United States v. Fountain

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).

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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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