Friday, September 04, 2015

Bambi's Revenge? Salting Areas to Lure Wildlife In Violation of State Law Supports Lacey Act Convictions

US v. Rodebaugh, 2015 WL 5011174 No. 13-1081 (10th Cir. 2015): Mr. Rodebaugh ran an outfitting and guide service in Meeker, Colorado, and took clients on elk and deer hunts in the nearby national forest. His clients shot lots of deer and elk, probably because, contrary to state law, Mr. Rodebaugh would salt the ground near the base of his tree stands where the hunters would wait. The Lacey Act says that selling wildlife taken in violation of state law is a federal crime. He was indicted, found guilty of six counts, and sentenced to 41 months in prison and 3 years of supervised release.

1) The Court upholds the district court's denial of the suppression motion. Mr. Rodebaugh confessed. He contended the confession was involuntary because he had only had about 3 hours of sleep in the two days before his confession. The district court, based on testimony that Mr. Rodebaugh normally didn't sleep much, found that this was normal for him. Additionally, there was no evidence that the 69-year-old Rodebaugh was unusually susceptible to coercion. He was not on medications, had graduated from high school, and ran his own business. The details of the interrogation demonstrated Mr. Rodebaugh's will was not overborne. He was interviewed at a picnic table. Most of the time, only two agents were present. He was offered water. He was told he could leave and that he was not under arrest. He was not tricked even though the agents asked for a short meeting and it turned into 3 hours. The Court was concerned by the fact that one agent told Mr. Rodebaugh, before his confession, that "If you work with us, we'll go easy on you, otherwise we are going to take your house and all of your property away from you." Even if this was a threat, the Court says it would affirm under the totality of the circumstances.

2) It was ok for the district court to make Mr. Rodebaugh present first at the suppression hearing.

3) The Colorado law prohibiting baiting was not unconstitutionally vague. The law clearly applied to prohibit what Mr. Rodebaugh did -- put salt next to tree stands to aid in the hunting of deer and elk.

4) The evidence was sufficient to support the convictions.

5) The guidelines were properly calculated. The two-level enhancement (USSG 2Q2.1(b)(2)) for creating a significant risk of disease transmission among wildlife was supported by photos showing elk gathering with their noses down on the ground where the salt was placed. There was evidence this is not their natural feeding behavior. Additionally, the elk were lured to the same places. Both activities increased risk of disease transmission among them. The six-level enhancement for the value being more than $30K was properly based on the testimony of the government witnesses. The Court found that the enhancement for obstruction of justice was supported by various false testimony Mr. Rodebaugh made at trial.

6) The Court divided on the propriety of a supervised release condition prohibiting Mr. Rodebaugh from hunting or fishing or guiding or accompanying anyone hunting or fishing anywhere in the United States. Judge Matheson would vacate this occupational restriction and remand because the district court failed to make specific findings. Judges Bacharach and Moritz, however, held that Mr. Rodebaugh forfeited his argument because he failed to object in the district court and declined to excuse the failure.