ELR Citation: ELR 20861
No(s). 94-30065 (9th Cir. Jan 5, 1995)

The court affirms the "lesser included" misdemeanor convictions of a company and an individual that purchased caviar made from illegally obtained Columbia River sturgeon roe for negligently violating and conspiring to violate the Lacey Act, and holds that the district court did not err by instructing the jurors to find the defendants guilty of a misdemeanor if they knew or should have known that the caviar had been illegally obtained. The court finds holds that it is established in the criminal law that a negligent state of mind qualifies as a lesser element of an intentional state of mind. Further, case law establishes that conspiracy in violation of 18 U.S.C. §371 can be proved when the conspirawrs agree to conduct that they shoald have known was in violation of the Lacey Act. The court holds that the defendants should have known that the protected sturgeon was taken and possessed in violation of state law. The court next holds that the government's request for jury instructions on the lesser included misdemeanor offenses did not unfairly surprise the defendants, because they knew from their own counsel's earlier explorations of the law with the government what the indictment included. Moreover, there was no appropriate ground on which the government could have asked for the instructions on lesser included offenses before the individual defendant testified that he was innocent of the intentional felonies charged.

The court holds admissible defendants' counsel's statements to the government acknowledging the "should have known" standard under Lacey Act §4(d)(2). Counsel made those statements during the existence of his agency relationship with the defendants. Also, the district court properly denied the motion to suppress the individual's incriminating statements made to regulatory officials. The individual defendant, a well-educated businessman, made those incriminating statements either in his office or over the telephone during normal business hours—not in a custodial setting. Finally, his belief that he could not refuse to answer questions regulatory officials posed did not constitute coercion. The court also rejects as frivolous defendants' contention that the Lacey Act is an unconstitutional delegation of congressional authority.

Counsel for Plaintiff
Helen J. Brunner, Ass't U.S. Attorney
U.S. Attorney's Office
3600 Sea-First Plaza Bldg.
808 5th Ave., Seattle WA 98104
(206) 553-7970

Counsel for Defendants
Jon R. Zulauf
Zulauf & Engelhard
Tower Bldg.
1809 7th Ave., 13th Fl., Seattle WA 98101
(206) 682-1114

Before Noonan, O'Scannlain, and Leavy, JJ.: