ELR Citation: ELR 20662
No(s). s. 92-5826, 93-5271 (4th Cir. Nov 26, 1993)

The court upholds the Lacey Act convictions of a collector and a distributor of mussels taken in violation of West Virginia law and upholds the sentence enhancements of the distributor. The collector illegally dove for mussels in the Ohio River and sold the mussels to the distributor, who then shipped them to Japan for use in a pearl-farming operation. The Lacey Act makes the transportation across state lines of any fish or wildlife taken in violation of state law a federal offense. The court first holds that the Lacey Act prosecutions are not time barred by the one-year state statute of limitations for the underlying offense. The Lacey Act does not provide that a prosecutable state-law violation is necessary to support federal charges. The court thus holds that because the Lacey Act is subject to the five-year federal statute of limitations found at 18 U.S.C. §3282, which has not expired, the convictions were proper. The court next holds that the West Virginia statutes prohibiting all persons from musselling at all times and closing the Ohio River to all commercial fishing do not unconstitutionally discriminate against out-of-state residents, and the fact that only Ohio or West Virginia residents may obtain fishing licenses for the Ohio River is irrelevant to the defendants' convictions. The court next holds that the five-level enhancement of the distributor's sentence under U.S. Sentencing Guidelines §2Q2.1(b)(3)(A), based on the market value of the mussels, rather than the distributor's profit, was proper. Additionally, the court holds that the two-level enhancement of the distributor's sentence under U.S. Sentencing Guidelines §3B1.1(c), for being an organizer, leader, manager, or supervisor in the criminal activity, was not clearly erroneous.

Counsel for Plaintiff
Phillip B. Scott, Ass't U.S. Attorney
U.S. Attorney's Office
3201 Federal Bldg.
500 Quarrier St., Charleston WV 25301
(304) 345-2200

Counsel for Defendant
George E. Lantz
Lantz & Tebay
753 Grand Central Mall
P.O. Box 251, Parkersburg WV 26102
(304) 422-3110

Before WILKINSON and WILLIAMS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.