ELR Citation: ELR 21309
No(s). 91-30084 (9th Cir. Feb 5, 1992)

The court upholds a deer hunting guide's felony convictions under the Lacey Act for the guide's role in organizing and guiding several illegal hunting expeditions in Montana. The court first concludes that, consistent with §4(c) of the Lacey Act, in determining whether the market value of illegally hunted animals killed by a guide's clients exceeded the threshold amount for the guide's actions to be considered a felony under the Act, the price of the guide's services should be taken into account. The court holds that a violation of §4(c) of the Lacey Act does not involve a sale of game itself, but a sale of the opportunity to illegally hunt game with the assistance of a guide. Thus, market value is best represented by the amount the hunter is willing to pay for the opportunity to participate in the hunt. A Montana statute requiring a person convicted of illegally killing a deer to reimburse the state $300 has no bearing on the actual market value of the deer. The court next holds that the trial court did not err in reading the indictment to the jury, the jury instructions clearly informed the jury of the elements required for a conviction, and that the omission of two jury instructions proposed by the guide was not an error because neither was relevant to the issues presented at trial. The court next holds that an agreement to provide guide services for unlicensed hunters, an agreement to conduct illegal nighttime hunts, and unlawful mistagging of kills provide ample evidence to support a conviction for conspiracy. The court also holds that because the guide arranged to ship deer carcasses to hunters' homes outside of Montana or assisted the hunters in making those shipments, he unlawfully transported wildlife in interstate commerce. The court further holds that the four-level penalty increase under the Sentencing Guidelines was justified, because there is no distinction between specially protected wildlife and wildlife taken in violation of the Lacey Act under Sentencing Guideline §2Q2.1. The court next holds that the hunters were participants for purposes of enhancing the guide's sentence under Sentencing Guideline §3B1.1(a). Even though none of the hunters was prosecuted, each of them was criminally responsible for illegally buying game in violation of the Lacey Act. Finally, the court holds that the trial court properly increased the guide's sentence because he obstructed justice.

Counsel for Plaintiff-Appellee
Kris A. McLean, Ass't U.S. Attorney
P.O. Drawer 10031, 301 S. Park, Helena MT 59626
(406) 449-5370

Counsel for Defendant-Appellant
Stephen C. Moses
Moses Law Firm
P.O. Box 2533, Billings MT 59103
(406) 248-7702