United States v. Romano

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 1998
• Docket: 97-1630
• Status: Published

Opinion

USCA1 Opinion

                   United States Court of Appeals

                        For the First Circuit

                        ____________________


No. 97-1630



                      UNITED STATES OF AMERICA,

                                  

                              Appellee,

                                  

                                 v.

                                  

                         LAWRENCE J. ROMANO,

                                  

                             Appellant.

                                  

                        ____________________

                                  

            APPEAL FROM THE UNITED STATES DISTRICT COURT

                                  

                  FOR THE DISTRICT OF MASSACHUSETTS

                                  

            [Hon. Michael A. Ponsor, U.S. District Judge]

                                  

                        ____________________

                                  

                               Before

                                  

                        Stahl, Circuit Judge,

                     Cyr, Senior Circuit Judge,

                      and Lynch, Circuit Judge.

                                  

                        ____________________

                                  

    Wendy Sibbison with whom Michael O. Jennings was on brief for

appellant.

    Nadine Pellegrini, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.



                         ____________________

                                  

                            March 9, 1998

                        ____________________

      STAHL, Circuit Judge.  The felony proviso of the

    Lacey Act, 16 U.S.C.  3373(d)(1), outlaws the purchase of

    wildlife (of a specified market value) the purchaser knows weretaken -- i.e., captured, killed, or collected -- in violation

    of state law.  This appeal presents occasion for us to decide

    an issue of apparent first impression:  whether the same

    proviso also criminalizes the purchase of lawful guiding and

    outfitting services to facilitate a taking of wildlife (again,

    of a specified market value) that, if effectuated, would be in

    violation of state law.  We conclude that the language of 16

    U.S.C.  3373(d) does not encompass such conduct and, for

    reasons we shall explain, reverse the convictions before us.

                                  I.

    A.  The Facts

        Between 1989 and 1994, defendant-appellant Lawrence

    J. Romano made annual trips from his home in Massachusetts to

    Alaska for guided and outfitted big game hunting expeditions. 

    On these trips, Romano killed a brown bear and a number of Dall

    sheep, moose, and caribou.  Subsequently, he shipped the

    animals out of state for mounting.  Unbeknownst to his guides

    and outfitters, Romano obtained resident hunting licenses prior

    to his hunts by falsely representing on his license

    applications that he resided in Anchorage.  As a result of his

    misrepresentations, Romano saved nearly ten thousand dollars in

    non-resident licensing fees and non-resident "big game locking

    tags," which non-resident hunters must affix to slain animals

    prior to shipping.

        Alaska Stat.  16.05.330(a)(2) prohibits the taking

    of wildlife without the appropriate Alaska hunting license. 

    Alaska Stat.  16.05.420(a) voids a hunting license obtained by

    means of a false statement of material fact.  Alaska Stat. 

    16.05.420(b) provides that a false statement of material fact

    on a hunting license application is a misdemeanor.  And Alaska

    Stat.  16.05.430(a) provides that the taking of an animal

    without a proper hunting license is a misdemeanor.  Thus,

    Romano's false representations (besides themselves being

    misdemeanors) invalidated each of his hunting licenses, making

    his kills unlawful under Alaska Stat.  16.05.430 (a).  In all

    other respects, though, Romano's hunts were legal; proper non-

    resident licenses and tags would have permitted him to take and

    ship the exact same game that he took under authority of the

    fraudulently-obtained resident licenses.

    B.  The Statute

        This case puts in issue the proper construction of

    three interrelated provisions of the Lacey Act -- two dating to

    the Act's 1981 amendment and one to its 1988 amendment.   

        The first, 16 U.S.C.  3372(a)(2), is a general

    prohibitory provision.  It establishes the universe of conduct

    which may give rise to civil and criminal liability under the

    Act.  Insofar as is relevant here, it provides:  "It is

    unlawful for any person . . . to import, export, transport,

    sell, receive, acquire, or purchase in interstate or foreign

    commerce . . . any . . . wildlife taken, possessed,

    transported, or sold in violation of any law or regulation of

    any State . . . ."  16 U.S.C.  3372(a)(2)(A).      

           

        The second provision, 16 U.S.C.  3372(c), was added

    in 1988 to "overturn" United States v. Stenberg, 803 F.2d 422

    (9th Cir. 1986).  See S. Rep. 100-563, at 9-10 (1988),

    reprinted in 1988 U.S.C.C.A.N. 5366, 5374-75.  In Stenberg, the

    Ninth Circuit had expressed the common sense view that the

    selling of guiding services to facilitate what both guide and

    hunter knew would be an illegal taking of wildlife does not

    itself constitute a "sale of wildlife" in violation of the Act. 

    See 803 F.2d at 435-37.  Section 3372(c) effectively abrogates

    Stenberg by providing specialized definitions of the terms

    "sale" and "purchase" to be applied throughout the Act.  In

    pertinent part, the provision reads:  "It is deemed to be a

    purchase of . . . wildlife in violation of this chapter for a

    person to obtain for money or other consideration . . .

    guiding, outfitting, or other services . . . for the illegal

    taking, acquiring, receiving, transporting, or possessing  of

    . . . wildlife."  16 U.S.C.  3372(c)(2)(A).

        The third and most relevant provision for present

    purposes is 16 U.S.C.  3373(d).  Although the provision bears

    the caption "Criminal penalties," it does not simply prescribe

    punishment for conduct described elsewhere in the Act. 

    Instead, the provision effectively sets forth the substantive

    elements of the Act's criminal offenses by defining, and

    attaching criminal consequences to, a subset of the "unlawful"

    conduct described in 16 U.S.C.  3372.

        16 U.S.C.  3373(d) has both felony and misdemeanor

    provisos.  In pertinent part, its felony proviso states:   

             Any person who . . . violates any

        provision of this chapter . . . 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 . . . with a market value in

        excess of $350, knowing that the fish or

        wildlife . . . were taken, possessed,

        transported, or sold in violation 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.

    

    16 U.S.C.  3373(d)(1).  In pertinent part, its misdemeanor

    proviso states:

             Any person who knowingly engages in

        conduct prohibited by any provision of

        this chapter . . . and in the exercise of

        due  care should  know  that the . . .

        wildlife . . . were taken, possessed,

        transported, or sold in violation of, or

        in a manner unlawful under, any underlying

        law, treaty or regulation shall be fined

        not more than $10,000, or imprisoned for

        not more than one year, or both.

    

    16 U.S.C.  3373(d)(2).

        C.  The Prior Proceedings

        In early 1995, agents of the United States Fish and

    Wildlife Service conducted two searches of Romano's home. 

    These searches yielded inculpatory evidence including Romano's

    hunting diaries and travel itineraries, videotapes and

    photographs of the Alaska hunts, documents establishing

    Romano's Massachusetts residency, shipping tags for the animals

    in question, and mounted trophies of animals killed during the

    hunts.  In July 1995, a federal grand jury returned an eight

    count indictment against Romano.

        Count VIII sought forfeiture of the trophies pursuant

    to the Lacey Act's forfeiture provision, 16 U.S.C.  3374;

    Counts I-VII, each of which was captioned "Interstate Sale and

    Transport of Wildlife Taken in Violation of State Law, 16

    U.S.C.  3372(a)(2)(A)" and pertained to separate kills and

    shipments, charged him with feloniously violating the Lacey Act

    by

        knowingly engag[ing] in conduct involving

        the sale and purchase, offer to sell and

        purchase, and intent to sell and purchase,

        wildlife having a market value in excess

        of $350 . . . by knowingly transporting,

        receiving, acquiring and purchasing said

        wildlife in interstate commerce . . .

        knowing said wildlife had been taken,

        possessed and transported in violation of

        and in a manner unlawful under Alaskan

        state law, specifically Alaska Statute 

        16.05.330(a)(2), which prohibits the

        taking of wildlife without the appropriate

        Alaska hunting license.

    

    (emphasis supplied).  With the exception of the underlined

    phrase, this charging language loosely tracked the language of

    the Act's felony proviso -- 16 U.S.C.  3373(d)(1).  The

    underlined phrase, on the other hand, appears to have been

    imported from 16 U.S.C.  3372(a)(2).  The government has not

    explained, and we cannot comprehend, why the charging language

    was so structured.

        In any event, it is important to understand that

    Romano never engaged in a direct sale or purchase of wildlife. 

    Nor, despite the hint to the contrary in the indictment's

    charging language, has the government taken the position that

    Romano's acts of transporting the animals he killed were

    conduct involving the sale or purchase of wildlife.  Rather,

    the government's case might best be described as resting on a

    theory of constructive purchase of wildlife.  That theory

    depends, in turn, on the express language of 16 U.S.C. 

    3372(c)(2), by operation of which (as set forth above) "a

    purchase of . . . services . . . for the illegal taking . . .

    of . . . wildlife" is "deemed to be a purchase of . . .

    wildlife in violation of [the Lacey Act]."  In other words,

    this case has proceeded on the premise that Romano's annual

    purchases of guiding and outfitting services to assist him in

    prospective unlawful takings of wildlife were the "conduct that

    involves the . . . purchase of . . . wildlife" made felonious

    by 16 U.S.C.  3373(d)(1).  See  13 of the indictment's

    "Introductory Allegations" ("Each year between 1989 and 1994

    the defendant LAWRENCE J. ROMANO purchased wildlife in

    interstate commerce by paying for the services of professional

    Alaskan guides to assist him in taking game in Alaska.").

        In January 1996, Romano moved to dismiss all eight

    counts of the indictment.  He asserted a number of arguments in

    support of his motion, all of which were variations on a five-

    part theme:  (1) the Lacey Act cannot be read to apply to his

    conduct because the guiding and outfitting services he

    purchased were wholly lawful; (2) because the relevant

    statutory language is, at best, ambiguous, both the rule of

    lenity and the Act's legislative history (which Romano reads to

    suggest that the Act is not intended to reach the activities of

    private, recreational hunters who do not engage in unlawful

    commercial activity) preclude its application to his conduct;

    (3) Alaska's disparate treatment of resident and out-of-state

    hunters is unconstitutional; (4) Congress does not have the

    power to regulate the non-commercial, intrastate activities of

    private, recreational hunters; and (5) the statute of

    limitations had run on the killing and shipment at issue in

    Count I.  Perhaps because of the captions the government gave

    to Counts I-VII of the indictment, Romano's first and second

    arguments focused almost exclusively on the language of 16

    U.S.C.  3372(a)(2) and (c)(2); they did not address the more

    pertinent language of 16 U.S.C.  3373(d)(1)(B).

        The district court agreed with Romano's statute of

    limitations argument but otherwise denied the motion and sent

    the case to a jury.  See generally United States v. Romano, 929

    F. Supp. 502 (D. Mass. 1996).  The government did not seek to

    make an alternative argument that, even if Romano did not

    violate the Act's felony proviso, he violated its misdemeanor

    proviso; nor did Romano seek a lesser included instruction. 

    Accordingly, the case was tried solely under the theory that

    Romano's purchases of guiding and outfitting services for the

    illegal taking of wildlife were felonies.  At the conclusion of

    the government's case, the closing of the evidence, and after

    the jury's guilty verdicts on Counts II-VII, Romano renewed his

    first, second, and fourth arguments as challenges to the

    sufficiency of the evidence.  He also asserted that, because

    the government had not introduced evidence from which a jury

    could find beyond a reasonable doubt that the animals in

    question had "market value[s] in excess of $350," 16 U.S.C. 

    3373(d)(1)(B), he should be acquitted.  The district court

    stood by its earlier rulings and rejected Romano's market value

    argument, reasoning that the thousands of dollars Romano paid

    for guiding and outfitting services constituted evidence from

    which the jury could properly infer that the animals killed

    during the hunts had market values in excess of $350. 

    Subsequently, the court sentenced Romano to two years'

    probation.  It also fined him $20,000, ordered him to make

    restitution in the amount of $9,994 to the State of Alaska, and

    entered a judgment forfeiting the trophies that were the

    subject of Count VIII.  The court stayed execution of the

    sentence pending appeal.

                                 II.

        Proper resolution of this appeal is not without

    difficulty.  On the one hand, Romano's specific appellate

    arguments (which essentially mirror those presented to the

    district court during and after the trial) are not particularly

    persuasive.  Only the market value argument gives us

    significant pause; yet even a ruling that the government failed

    to establish that the animals Romano killed had market values

    in excess of $350 raises a potentially difficult question not

    addressed in the briefs:  Should we reverse the convictions

    outright or, despite the lack of either a misdemeanor offense

    instruction below or a request by the government that we do so,

    invoke our authority under 28 U.S.C.  2106 to remand with

    instructions that the district court enter judgments against

    Romano under the Act's misdemeanor proviso?  See Rutledge v.

    United States, 116 S. Ct. 1241, 1250 (1996) (noting the Court's

    prior approval of the "uniform" conclusion of federal appellate

    courts "that they may direct the entry of judgment for a lesser

    included offense when a conviction for a greater offense is

    reversed on grounds that affect only the greater offense");

    United States v. Melton, 491 F.2d 45, 57-58 (D.C. Cir. 1973)

    (remanding for resentencing on lesser included offense even

    where the government chose at trial only to seek conviction on

    the greater offense); but see United States v. Vasquez-Chan,

    978 F.2d 546, 553-54 & nn.5,6 (9th Cir. 1992) (appellate court

    may order entry of judgment on lesser included offense only

    when the jury was explicitly instructed it could find the

    defendant guilty of the lesser included offense and when the

    government, on appeal, makes an alternative argument for the

    entry of judgment against defendant on the lesser included

    offense).  After all, conduct meeting all the elements of 16

    U.S.C.  3373(d)(1) except its market value requirement would

    appear to fall within 16 U.S.C.  3373(d)(2).  See supra at 5.

        On the other hand, we detect an obvious defect in the

    government's case.  As we have stated, the conduct for which

    Romano was indicted and convicted -- i.e., the "conduct that

    involves the . . . purchase of . . . wildlife," 16 U.S.C. 

    3373(d)(1)(B) -- was Romano's annual purchasing of guiding and

    outfitting services for the prospective illegal taking of

    wildlife.  See supra at 7-8; see also 16 U.S.C.  3372(c)(2). 

    We think it obvious, or at least plausible, that Romano

    "engag[ed] in" this "conduct," 16 U.S.C.  3373(d)(1)(B), only

    for so long as it took him to consummate each of his purchases

    of services.  The government appears to agree.  In its brief,

    it argued:  "Since  3372(c)(2) clearly indicates there can be

    a prospective taking, it follows that the purchase of wildlife

    by purchasing guiding services can come before the illegal

    taking."  And yet, this reading of the Act proves the

    incoherence of this prosecution.

        As we have observed, conduct involving a purchase of

    guiding and outfitting services for the prospective illegal

    taking of wildlife would appear to be unlawful by the combined

    effect of 16 U.S.C.  3372(a)(2) and (c)(2).  For such

    unlawful conduct also to constitute a crime, however, it would

    have to fall within the Act's criminal provision -- 16 U.S.C.

     3373(d).  And this provision requires, inter alia, that an

    accused engage in the conduct with a statutorily-prescribed

    knowledge base:  "knowing that the . . . wildlife . . . weretaken, possessed, transported, or sold in violation of" law, 16

    U.S.C.  3373(d)(1)(B) (emphasis supplied), in the case of a

    felony; or with reason to "know that the . . . wildlife . . .

    were taken, possessed, transported, or sold in violation of"

    law, 16 U.S.C.  3373(d)(2) (emphasis supplied), in the case of

    a misdemeanor.

        Obviously, however, a hunter who purchases guiding or

    outfitting services to assist him in a prospective unlawful

    taking of wildlife can neither know nor have reason to know at

    the time of his purchase that the wildlife he has

    constructively purchased by operation of 16 U.S.C.  3372(c)

    "were taken" (or, for that matter, "possessed" or

  "transported") in violation of state law.    The reason is

    clear:  Congress' use of the word "were" implies that, at the

    time of the purchase, the underlying taking, possession, or act

    of transport cannot still be in prospect; it must have already

    occurred.  Cf. United States v. Carpenter, 933 F.2d 748, 750-51

    (9th Cir. 1991) (engaging in a similar temporal parsing of 16

    U.S.C.  3372(a)(1)).  Thus, to affirm a conviction in

    circumstances such as these, we would have to say that the word

    "were," as used in 16 U.S.C.  3373(d), also can mean "would

    be."  Yet even if the word "were" might be taken to mean "would

    be" in some other criminal statute, the absence of indicia that

    Congress actually intended to criminalize the type of conduct

    for which Romano stands convicted, see infra at 17, precludes

    such a strained construction here, see Reno v. Koray, 115 S.

    Ct. 2021, 2029 (1995) (explaining the rule of lenity). 

        A similar analysis disposes of any argument that,

    when he purchased the guiding and outfitting services, Romano

    knew or had reason to know that the wildlife he would take with

    the assistance of these services "were . . . sold," 16 U.S.C.

      3373(d)(1) and (d)(2), in violation of Alaska law.  In a

    case where a buyer purchases such services knowing, or with

    reason to know, that the sale of services is itself illegal

  under state law,   we might accept that the buyer "purchased

    wildlife" (per 16 U.S.C.  3372(c)(2)) knowing or having reason

    to know that the wildlife "were . . . sold" in violation of law

    (per 16 U.S.C.  3373(d)).  After all, this was the precise

    situation presented in Stenberg, and Congress passed 16 U.S.C.

     3372(c) with the expressed intention of "overturn[ing]"

    Stenberg.  See supra at 4.  Here, though, where there was

    nothing unlawful about the repeated sales of guiding and

    outfitting services to Romano, there is absolutely no basis for

    concluding that, when he purchased these services, Romano knew

    or had reason to know that the wildlife he constructively

    purchased were or had been sold in violation of Alaska law. 

    Cf. Carpenter, 933 F.2d at 750-51.  A buyer's private intention

    to use a purchased item for unlawful purposes -- e.g., the

    purchase of a handgun with the intention to use it in a bank

    robbery -- does not, without more, make the sale of that item

    unlawful.

        As we have stated, Romano has, throughout these

    proceedings, made specific arguments that there is insufficient

    evidence to support his convictions because the government has

    misinterpreted 16 U.S.C.  3372.  He has not, however,

    specifically argued that there was insufficient evidence to

    support the jury's findings with respect to the knowledge

    requirements of 16 U.S.C.  3373(d).  The propriety of our

    reversing Romano's convictions on the basis of the defect just

    described would therefore appear to be governed by the

    jurisprudence of Fed. R. Crim. P. 52(b).  Cf. United States v.

    Belardo-Quinones, 71 F.3d 941, 945 (1st Cir. 1995) (when an

    accused asserts specific arguments in support of a Fed. R.

    Crim. P. 29 motion for acquittal, he waives plenary appellate

    review of other specific arguments for acquittal not then

    made).

        Rule 52(b) provides:  "Plain errors or defects

    affecting substantial rights may be noticed although they were

    not brought to the attention of the court."  The Supreme Court

    has interpreted this provision to confer a highly circumscribed

    authority on appellate courts.  See United States v.

    Bradstreet, ___ F.3d ___, Nos. 97-1164 & 1204, slip op. at 8-9

    (1st Cir. Jan. 29, 1998) (discussing the combined effect of

    United States v. Olano, 507 U.S. 725 (1993), and Johnson v.

    United States, 117 S. Ct. 1544 (1997)).  To be correctable

    under Rule 52(b), an error or defect must be "plain," meaning

    "clear" or "obvious" at the time of appellate consideration; it

    must have "affected substantial rights," meaning, in most

    cases, "it must have affected the outcome of the district court

    proceedings"; and leaving it uncorrected must strike us as

    having the potential to "seriously affect[] the fairness,

    integrity or public reputation of judicial proceedings."  Id.at 9 (internal quotation marks and citations omitted).

        We think that the defect here is obvious -- the word

    "were" in 16 U.S.C.  3373(d)(1) plainly cannot encompass

    prospective conduct in these circumstances -- and that it

    affected the outcome of Romano's trial.  Resolution of this

    appeal therefore turns on whether systemic considerations

    militate in favor of reversal.  We believe that they do.  While

    Romano is clearly guilty of having committed misdemeanor

    violations of certain Alaska hunting laws, he is just as

    clearly innocent of the felony charges for which he stands

    convicted.  This, then, is not just a situation where an

    accused's trial might well have ended in an acquittal had the

    defect been raised; it is a case of demonstrable actual

    innocence of the crimes charged.

        Furthermore, this is the first reported case where

    the government has prosecuted a hunter for purchasing lawful

    services to aid him in the prospective unlawful taking of

    wildlife.  To the extent that this might be a "test case," we

    believe that there is a strong institutional interest in

    informing the government that its construction of the Act is

    seriously flawed.  So, too, do we think it important to inform

    Congress that, should it wish to criminalize the type of

    conduct at issue in this case -- the purchase of lawfully-sold

    services with the intent to use those services to take wildlife

    unlawfully -- it must amend the statute.  As we have explained,

    the government cannot now prosecute such conduct under 16

    U.S.C.  3373(d).  Indeed, Congress may well intend that such

    conduct remain entirely within the province of state law.  See,

    e.g., S. Rep. 97-123, at 1 (1981), reprinted in 1981

    U.S.C.C.A.N. 1748, 1748 (the purpose of the Act is to curtail

    the "massive illegal trade in fish and wildlife and their parts

    and products") (emphasis supplied); id. at 12, reprinted in1981 U.S.C.C.A.N. at 1759 ("[T]he dealings of a hunter with his

    travel agent or an airlines to arrange a trip for the

    acquisition of wildlife clearly does [sic] not constitute a

    sale or purchase of wildlife.  However, a commercial

    arrangement whereby a professional guide offers his services to

    illegally obtain wildlife is, in effect, an offer to sell

    wildlife.").  But we cannot say with certainty that this is so.

                                 III.

        For the reasons stated, 16 U.S.C.  3373(d) does not

    encompass the conduct underlying Romano's convictions.  We

    therefore reverse those convictions and remand with

    instructions that judgments of acquittal be entered on Counts

    II-VIII of the indictment.