United States v. Robert Keszey , 643 F. App'x 153 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 14-4710 and 14-4728
__________
UNITED STATES OF AMERICA
v.
ROBERT KESZEY,
Appellant No. 14-4710
ROBROY MACINNES,
Appellant No. 14-4728
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cr-00623-002 & 003)
District Judge: Juan R. Sanchez
Submitted Under Third Circuit LAR 34.1(a)
December 10, 2015
BEFORE: FUENTES, CHAGARES, and GREENBERG Circuit Judges
(Filed March 3, 2016)
__________
OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:
Defendants Robroy MacInnes and Robert Keszey were each convicted of
conspiring to traffic in illegally obtained animals in violation of state and federal law.
MacInnes was also convicted individually of trafficking in illegally obtained animals in
violation of the Lacey Act. Defendants appeal the District Court’s order denying their
motions for a new trial. For the reasons that follow, we will affirm their convictions.
I.
Most snakes are content to stay in the wild, free from the bothers of human
activity. Others, by no fault of their own, are illegally taken from their homes and forced
to travel all over the world. This is a case about the latter group. 1 Defendants Robroy
MacInnes and Robert Keszey co-owned Glades Herp Farm (“Glades”) in Bushnell,
Florida. Glades collected, bred, traded, and sold various types of snakes globally. Loren
Zuck worked for Glades, staffing the company’s table at the Northern Berks Reptile
Show in Hamburg, Pennsylvania, where he would acquire and sell snakes on Glades
behalf.
In July 2008, two individuals from New York and regular customers of the Glades
stand in Hamburg, Darren Paolini and Justin Munsterman, collected two adult, pregnant
Eastern Timber Rattlesnakes from the wild in New York without a permit. Eastern
Timber Rattlesnakes are a threatened species in New York and Pennsylvania, and
therefore it is illegal in each state to take, transport, possess or sell the snakes without a
1
The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291.
2
proper permit. Under federal law, the Lacey Act also criminalizes purchasing, selling, or
transporting animals obtained in violation of state law.2 Paolini and Munsterman
approached Zuck about purchasing some of the snakes. Zuck, in turn, called MacInnes
and Keszey to ask if they were interested in the offer. They said that they were interested
but wanted to wait until the snakes produced offspring. After the two snakes gave birth
to 23 baby snakes, the parties arranged a deal whereby Glades would give Paolini and
Munsterman store credit at Glades in exchange for the baby snakes. Zuck, on behalf of
Glades, arranged to obtain the snakes from Paolini and Munsterman at a fireworks stand
in Pennsylvania. After the exchange, Zuck mailed the snakes from Philadelphia to
Glades in Tampa, Florida, keeping two of them to raise in Pennsylvania.3
Munsterman also sold two of the baby snakes to Lt. Richard Thomas, an
undercover agent from the New York Department of Environmental Conservation (“NY
2
The Lacey Act is codified at 16 U.S.C. §§ 3371-3378. Under 16 U.S.C. §
3372(a)(2)(A), it is a federal crime “to import, export, transport, sell, receive, acquire, or
purchase in interstate or foreign commerce . . . any fish or wildlife taken, possessed,
transported, or sold in violation of any law or regulation of any State or in violation of
any foreign law.” 16 U.S.C. § 3373(d)(1)(b) further provides a criminal penalty for any
person who “violates any provision of this chapter . . . by knowingly engaging in conduct
that involves the sale or purchase of, the offer of sale or purchase of, or the intent to sell
or purchase, fish or wildlife or plants with a market value in excess of $350.”
MacInnes and Keszey were indicted under 18 U.S.C. § 371, which provides: “If two or
more persons conspire either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or for any purpose, and
one or more of such persons do any act to effect the object of the conspiracy, each shall
be fined under this title or imprisoned not more than five years, or both.”
3
Approximately two weeks later, Keszey shipped 20 timber rattlesnakes to an associate
in Germany because, as Zuck testified, timber rattlesnakes are more valuable in Europe
than in the United States.
3
DEC”). During their negotiation, Munsterman told Lt. Thomas that he intended to sell
the additional timber rattlesnakes to Glades. This caught Thomas’s attention and
prompted the authorities to monitor Glades’s website. Soon after the sale to Thomas, NY
DEC investigators and Special Agent Randy Cottrell of the U.S. Fish and Wildlife
Service observed that the inventory of timber rattlesnakes on Glades’s website had
changed.
As it turned out, Eastern Timber Rattlesnakes were not the only species of interest
to Zuck. He also obtained two Eastern Indigo snakes from Glades. The Eastern Indigo is
a threatened species under Florida and federal law, and, consequently, it is also illegal to
buy or sell them without a permit, which Zuck, MacInnes, and Keszey did not have.
Nonetheless, the parties agreed that Zuck would breed the snakes in Pennsylvania, sell
the offspring at the Hamburg show, and split any profits among the parties.4
Based on an investigation into these events, authorities executed search warrants
on the homes of Paolini and Munsterman, finding, among other things, various
documents memorializing the birth of the baby timber rattlesnakes. Paolini agreed to
cooperate with the authorities in connection with the investigation of MacInnes and
Keszey. The authorities also began investigating Zuck based on information provided by
Paolini and Munsterman. Zuck also eventually cooperated, agreeing to take part in
recorded phone conversations with MacInnes and Keszey. During the recorded calls,
4
Testimony also revealed other instances in which Defendants unlawfully collected
reptiles, including one instance in Jim Thorpe, Pennsylvania, where Defendants collected
two Eastern Timber Rattlesnakes in August 2006.
4
MacInnes encouraged Zuck to remain silent and to kill or sell the illegally obtained
snakes. During another recorded call, NY DEC Investigator Dan Sullivan told Zuck that
he was the target of state investigation into the illegal sale of timber rattlesnakes.
Sullivan also explained that he had evidence implicating Zuck in the illegal purchase of
Paolini and Munsterman’s timber rattlesnakes.
MacInnes and Keszey were eventually charged with conspiracy to traffic in illegal
animals, including the Eastern Timber Rattlesnakes and Eastern Indigo snakes.5
MacInnes was also charged with purchasing protected timber rattlesnakes, knowing that
they had been illegally obtained in New York in violation of the Lacey Act.6 During
their trial, the court made a number of evidentiary rulings, which Defendants now
contest. The defense’s theory was that MacInnes and Keszey had many legal sources for
purchasing timber rattlesnakes and, consequently, they did not need to purchase
unlawfully obtained snakes. To support this theory, Defendants relied on cross-
examination of the government’s witnesses but also attempted to call one witness, Terry
Wilkins, to offer expert testimony regarding timber rattlesnakes. The District Court
barred Wilkins’ testimony, finding that he was not qualified as an expert witness and that
he could not testify on any of the expert topics as a lay witness. The court also rejected
Defendants’ attempt to introduce a phone conversation between Zuck and Sullivan on
5
While less pertinent to our discussion of the violations of state and federal law at issue
on appeal, we note that Defendants were also charged with conspiring to traffic King
Snakes.
6
Glades was originally a defendant charged under both counts but was eventually
severed from the case before trial.
5
cross-examination of the government’s witnesses. In addition, the court also limited the
scope of cross-examination as to the subject matter of Zuck and Sullivan’s recorded
conversation.
Following a jury verdict finding Defendants guilty, Defendants each moved for a
new trial. The District Court denied the motions. This appeal follows.
II.
Defendants argue that the District Court erred on various evidentiary grounds
when it denied their motions for a new trial. We review a district court’s evidentiary
rulings principally on an abuse of discretion standard.7
Defendants first argue that the District Court erred by excluding the recorded
phone call between Investigator Sullivan and Zuck, which Defendants sought to
introduce during Zuck’s cross-examination to prove his motive to lie. The court found
that the conversation was inadmissible under Fed. R. Evid. 803(3), 608(b), and 403.
Because Zuck said little, if anything, of value, we agree that the probative value of the
conversation was substantially outweighed by the danger of unfair prejudice. In addition,
the evidence would have wasted time, delayed trial, and confused the issues before the
jury.8 The District Court therefore properly excluded the conversation.
7
An abuse of discretion occurs only where the district court’s decision is “arbitrary,
fanciful, or clearly unreasonable” – in short, where “no reasonable person would adopt
the district court’s view.” United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009);
Complaint of Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997)
8
Fed. R. Evid. 403.
6
Defendants also claim that the District Court violated their right to confrontation
by limiting the scope of their cross-examination of Zuck regarding the same conversation
with Sullivan. To find that a limitation imposed by the District Court constitutes a
violation of the Confrontation Clause, we must determine “(1) whether the limitation
significantly limited the defendant’s right to inquire into a witness’s motivation for
testifying; and (2) whether the constraints imposed fell within the reasonable limits that a
district court has the authority to impose.”9 We note that both Defendants were given an
adequate opportunity to cross-examine Zuck, but only Keszey did so. Moreover,
Keszey’s cross-examination of Zuck, in fact, covered a majority of the topics discussed
during the call, including questions that revealed the genuine possibility that Zuck had a
motive to lie in order to deflect the focus of the investigation. We therefore conclude that
Defendants’ ability to inquire into Zuck’s motivation for testifying was not impaired and
that any limitation imposed fell within the broad scope of discretion afforded to district
courts when narrowing the scope of cross-examination to avoid cumulative, repetitive, or
otherwise marginally relevant evidence.10
Defendants next argue that the District Court violated their Confrontation Clause
rights by barring them from showing, on cross-examination, that timber rattlesnakes (1)
9
United States v. Harris, 471 F.3d 507, 513 (3d Cir. 2006).
10
Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995) (“‘[t]rial judges retain wide
latitude to impose reasonable limits on cross-examination based on concerns about,
among other things, confusion of the issues or interrogation that is repetitive or only
marginally relevant.’”) (quoting United States v. Baptista–Rodriguez, 17 F.3d 1354,
1370–71 (11th Cir. 1994)).
7
are found in 31 states, (2) are unprotected in some of those states, and (3) give birth in
late summer and early fall. Because none of the subjects were raised by the government
during its direct testimony, we discern no error in the court’s ruling.11
Finally, Defendants argue that the District Court erred by excluding expert and lay
testimony by Terry Wilkins.12 The record clearly reveals that Wilkins was not qualified
to testify on Defendants’ proposed topics as an expert witness. He had little, if any,
training in herpetology and minimal academic exposure to the subject. And, because the
proposed topics would have required expert testimony, the court also properly found that
Wilkins could not testify on those topics as a lay witness.13
III.
For substantially the same reasons set forth in the District Court’s thorough and
persuasive opinion, we will affirm the judgments of the District Court.14
11
Fed. R. Evid. 611(b).
12
To establish that a witness is qualified as an expert, we require a three-part showing
under Rule 702: (1) the proffered witness must be an expert, i.e., must be qualified; (2)
the expert must testify about matters requiring scientific, technical or specialized
knowledge; and (3) the expert’s testimony must assist the trier of fact.
13
Fed. R. Evid. 701 provides, “If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is: (a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”
14
Because we conclude that the District Court committed no error in denying
Defendants’ motions for a new trial, we need not reach Defendants’ argument that the
cumulative effect of the District Court’s evidentiary rulings violated Defendants’ rights
under the Confrontation Clause.
8