ELR Citation: ELR 20834
No(s). 92-5367 (4th Cir. Feb 11, 1993)

The court upholds an individual's conviction under the Endangered Species Act (ESA) §9(a)(1)(F) for offering for sale in interstate and foreign commerce a Siberian tiger skin rug and for selling in interstate commerce a Bengal tiger skin rug. The court first holds that the evidence sufficiently supports the conviction. The sale or offer for sale of endangered species applies to the individual. The applicable state's laws do not permit the activity, the individual did not act pursuant to an ESA §1539 permit, and ESA §1538(b)(1) affords him no defense because his dealings included covered activity. Viewing the evidence in the light most favorable to the government, the court holds that the lower court did not abuse its discretion by admitting into evidence tape recorded evidence of thetransaction and a transcript of the recording. The court also holds that estoppel by entrapment is not available as a defense, because the evidence fails to show that a government official made assurances as to the legal sale of the pre-ESA tiger skin rugs. Finally, the court holds that in the absence of any fair market value a court properly relied on the individual's own valuation of the wildlife when it applied the sentencing guidelines.

Counsel for Plaintiff-Appellee
Evelyn S. Ying
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Appellant
Paul W. Mengel III
Murphy, McGettigan, Richards & West
700 King Street Station
225 Reinekers La., Ste. 700, Alexandria VA 22314

Butzner, J. (before Russell and Luttig, JJ.)