UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No.01-30213
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UNITED STATES OF AMERICA,
Plaintiff - Appellee
VERSUS
ROOSEVELT FOUNTAIN, SR., also known as Schoolboy, and SHIRLEY
FOUNTAIN ELLISON,
Defendants - Appellants
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Appeals from the United States District Court
For the Western District of Louisiana
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December 20, 2001
Before JOLLY and PARKER, Circuit Judges, and MILLS*, District
Judge.
ROBERT M. PARKER, CIRCUIT JUDGE:
Roosevelt Fountain, Sr., and Shirley Fountain Ellison appeal
their convictions for various violations of the Lacey Act. We
AFFIRM the convictions in all respects.
*
District Judge of the Central District of Illinois, sitting
by designation.
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I. BACKGROUND
Roosevelt Fountain, Sr. (“Fountain”) and his daughter, Shirley
Fountain Ellison (“Ellison”) operated an oyster fishing business in
Cameron Parish, Louisiana, called Fountain Seafood, Inc. Their
convictions arise from the manner in which they operated this
business.
In February 1999, the government indicted the appellants for
conspiracy to violate the Lacey Act and violation of several
substantive provisions of the Lacey Act, specifically 16 U.S.C. §
3372(a)(2)(A)2, 16 U.S.C. § 3372(a)(4), and 16 U.S.C. § 3372(d)(2).3
The indictment alleged that the purpose of the conspiracy was to
maximize the quantity of oysters sold by appellants to their
customers. The indictment further contended that the appellants
worked to accomplish this goal by creating false records relating
to their oyster sales.
In August 2000, the parties tried the case to a jury. The
jury convicted both appellants on the conspiracy counts and
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16 U.S.C. § 3372(a)(2)(A) makes it “unlawful for any person
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.”
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16 U.S.C. § 3372(d) states that “[i]t is unlawful for any
person to make or submit any false record account, or label for, or
any false identification of, any fish, wildlife, or plant which has
been, or is intended to be (1) imported, exported, transported,
sold, purchased, or received from any foreign country; or (2)
transported in interstate or foreign commerce.”
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substantive Lacey Act counts. On January 25, 2001, the district
court sentenced Mr. Fountain to thirty months incarceration and Ms.
Ellison to thirty-seven months incarceration. Both appellants
filed a timely notice of appeal and raised several points of error.
We address each in turn.
II. ANALYSIS
A. Failure to Instruct Jury on “Willfulness” and “Materiality”
Appellants contend that the district court committed
constitutional error because it failed to issue either a “willful”
instruction or a “materiality” instruction to the jury.
Appellants’ contentions are without merit.
1. Willfully
The mens rea requirement for violation of 16 U.S.C. § 3372(d),
i.e, submitting false records, is set forth in the penalty
provision at 16 U.S.C. § 3373(d)(3)(A)(ii). It provides that a
person who knowingly violates 3372(d) shall be guilty of an offense
carrying up to five years incarceration where the purchase or sale
of fish in interstate commerce exceeds $350.
The federal courts have consistently found that willfully
connotes a higher degree of criminal intent than knowingly.
Knowingly requires proof of the facts that constitute the offense.
Bryan v. United States, 524 U.S. 184, 193 (1998). Willfully
requires proof that the defendant acted with knowledge that his
conduct violated the law. Ratzlaf v. United States, 510 U.S. 135,
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137 (1994).
Congress chose knowingly as the mens rea requirement for the
false-records provision. The statute does not refer to the term,
willfully. Because these are two distinct concepts, there is no
basis for requiring the district court to instruct on the term
willfully.
2. Materiality
Appellants also contend that materiality is an element of §
3372(d).4 They reason that, in the absence of a “willfulness”
element, there must be a materiality element because the statute
otherwise becomes one of strict liability. We disagree.
The Supreme Court has established a two-part test for
determining whether materiality is an element of a particular
federal crime. First, look to whether the text of the statute
requires a showing of materiality. Second, if there is no
requirement of materiality in the statute, look to see whether
Congress used terms which have a specific common-law meaning which
incorporated the materiality requirement. See Wells v. United
States, 519 U.S. 482, 489-491 (1997); Neder v. U.S., 527 U.S. 1,
20-21 (1999).
The text of § 3372(d) contains no materiality requirement.
4
Materiality means “having a natural tendency to influence,
or [being] capable of influencing, the decision of the
decisionmaking body to which it was addressed.” Kungys v. United
States, 485 U.S. 759, 770 (1998).
4
Moreover, the terms used by Congress, “make or submit any false
record, account, or label for, or any false identification of any
fish . . .” have no specific common-law meaning which incorporate
a materiality requirement. Thus, appellants’ “materiality”
argument also fails.
B. Conspiracy
Fountain contends that there is insufficient evidence to
convict him of conspiracy to violate the Lacey Act. The test for
reviewing the sufficiency of the evidence is whether a reasonable
jury could conclude that the relevant evidence, direct or
circumstantial, established all of the essential elements of the
crime beyond a reasonable doubt when viewed in the light most
favorable to the verdict. United States v. Loe, 262 F.3d 427,
432(5th Cir. 2001).
After a thorough review of the trial record, we conclude that
there is sufficient evidence to convict Fountain on the conspiracy
count. Fountain served as the day-to-day operations manager of
Fountain Seafood, Inc. He directed the activities of other
employees, paid fisherman for their catches, and dealt with law
enforcement agents who made compliance checks. Fountain’s close
involvement in the business provides circumstantial evidence of his
knowledge of Shirley Fountain Ellison’s illegal conduct.
Moreover, there was direct evidence of Fountain’s own
illegalities. First, Fountain was present when Anthony Nelson, a
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fisherman, discussed illegally borrowing another fisherman’s 1996
license. Second, Fountain provided Edmond Hill, a fisherman, with
a vessel that was illegally licensed. Third, two local fishermen
admitted that they routinely consulted with Fountain about
harvesting excess oysters. In sum, a reasonable jury could have
concluded that Fountain was engaged in a conspiracy to harvest
excess oysters and cover up those excesses by submitting false
records.
C. Substantive Violations
Fountain contends there is insufficient evidence to sustain
his convictions on the Lacey Act false records count and the Lacey
Act counts based upon predicate state law violations. He argues
there was no evidence that he had anything to do with the creation
of the false records, and no evidence that any of the alleged
violations were related to the proven interstate shipments. We
disagree.
1. False Records Violations
The fact that Fountain did not personally participate in
creating the false records does not mean his sufficiency argument
is persuasive. Under Pinkerton v. United States, 328 U.S. 640
(1946), Fountain can be convicted of the substantive false records
offense so long as (1) the evidence established his knowing
participation in the overall conspiracy; and (2) he could
reasonably foresee that Ellison would create false records to cover
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up their violations of Louisiana oyster laws. See also United
States v. Narviz-Guerra, 148 F.3d 530, 535 (5th Cir. 1998)(noting
that “once the conspiracy and the defendant’s knowing participation
therein is proved beyond a reasonable doubt, a defendant is guilty
of the substantive acts his partners committed in furtherance of
the conspiracy.”).
Here, the jury found Fountain to have committed the
substantive violation after being given a Pinkerton instruction. In
light of the evidence establishing both Fountain’s participation in
the conspiracy and the foreseeability of Shirley Fountain Ellison
creating and submitting the false records, we hold that the jury
had sufficient evidence to convict Fountain of violating 16 U.S.C.
§ 3372(d).
2. Interstate Shipments
Appellants contend that the government failed to prove its
Lacey Act case against them with respect to the counts which
involved predicate state law violations. They argue that the
oyster fishing violations were not proven to have been related to
the specific interstate oysters shipments introduced at trial.
We find that the government connected the violations of
Louisiana law to the interstate shipments alleged in the
indictment. Louisiana law required appellants to keep accurate
records. The government proved the falsity of Fountain Seafood’s
October 1996 - January 1997 records. Therefore, the violation of
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the records-keeping provision of Louisiana law serves as a
predicate offense for the interstate oyster shipments proven during
the trial. In our view, there is sufficient evidence to conclude
that the falsified records were related to many of the documented
interstate shipments.
Furthermore, the evidence demonstrated other violations of
Louisiana law, i.e, tagging violations, taking of oysters from
closed areas, taking of excess limits of oysters, and licensing
violations. It strains credulity to suggest that none of these
predicate state law violations were related to the documented
interstate oyster shipments. There is certainly enough evidence
for a reasonable jury to conclude that the various state law
violations were connected to the adduced interstate oyster
shipments.
III. CONCLUSION
For these reasons, we AFFIRM appellants’ convictions and
sentences.
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