                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 22 2011

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-50043

                Plaintiff - Appellee,             D.C. No. 2:09-cr-00122-RZ-1

    v.
                                                  MEMORANDUM *
GERARD JERRY SNAPP,

                Defendant - Appellant.



                      Appeal from the United States District Court
                          for the Central District of California
                      Ralph Zarefsky, Magistrate Judge, Presiding

                              Submitted March 10, 2011 **
                                 Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

         Gerard Snapp appeals his conviction for violating 16 U.S.C. § 1538(a)(1)(F),

which makes it unlawful to “sell or offer for sale” an endangered wildlife species.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The district court did not abuse its discretion by rejecting Snapp’s proposed

jury instructions and instead choosing not to provide a jury instruction as to the

meaning of the term “offer for sale” as used in the Endangered Species Act (ESA).

See United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998) (“When a statute

does not define a term, we generally interpret that term by employing the ordinary,

contemporary, and common meaning of the words that Congress used.”); see also

United States v. Somsamouth, 352 F.3d 1271, 1275 (9th Cir. 2003) (“‘[T]he district

court need not define common terms that are readily understandable to the jury.’”)

(quoting United States v. Shryock, 342 F.3d 948, 986 (9th Cir. 2003)).

      The ESA does not define the term “offer for sale.” 16 U.S.C. § 1532.

However, the implementing regulations support a broad definition by assuming

that most advertisements are “offers for sale” under the Act. See 50 C.F.R. §

17.21(f)(2) (explaining that the prohibition on offers for sale excludes

advertisements accompanied by a warning that no sale will be consummated until a

valid permit is obtained). Moreover, Congress intended the ESA to sweep broadly

in eliminating the extinction of endangered species. See Babbitt v. Sweet Home

Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698 (1995) (expansively

interpreting ESA terms in light of the statute’s “broad purpose” of saving species

from extinction); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (“The plain


                                           2
intent of Congress in enacting this statute was to halt and reverse the trend toward

species extinction, whatever the cost.”); Trout Unlimited v. Lohn, 559 F.3d 946,

949 (9th Cir. 2009) (“The ESA’s ‘primary purpose . . . is to prevent animal and

plant species endangerment and extinction caused by man’s influence on

ecosystems, and to return the species to the point where they are viable

components of their ecosystems.’”) (quoting H.R. Rep. No. 95-1625, at 5 (1978),

reprinted in 1978 U.S.C.C.A.N. 9453, 9455) (alteration in original).

      Snapp offers no legal support for instructing the jury on the narrower

definition of “offer for sale” in the Restatement (Second) of Contracts. The Act

reaches a broader range of conduct than the commercial context contemplated by

the Restatement. Snapp misrelies on the rule of lenity, which “applies only when

there is ‘grievous ambiguity or uncertainty in the statute’ and when, ‘after seizing

everything from which aid can be derived, we can make no more than a guess as to

what Congress intended.’” Iverson, 162 F.3d at 1025 (quoting Muscarello v.

United States, 524 U.S. 125, 138 (1998)).

      Finally, any error would have been harmless. The government introduced

evidence that Snapp listed the elephant skull for sale on Craigslist and

communicated with potential buyers in a manner evidencing his intent to complete




                                          3
a transaction. This evidence was sufficient to support a guilty verdict under

Snapp’s proposed jury instructions.

      AFFIRMED.




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