F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 1 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-1575
(D.C. No. 00-CR-471-N)
GREG J. ANDERSON, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant Greg J. Anderson, a Colorado hunting outfitter, was convicted
by jury of three violations of the Lacey Act. The first, for knowingly engaging in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
or aiding the interstate sale and transport of an illegally taken animal, 16 U.S.C.
§§ 3372(a)(2)(A), 3373(d)(2), and 18 U.S.C. § 2, arose out of an October 1996
Colorado hunt in which Anderson used another hunter’s tag on a deer taken,
without a license, by Duwayne Lewis, who had the antlers mounted on a plaque
he brought back to Wyoming. The second and third violations, for knowingly
engaging in the interstate sale and transport of an illegally taken animal worth in
excess of $350, §§ 3372(a)(2)(A), 3373(d)(1)(B), and knowingly submitting a
false record with respect to the same, §§ 3372(d)(2), 3373(d)(3)(A)(ii), arose out
of a January 1997 Colorado hunt in which the again-unlicensed Lewis killed a
mountain lion that Anderson fraudulently reported as his own kill, enabling Lewis
to bring the animal back to Wyoming for mounting. The district court sentenced
Anderson to three years of probation, four months of home detention, and 100
hours of community service. He now appeals, contending his convictions must be
reversed for lack of evidence.
We review sufficiency of evidence claims de novo. Evidence is
sufficient to support a conviction if, viewing the evidence in the light
most favorable to the government, a reasonable jury could have
found the defendant guilty beyond a reasonable doubt. In reviewing
the evidence, we do not weigh conflicting evidence or consider
witness credibility, as that duty is delegated exclusively to the jury.
We resolve any conflicts in the evidence in favor of the Government.
United States v. Van Tieu , 279 F.3d 917, 921-22 (10 th Cir. 2002) (citations
omitted). Guided by these principles, we affirm.
-2-
Mule Deer Count
Anderson claims the government failed to prove he knew or should have
known that the deer had been taken illegally, i.e., that Lewis did not have the
necessary license when he shot the deer. However, Lewis testified in pertinent
part that (1) when he arrived the day before the hunt, he told Anderson that he
still needed to purchase a deer license; (2) Anderson actually persuaded him not
to buy the license, saying he should save his money and use a license purchased
by Anderson’s wife, Terri; (3) pursuant to arrangements with a local rancher,
Lewis and Anderson hunted for deer over the next two days; (4) when, on the
second day, Lewis shot a deer, Anderson went to the ranch house to telephone
Terri to bring her license; 1
and (5) after Terri arrived, Anderson filled out a tag
and attached it to the deer’s antlers (a photograph of the deer admitted into
evidence showed something wrapped around a horn, and Lewis identified this as
the tag). As a factual matter, Lewis’ testimony clearly reflected Anderson’s
knowledge that the deer had been taken illegally.
1
Anderson insists Lewis’ story does not make sense, because there was no
reason why Terri would not have just given Lewis her license before the men left
on the hunt. This ignores a practical point made at trial by Lewis, who noted that
requiring Terri to bring her license to the ranch ensured that the purported killer
of the deer was at the scene in the event of an encounter with game officials.
-3-
Anderson insists this testimony was legally deficient because Lewis “had
severe credibility problems” in light of his admittedly illegal conduct, his lenient
treatment by authorities, inconsistencies in the story he related to investigators, to
the grand jury, and at trial, and, finally, the contrary testimony of Anderson and
his wife. See Aplt. Op. Br. at 14-16. This line of argument proceeds from a basic
misunderstanding of the role of an appellate court. In reviewing evidence for
legal sufficiency, we do not assess witness credibility–that is a duty “delegated
exclusively to the jury;” rather, “we presume that the jury’s findings in evaluating
the credibility of each witness are correct.” United States v. Evans , 318 F.3d
1011, 1018 (10 th Cir. 2003) (quotation omitted). We “simply determine whether
[the government’s] evidence, if believed , would establish each element of the
crime;” we do not decide whether the government’s evidence should be believed.
United States v. Vallo , 238 F.3d 1242, 1247 (10 th Cir. 2001) (emphasis added and
quotation omitted). We do not mean to suggest that we would otherwise find the
specific points advanced by Anderson particularly compelling. Lewis did not
actually exculpate himself by inculpating Anderson; indeed, his admission of
illegal conduct was an essential predicate for Anderson’s guilt. Lewis received
some punitive leniency, but this was explored on cross-examination. And the few
cited inconsistencies in his testimony were ambiguous, collateral, minimal, and/or
obviously explicable in terms of situational considerations.
-4-
Anderson further argues that, in acquitting his wife of a Lacey Act charge
in connection with the mule deer, the jury must have found Lewis’ story about the
illegal tagging wholly incredible and, aside from that testimony, there was no
evidence to convict Anderson himself either. Much like his credibility objection,
this argument is both legally inapposite and factually unpersuasive. As a legal
matter, it confounds sufficiency-of-the-evidence review with the issue of verdict
consistency, contrary to the express teachings of United States v. Powell , 469 U.S.
57 (1984). In Powell , the Court reaffirmed longstanding precedent holding that
relief is not available to a criminal defendant on the basis of inconsistent verdicts,
in part because
a criminal defendant already is afforded protection against jury
irrationality or error by the independent review of the sufficiency of
the evidence undertaken by the trial and appellate courts. This
review should not be confused with the problems caused by
inconsistent verdicts. Sufficiency-of-the-evidence review involves
assessment by the courts of whether the evidence adduced at trial
could support any rational determination of guilt beyond a
reasonable doubt. This review should be independent of the jury’s
determination that evidence on another count was insufficient. The
Government must convince the jury with its proof, and must also
satisfy the courts that given this proof the jury could rationally have
reached a verdict of guilt beyond a reasonable doubt. We do not
believe further safeguards against jury irrationality are necessary.
Id. at 67 (emphasis added and citations omitted). After Powell , courts have been
careful to recognize and reject arguments, like Anderson’s, which “improperly
conflate[] the distinction between insufficiency of the evidence and inconsistent
-5-
verdicts.” 2
United States v. Veal , 153 F.3d 1233, 1252 (11 th Cir. 1998); see, e.g. ,
United States v. Abbott Washroom Sys., Inc. , 49 F.3d 619, 622 (10 th Cir. 1995);
United States v. Morehead , 959 F.2d 1489, 1502-03 (10 th Cir. 1992).
Once again, we note that our reliance on a preemptive legal deficiency in
Anderson’s objection should not imply a concession that the objection otherwise
may have substance. As sketched above, Lewis’ testimony that Anderson knew
Lewis did not have a deer license (indeed, persuaded him not to buy one) and then
used someone else’s license–it did not matter whose–to tag the deer Lewis killed,
was plainly sufficient to prove Anderson knew the deer was taken illegally. By
contrast, the government’s case against Terri Anderson was that it was her license
that was used to tag the deer. No one, including Lewis, testified that they actually
saw the name on the license used to tag the deer (Lewis expressly conceded he
could not say “beyond a reasonable doubt” that it was Terri Anderson’s tag).
Certainly, the circumstances Lewis recounted indicated it was hers, but a jury
could have decided that, absent a direct personal observation, there was room for
reasonable doubt.
In sum, there was legally sufficient evidence to convict Anderson on the
mule deer count, and his wife’s acquittal does not undermine his conviction.
2
In his reply brief, Anderson’s challenge on the mule deer count is explicitly
stated in terms of verdict inconsistency. Reply Br. at 1. Of course, in that regard
Powell and its progeny straightforwardly preclude the claim.
-6-
Mountain Lion Counts
Anderson challenges the evidence supporting his convictions on both of the
mountain lion counts in three respects. We may summarily dispense with one of
these in light of our previous discussion of an analogous objection on the mule
deer count. Anderson notes that his knowledge that Lewis had no license when
he killed the lion was established solely on the basis of testimony from Lewis
himself, and Anderson reasserts his charge that Lewis was not a credible witness.
As explained earlier, however, witness credibility is a matter left to the directly
informed judgment of the jury, not the remote speculation of an appellate court.
We therefore turn to Anderson’s remaining two evidentiary challenges.
A. Insufficient Proof of “Sale or Offer to Sell” Element
“Providing outfitting or guiding services for a fee is deemed to be a ‘sale’
for purposes of the Lacey Act.” United States v. LeVeque , 283 F.3d 1098,
1105-06 (9 th Cir. 2002) (applying 1988 amendment of § 3372(c)); see United
States v. DeMasters , 866 F.2d 327, 330 (10 th Cir. 1989). Thus, the government
alleged Anderson was criminally liable for “selling” the lion killed by Lewis
because the hunt was undertaken pursuant to an outfitting contract for which
Lewis had paid $1,500. A complication for the government’s theory was that the
contract in question specified that the parties’ seven-day hunt was to take place in
January 1996, a year before the events underlying this prosecution. However, the
-7-
January 1996 hunt was aborted after just three days as a result of equipment
breakdowns and unpromising conditions, and the government offered testimony
from Lewis that Anderson agreed to resume the paid-for hunt in January 1997.
Anderson denied any such informal extension of the 1996 contract, testifying that
he took Lewis out in 1997 purely out of a friendship that had grown between them
over the course of the previous year. The jury evidently chose to believe Lewis.
Anderson points to a number of facts that he insists contradict Lewis’ story.
Some of these do provide circumstantial support for Anderson’s contrary account.
Anderson had no binding obligation to extend the 1996 outfitting contract, under
which Lewis assumed the risk of equipment failure and an unsuccessful hunt.
Also, the two men informally hunted together a couple of times later in 1996,
including the mule deer hunt. These facts obviously do not conclusively refute
Lewis’ testimony, however. Moreover, the government’s case did not rely solely
on the intrinsic plausibility of Lewis’ bald statement that Anderson agreed to
extend the 1996 contract. Anderson’s long, arduous tracking of the lion that he
let Lewis shoot corroborates Lewis’ story that Anderson was intent on completing
the contract begun so disappointingly the year before–as did Anderson’s prompt
offer to contract for a second lion hunt once this carryover obligation on the first
was satisfied. In the end, we are again presented with a conflict in the evidence
-8-
which we must resolve as the jury did, in favor of the government. Van Tieu ,
279 F.3d at 922.
B. Indeterminate Proof Regarding Who Fired the Fatal Shot
Four witnesses, including Anderson, saw Lewis fire several shots at the
treed lion just before it fell to the ground dead. Yet Anderson contends that the
evidence was legally insufficient to permit the jury to find that Lewis killed the
lion or that Anderson knew Lewis killed the lion (and thus that it had been taken
illegally). Anderson relies on his own testimony that he had shot at the lion four
times and hit it at least once while he tracked it, and claims that this account put
the evidence regarding cause of death in such equipoise that a finding of guilt
beyond a reasonable doubt was impossible, citing United States v. Richards ,
204 F.3d 177, 206 (5 th Cir. 2000). If the evidence established that both men had
in fact shot the lion, there might be force to this argument (though the timing of
the lion’s death may have been enough to attribute it to Lewis). Here, however,
the jury was free simply to disbelieve Anderson’s self-serving account, leaving no
doubt about cause of death to be resolved at all. See id. (noting evidence must be
in equipoise even when viewed in light most favorable to government).
No one else saw Anderson shoot at, much less hit, the lion. Three men
followed Anderson’s tracking efforts from the same vantage point that day, and
only one–Anderson’s longtime friend Sam Sickles–heard any shots; the others,
-9-
Lewis and a hunter who accompanied Sickles, heard no shots at all. Similarly,
while Anderson and Sickles claimed to have seen blood specks on the ground
where the lion had passed, the other men did not see any blood. Finally, none of
the witnesses described the death scene–where Lewis alone was allowed to fire on
the treed lion until it was killed–in a way that suggested Anderson had just
labored for hours trying to take the animal for himself. Once again, we have
conflicting evidence and a jury determination of that conflict which we must
accept.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
-10-