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United States v. LeVeque



Dennis LeVeque, a licensed hunting outfitter in Montana, and John Moore, a licensed hunting guide in Montana, were convicted in district court of mail fraud in connection with an application they filed to obtain an out-of-state hunting license for a client.[1] Moore was also convicted of violating the Lacey Act[2] and of conspiracy to violate the Lacey Act in connection with an elk illegally killed by Moore’s client.[3] LeVeque and Moore appealed the convictions, and the Ninth Circuit reversed and remanded for retrial on the mail fraud count. The Ninth Circuit also reversed Moore’s convictions for conspiracy and violation of the Lacey Act.

Moore organized a six-day elk hunting trip in Montana for three clients, including R. E. McMaster. Because McMaster was not chosen in a lottery drawing for an out-of-state hunting license, Montana required him to apply for the license by hiring an outfitter. Although Moore was a licensed hunting guide, he was not a licensed outfitter. Moore, however, had an agreement with LeVeque whereby he would pay LeVeque $10,000 if LeVeque brought Moore’s clients onto a ranch to hunt. As a licensed outfitter, LeVeque sponsored the application for McMaster’s license. In the application, LeVeque certified that he had received a deposit from McMaster and that he had given McMaster a rate sheet and a sheet explaining the deposit refund policy. Both certifications were false. McMaster subsequently received the hunting license based on this application.

LeVeque and Moore were indicted on one count of mail fraud, and in a superseding indictment were charged with fraudulently scheming to obtain money or property in the form of fees for the hunt and McMaster’s hunting license. After they were convicted, LeVeque and Moore appealed, challenging the sufficiency of the evidence for their convictions. The defendants first argued that they were improperly convicted of mail fraud because a hunting license is not “property” and therefore cannot form the basis of a conviction under section 1341 of the mail fraud statute.[4] Relying on Cleveland v. United States,[5] the Ninth Circuit agreed that section 1341 does not cover hunting licenses and therefore, the defendants should not have been convicted under section 1341 for acquiring the license by fraud. The Ninth Circuit indicated, however, that the defendants could be convicted under section 1341 for acquiring hunting fees from McMaster by fraudulently applying for the hunting license. Nevertheless, the court found that the basis of the jury’s determination that the defendants were guilty of violating section 1341 was unclear.

The court thus decided to examine the issue of whether there was sufficient evidence to sustain the defendants’ convictions for acquiring hunting fees by fraud. Defendants argued that their misrepresentations to McMaster in connection with obtaining the hunting license were immaterial. The court rejected this argument. The defendants represented to McMaster that they could sponsor an application for McMaster to obtain a license. This representation was false because “the financial arrangement between Moore and LeVeque precluded LeVeque from submitting an application on McMaster’s behalf that complied with Montana law.”[6] According to the court, the defendants’ misrepresentation was material because McMaster relied on the misrepresentation, as he believed that he could legally obtain a license through the defendants. The court found that there was sufficient evidence to find that McMaster reasonably relied on the misrepresentation because a reasonable hunter would not hire an outfitter who could not sponsor his nonresident hunting license.

The court next addressed the defendants’ argument that they did not act with the intent to defraud McMaster. The Ninth Circuit rejected this argument, holding that there was sufficient evidence from which the jury could conclude that the defendants intended to defraud McMaster. The court indicated that a jury could find that the defendants knew they could not legally submit an application for McMaster’s license and that they intended to file the application anyway in an attempt to obtain fees from McMaster. The Ninth Circuit concluded that although enough evidence existed to convict the defendants based upon their attempts to obtain money from McMaster, because the jury did not clarify whether it based the conviction on the defendants’ attempt to obtain the hunting license or acquire money from McMaster, the case should be remanded. The court indicated that on remand, the jury would need to find mail fraud based upon the defendants’ attempts to obtain hunting fees.

Moore also challenged his convictions for conspiracy and violation of the Lacey Act. During the six-day elk hunt, McMaster killed a bull elk. McMaster was hunting on a ranch where hunters could kill only “brow tine” bull elks.[7] The hunting guides, Moore and his assistant, failed to inform McMaster of the hunting restriction, and the elk that McMaster killed was a non-brow tine bull elk. McMaster later shipped the elk hide across state lines. Moore was later convicted of violating the Lacey Act in connection with the interstate shipment of the elk hide[8] and of conspiracy to violate the Lacey Act.

On appeal, Moore argued that the evidence was insufficient to convict him on these two counts. The Ninth Circuit agreed. The court first explained that although providing hunting guiding services is a “sale” under the Lacey Act,[9] to convict a defendant for a felony violation under the Lacey Act for interstate shipment of the elk hide, the prosecution was required to prove that Moore had actual knowledge that the taking of the elk violated a state law, although the prosecution did not have to prove that Moore knew which state law was violated.[10] The only evidence of Moore’s state of mind was a phone message for McMaster after the violation occurred; the prosecution presented no evidence concerning Moore’s state of mind at the time of the violation. Finding that this evidence was insufficient to sustain a felony conviction, the court reversed the conviction on the interstate transport count.

Moore also challenged his conviction of conspiracy under the Lacey Act, arguing that there was insufficient evidence for the conviction. The Ninth Circuit agreed. To convict a defendant for conspiracy under the Lacey Act, the prosecution must show that there was an agreement between two people to violate the law.[11] The prosecution, however, failed to present any evidence of an express agreement between Moore and his assistant or McMaster, or any evidence whereby the jury could have inferred an agreement. Because the court found that there was insufficient evidence to convict Moore of conspiracy under the Lacey Act, the Ninth Circuit reversed on this count.

[1] Defendants were convicted of mail fraud under 18 U.S.C. §§ 2, 1341 (2000).

[2] 16 U.S.C § 701 (2000).

[3] Moore was convicted under 18 U.S.C. § 371, 16 U.S.C. §§ 3372 (a)(2)(A), and 16 U.S.C § 3373(d)(1)(B) (2000).

[4] 18 U.S.C. § 1341 (2000). According to section 1341, mail may not be used to further “any scheme or artifice to defraud, or for obtaining money or property by means of false of fraudulent pretenses, representations, or promises.” Id.

[5] 531 U.S. 12, 26-27 (2000).

[6] United States v. LeVeque, 283 F.3d 1098, 1104 (9th Cir. 2002).

[7] Id. at 1101. Brow tine refers to a specific antler configuration on the elk.

[8] Under the Lacey Act, “[i]t is unlawful for any person . . . to . . . transport, [or] sell . . . in interstate . . . commerce . . . any . . . wildlife taken . . . in violation of any law or regulation of any State.” 16 U.S.C. § 3372(a)(2)(A) (2000).

[9] Id. § 3372(c)(1)(A).

[10] 16 U.S.C. § 3373(d)(1)(B) (2000).

[11] 18 U.S.C. § 371 (2000).

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