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.