     Case: 12-41113         Document: 00512596578         Page: 1     Date Filed: 04/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                        No. 12-41113                                  FILED
                                                                                  April 15, 2014
                                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                                             Clerk

                                                    Plaintiff - Appellee
v.

LOREN WILLIS

                                                    Defendant - Appellant




                     Appeal from the United States District Court
                          for the Eastern District of Texas
                               USDC No. 9:11-CR-28-1


Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge.*
PER CURIAM:**
      Appellant Loren Willis, along with Gerard Longo and Michael
Rambarran, were indicted on charges of violating three separate provisions of
the Lacey Act. The Lacey Act is a conservation law that prohibits trade in
wildlife, fish, and plants that have been illegally taken, transported or sold.
See 16 U.S.C. § 3371–78. The defendants were charged with conspiring: to
submit a false label for fish transported in interstate commerce, in violation


      *    District Judge of the Eastern District of Louisiana, sitting by designation.
      ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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                                 No. 12-41113
of 16 U.S.C. § 3372(d)(1)–(2) (“Count 1”); to transport fish in interstate
commerce in violation of Texas law, thus violating 16 U.S.C. § 3372 (a)(2)(A)
(“Count 2”); and to commit a Lacey Act Violation involving the sale or
purchase of fish with a market value over $350, in violation of 16 U.S.C.
§ 3373(d)(1)(B) (“Count 3”). Longo pleaded guilty to Count 2, and Rambarran
pleaded guilty to Count 1. The Government dismissed the remaining charges
against them.
      Willis went to trial on all three counts. At the close of the evidence,
Willis moved for a judgment of acquittal, arguing with respect to Count 3
that the evidence was insufficient to show that the market value of the fish
he had sold or purchased exceeded $350. The district court reserved its ruling
on the motion until after the jury trial and later issued a written order
denying it. The jury acquitted Willis on Count 1 (conspiracy to falsely label
fish for interstate commerce), but found him guilty on Counts 2 and 3—
conspiring to illegally transport fish in violation of Texas law and conspiring
to illegally sell or purchase fish in violation of the Lacey Act with a market
value of over $350. The district court sentenced him to serve nine months in
prison and one year of supervised release. On appeal, Willis contends that the
trial court erred in: (1) not instructing the jury on entrapment and (2)
denying his Motion for Judgment of Acquittal.
                              BACKGROUND
      Loren Willis ran a commercial fish importing and exporting business
out of West Palm Beach, Florida, where he lived. In the course of his
business, Willis took a trip with a Japanese client to fish for alligator gar in
Texas.
      Although Willis had a federal fish and wildlife permit that allowed him
to import and export wildlife at designated ports throughout the United
States, including the port of Houston, Texas, in order to fish for gar in Texas
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                                  No. 12-41113
and export fish caught in the wild in Texas, Willis needed additional licenses
and permits, specifically: (1) a nonresident recreational fishing license, which
costs $58; (2) a nonresident general commercial fisherman’s license, which
costs $189; (3) a freshwater nongame fish permit, which costs $60; and, (4) a
wholesale fish dealer’s license, which costs $825. Neither Willis nor co-
conspirator Longo nor the Japanese client obtained the needed licenses or
permits.
         After arranging for the services of Kirk Kirkland, a premier fishing
guide, at a price of $750 per day, Willis called the Houston office of the Fish
and Wildlife Service (“FWS”) on July 26, 2010 and spoke with FWS Special
Agent Marty Hernandez about a planned trip to fish alligator gar in Texas.
He told Hernandez that the trip was on behalf of a Japanese client. Willis
explained that in Japan a six-foot gar could sell for nearly $40,000, and a
four-foot gar for $20,000. Not familiar with the specifics of exporting live fish
overseas, Hernandez advised Willis to call the FWS inspection office at the
Houston airport for information about exporting gar to Japan.
         Following his phone conversation with Special Agent Hernandez, Willis
called the FWS office at the Houston airport and spoke with Inspector
Bradley Wendt, who told Willis that in order to ship live fish from Texas he
would need to comply with the regulations promulgated by the Texas Parks
and Wildlife Department (“TPWD”). Wendt directed Willis to contact TPWD
for information about the licenses and permits he would need under the
regulations. Willis never contacted TPWD before embarking on the fishing
trip.
         For his part, Hernandez called James Stinebaugh, a fellow special
agent with FWS. Through Hernandez, Stinebaugh learned that Willis
planned to come to Texas and that Willis planned to engage Kirkland.
Stinebaugh approached Kirkland about being a paid confidential informant, a
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                                    No. 12-41113
position which Kirkland accepted. Stinebaugh also engaged Randy Button, a
Texas game warden, to serve undercover as Kirkland’s boat mate on the
fishing trip.
      The fishing trip took place from September 6 through September 9,
2010. Accompanying Willis were co-conspirator Gerard Longo, client Akira
Masuda, river guide Kirk Kirkland, and TPWD undercover agent Randy
Button.
      During the trip, not only Kirkland but also undercover agent Button
repeatedly told Willis that he needed Texas licenses and permits to fish for
and sell gar. In fact, the evidence suggests that Willis was aware of the
license requirements, as he told co-conspirator Longo to “keep quiet” about
how they caught the fish.
      On the third day of the fishing expedition, Willis left the others fishing
and went to the FWS office at the Houston airport to meet with DeMarion
McKinney, an inspector at the agency. Willis told McKinney that he wanted
to ship live fish to Japan. Willis explained that he had a Florida fishing
license. McKinney told Willis, however, that he would need a Texas license.
McKinney directed Willis to call Robert Goodrich, a Texas game warden, who
could instruct him on Texas law in this regard. It appears that Willis did not
contact Goodrich until July 2011, by which time he had already been
indicted. 1 Willis did, however, go ahead and schedule an inspection with FWS
at the airport for September 12, 2010. Willis did not show up for the
appointment.
      By the conclusion of the trip on September 9, 2010, the group had
caught six or seven alligator gar, of which only three survived. Willis


      1  Willis disputes this, claiming that prior to coming to Texas he talked to both
Goodrich and Button about Texas licensing requirements. However, Willis points to no
evidence entered at trial to support this claim.
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                                 No. 12-41113
obtained a fourth gar by buying it from Kirkland’s father for $200. At that
point, Willis asked Kirkland to put down four gar as the quantity on the
invoice. Kirkland refused, telling Willis that he was only giving him an
invoice for one “because that’s what I’m selling you.”
      For the four gar, Masuda paid Willis $15,000. Willis decided to forego
shipping the fish out of Houston, as he had originally planned, and instead
would ship them from Miami.
      After missing his appointment with FWS at the Houston airport,
Willis, with co-conspirator Longo, crated up the four gar, put them in a van,
and shuttled them back to Florida. Once in Miami, the two men met with
representatives from Ornamental Fish Distributors (“Ornamental”), a Miami
export company that specializes in shipping tropical fish. Willis had used the
company in the past. Together with Adam Nielson, an Ornamental employee,
Willis and Longo went to the Miami airport. There, Nielson presented the
FWS with a declaration form. Because the declaration form indicated that
the fish were wild-caught (as opposed to captive-bred), the inspector told
Nielson that they were subject to inspection.
      Nielson returned to the inspection office the next day, requesting that
the fish be re-designated as captive-bred instead of wild-caught. The
inspector instructed Nielson to have his supervisor, Mike Rambarran, contact
the inspection office. Rambarran did so, informing FWS that he wanted to
change the fish from wild-caught to captive-bred on the declaration form and
that he had an invoice proving the fish came from Texas. Rambarran then
submitted a new declaration form indicating that the four gar were captive-
bred. Nielson signed the form, and FWS accepted it. The four gar arrived
safely in Tokyo on October 1, 2010.




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                                  No. 12-41113
                          STANDARD OF REVIEW
      The first issue is whether the trial court erred in not instructing the
jury on entrapment sua sponte. Willis did not raise the defense before the
district court. Accordingly, the plain error standard applies. See, e.g., United
States v. Benavidez, 558 F.2d 308 (5th Cir. 1977).
      Plain error review requires four determinations: “[1] whether there was
error at all; [2] whether the error was plain or obvious; [3] whether the error
affected the defendant’s substantial rights; and [4] whether this court should
exercise its discretion to correct the error in order to prevent a manifest
miscarriage of justice.” United States v. Dominguez-Alvarado, 695 F.3d 324,
328 (5th Cir. 2012); see also United States v. Puckett, 556 U.S. 129, 135
(2009). This court will exercise its discretion to correct plain error “only if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135 (internal quotation marks and
alterations omitted).
      The second issue presented is whether the trial court erred in denying
Defendant’s Motion for Judgment of Acquittal on Count 3. When a defendant
makes a motion for a judgment of acquittal that the district court denies, the
appellate court reviews that decision de novo applying the sufficiency of the
evidence standard. United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.
2005). “The test for reviewing the sufficiency of the evidence is whether a
reasonable jury could conclude that the relevant evidence, direct or
circumstantial, established all of the essential elements of the crime beyond a
reasonable doubt when viewed in the light most favorable to the verdict.”
United States v. Fountain, 277 F.3d 714, 717 (5th Cir. 2001). Furthermore,
Defendant’s Motion for Judgment of Acquittal involves an issue of statutory
interpretation in that the district court was required to interpret how the
$350 requirement in the Lacey Act is calculated. That question, like any
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                                 No. 12-41113
question of statutory construction, is reviewed by this court de novo. United
States v. Kay, 359. F.3d 738, 742 (5th Cir. 2005).
                                DISCUSSION
                                       I.
      “[E]ntrapment is an affirmative defense”; therefore, the burden is
initially on the defendant to “show [that] he was induced to commit a
criminal act by a government agent and that he was not predisposed to
commit the act without the inducement.” United States v. Thompson, 130
F.3d 676, 689 (5th Cir. 1997) (internal quotation marks and citation omitted).
      Considering that entrapment is an affirmative defense to a violation of
the Lacey Act, a defendant must show more than that “a Government agent
has provided the accused with the opportunity or facilities for the commission
of the crime.” United States v. Brace, 145 F.3d 247, 260 (5th Cir. 1998) (en
banc) (internal quotation marks and citations omitted) (emphasis in original).
In order to establish the defense, “a defendant must ‘make a prima facie
showing of (1) his lack of disposition to commit the offense and (2) some
governmental involvement and inducement more substantial than simply
providing an opportunity [] to commit the offense.’” United States v. Stephens,
717 F.3d 440, 444 (5th Cir. 2013) (quoting United States v. Theagene, 565
F.3d 911, 918 (5th Cir. 2009)). Stated differently, “[t]he critical determination
in an entrapment defense is whether criminal intent originated with the
defendant or with the government agents.” United States v. Bradfield, 113
F.3d 515, 521 (5th Cir. 1997). In examining a defendant’s predisposition to
commit the offense, the court is to look at (1) the defendant’s “eagerness to
participate in the transaction,” and (2) the defendant’s “ready response to the
government’s inducement offer.” United States v. Chavez, 119 F.3d 342, 346
(5th Cir. 1997) (internal quotation marks and citation omitted).


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                                 No. 12-41113
      Only after the defendant has made out a prima facie showing of
entrapment    by     showing   both   elements—lack     of    predisposition   and
governmental inducement—is the defendant entitled to an entrapment
instruction by the court. Stephens, 717 F.3d at 444. If the defendant can
make this prima facie showing, he shifts the burden “to the government to
prove beyond a reasonable doubt that the defendant was disposed to commit
the offense before the government first approached him.” Theagene, 565 F.3d
at 918.
      Willis points to no evidence in the record that indicates that, at trial, he
made out a prima facie case for entrapment. He has failed to show that he
was (1) not predisposed to commit the crime, or (2) given substantial
inducement by the Government. First, based on the record and by
defendant’s own admission in his appellate brief, it was Willis who originated
the idea of fishing and selling gar after speaking with Akura Masuda, his
Japanese client. Because of his commercial fish exporting business, Willis of
his own accord planned a trip to Texas to catch gar. That Willis had already
devised the plan for the fishing trip before receiving what he alleges to be
assistance from the Government is apparent from the manner in which he
approached the Government to inquire into permits and licenses. Willis
reached out to Government officials for advice on how to proceed, then when
he learned he needed licenses in Texas to proceed lawfully, he ignored the
advice and failed to follow through with obtaining the necessary licenses.
Government agents—including Hernandez, Wendt, McKinney, Kirkland, and
Button—instructed Willis, on various occasions, that he needed Texas
licenses and permits to both fish and sell gar. Therefore, the Government
cites significant portions of the record evidencing that Willis was predisposed
to his crimes before any encounter with Government agents.


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                                  No. 12-41113
      Second, the actions of the undercover agents on the boating trip are not
in dispute. This was a sting operation, and, as this Court has previously held,
sting operations by themselves do not constitute entrapment. United States v.
Gutierrez, 343 F.3d 415, 420 (5th Cir. 2003).
      On the record before this Court, it cannot be said that the district court
committed plain error in not instructing the jury on entrapment. Accordingly,
this court affirms the district court on this issue.
                                        II.
      A district court may set aside a verdict and enter a judgment of
acquittal on its own or upon the motion of the defendant if the evidence is
insufficient to sustain a conviction of an offense. Fed. R. Crim. P. 29. The
district court, however, must uphold a jury’s verdict as long as a reasonable
jury could have found each of the essential elements proven beyond a
reasonable doubt. United States v. Yi, 460 F.3d 623, 629 (5th Cir. 2006); see
also United States v. Fountain, 277 F.3d 714, 717 (5th Cir. 2001). In
undertaking its analysis, the court is to make all reasonable inference and
credibility choices in favor of the jury verdict. United States v. Gonzales, 436
F.3d 560, 571 (5th Cir. 2006); see also United States v. Rosalez-Orozco, 8 F.3d
198, 200 (5th Cir. 1993). In reviewing a timely challenge to a conviction based
on the alleged insufficiency of the evidence,“[w]e do not consider whether the
jury correctly determined guilt or innocence, [only] whether the jury made a
rational decision.” Lopez-Urbina, 434 F.3d at 757 (citation omitted); see also
United States v. Moser, 123 F.3d 813, 820 (5th Cir. 1997).
      Here, after reviewing the evidence in the light most favorable to the
jury verdict, with all reasonable inferences and credibility choices made in
support of the verdict, the district court determined that a reasonable jury
could have found, beyond a reasonable doubt, that the three fish taken
without a license had a combined market value that exceeded $350.
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                                  No. 12-41113
      The penalty provision of the Lacey Act provides that
      Any person who—

      (A) knowingly imports or exports any fish or wildlife or plants in
          violation of any provision of this chapter . . . or

      (B) 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, knowing that the fish or wildlife or plants were taken,
          possessed, transported, or sold in violation of, or in a manner
          unlawful under, an underlying law, treaty or regulation, shall
          be fined not more than $20,000, or imprisoned for not more
          than five years, or both.
16 U.S.C. § 3373(d)(1)(A)–(B). Applied to this case, Section 3373 requires the
Government to prove that the value of the illegally caught fish had a market
value in excess of $350. The word “fish” can refer to either a single fish or
multiple fish. Thus, it is debatable whether the Government must prove that
a single fish had a market value in excess of $350, which is Willis’s position,
or that the combined value of the gar exceeded $350. In this case, no direct
evidence was adduced at trial to establish that a single gar had a value of
over $350. However, the district court concluded that a reasonable jury could
have found that the combined value of the fish exceeded $350.
      While the Lacey Act does not specify and no case in this Circuit
addresses whether the total value of the wildlife is to be aggregated in
reaching the value of $350, it seems reasonable to do so when the illicitly
captured, sold, or purchased wildlife were part of a single conspiracy or single
commercial activity. This is what the district court here did, aggregating the
value of each of the three illegally caught gar to arrive at a value in excess of
$350. As this is a question of statutory interpretation, it is reviewed de novo.
Kay, 359 F.3d at 742.

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                                 No. 12-41113
      The district court relied upon the reasoning in a Ninth Circuit case,
United States v. Senchenko, 133 F.3d 1153 (9th Cir. 1998). In Senchenko, the
Ninth Circuit held that the Government could aggregate the value of bear
parts to arrive at the requisite $350 value where the defendant’s various acts
were closely related and formed a single continuing scheme. Id. at 1157.
According to Senchenko, aggregation of the value of wildlife for purposes of
the Lacey Act is appropriate where all of the acts were part of a single
conspiracy or single commercial activity. Under this reasoning, a reasonable
jury in this case could have determined that the total value of the gar taken
in violation of state law exceeded $350, as the district court found.
      Without adopting the rule in Senchenko, we find that a reasonable jury
could have found the market value of the gar to have exceeded $350 based on
the $3,000 Willis paid to Kirkland for his guiding services. In United States v.
Todd, this court stated that the “best indication” of the market value of
wildlife caught illegally during a guided hunt “is the price of the hunt.” 735
F.2d 146, 152 (5th Cir. 1984). In Todd, this court held that guiding services in
the $1,000 to $5,000 range establish that defendants “conspired to take game
with a market value exceeding $350.” Id. Thus, in this circuit, the price of
guiding services can serve as a proxy for market value under the Lacey Act,
id. and guiding services of $3,000, the amount paid by Willis to Kirkland,
provide adequate support for finding a market value in excess of $350. A
reasonable jury thus could have found by this method that the value of the
gar exceeded $350.
      On the record before this court, the evidence was sufficient to support a
finding that the market value of the gar exceeded $350, and thus the district
court properly denied Willis’s motion for a judgment of acquittal.




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                                No. 12-41113
                               CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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