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United States v. Fejes

 

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The Ninth Circuit affirmed James Fejes’s conviction in federal district court for conspiracy to violate the Lacey Act[1] and two substantive violations of the Lacey Act. The appellate court held that a “sale” of wildlife under the Lacey Act includes the agreement to provide guide or outfitting services, as well as the actual provision of such services. The court also held that the district court did not commit error in its jury instructions.

Fejes, a licensed hunting guide in Alaska, took two out-of-state hunters, McNeely and Doyle, on a guided caribou hunt in a remote area of Alaska. Fejes dropped off McNeely, Doyle, and the rest of the hunting party at a remote camp and flew to another location. With Fejes gone, Morgan, a hunting guide employed by Fejes, guided McNeely and Doyle on a caribou hunt. Doyle shot and killed a caribou in violation of an Alaska statute prohibiting hunting on the same day that a hunter is airborne.[2] Upon their return to camp, Morgan informed Fejes of the caribou kill, and Fejes later testified that he recognized the illegality of the kill. Two days later, Fejes took McNeely in an airplane to spot caribou from the air. After sighting a caribou, they landed, and within a few minutes McNeely shot and killed a caribou in violation of the same Alaska statute. Although Fejes later testified that he expected McNeely and his accompanying cameraman only to film the caribou and not to kill it, McNeely and the cameraman offered contradictory testimony. Furthermore, Fejes and McNeely posed for a picture by standing over the caribou with their thumbs up. After the group broke camp, McNeely and Doyle returned to their home states and none of the hunting party informed the authorities of the illegal kills.

Fejes went to trial and a jury convicted him of a felony conspiracy to violate the Lacey Act and felony violations of the Lacey Act. He was sentenced to six months and one day in prison and fined five thousand dollars. He filed a timely appeal of his conviction and on appeal, argued that the district court made several reversible errors and that his conviction should be overturned.

The Lacey Act prohibits the transport, sale, or purchase “in interstate commerce [of] any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State.”[3] Under the statute, the “sale of wildlife” includes offering or providing “guiding, outfitting, or other services . . . for the illegal taking, acquiring, receiving, transporting, or possessing of fish and wildlife.”[4] A defendant is subject to felony penalties if he “knowingly” engages in conduct that involves the sale of wildlife with a market value over $350.[5]

Fejes asserted that he did not violate the Lacey Act because McNeely and Doyle killed the caribou in violation of state law after he agreed to act as their guide. He claimed that under a plain reading of the statutory language, felony liability under the Lacey Act is limited to cases where the defendant knew that the wildlife were taken illegally, prior to selling or purchasing the wildlife. As a result, Fejes argued, he was not subject to felony liability because he “sold” his services by agreeing to act as a guide, prior to the illegal kills.

The Ninth Circuit agreed that to be subject to felony liability, a defendant must know the wildlife was taken illegally before he sold or purchased the wildlife. However, the court concluded that the provision of guide services constitutes a “sale” and therefore the provision of guide services by Fejes during the illegal hunts subjected him to the criminal enforcement provisions of the Lacey Act. The court found support for its interpretation in the legislative history of the Act and in the potentially absurd results under Fejes’s construction. The court determined that a “sale” under the Lacey Act includes both an agreement to provide guide services and the provision of such services. In addition, because the court held that the statutory language was unambiguous, Fejes was unable to invoke the doctrine of lenity.

Fejes also argued that the district court erred in several of its jury instructions. First, Fejes contended the district court misstated the elements of the crime by instructing the jury that “felony liability could be imposed for either the transportation or sale of wildlife taken in violation of state law.”[6] He argued that this jury instruction allowed the jury to substitute “transport” for “sale” as the underlying criminal conduct under the statute. The Ninth Circuit determined that the district court properly instructed the jury on this point. The instructions correctly informed the jury that to convict the defendant they must find that he sold or purchased the caribou, and they must also find an underlying violation, “namely that Fejes knowingly sold or transported the caribou in interstate commerce.”[7] Fejes next argued that the district court failed to instruct the jury that it must unanimously agree as to the manner in which Fejes violated the Lacey Act. The court held that in light of the general rule that a unanimity instruction is not necessary, there was no plain error because Fejes failed to show that a special instruction was necessary due to the complexity of the facts.

Fejes also maintained that the district court committed error by refusing to instruct the jury that he could transport the dead caribou from the field under Alaska law in order to salvage and surrender it to state authorities.[8] Previous Ninth Circuit opinions have recognized that a defendant is entitled to a jury instruction regarding the theory of his defense as long as it is supported in law and has a foundation in the evidence.[9] After examining the evidence, the Ninth Circuit determined that Fejes’s proposed instruction was not supported by evidence in the record. The record contained uncontested evidence that Fejes “sold” the caribou in interstate commerce. Although Alaska law does allow a person to transport illegally killed wildlife for the purpose of salvaging the wildlife and surrendering it to state authorities, the record contained no foundation for the jury to conclude that the sale did not involve interstate commerce.

Fejes next contended that the district court should have instructed the jury on “lesser included misdemeanor violations of the Lacey Act.”[10] The Ninth Circuit held that the district court did not commit error because Fejes could not show that the jury could reasonably conclude that he was guilty of the lesser offense and not the greater. Fejes did not dispute that he sold guide services that were worth over $350, so there was no evidence on which the jury could reasonably determine that he was not guilty of the felony offense. Finally, Fejes argued that the district court erred by instructing the jury that it could use the value of Fejes’s guide services to determine the market value of the caribou. The court quickly rejected this argument, citing a previous case that concluded the value of an animal “sold” under the Lacey Act is “best represented by the amount the hunter is willing to pay for the opportunity to participate in the hunt.”[11]


[1] Lacey Act Amendments of 1981, 16 U.S.C. §§ 667e, 1540, 3371-3378; 18 U.S.C. §§ 42-44, 3054, 3112 (1994 & Supp. V 1999).

[2] Alaska Admin. Code tit. 5, § 92.085(8) (2000) (Unlawful Methods of Taking Big Game; Exceptions).

[3] 16 U.S.C. § 3372(a)(2)(A) (1994).

[4] Id. § 3372(c)(1).

[5] Id. § 3373(d)(1)(B).

[6] United States v. Fejes, 232 F.3d 696, 701 (9th Cir. 2000).

[7] Id. at 702.

[8] Alaska Admin. Code tit. 5, § 92.140(d) (2000).

[9] United States v. Duran, 59 F.3d 938, 941 (9th Cir. 1995).

[10] 232 F.3d at 703

[11] United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir. 1992).

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