F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 23 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6343
JOHN F. LEWIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-99-003)
Submitted on the briefs:
Carl Hughes and Kyle Goodwin, of Hughes, Artus & Goodwin, Oklahoma City,
Oklahoma, and Nicholas D. Garrett, of Lawton, Oklahoma, for Defendant-
Appellant.
Daniel G. Webber, Jr., United States Attorney, Joe Heaton, First Assistant United
States Attorney, Randal A. Sengel, Assistant United States Attorney, Oklahoma
City, Oklahoma, for Plaintiff-Appellee.
Before SEYMOUR , HENRY , and LUCERO , Circuit Judges.
PER CURIAM.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
John F. Lewis was convicted by a jury of one count of violating the Lacey
Act, 16 U.S.C. §§ 3371–3378. In part, that statute makes it illegal “to import,
export, transport, sell, receive, acquire or purchase in interstate or foreign
commerce, any fish or wildlife taken, possessed, transported, or sold in violation
of any law or regulation of any State.” 16 U.S.C. § 3372. The jury found that
Mr. Lewis had violated Oklahoma law governing the commercial hunting of
captive elk, by capturing wild elk, holding them captive, and organizing at least
one commercial elk hunt, without a license for these activities. Mr. Lewis was
sentenced to twelve months and one day of imprisonment, and fined $30,000.
Mr. Lewis now appeals, asserting the following errors: (1) the district court
improperly denied Mr. Lewis’s motion to dismiss, which claimed that a violation
of Oklahoma hunting law was not a legitimate basis for a Lacey Act prosecution;
(2) the district court erroneously admitted witness testimony; (3) the United States
failed to proffer evidence sufficient to support the charges against Mr. Lewis; (4)
the U.S. Fish and Wildlife Service violated Mr. Lewis’s Fourth Amendment rights
by entering his property without a warrant; and (5) the facts relied upon in
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sentencing Mr. Lewis were incorrect. We exercise jurisdiction pursuant to 28
U.S.C. § 1291 and, for the reasons discussed below, affirm Mr. Lewis’s
conviction and sentence.
I. BACKGROUND
Mr. Lewis owns a 320-acre parcel of land near Lawton, Oklahoma, which
adjoins the Wichita Mountains National Wildlife Refuge. In October of 1996, the
United States Fish and Wildlife Service (“Fish and Wildlife”) initiated an
investigation into whether Mr. Lewis had been luring elk from the refuge onto his
private property. In the course of this investigation, Fish and Wildlife conducted
both personal and video surveillance of the fences and gates dividing the Lewis
property from the refuge. On several occasions, the agents also entered onto Mr.
Lewis’s property. These efforts produced videotapes of Mr. Lewis unlocking the
government padlock on the gate to the refuge and leaving alfalfa to bait elk, as
well as a tape of an elk crossing from the refuge onto Mr. Lewis’s property
through the open gate.
While this investigation was taking place, Mr. Lewis placed an
advertisement in a Dallas newspaper, offering “elk hunting” with “6x6 bulls
guaranteed” for $7500. Aple’s Supp. App. at 5. A hunter from Texas, responding
to this advertisement, came to Mr. Lewis’s property to participate in what the
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government refers to as “the hunt.” According to testimony at trial, on November
8, 1997, Mr. Lewis and the hunter drove Mr. Lewis’s pickup into a fenced-in pen,
approximately fifteen acres in size and containing several bull elk, inside Mr.
Lewis’s property. The hunter then shot one of the bull elk from a distance of
about 75 yards. The entire process lasted approximately ten minutes; soon
thereafter, the hunter returned with the elk carcass to Texas. Aplt’s App. at 286-
88.
Finally, at the close of the investigation, the Fish and Wildlife Service
executed search warrants at Mr. Lewis’s office and several other locations.
Among the items discovered by the government were invoices purporting to show
that Mr. Lewis had made legitimate purchases of elk from a Texas dealer in exotic
animals. Aple’s Supp. App. at 1-4. At trial, however, the dealer testified that he
had never made any such sale, nor had he created the invoice found in Mr.
Lewis’s files.
II. DISCUSSION
A. Motion to Dismiss
Mr. Lewis moved to dismiss the indictment on the grounds that the Lacey
Act did not apply to him. The district court denied the motion; we review that
denial de novo. United States v. McClelland , 141 F.3d 967, 972 (10th Cir. 1998).
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Mr. Lewis contends that because he is accused of violating an Oklahoma
hunting law, the United States cannot prosecute him under the Lacey Act.
According to Mr. Lewis, the Lacey Act cannot apply unless he has violated a state
law that relates specifically to wildlife conservation or protection. In support of
this argument, Mr. Lewis cites several cases, including United States v. Molt , 599
F.2d 1217 (3d Cir. 1979). Molt held that the Lacey Act required the violation of
a law or regulation “designed and intended for the protection of wildlife.” Id. at
1218. However, two years after the Molt decision, the Lacey Act was amended by
Congress. The Senate report on these amendments clearly indicates Congress’
intent to enact a more stringent standard than that set forth in Molt :
[U]nder a narrow reading of the Molt decision it might be argued that
a state’s hunting license law which is revenue-producing is not covered
by the Lacey Act. However, such a law clearly does relate to wildlife
and it is the committee’s intent that it be covered by the Act.
S. Rep. No. 97-123 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1753. Thus,
when a state hunting law is violated, that violation is an adequate basis for a
Lacey Act prosecution.
In further support of his argument that it is “well established” that a Lacey
Act violation requires the violation of a state statute that protects wildlife, Mr.
Lewis cites United States v. Sohappy , 770 F.2d 816 (9th Cir. 1985). Sohappy ,
however, concerns the authority of state governments to “qualify” Native
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American fishing rights in the interests of conservation. It lends no additional
weight to Mr. Lewis’s position. Id. at 823.
B. Witness Testimony as to Oklahoma Law
Mr. Lewis’s next contention is that the district court erred in permitting a
witness to testify regarding Oklahoma law. The admission of expert testimony is
reviewed for an abuse of discretion; we may only reverse the trial court if we
have a firm and definite belief that it made a clear error in judgment. United
States v. Messner , 107 F.3d 1448, 1454 (10th Cir. 1997). However, even if the
trial court abuses its discretion, we will not reverse if the error was harmless. Id.
At trial, Dennis Maxwell, the Assistant Chief of Law Enforcement for the
Oklahoma Department of Wildlife, was asked by the government to describe the
requirements for acquiring an Oklahoma commercial area hunting license. Mr.
Lewis objected, arguing that Mr. Maxwell’s testimony on this subject would
amount to a legal opinion as to Mr. Lewis’s guilt or innocence. The trial court
overruled this objection, and permitted Mr. Maxwell’s testimony.
As a result of this testimony’s admission, Mr. Lewis asks us to reverse the
district court and overturn his conviction. Relying on Specht v. Jensen , 853 F.2d
805 (10th Cir. 1988), Mr. Lewis effectively contends that Maxwell “articulate[d]
the ultimate principles of law governing the deliberations of the jury,” rather than
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testifying regarding issues of fact. According to Mr. Lewis, Mr. Maxwell’s
testimony essentially “direct[ed] a verdict, rather than assisting the jury’s
understanding and weighing of the evidence.” Id. at 808.
We disagree. The record indicates that Mr. Maxwell was only permitted to
testify as to the general requirements of the Oklahoma law regarding commercial
area hunting licenses, not whether the specific conduct of Mr. Lewis violated
those requirements. Mr. Maxwell did not state any opinion as to whether the
Oklahoma law applied to Mr. Lewis. Aplt’s App. vol. III, at 604-05; Aplt’s App.
vol. IV, at 613-46. Moreover, the district court was sensitive to the risks
associated with Mr. Maxwell’s testimony, and warned that Mr. Maxwell would
not be permitted to state any legal opinions. Aplt’s App. vol. III, at 601-02. As
such, we conclude that the district court was well within its sound discretion in
permitting Mr. Maxwell’s testimony.
C. Insufficiency of the Evidence
Mr. Lewis contends that the government failed to proffer sufficient
evidence to prove either that the Oklahoma statute applied to him, or that he had
knowledge of the statute’s requirements. We review the sufficiency of the
evidence to support a jury’s verdict de novo. United States v. Jackson , 213 F.3d
1269, 1283 (10th Cir. 2000). On appeal, the court asks whether, when considered
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in the light most favorable to the government, a reasonable jury could have found
the defendant guilty beyond a reasonable doubt. United States v. Hanzlicek , 187
F.3d 1228, 1239 (10th Cir. 1999).
First, Mr. Lewis claims that “a rational jury could not have found beyond a
reasonable doubt that the Oklahoma law applied to the Lewis property, nor... that
Lewis violated Oklahoma law by his failure to have a commercial elk hunting
area license.” Aplt’s Br. at 20. Lewis claims, for instance, that the government
submitted no evidence that the elk on his property were held in captivity, and did
not prove that the elk which was killed was not “free to evade the hunter.” Aplt’s
Br. at 19.
However, it appears there was ample evidence from which the jury could
conclude that the elk on Mr. Lewis’s property were not wild and could not evade
a hunt. For instance, the fact that a hunter was able, in less than ten minutes, to
drive up in a pickup truck and shoot a bull elk from a distance of 75 yards–an
event which the hunter described at trial as being “close” to “shooting fish in a
barrel”–might lead a reasonable jury to conclude that that elk could not flee the
hunter. Evidence at trial also established that Mr. Lewis’s property was
surrounded by an eight foot tall, “elk tight” fence, which might also suggest to a
reasonable jury that elk within this fence stood little chance of escaping, and
hence were not wild.
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Mr. Lewis also fails to explain the contradiction between his claim that the
elk were not captive, and his own statements in his Fourth Amendment argument,
discussed in section (D), below, that his property was surrounded by an eight-foot
fence with locked gates. As such, this Court has little difficulty concluding the
Oklahoma statute was appropriately applied to Mr. Lewis and his elk.
Second, Mr. Lewis claims there was no “scintilla” of evidence that he had
knowledge of the Oklahoma licensing requirements, and that “voluminous...
evidence” as to his actions shows that he lacked such knowledge. Aplt’s Br. at
21. The government strongly disputes this contention. It argues that the evidence
introduced at trial was sufficient to demonstrate that Mr. Lewis knew he was
subject to the Oklahoma statute. This evidence included taped conversations
between Mr. Lewis and an undercover Fish and Wildlife agent, in which Mr.
Lewis expressed knowledge of the state’s requirements for commercial breeders.
Aplt’s App. at 742-43. The government also presented invoices, seized from Mr.
Lewis, which had been falsified to show the purchase of elk. Aple’s Supp. App.
at 1-4. Because commercial hunting licensees must legally purchase their
wildlife, and may not acquire them from the state’s wild stock, these invoices
would have been a necessary precursor to an application for such a license.
Aplt’s App. at 614-15.
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Considered in the light most favorable to the government, we find this
evidence provided an adequate basis for the jury’s verdict.
D. Motion to Suppress Evidence Obtained via Warrantless Searches
Mr. Lewis’s next claim is that Fish and Wildlife violated his Fourth
Amendment rights by entering upon his property adjacent to the refuge. Mr.
Lewis moved to suppress all evidence obtained during these entries, but the
district court denied his motion. In reviewing a district court order concerning a
motion to suppress, we accept the district court's factual findings unless clearly
erroneous, and we view the evidence in the light most favorable to those findings.
United States v. Little , 60 F.3d 708, 712 (10th Cir. 1995). We review de novo the
ultimate determination of Fourth Amendment reasonableness. Id.
Mr. Lewis proposes that under Katz v. United States , 389 U.S. 347 (1967),
he had a reasonable expectation of privacy in this property, which the government
impermissibly violated. He argues that in surrounding his property with an eight-
foot fence, locked gates, and numerous signs reading “No Trespassing” and
“Private Game Shelter,” he established an expectation of privacy which the
government was legally required to respect.
In response, the government relies upon the Supreme Court’s reaffirmation
of the “open fields” doctrine in Oliver v. United States , 466 U.S. 170 (1984). In
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Oliver , the Court held that even when fields are protected by fences or “No
Trespassing” signs, they “do not provide the setting for those intimate activities
that the [Fourth] Amendment is intended to shelter from government interference
or surveillance.” Id. at 179. We agree that Mr. Lewis’s “asserted expectation of
privacy” in these portions of his property is not an expectation that “society
recognizes as reasonable.” Id. (internal quotation marks omitted). We therefore
conclude that the district court correctly denied Mr. Lewis’s motion to suppress
the evidence produced by the entry onto his fields.
E. Calculation of Pecuniary Loss
Mr. Lewis’s final claim is that the district court applied incorrect facts in
determining his sentence. Mr. Lewis disputes the court’s decision that he should
be sentenced based on the deaths of two elk–one actually killed, and one intended.
He argues that there was no evidence to indicate that he entered or intended to
enter into an agreement with an undercover Fish & Wildlife agent to kill the
second elk. Aplt’s Br. at 27-30. In contrast, the government contends that there
was ample evidence that Mr. Lewis intended to kill another elk, and that a
calculation based on intended loss is appropriate under USSG §2F1.1.
On appeal, we “review the district court's legal interpretation of the
guidelines de novo, and review its findings of fact for clear error, giving due
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deference to the district court's application of the guidelines to the facts." United
States v. Burridge , 191 F.3d 1297, 1301 (10th Cir. 1999). In light of the facts at
hand, especially the testimony of Fish and Wildlife Agent Perez, we find the
district court reasonably concluded that Mr. Lewis intended to cause the killing of
a second elk. Aplt’s App. at 655-56, 687-91. Mr. Lewis’s sentence was thus not
in error.
III. CONCLUSION
For the foregoing reasons we AFFIRM Mr. Lewis’s conviction and
sentence.
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