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United States v. Senchenko

 

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In this case, the Ninth Circuit affirmed the conviction of Nikolay Senchenko for a felony violation of the Lacey Act.[2] The government sought to prove that Senchenko had “knowingly engaged in conduct involving an intent to sell wildlife with a market value in excess of $350 . . . by transporting said wildlife knowing it was taken in violation of United States law or regulation.”[3] The jury in the district court found that Senchenko had violated a federal regulation that criminalizes taking wildlife in violation of any state or federal law or regulation when he used a snare to take bears. Because a Washington state regulation prohibits taking bears in this manner,[4] and because the jury found that Senchenko had intended to transport the wildlife knowing that it was taken in violation of a United States regulation, Senchenko’s conduct had violated the Lacey Act.

Senchenko challenged his conviction on several grounds. First, he argued that there was no evidence that he had sold or intended to sell bear parts. Second, Senchenko raised objections as to the government’s methods of establishing that the bear parts at issue had met the jurisdictional requirements for charging a felony under the Lacey Act. Third, he asserted that the federal regulation that the government had used as a predicate for the Lacey Act violation involves an unconstitutional delegation of legislative power. Fourth, Senchenko challenged the validity of the search of his home and car. Finally, the appellant argued that the district court erred in permitting the government to ask his wife about his employment status on cross-examination. The Ninth Circuit rejected all of these assertions and affirmed Senchenko’s conviction.

Senchenko first argued that the government had not established that he had ever sold or intended to sell bear parts. He also asserted that the prosecution had made improper analogies to possession of narcotics in its closing statement that had invited the jury to infer from the volume of bear parts that he had intended to sell them. The Ninth Circuit considered both the number of snares that Senchenko owned the amount of bear gall bladders he possessed in determining that there had indeed been sufficient proof to permit the jury to infer commercial intent. In addition, the court suggested that because 1) the prosecutor had explicitly told the jury that Senchenko was not involved with drugs, 2) the only mention of narcotics had occurred during the prosecution’s closing argument, and 3) the court had provided a limiting instruction, the comparison to narcotics did not appear inappropriate. Moreover, the Ninth Circuit determined that any error would have been harmless, because Senchenko’s wife had testified as to the quantities required by the family’s personal use of gall bladders, and that Senchenko had possessed quantities that exceeded the family’s needs.

Second, Senchenko argued that the prosecution did not appropriately establish the value of the bear parts that he had allegedly taken illegally. The appellant offered the following three contentions to support this claim: 1) the court had improperly allowed the government to aggregate the value of the bear parts found at his home and in his car, 2) the government’s expert had not been competent to establish the value of the gall bladders, and 3) the government improperly used the value of the dried gall bladders rather than the value of the parts as they had existed when he took them. The court dismissed Senchenko’s first contention by rejecting his interpretation of the Lacey Act. The appellant read the Lacey Act to require the government to establish the value of illegally taken wildlife involved in “a single act of transportation.”[5] The court, however, determined that transportation is merely one of several types of conduct that the Lacey Act criminalizes. The statute, according to the Ninth Circuit, focuses on conduct that involves commercial activity. The district court could properly consider Senchenko’s conduct of setting snares, harvesting trapped bears, and taking the parts to his house as “‘a single continuing scheme'”[6] when determining the value of the illegally taken bear parts, because all of these closely related acts involve commercial activity.

Third, the Ninth Circuit determined that the expert whom the government had used to establish the market value of bear parts in the region had been qualified to testify under Federal Rule of Evidence 702[7] by virtue of his experience and training. The expert had been a state wildlife officer for twenty-four years and had investigated illegal sales of wildlife for seven years. Because the expert met the threshold requirements of Rule 702, the court stated that any objections that Senchenko might have raised related to the weight of the witness’s testimony rather than to its admissibility.

Fourth, the court also rejected Senchenko’s contention regarding the valuation of the seized bear parts. Citing United States v. Seaman,[8] Senchenko argued that the “government [had] improperly used the value of the finished goods, i.e. the dried gall bladders, rather than the value of the raw materials, i.e. the wet gall bladders, at the time”[9] that he had initially taken the gall bladders in order to establish the jurisdictional amount. The Ninth Circuit, however, distinguished Seaman from Senchenko’s situation. Seaman involved the improper use of the valuation of firewood that had been chopped, packaged, and seasoned rather than the value of the trees in the condition in which the defendant had taken them from government property. Thus, the Ninth Circuit concluded that Seaman “st[ood] for the proposition that the government cannot consider value added in establishing the jurisdictional amount.”[10] The court found a qualitative difference between processed firewood and gall bladders that a person had merely allowed to dry. Thus, the government had acted properly when it used the value of the dried gall bladders to establish the jurisdictional amount necessary for a felony conviction under the Lacey Act.

Senchenko also asserted that the court should have dismissed his indictment because it failed to charge a federal offense. According to Senchenko, the underlying state regulation that served as a predicate for the Lacey Act violation violated Article I of the Constitution. Because the regulation allowed a violation of a state law to become the basis of a federal offense, Senchenko argued that it presented an unconstitutional delegation of legislative power to the states by Congress. The Ninth Circuit summarily rejected this argument, stating only that it was “without merit, having been rejected by the courts of appeals applying the Lacey Act.”[11]

The Ninth Circuit accorded some merit to Senchenko’s argument that the officers had erred when they submitted an affidavit for a warrant to search his home and car, but the court ultimately determined that these errors did not warrant reversal of his conviction. While the affidavit stated that the officers arrested Senchenko as he was resetting a snare, they had actually arrested him at the trailhead, some distance from the snare. The district court, had however, found that the officers did not act “deliberately or recklessly,” and the Ninth Circuit upheld this determination.[12] Quoting Franks v. Delaware,[13] the Ninth Circuit stated that the threshold test for determining whether to look at evidence other than the erroneous statements in the affidavit is whether the affiants made the errors either “‘knowingly and intentionally, or with reckless disregard for the truth.'”[14] Because the challenged statements in the affidavit here were neither knowingly nor recklessly false, the court did not inquire further into the matter.

Senchenko’s final argument challenged the scope of the government’s cross-examination of his wife. He argued that the court should not have permitted the government to question his wife about his employment status. The Ninth Circuit found that the district court had not abused its discretion in allowing this inquiry, because Senchenko’s employment status was relevant to support an inference that he had intended to sell the bear parts that he had illegally taken.


[1] For further discussion of United States v. Senchenko, see Timothy M. Sullivan, Inadequate Analysis Leading to an Accurate Conclusion: The Ninth Circuit’s Cursory Treatment of the Constitutionality of the Lacey Act in United States v. Senchenko, 29 Envtl. L. __ (1999).

[2] 16 U.S.C. §§ 701 3371-3378 (1994 & Supp. III 1997).

[3] United States v. Senchenko, 133 F.3d 1153, 1155 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998).

[4] Wash. Rev. Code § 232-12-047 (1998).

[5] 133 F.3d at 1156.

[6] Id. at 1157 (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2nd Cir. 1989)).

[7] Fed. R. Evid. 702.

[8] 18 F.3d 649 (9th Cir. 1994).

[9] 133 F.3d at 1158.

[10] Id.

[11] Id.

[12] Id.

[13] 438 U.S. 154 (1978).

[14] 133 F.3d at 1158 (quoting Franks v. Delaware, 438 U.S. at 155).

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