United States v. Nystrom ( 1997 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 23 1997
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 96-8082
    v.                                                    (Dist. of Wyoming)
    (D.C. No. 95-CR-054-1D)
    MIKE R. NYSTROM, SR.,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before PORFILIO, LUCERO, and MURPHY, Circuit Judges.
    The government charged Mike R. Nystrom in a seven count indictment with
    conspiracy to violate the Lacey Act, interstate transportation of wildlife taken in
    violation of state law, and creation of false records for interstate transportation of
    illegally taken wildlife. After a jury found Nystrom guilty of Counts VI and VII,
    the district court sentenced Nystrom to six months incarceration followed by two
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    years supervised release and imposed a fine of $5,000. Nystrom appeals his
    conviction claiming: 1) there were two instances of prosecutorial misconduct
    violating his Fourteenth Amendment rights; 2) the government obtained evidence
    pursuant to a general warrant in violation of the Fourth and Sixth Amendments; 3)
    the statutes underlying Nystrom’s conviction of Count VII are vague and the court
    gave an inadequate response to a jury question about those statutes; 4) there was
    insufficient evidence to support Nystrom’s conviction of Count VI and the court
    erred in responding to a jury question regarding that count. This court exercises
    jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRMS Nystrom’s conviction.
    BACKGROUND
    On May 18, 1995, a federal grand jury indicted Nystrom on one count of
    conspiracy to violate the Lacey Act, 18 U.S.C. § 371; five counts of interstate
    transportation of wildlife taken in violation of state law under 16 U.S.C. §§
    3372(a)(2)(A) & 3373(d)(1)(B); and one count of creating a false record for
    interstate transportation of illegally taken wildlife under 16 U.S.C. §§ 3372(d)(2)
    & 3373(d)(3)(A)(ii).
    Nystrom was an owner and operator of a big game outfitting company:
    Wolf Lake Outfitters of Pinedale, Wyoming. His sons, Mike S. Nystrom Jr. and
    Greg Nystrom, were co-owners of Wolf Lake Outfitters. At trial, the government
    presented evidence that Nystrom arranged for out-of-state hunters to use his, or
    -2-
    other employees of Wolf Lake Outfitters’, hunting licenses to place on animals
    after shooting them. Nystrom and his employees then arranged for these animals
    to be mounted and transported out of state to the unlicensed and non-resident
    hunters. Nystrom, along with several of his employees, also prepared false
    outfitter reports, filing them with the Wyoming Game and Fish Department and
    the Wyoming Outfitter Board. The government presented evidence that this
    activity occurred from approximately January 1, 1987 through January 1, 1994.
    The United States Fish and Wildlife Service investigated Wolf Lake
    Outfitters and on April 15, 1993, special agents executed a search warrant on the
    business premises. The warrant was obtained based on probable cause established
    by Special Agent Robert Prieksat’s affidavit describing the investigation.
    Nystrom did not contest that probable cause existed to support the warrant.
    Pursuant to the warrant, the agents seized approximately 5,000 documents
    including photos, bank records, index cards containing customer names, receipts,
    invoices, cards, and financial records. Based on the findings of the search,
    Nystrom was arrested. During trial, Nystrom filed a Motion to Suppress and for
    Return of Property Pursuant to Rule 41, Fed. R. Crim. P., and the Fourth
    Amendment to the Constitution of the United States. The district court denied
    that motion, finding the warrant was sufficiently specific.
    -3-
    On August 18, 1995, Nystrom moved to dismiss the indictment for failure
    of the grand jury evidence to support the indictment. The district court agreed
    with respect to Count IV and dismissed that count without prejudice, finding “it is
    undisputed that no evidence was presented to support Count IV of the
    indictment.”
    After a petit jury had been selected, but before it was sworn, Nystrom filed
    a Motion to Dismiss the Indictment for Prosecutorial Misconduct. Nystrom
    alleged, as he does before this court, that the Assistant United States Attorney and
    government investigators threatened witnesses to the extent that they could not
    choose to testify truthfully. To resolve Nystrom’s motion, the district court held
    an in camera proceeding in which the court interviewed each of the witnesses to
    determine whether they had been threatened or coerced by the government.
    Nystrom and his counsel were allowed to be present at the proceeding. The
    district court ordered counsel for both sides not to communicate with the
    witnesses before the in camera proceedings and did not allow counsel for either
    side to examine or cross-examine the witnesses during the proceeding. The court
    did, however, allow both sides to propose questions for the court to propound.
    After its examination, the court found no evidence of prosecutorial misconduct
    and thus found that Nystrom’s due process and Sixth Amendment rights had not
    been violated.
    -4-
    Another witness testified during trial that he was “afraid” of counsel for the
    government. The court convened a hearing outside the presence of the jury and
    again found insufficient evidence that the witness had been threatened or
    intimidated by the government. Nystrom again filed a Motion to Dismiss for
    Prosecutorial Misconduct based on the same claims; the motion was denied.
    During deliberations, the jury asked the court to make two separate
    clarifications. First, the jury asked for a clarification with respect to Count VII
    and part four of jury instruction number 57. 1 Referring to 16 U.S.C. §
    3373(d)(3)(A)(ii), the jury asked: Does “‘involve’ mean defendant made the sale
    or that the sale was able to occur due to defendant’s involvement by submission
    of a false record?” The court responded by giving the jurors a dictionary
    definition of the word “involve”: “to relate closely or connect.” Second, the jury
    requested clarification with respect to Count VI and jury instruction number 29. 2
    Specifically, the jury questioned whether the consideration for the sale of wildlife
    1
    Jury Instruction number 57 stated that the Prosecution has the burden of
    proving beyond a reasonable doubt: “That the Defendant’s submission of a false
    record concerning the wildlife involved the sale or purchase of wildlife with a
    market value greater than $350.”
    2
    Jury Instruction number 29 concerned the “sale” component of 16 U.S.C. §
    3372(c) and stated, in part: “It is deemed to be a sale of . . . wildlife . . . in
    violation of this chapter for a person for money or other consideration to offer or
    provide--(A) guiding, outfitting, or other services; or (B) a hunting or fishing
    license or permit; for the illegal taking, acquiring, receiving, transporting, or
    possessing of . . . wildlife.”
    -5-
    has to be agreed upon before or after the hunt takes place. The court admonished
    the jury to “carefully review” the instructions and not to “speculate about the
    meaning of this term but apply it as set forth in these instructions.” The jury then
    returned verdicts of guilty with respect to Counts VI and VII. 3 Nystrom now
    appeals.
    ANALYSIS
    I.    PROSECUTORIAL MISCONDUCT
    Nystrom claims the government engaged in prosecutorial misconduct by
    threatening and discouraging defense witnesses from testifying. He also claims
    the district court erred when it ordered defense counsel not to interview witnesses
    until after the court conducted its in camera interviews, refused Nystrom’s right
    to cross-examine the witnesses during the in camera proceedings, and refused
    Nystrom’s right to cross-examine witnesses in the presence of the jury concerning
    prosecutorial misconduct.
    Nystrom submitted each of these claims to the district court in his Motion
    for Judgment of Acquittal, to Dismiss, and for a New Trial. The district court
    3
    Count VI alleged that on approximately October 31, 1991 and August 31,
    1992, Nystrom knowingly sold and transported a buck mule deer to Patrick Byrne
    in violation of state law and 16 U.S.C. §§ 3372(a)(2)(A) & 3373(d)(1)(B). Count
    VII alleged that on or about October 22, 1991, Nystrom sold a bull elk and
    knowingly made a false game tag affidavit, with the intent to mount and transport
    the elk in interstate commerce in violation of 16 U.S.C. §§ 3372(d)(2) &
    3373(d)(3)(A)(ii).
    -6-
    denied the motion. This court reviews Nystrom’s claim of error for an abuse of
    discretion. See United States v. Gabaldon, 
    91 F.3d 91
    , 93-94 (10th Cir. 1996)
    (noting standard of review on motions for new trial is abuse of discretion). 4
    In its order denying dismissal for prosecutorial misconduct, the district
    court found Nystrom had not presented sufficient evidence that the government
    had engaged in prosecutorial misconduct. The key case on prosecutorial
    misconduct is Webb v. Texas, 
    409 U.S. 95
    (1972). Webb involved a district
    court’s lengthy warning to a witness to tell the truth; the witness later refused to
    testify. 5 The Supreme Court held that “the judge’s threatening remarks, directed
    only at the single witness for the defense, effectively drove the witness off the
    stand, and thus deprived the petitioner of due process of law under the Fourteenth
    Amendment.” 
    Id. at 98.
    The ultimate issue is whether a prosecutor’s statements
    result in “such duress that [a] witness could not freely and voluntarily decide to
    testify . . . , thus depriving [the defendant] of his defense.” United States v.
    Smith, 
    997 F.2d 674
    , 679 (10th Cir. 1993). Furthermore, “[j]udges and
    4
    Although Nystrom characterized his motion as a Motion to Dismiss as well
    as for Judgment of Acquittal and for a New Trial, his motion was merely an
    amalgam and reiteration of his prior arguments before the district court regarding
    prosecutorial misconduct and not in fact a motion to dismiss. Thus, because it
    was essentially a motion for judgment of acquittal and new trial, we apply an
    abuse of discretion rather than a de novo standard of review.
    5
    We note that neither Webb nor the instant case involved statements made
    to witnesses in the presence of the jury. See 
    Webb, 409 U.S. at 95
    .
    -7-
    prosecutors do not necessarily commit a Webb-type violation merely by advising a
    witness of the possibility that he or she could face prosecution for perjury if his or
    her testimony differs from that he or she has given previously.” 
    Id. at 680.
    Based on its examination of each witness, the district court found that the
    government had made no statements “which exerted such duress on the witness’
    mind as to preclude any one of them from making a free and voluntary choice
    whether or not to testify.” Dist. Ct. Opin. at 4-5. The government did not suggest
    the witnesses “testify in any particular way, other than truthfully.” 
    Id. at 5.
    Because nothing in the record illustrates the government did anything more than
    admonish witnesses that they would be prosecuted for perjury if they testified
    falsely, the district court did not abuse its discretion in denying Nystrom’s
    motion. See 
    Gabaldon, 91 F.3d at 93-94
    .
    With respect to Nystrom’s assertion of error regarding the in camera
    proceedings, we note the district court first found that the allegations in
    Nystrom’s motion, standing alone, did not support a finding that the government
    had engaged in misconduct. Nevertheless, the district court proceeded to conduct
    its own investigation of the witnesses to determine whether such alleged
    misconduct had occurred. 6
    6
    Nystrom claims that with respect to one witness, Delbert Parks, his Fifth
    and Sixth Amendment rights were violated throughout the trial because he was
    never permitted to interview Parks about the prosecutorial misconduct at any
    -8-
    Nystrom presents this court with no precedent or authority supporting his
    claims that the district court’s method of investigating charges of prosecutorial
    misconduct violated his Fifth and Sixth Amendment rights. The government by
    analogy relies upon jury misconduct cases. In such situations, district courts are
    accorded broad discretion to develop appropriate procedures for determining the
    facts necessary to resolve claims of jury misconduct. See United States v.
    Santiago, 
    977 F.2d 517
    , 522 (10th Cir. 1992); United States v. Bradshaw, 
    787 F.2d 1385
    , 1388-90 (10th Cir. 1986).
    The district court did not abuse its discretion in its examination of
    Nystrom’s prosecutorial misconduct claims. The procedures the district court
    employed were essentially fair and did not interfere with Nystrom’s right to a
    “reasonably substantial . . . opportunity to defend against the charge[s]” in the
    indictment. 
    Santiago, 977 F.2d at 522
    (quoting Snyder v. Massachusetts, 
    291 U.S. 97
    , 105-06 (1934)). While neither counsel were allowed to interview or
    examine the witnesses, they were allowed to be present with their clients and
    suggest questions for the court. Nystrom has failed to reference any line of
    time. We note, however, that the court was unable to interview Parks because he
    was out of state. The court thus prohibited counsel for either side from
    interviewing him about the misconduct claims until the court had an opportunity
    to interview him. Parks was never called as a defense witness, even though the
    government had offered him use immunity. Because Parks was never called, the
    prohibition of counsel interviews about that subject remained throughout trial.
    -9-
    proposed questioning which was rejected by the district court. Moreover,
    Nystrom has failed to show that any harm resulted from the procedures the court
    utilized in conducting its in camera interviews and in dealing with the
    prosecutorial misconduct claims. We therefore find no error.
    II.   GENERAL SEARCH WARRANT
    Nystrom next claims that the government’s general search warrant was too
    broad and violated his Fourth Amendment rights because it failed to state the
    items to be seized with sufficient particularity. Attachment C to the search
    warrant described the following items to be seized:
    Business records pertaining to big game outfitting for the years 1987
    through 1992, including but not limited to invoices; receipts; booking
    reservations; copies of applications; client bio-data; client
    correspondence; telephone records; photographs; canceled checks;
    bank records[,] including money transfers and deposit records; credit
    card receipts; hunt contracts; hunt calendars; hunter client schedules;
    diaries; advertisements; news letters; hunting reports; notebooks;
    business ledgers; outfitter license records; guide license records;
    employee records; names; addresses and telephone information for
    outfitter clients; and computer records, including but not limited to
    information or data stored in the form of electronic or magnetic
    coding on computer media or on media capable of being read by a
    computer or computer related equipment. This includes, but is not
    limited to fixed hard disks and removable hard disk cartridges, laser
    disks, magnetic tapes, floppy diskettes, and any other media capable
    of storing digital or magnetic coding containing all or some of the
    above mentioned information for customers, clients, friends, guides,
    and employees.
    Record vol. V at 990.
    -10-
    Nystrom also raised this Fourth Amendment issue by motion to the district
    court. The district court denied his motion. In reviewing the lower court’s
    ruling, we apply the clear error standard to the findings of fact and consider the
    evidence in the light most favorable to the district court’s ruling. See United
    States v. Richardson, 
    86 F.3d 1537
    , 1543 (10th Cir.), cert. denied, 
    117 S. Ct. 588
    (1996). Questions whether a warrant is overbroad are reviewed de novo. See
    United States v. Janus Indus., 
    48 F.3d 1548
    , 1554 (10th Cir.), cert. denied, 
    116 S. Ct. 87
    (1995).
    This court finds, as did the district court below, that in light of the breadth
    of Nystrom’s suspected activity, the warrant was sufficiently specific. See
    Andresen v. Maryland, 
    427 U.S. 463
    , 478-82 (1976) (broad warrant justified
    where crime involved complex scheme); United States v. Leary, 
    846 F.2d 592
    ,
    600 (10th Cir. 1988) (warrant describing items to be seized in broad terms may be
    valid where description is as specific as circumstances and nature of suspected
    activity permit); United States v. Robertson, 
    21 F.3d 1030
    , 1033 (10th Cir. 1994)
    (warrant describing items to be seized in broad terms was valid when description
    was as specific as circumstances allowed).
    The testimony of Special Agent Prieksat, on whose affidavit the search
    warrant was based, supported the proposition that a broad search was required to
    uncover the extent and nature of the violations of which Nystrom was suspected.
    -11-
    Specifically, Prieksat testified that based on his experience, outfitters did not
    always use their business accounts with respect to their clients, but often
    deposited checks in any bank account. Thus, a search of only Nystrom’s business
    account would have been insufficient. Likewise, according to Prieksat’s
    affidavit, based on his experience that outfitters generally maintained records on
    hunters in their offices, the broad search warrant would enable the government to
    identify other potential clients of Nystrom’s. Because of the complex nature of
    the crime and the investigation in this case, we find the district court did not err
    in finding that the “description set forth in Attachment ‘C’ to the warrant, was as
    specific as the circumstances and the nature of the activity under investigation
    permitted.” 7
    III.   COUNT VII ISSUES
    A.       Vagueness of 16 U.S.C. §§ 3372(d) & 3373(d)(3)
    Nystrom claimed that a small number of items seized were outside the
    7
    scope of the warrant. The district court found the agents made a good faith
    attempt to stay within the confines of the warrant. See United States v. Foster,
    
    100 F.2d 846
    , 852-53 (10th Cir. 1996) (officers acted in bad faith and with
    flagrant disregard for terms of warrant, thus blanket suppression was appropriate
    remedy). This court finds nothing in the record to support a finding of error with
    respect to this ruling. Furthermore, the district court appropriately ordered any
    items seized outside the scope of the warrant to be suppressed and returned to
    Nystrom immediately. See United States v. Robertson, 
    21 F.3d 1030
    , 1035 (10th
    Cir. 1994) (suppressing items taken that were outside scope of warrant).
    -12-
    Next, Nystrom argues that 16 U.S.C. §§ 3372(d) and 3373(d)(3), the
    statutes underlying Nystrom’s conviction of Count VII, are unconstitutionally
    vague. 16 U.S.C. § 3372(d) provides: “It 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 . . . (2) transported in
    interstate or foreign commerce.” 16 U.S.C. § 3373(d)(3) provides: “Any person
    who knowingly violates section 3372(d) . . . (A) shall be fined under Title 18, or
    imprisoned for not more than 5 years, or both, if the offense involves . . . (ii) the
    sale or purchase, offer of sale or purchase, or commission of an act with intent to
    sell or purchase fish or wildlife or plants with a market value greater than $350.”
    Although his argument is not elucidated fully, Nystrom appears to claim that the
    term “involves” is ambiguous.
    Whether a statute is unconstitutionally vague is a question of law to be
    reviewed de novo. See United States v. Murphy, 
    977 F.2d 503
    , 504 (10th Cir.
    1992). “The void-for-vagueness doctrine requires that a penal statute define a
    criminal offense with sufficient specificity that ordinary people can understand
    what conduct is prohibited and in a manner that does not encourage arbitrary and
    discriminatory enforcement.” United States v. Meraz-Valeta, 
    26 F.3d 992
    , 997
    (10th Cir. 1994). In reaching questions of a statute’s unconstitutional vagueness,
    our inquiry is whether the statute at issue provided a defendant with notice or
    -13-
    “fair warning” that the conduct contemplated is forbidden by law. See United
    States v. Protex Indus. Inc., 
    874 F.2d 740
    , 743 (10th Cir. 1989).
    This court finds, as did the district court, the term “involves” does not
    deprive the ordinary person of notice or fair warning of prohibited conduct. As
    the court below noted: “it is clear that when a false record is knowingly
    submitted in connection with or involving the sale or purchase, offer of sale or
    purchase, or commission of an act with intent to sell or purchase wildlife with a
    market value exceeding $350.00[,] a violation of the statutes occurs.” We agree.
    B.     Court’s Response to Jury Inquiry
    Nystrom also claims that the district court erred in responding to the jury’s
    question regarding Jury Instruction Number 57 and the meaning of the word
    “involve.” Nystrom does not, however, appear to complain about the jury
    instruction itself. The standard of review for reviewing the court’s response to
    jury questions is the same as the standard applied to reviewing jury instructions.
    See United States v. Castillo, 
    844 F.2d 1379
    , 1391 (9th Cir. 1988). In reviewing
    Nystrom’s challenge to the court’s response to the jury’s inquiry, we review the
    record as a whole to determine whether the response stated the governing law and
    provided the jury with an understanding of the issues and legal standards. See
    United States v. Grey, 
    56 F.3d 1219
    , 1222 (10th Cir. 1995). In addition, we
    reverse convictions “due to an erroneous [response] only if the error was
    -14-
    prejudicial when viewed in light of the entire record.” United States v. Martin, 
    18 F.3d 1515
    , 1519 (10th Cir. 1994).
    Both Nystrom and the government presented proposed responses to the jury
    inquiry concerning the meaning of the term “involves”; the court rejected both.
    Instead, the court gave the jury a definition of the word “involves” and
    admonished it to refer to the instructions to reach its own conclusions. We find
    nothing in the record to show that the response did not state the law governing the
    case or was unfair to the parties. See Durflinger v. Artiles, 
    727 F.2d 888
    , 895
    (10th Cir. 1984) (jury instructions did not constitute reversible error because they
    stated governing law and were fair). 8
    IV.   COUNT VI ISSUES
    A. Insufficiency of Evidence to Convict on Count VI
    Nystrom next claims that there was insufficient evidence to support his
    conviction on Count VI for knowingly and unlawfully selling and causing to be
    transported in interstate commerce one buck mule deer to Patrick Byrne in
    violation of Wyoming law. In reviewing a challenge to sufficiency of the
    8
    Nystrom also appears to argue that his acquittal of Count III and
    conviction on Count VII are inconsistent. Other than this bare assertion, Nystrom
    makes no effort to show why those verdicts provide a basis for reversing his
    conviction. An alleged inconsistency in verdicts, without more, will not as a
    matter of law support a reversal of a conviction. See United States v. Powell, 
    469 U.S. 57
    , 64-65 (1984); United States v. Nelson, 
    54 F.3d 1540
    , 1546-47 (10th Cir.
    1995).
    -15-
    evidence, “we are bound to view the proof presented in the light most favorable to
    the government to ascertain if there is sufficient substantial proof, direct and
    circumstantial, together with reasonable inferences to be drawn therefrom, from
    which a jury might find a defendant guilty beyond a reasonable doubt.” United
    States v. Sullivan, 
    919 F.2d 1403
    , 1431 (10th Cir. 1990). In order to determine
    whether the evidence supporting Count VI was sufficient, we review the record de
    novo. See United States v. Grimes, 
    967 F.2d 1468
    , 1472 (10th Cir. 1992).
    Nystrom specifically claims there was insufficient evidence to prove that
    Byrne provided Nystrom with any consideration for the deer which was
    transported out of state to Byrne. The evidence demonstrates that Byrne provided
    consideration by staying at the outfitters’ camp, assisting Nystrom in providing
    guide services, and removing the game of other hunters. According to the
    government, this exchange of work at Nystrom’s camp for an opportunity to hunt
    with Nystrom and to use Nystrom’s license satisfies the consideration requirement
    for “sale of wildlife” under 16 U.S.C. § 3372(c)(1). See United States v.
    Atkinson, 
    966 F.2d 1270
    , 1273 (9th Cir. 1992) (“sale of wildlife” occurs when,
    for money or other consideration, person provides “guiding, outfitting, or other
    services” or “license or permit” for illegal taking of wildlife). The record also
    reveals evidence that Byrne paid Nystrom $400 for taxidermy services for the
    deer he shot. Byrne also sent a check for $82.36 to Nystrom to pay for additional
    -16-
    taxidermy services. Finally, the deer was transported to Byrne in California by an
    employee of Nystrom’s.
    We find that there was sufficient evidence for a reasonable jury to find that
    Byrne gave consideration for the use of Nystrom’s tag. A reasonable jury could
    have found that Byrne’s assistance to Nystrom, work at the cabin, and payments
    to Nystrom for taxidermy services were consideration given for the opportunity to
    hunt and tag a deer.
    B.     Court’s Response to Jury Inquiry
    Nystrom finally claims the district court erred by not responding to a jury
    inquiry in the manner he requested. Again, we review the record as a whole to
    determine whether the court’s response stated the governing law and provided the
    jury with an understanding of the issues and legal standards. 
    Grey, 56 F.3d at 1222
    ; see also 
    Castillo, 844 F.2d at 1391
    (standard of review for court’s response
    to jury inquiries same as standard for jury instructions). We reverse convictions
    “due to an erroneous [response] only if the error was prejudicial when viewed in
    light of the entire record.” 
    Martin, 18 F.3d at 1519
    .
    Jury Instruction No. 29 generated the following jury question: whether a
    “sale of wildlife” under the Lacey Act had “to be agreed upon prior to the
    beginning of the actual hunt, or could it occur after the kill, i.e., packing the
    wildlife out?” Nystrom requested the court to answer that “the providing of
    -17-
    services of the illegal taking of wildlife must be agreed upon before the services
    are performed.” The court rejected this proposal, noting that “there are
    instructions that deal directly with the issue that they’ve presented me for an
    answer.” The court indicated that it would admonish the jury to consider its
    instructions as a whole and not to speculate otherwise about the meaning of terms.
    Nystrom argues that the jury was requesting a clarification of the timing of
    the agreement, stating “it is axiomatic that a meeting of the minds must precede
    performance to distinguish a sale from a gift provided after the fact[, and it is
    likely that] the jury wondered whether Byrne’s gratuitous payment after the fact
    could serve as the necessary consideration.”
    The Lacey Act does not provide a definition of consideration or a
    requirement with respect to the timing of the agreement for a “sale of wildlife.”
    Rather, the Act states only that a “sale of wildlife” occurs when a person offers or
    provides money or other consideration for guiding or outfitting services or a
    hunting license for the illegal taking, transporting, or possessing of wildlife. The
    crime prohibited by the Act is allowing the use of one’s license to make the hunt
    look legal, regardless of when the agreement to use that license takes place.
    There is thus no statutory basis for the timing of the agreement as asserted by
    Nystrom. Rather, a jury must only find that there was consideration given for the
    use of the guide services and license. Consequently, the district court provided
    -18-
    the jury with the proper governing law and an understanding of the applicable
    issues and standards. Furthermore, Nystrom has failed to show how the district
    court’s response caused him prejudice. Thus, we find the district court did not err
    by failing to give Nystrom’s requested response to the jury’s inquiry.
    CONCLUSION
    For the reasons set forth above, we AFFIRM Nystrom’s conviction entered
    in the United States District Court for the District of Wyoming.
    ENTERED FOR THE COURT,
    Michael R. Murphy
    Circuit Judge
    -19-
    

Document Info

Docket Number: 96-8082

Filed Date: 6/23/1997

Precedential Status: Non-Precedential

Modified Date: 4/17/2021

Authorities (21)

United States v. Victor Manuel Meraz-Valeta , 26 F.3d 992 ( 1994 )

United States v. Gabaldon , 91 F.3d 91 ( 1996 )

United States v. Marcus L. Robertson , 21 F.3d 1030 ( 1994 )

United States v. Lloyd Ray Bradshaw , 787 F.2d 1385 ( 1986 )

United States v. Terry Smith , 997 F.2d 674 ( 1993 )

irvin-l-durflinger-raymond-durflinger-and-ronald-durflinger-plaintiffs , 727 F.2d 888 ( 1984 )

United States v. Kenneth A. Grimes and Diana McGlynn A/K/A ... , 967 F.2d 1468 ( 1992 )

United States v. Bobby Gene Richardson , 86 F.3d 1537 ( 1996 )

United States v. Vance Murphy, D/B/A the Store Linda ... , 977 F.2d 503 ( 1992 )

United States v. David Joe Martin , 18 F.3d 1515 ( 1994 )

United States v. Huey P. Grey and Ann P. Grey , 56 F.3d 1219 ( 1995 )

United States v. Richard J. Leary, and F.L. Kleinberg & Co. , 846 F.2d 592 ( 1988 )

United States v. Protex Industries, Inc. , 874 F.2d 740 ( 1989 )

United States v. Janus Industries, Doing Business as ... , 48 F.3d 1548 ( 1995 )

Snyder v. Massachusetts , 54 S. Ct. 330 ( 1934 )

United States v. Melville O'Neal Atkinson , 966 F.2d 1270 ( 1992 )

United States v. Douglass Nelson , 54 F.3d 1540 ( 1995 )

United States v. Juan Castillo, Aka: Luis Hong Rojas, ... , 844 F.2d 1379 ( 1988 )

Webb v. Texas , 93 S. Ct. 351 ( 1972 )

Andresen v. Maryland , 96 S. Ct. 2737 ( 1976 )

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