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United States v. Atkinson

filed: April 27, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MELVILLE O'NEAL ATKINSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Montana. D.C. No. CR-90-48-JDS. Jack D. Shanstrom, District Judge, Presiding.

Before: Procter Hug, Jr., John T. Noonan, Jr. and David R. Thompson, Circuit Judges. Opinion by Judge Thompson.

Author: Thompson

THOMPSON, Circuit Judge:

Melville O'Neal Atkinson was convicted of twenty-one felony violations of the Lacey Act for his role in organizing and guiding several illegal hunting expeditions. 16 U.S.C. §§ 3372(a)(1)(A), 3372(c)(1).

At trial, the jury was required to decide whether the value of the game taken during these illegal hunts exceeded $350, the threshold for determining whether a violation constitutes a felony under the Act. 16 U.S.C. § 3373(d)(1)(B). The jury was instructed that, in calculating the value of the game, it could consider the amount Atkinson charged his clients to participate in a hunt. Atkinson's fee ranged from $1,500 to $3,000 per hunter.

Atkinson appeals, arguing that the jury should only have been allowed to consider the market price of the animals' parts in determining their value under the Act. He also challenges his conviction and sentence on a number of alternate grounds. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2) and we affirm.

FACTUAL BACKGROUND

Atkinson owned and operated Neal's Wilderness Outfitters, Inc., a Jacksonville, Florida business which organized deer hunting expeditions in the State of Montana. He charged a base fee of $1,500 to participate in a hunt. In return, he provided meals, lodging and guide services. He also promised to supply each hunter with a valid Montana state hunting license.

Atkinson split his outfitting fee with Wayne Bacon and Brian Nelson. In return, Bacon and Nelson let the hunters stay at their Montana ranch. They also helped Atkinson guide the hunts.

During November 1989, Atkinson arranged for three separate hunting expeditions. He took three hunters on the first trip. Atkinson charged each of them the standard $1,500 outfitting fee, plus $200 for a Montana state hunting license. He also charged an additional $500 for a special "outfitters tag," which he claimed would allow each of them to kill a second deer.*fn1 Atkinson never obtained licenses for the hunters, nor did he provide them with any special hunting tags. Despite his knowledge that the hunters were violating Montana law by hunting without licenses, see Montana Code § 87-2-103, he proceeded to guide them on a series of illegal hunts.

The hunters killed a total of three deer during the trip. Two of these were taken at night with the aid of a spotlight, also in violation of Montana law. Montana Code § 87-3-101. After the hunt, Atkinson arranged to ship all three deer back to Florida.

Later that month, Atkinson took five more hunters to Montana. He charged them each an outfitting fee of $1,600, plus $200 for a Montana state hunting license. Each hunter also agreed to pay Atkinson an additional $800 if he killed a second deer.

All but one of the hunters received a valid license. Atkinson arranged for that hunter to use a fake license. Atkinson also provided three of the hunters with additional deer tags. These tags allowed each of them to kill one doe in addition to the buck they were already licensed to take. Atkinson instructed them to use the doe tag on their first kill, regardless of the deer's sex, in order to save their buck tags for a later hunt. Montana law makes it illegal to improperly tag game. Montana Code § 87-2-509.

Each of the three hunters killed a large buck and, as Atkinson had instructed, tagged it with their doe tag. One of the hunters also killed a deer during an illegal nighttime hunt. At the end of the hunt, Atkinson again arranged to ship the deer back to the hunters' homes in Florida and Georgia.

Atkinson accompanied John Campbell and Charles Brown on the third hunt. Each paid an outfitting fee,*fn2 plus an additional $200 for a hunting license. Although Atkinson never provided these licenses, he assured both hunters that because there were so few game wardens in the area, he was sure they would "get away with it."

Campbell killed a deer on the first day of the hunt. Brown killed two deer a few days later. Because Brown lacked a valid deer tag, Bacon, the ranch owner who also served as a guide, agreed to place one of his own tags on Brown's second kill. Brown paid Atkinson an additional $200 for this tag. After the hunt, Atkinson arranged for Campbell to illegally purchase another hunter's unused tag so he could ship his deer back to Florida.

The Montana Department of Fish, Wildlife and Parks eventually became aware of Atkinson's activities. As a result, the Department arranged for South Carolina State Conservation Officers Larry McClain and Tommy Norris to book a hunting trip with Atkinson's agency. Although both officers paid the standard $1,500 outfitting fee, neither was charged for, or received, a Montana state hunting license. Atkinson told Norris to buy a bird-hunting license, in case he was stopped by a game warden.*fn3

During the hunt, each officer killed one deer. Norris placed Nelson's deer tag on his kill because he did not have a tag of his own. At Atkinson's direction, Norris later paid Nelson $200 for the tag. After the hunt, McClain paid Atkinson an additional $100 to ship his deer back to South Carolina.

Atkinson was eventually arrested by Montana state game wardens and charged with twenty-three violations of the Lacey Act. Bacon and Nelson both testified against Atkinson at trial, as did a number of Atkinson's former clients. Atkinson was convicted of twenty-one violations of the Act and ...


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