlife is equivalent to the “sale or purchase of

* * * wildlife” forbidden under the Act. See 16 U.S.C.

3372(c) and note 1, supra. See also Pet. App. A10, citing

Stenberg, 803 F.2d at 436.° The penalty provision refers

to the “sale or purchase of * * * wildlife * * * witha

market value” above a fixed amount. When hunting or

outfitting services are sold, it is a transaction (the sale

or purchase) involving wildlife that is the basis of the

offense. In that context, the phrase “market value” is

properly construed as referring to “the sale or

purchase” of wildlife—i.e., the transaction that is the

basis of the violation of the Act—rather than to the value

of the wildlife itself. To be sure, in cases in which the

violation of the Act is based on a direct sale of wildlife

(rather than on the provision of services), the market

value of the “sale or purchase” will be the same as the

market value of the wildlife sold. When the “sale or

purchase” at issue involves the provision of illegal

wildlife services, however, the market value of such “sale

® The court of appeals also correctly noted that its decision in

Stenberg provides no support for petitioner’s argument (Pet. 13-14)

that the market value of wildlife under the Act can be determined

only by the aggregate value of the wild animal's parts on the open

market. Pet. App. Al0-All. Since the court’s conclusion in Sten-

berg—that an offer to provide guide services was not a “sale” un-

der the Act—is no longer the law, that case “offers little guidance

on the proper method for determining the market value of an an-

imal taken during a guided hunt.” Pet. App. A10-A11..

a

7

or purchase” involves the “amount a hunter is willing to

pay for the opportunity to participate in the hunt.” Pet.

App. Al0. See United States v. Todd, 735 F.2d 146, 152

(5th Cir. 1984) (“The best indication of the value of the

game ‘sold’ it’ this manner is the price of the hunt.”),

cert. denied, 469 U.S. 1189 (1985). The fact that

Congress failed to amend 16 U.S.C. 3378 to make explicit

that the “market value” of wildlife could be determined

by the price paid for guiding services is of no sig-

nificance, since such an amendment would have been

superfluous.°

2. Petitioner also argues (Pet. 17-32) that the jury in-

struction regarding the methods for determining the

market value of wildlife was vague and ambiguous.

The district court instructed the jury as follows:

The market value of wildlife may be established by

several methods. One method is, of course, the price a

piece of property would bring if sold on the open

market between a willing buyer and seller. Another

method to establish market value is the price paid for

guiding services for the hunt in which the wildlife

was taken. Either of the above methods is a proper

method to use in determining market value.

Jury Instruction No. 50. Petitioner objects that the in-

struction was inadequate because, with respect to the

valuation of the guiding services, it failed to specify

whether “guiding services” referred to the total fee paid

® Petitioner’s suggestion (Pet. 17) that the rule of lenity sup-

ports his argument is without merit. The rule of lenity is a rule of

statutory construction employed only to resolve a “grievous ambi-

guity or uncertainty” in a statute. Huddleston v. United States,

415 U.S. 814, 831 (1974); see, e.g., Russello v. United States, 464

U.S. 16, 29 (1983); Albernaz v. United States, 450 U.S. 333, 342-343

(1981). There is nothing ambiguous about the criminal penalty

provision of the Lacey Act.

8

by the hunters, including meals, lodging, and ground

transportation.

By directing the jury’s attention to the price asked

and paid for “guiding services for the hunt in which the

wildlife was taken,” the instruction used the language of

the statute. In fact, the statute included within the defi-

nition of wildlife not only “guiding * * * services,” but

“outfitting, or other services” as well. 16 U.S.C. 3372(c)

(1)(A). Thus, the statute was more inclusive than the

instruction and would have authorized the inclusion of

the fee for lodging, meals, and transportation as “other

services” related to the hunting expedition. By limiting

the chargeable services to “guiding * * * services,” the

instruction gave petitioner the opportunity to argue to

the jury that neither the value of the deer nor the value

of the guiding services themselves exceeded $350 for

each count charged in the indictment. Nonetheless, the

jury heard testimony concerning the amount that was

paid for the services, and in light of the high price

petitioner charged each hunter for the hunting

expedition, it was reasonable for the jury to conclude

that the guiding services, no matter how narrowly

defined, had a market value in excess of $350."

7 Petitioner's reliance on United States v. Combs, 762 F.2d 1343

(9th Cir. 1985), see Pet. 22-25, is unavailing. That case stands for

the unremarkable proposition that a district court must instruct

the jury on all the essential elements of the offense. The court did

that in this case. Although petitioner would have preferred a

more comprehensive instruction, the one given by the court was

sufficiently clear to enable counsel to argue petitioner’s points to

the jury intelligently and to give the jury the proper legal

framework for its factual findings. The decision in United States

v. Wentz, 800 F.2d 1325 (4th Cir. 1986), is also unhelpful to

petitioner. In that case, the defendant was convicted under a

statute that made it unlawful to transport stolen property having a

“value” of at least $5,000. See 800 F.2d at 1326, 1327. The jury

was instructed that “value” meant either market value, which was

9

3. Petitioner contends (Pet. 32-49) that Sentencing

Guidelines § 2Q2.1(b)(3)(A) cannot be applied to enhance

his sentence, and that the court of appeals’ reliance on a

post-offense amendment to that Guideline violates the Ex

Post Facto Clause. Contrary to petitioner's contention,

there is no ex post facto problem in this case. As an ini-

tial matter, the sentencing court did not apply a version

of the Guidelines that post-dated his offenses. The dis-

trict court applied the 1989 version of Section 2Q2.1,

which was in effect when petitioner committed his

crimes and was still in effect when he was sentenced.

Pet. App. A17-A18 & n.7. Thus, petitioner’s case does not

involve the retroactive application of a Guideline, and

presents no constitutional issue. See Miller v. Florida,

482 U.S. 423, 430 (1987).

Instead, as petitioner acknowledges (Pet. 7), this case

simply presents the question of whether the lower

courts correctly interpreted the 1989 version of

Guideline § 2Q2.1(b)(3)(A) to cover petitioner’s Lacey Act

offenses. Petitioner contends that the 1989 version of

that Guideline cannot be used to enhance his sentence

because deer are not “specially protected” wildlife within

the meaning of the Guideline. As the court of appeals

correctly held, however, there is “no distinction between

defined as the price a willing buyer would pay to a willing seller,

or “replacement value less the amount of depreciation that occured

during the time that the property was in the possession of its

owner.” The court stated that “[t]he second measure of value,

replacement value less depreciation, would best have been left

unsaid” because its meaning was unclear. In the instant case, the

jury was instructed that it had to determine “market value,” as

the Act’s penalty provision explicitly required, and that the value

could be estimated by considering the price paid for guiding

services. That definition did not have the vice of lack of clarity

that infected the “replacement value less depreciation” formula in

Wentz.

10

specially protected wildlife and wildlife taken in violation

of the Lacey Act” under the consolidated 1989 version of

Guidelines § 2Q2.1(b)(83)(A); Pet. App. A18. When the

Sentencing Guidelines were amended as of November 1,

1989, Section 2Q2.2, which had applied to violations of the

Lacey Act, was deleted. The sentencing provision for

the Lacey Act was then consolidated with Section 2Q2.1,

which had applied to other wildlife protection statutes

such as the Endangered Species Act. See Sentencing

Guidelines App. C, Amend. 209, Commentary (Nov. 1,

1990) (“The purpose of this amendment is to consolidate

two guidelines that cover very similar offenses.”); see

also note 4, supra. While the consolidated version of

Section 2Q2.1 retained the reference to “specially pro-

tected” wildlife, the commentary made clear that the

Sentencing Commission intended that provision to apply

to violations of several different wildlife protection

statutes, including the Lacey Act. See Sentencing

Guidelines § 2Q2.1, Commentary (Nov. 1, 1990) (ex-

pressly stating that “[t]his section applies to violations

of * * * the Lacey Act”).

Petitioner relies on a post-sentence amendment to

Section 2Q2.1, which deleted the reference to “specially

protected” wildlife that, as the Sentencing Commission

explained, had been “inadvertently retained when this

guideline was consolidated with the former § 2Q2.2.”

Pet. App. A17-A18, quoting Sentencing Guidelines App.

C, Amend. 407 (commentary) (Nov. 1, 1991). Petitioner

ignores the fact that the commentary to the 1989 consoli-

dated version of the Guideline stated that the 1989 ver-

sion applied to violations of the Lacey Act. The subse-

quent deletion of the words “specially protected” in 1991

thus did not effect a substantive change in the reach of

Section 2Q2.1, but rather constituted simply a clarifica-

tion of the language of the 1989 version, which was

intended to have no substantive effect. For that reason,

1]

petitioner’s sentence was properly imposed under the

Sentencing Guidelines, and there is no basis for further

review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

EDWARD J. SHAWAKER

EVELYN S. YING

Attorneys

MARCH 1993