                           NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 04a0042n.06
                                  Filed: October 22, 2004

                                           NOS. 03-5508/5509

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,          )
                                   )
                                   )
           Plaintiff-Appellee,     )
                                   )
                                   ) ON APPEAL FROM THE UNITED
v.                                 ) STATES DISTRICT COURT FOR THE
                                   ) WESTERN DISTRICT OF TENNESSEE
                                   )
FRANKLIN HALE and                  )
CAROLYN SUE HALE,                  )
                                   )
                                   )
           Defendants-Appellees.   )
______________________________________


         BEFORE: DAUGHTREY and SUTTON, Circuit Judges, and COOK,* District Court
Judge.

         PER CURIAM. The defendants, Frank and Carolyn Hale, were originally charged

in an 11-count indictment with conspiracy to violate and ten substantive violations of the

Lacey Act, which makes it a federal crime, under certain circumstances, to violate state fish

and wildlife laws. See 16 U.S.C. § 3371-3378 (1981). After the government dismissed

Counts 8 through 11, the Hales went to trial before a jury and were convicted on six of the

seven remaining counts. They now appeal, contending that several of the counts on which




         *
         The Hon. Julian A. Cook, Jr., United States District Judge for the Eastern District of Michigan, sitting
by designation.
they were convicted fail to charge an offense and that the jury instructions were faulty in

at least two respects. We find no reversible error and affirm.


                    FACTUAL AND PROCEDURAL BACKGROUND


       The Hales, a married couple, owned and operated a wholesale caviar business,

Royaloff Caviar, in Tennessee and Kentucky. They utilized the roe of paddlefish (Polyodon

spathula), which are large, shark-like river fish with long, flat blade-like snouts. Because

paddlefish populations are declining, many states have either limited the season for

catching paddlefish or banned fishing for them altogether. The defendants were charged

with purchasing and selling the eggs of paddlefish that were caught during the closed

season, with falsifying records relating to the caviar, and with operating a wholesale fish

business without the requisite state license.


       At trial, there was extensive testimony regarding the illegal nature of the defendants’

business. Fishermen and their relatives testified that they sold the Hales paddlefish caviar

obtained during closed season and that the Hales knew that the fish had been caught

illegally. There was also overwhelming evidence that the Hales had purposefully put false

names on the records to hide the fact that they were buying the fish eggs illegally. The

Hales engaged in other deceptive behavior, such as instructing fishermen to park their cars

so that their Tennessee license plates would not show when they were selling paddlefish

eggs in Kentucky while the season was closed in Tennessee. Several fishermen testified

that Frank Hale told them that he would “take care of them” if they were ever caught fishing

illegally. Two fishermen testified that the Hales helped them obtain Illinois commercial


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fishing licenses as a cover-up, in case they were ever stopped transporting eggs while the

season was closed in Tennessee. Finally, the evidence showed that the Hales were not

licensed with the Tennessee Wildlife Resource Agency, as required by state law, between

1995 and 1998, despite the advice of several state agents who testified that they had

informed the Hales of the need to obtain such a commercial license.


       Following the jury’s verdict acquitting the defendants on one count and convicting

them of conspiracy and five substantive violations, the district court sentenced Franklin

Hale to 24 months on each of the counts, to run concurrently, and Carolyn Hale to 21

months on each of the counts, to run concurrently. This appeal followed.


                                        DISCUSSION


       The Hales were convicted of violating Tennessee fishing and wildlife laws under the

Lacey Act, which “assists the states in enforcing their wildlife protection laws by making it

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 . . . .’ 16 U.S.C. § 3372(a)(2)(A) (1981).” United

States v. Bryant, 716 F.2d 1091, 1093 (6th Cir. 1983).


       The defendants argue that Count 1 failed to allege a criminal offense because, under

Tennessee law, no license was required to operate a wholesale fish dealership prior to

2000. This question was not raised as a challenge to the indictment prior to trial, and it is




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therefore reviewed on appeal under the standard set out in United States v. Gatewood, 173

F.3d 983, 986 (6th Cir. 1999) (emphasis added):


      We review the sufficiency of an indictment de novo. See United States v.
      DeZarn, 157 F.3d 1042, 1046 (6th Cir. 1998). . . . Under Rule 12(b)(2) of the
      Federal Rules of Criminal Procedure, however, a defendant who contends
      that the indictment fails to establish jurisdiction or to charge an offense may
      raise that challenge at any time. See United States v. Hart, 640 F.2d 856,
      857 (6th Cir. 1981). But when an indictment is not challenged until appeal, as
      in this case, the indictment must be construed liberally in favor of its
      sufficiency. See United States v. Gibson, 513 F.2d 978, 979 (6th Cir. 1975).
      "Furthermore, unless the defendant can show prejudice, a conviction will not
      be reversed where the indictment is challenged only after conviction unless
      the indictment cannot within reason be construed to charge a crime." Hart,
      640 F.2d at 857-58.


      The first count of the indictment charged that the defendants conspired to violate the

Lacey Act by operating a wholesale fish dealership without a license, in violation of the

following provision of Tennessee Code Annotated §70-2-206 (1990):


      Wholesale fish dealers and boat dock operators - License requirements -
      Fees. (a) Before any person, firm or corporation engages in the business of
      a “wholesale fish dealer” or a “wholesale mussel dealer,” as defined in this
      subsection, such person, firm or corporation shall make application to the
      state wildlife resources agency upon forms provided by it.
      (1) “Person” includes the plural as well as the singular, as the case demands,
      and includes individuals, partnerships, associations, or corporations;
      (2) “Places of business,” as used in this title includes the place where orders
      for aquatic products are received, or where aquatic products are purchased
      or sold;
      (3) “Wholesale fish dealer” means any person in the business of buying for
      the purpose of selling, canning, preserving or processing, or buying for the
      purpose of handling for shipment or sale, fish or other edible aquatic life or
      products, to retailers and/or hotels, restaurants or cafes. Each separate
      place of business shall require a separate license . . . ;




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       (b) The license and fee to be paid for the same are hereby provided for and
       are as follows:
       (1) Wholesale fish dealer’s license...................$ 250.00
       (2) Wholesale mussel dealer’s license.............$ 250.00


Tenn. Code Ann. §70-2-206 (1990) (emphasis added).


       In claiming that Count 1 failed to state an offense, the defendants cite only to

subsection (a) of the statute, arguing that prior to its amendment in 2000, the statute

required merely an “application,” not an actual license. Interpreted as a whole, however,

it is clear that § 70-2-206 required a license for wholesale fish dealers at the time the

offense in this case occurred. Although he described the language of the section as

“inartful,” the district judge so held.    Construing the indictment “liberally in favor of

sufficiency,” we agree with this assessment and therefore find no deficiency with respect

to the first count of the indictment.


       The defendants also contend that Counts 4, 5, 6, and 7 of the indictment failed to

allege an essential element of the offense charged. This assignment of error was likewise

not raised in advance of trial, and we find it equally unavailing. Each of those counts

alleges that the defendants prepared records falsifying the identity and address of the seller

of the paddlefish, in violation of 16 U.S.C. §§ 3372(d)(2) and 3373(d)(3)(A)(ii). Sixteen

U.S.C. §3372(d) prohibits the “mak[ing] or [submission of] 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 . . . transported in interstate or foreign commerce.” The defendants argue




                                              -5-
that because the indictment did not allege that the allegedly false record involved a false

identification of fish, it failed to allege an essential element of the offense.


       This argument is so obviously without merit that it borders on being frivolous. The

statute clearly criminalizes making and submitting false records relating to fish that are sold

in interstate commerce. It does not, as the defendants suggest, criminalize only the false

identification of fish (i.e., passing off paddlefish caviar as sturgeon caviar). Even without

a standard of review that requires us to construe the indictment liberally in favor of

sufficiency, we find no legal deficiency in the counts in question.


              We turn, then, to the defendant’s challenges to the jury instructions, reviewing

the failure of the district court to give special instructions to the jury for plain error only,

because the defendant made no contemporaneous objections to the instructions. See

United States v. Dedhia, 134 F.3d 802, 808 (6th Cir. 1998).


              The defendants argue that the district court plainly erred because it did not

instruct the jury that the Lacey Act required specific knowledge, i.e., that the defendants

knew that their actions were in violation of the underlying statutes. Instead, the district

court instructed the jury that “‘knowingly’ means to act voluntarily and deliberately rather

than mistakenly or inadvertently.” This instruction is not only consistent with the language

of the statute but also with the legislative history of the Lacey Act, which indicates that the

government’s burden is to show that a defendant had knowledge that his or her conduct

was illegal, not actual knowledge of the exact underlying statutes that were violated. In this

regard, the Senate report describes “knowing violations” of the Lacey Act as those


                                              -6-
“violations that are committed by engaging in volitional conduct.”    S. REP. NO. 97-123, at

11 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1758.


              The failure to give a special instruction in this case was not error because

implicit in the court’s charge was a requirement that the government prove that the

defendants knew they were violating state law. Moreover, any failure to give a special

instruction in this case could not have affected the defendants’ substantial rights or the

fairness, integrity, or public reputation of the trial, given the overwhelming evidence of the

defendants’ guilt. See Dedhia, 134 F.3d at 808.


       The defendants also argue for the first time on appeal that the district court should

have instructed the jury on a lesser-included misdemeanor offense. Under United States

v. Camejo, 333 F.3d 669, 673 (6th Cir. 2003), such an instruction is required only if:


       (1) a proper request is made; (2) the elements of the lesser offense are
       identical to part of the elements of the greater offense; (3) the evidence
       would support a conviction on the lesser offense; and (4) the proof on the
       element or elements differentiating the two crimes is sufficiently disputed so
       that a jury could consistently acquit on the greater offense and convict on the
       lesser.


       In this case, the jury was instructed on the felony offense set out in 16 U.S.C.

§ 3373(d)(1)(B), which prohibits “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, any underlying law, treaty or regulation.”

Citing United States v. Parker, 991 F.2d 1493, 1496 (9th Cir. 1993), the defendants


                                             -7-
contend that the jury should also have been instructed on the lesser-included misdemeanor

charge, which prohibits non-commercial violations of the Lacey Act. See 16 U.S.C. §

3373(d)(2).


       We disagree. First, there was no request for such an instruction. More importantly,

because there was overwhelming evidence at trial on which the jury could have convicted

the defendants of the felony offense under §3373(d)(1)(B), an instruction on the

misdemeanor offense was not required. Certainly, we cannot say that it was plain error not

to include an instruction on the lesser included offense sua sponte.


                                     CONCLUSION


       For the reasons set out above, we find no reversible error and AFFIRM the judgment

of the district court.




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