Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

MEMORANDUM^*** 

Harold N. Frank ("Frank") appeals his conviction on one count of conspiracy to violate the Lacey Act and his conviction on three counts of violating the Lacey Act. Frank claims that his conviction is invalid because the district court improperly refused to order that the case be conducted in Juneau or Ketchikan, Alaska rather than Anchorage, Alaska. Frank also argues that his conviction is invalid because his jury venire did not include an adequate proportion of citizens who were members of the Haida Nation. Frank further argues that his conviction is invalid because the government failed to present evidence that he had violated Alaska fish and game regulations. Finally, Frank argues that his Lacey Act convictions could not be based on Alaska's regulations for subsistence fishing because the Alaska regulations conflict with subsistence fishing provisions in federal law, the Alaska National Interest Lands Conservation Act ("ANILCA"). 16 U.S.C. § 3101 et seq.

BACKGROUND FACTS

Frank is the president of the Haida Nation. The Haida are a tribe of Native Americans who live primarily in Southeast Alaska. In 1985, 1986 and 1987, Frank obtained permits from the Alaska Department of Fish and Game that authorized him to harvest a limited amount of herring roe on kelp. Herring spawn in several areas in Southeast Alaska.

Alaska does not permit any person to harvest herring roe on kelp unless that person first obtains a permit. In Southeast Alaska, permits are generally issued only to people who harvest herring roe on kelp for subsistence purposes. Each subsistence permit allows a person to harvest a limited amount of herring roe--32 pounds per person or 158 pounds per family.

In the 1980's, the Alaska Department of Fish and Wildlife began to suspect that several people in Southeast Alaska were selling herring roe that they had harvested under subsistence use permits. The Department investigated various harvest areas and learned that the herring roe would be harvested, preserved in a brine solution and shipped to Seattle, Washington. The herring roe would be sold to a commercial buyer who would then send it on to a commercial processing plant. The Department believed that Frank was one of the people involved in selling the herring roe he had harvested under subsistence permits.

In 1985, the commercial buyer purchased approximately 233 pails of herring roe on kelp from Frank and his co-defendants. In 1986, the commercial buyer purchased approximately 472 pails of herring roe on kelp from the group and in 1987, the commercial buyer purchased 589 pails of herring roe on kelp.¹ 

Frank and the other members of his group were indicated in April of 1988 and charged with one count of conspiracy to violate the Lacey Act and four counts of violating the Lacey Act. The Lacey Act violations were based on the charge that Frank and the other group members had sold subsistence-taken herring roe in violation of Alaska law. The government dismissed one of the Lacey Act counts and Frank was then found guilty on the remaining charges.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review for abuse of discretion a district court's decision not to transfer a case to another venue. United States v. Meyers, 847 F.2d 1408, 1411 (9th Cir. 1988). We review a district court's findings of fact for clear error. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 L. Ed. 2d 664 (1990). Finally, we review de novo any purely legal issue. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

DISCUSSION

A. Venue.

Federal Rule of Criminal Procedure 18 authorizes a district court to "fix the place of trial within the district" in which the offense was committed. When the court selects the place of trial, it should give "due regard to the convenience of the defendant and the witnesses and the prompt administration of justice." Fed. R. Crim. P. 18. However, the court need not select a place of trial based merely on the fact that a defendant would prefer one site over another. United States v. Dickie, 775 F.2d 607, 610 (5th Cir. 1985).

The state of Alaska constitutes one district. 28 U.S.C. § 81A. Therefore, the district court was required to select some place within the state as the site for Frank's trial. Frank argues that the convenience of the defendant and the witnesses and the prompt administration of justice required the court to select either Juneau or Ketchikan as the appropriate site for the trial. Juneau and Ketchikan are located in Southeast Alaska.

The district court refused Frank's request. The court stated that Anchorage would be convenient for both Frank and the witnesses because all of those people would likely have to travel by air to reach any of the sites and Anchorage was the hub of most air travel in Alaska. The court also indicated that it could more promptly provide a trial to Frank in Anchorage than in either Juneau or Ketchikan. While both Juneau and Ketchikan have courtrooms, neither place has a full-time staff. Therefore, the court would have to arrange for court personnel to transfer down to either site before the court could hold Frank's trial. The court concluded that the added delay and expense did not warrant moving the trial from Anchorage.

The court did not abuse its discretion. It carefully considered the factors listed in Rule 18 and found that Anchorage was the most appropriate site for the trial. This is not a case where the court refused to relocate the trial because it would inconvenience the court. See United States v. Burns, 662 F.2d 1378, 1382-83 (11th Cir. 1981) (district court may not deny request to transfer venue based merely on fact that district has per se rule of hearing criminal trials in one city); United States v. Fernandez, 480 F.2d 726, 729-31 (2d Cir. 1973) (district court should not refuse to change venue solely because trial judge would be inconvenienced). There is nothing to suggest that the court was capable of immediately holding a full trial in either Juneau or Ketchikan. Therefore, the court was legitimately concerned that there would be an unreasonable delay should the trial be moved to either of those cities.

Furthermore, the fact that much of travel in Alaska is accomplished by air suggests that the court was correct to locate the trial in the city that handled the greatest amount of air travel. Both the defendants and most of the witnesses would have to travel and stay away from home during the trial regardless of where it was held. Therefore, it was reasonable to choose a site that could offer a variety of flights and accommodations to Frank and the witnesses. Frank has not presented sufficient evidence to show that the district court abused its discretion when it decided to hold his trial in Anchorage.

B. Jury Venire.

Every criminal defendant is constitutionally guaranteed that he will be tried by a jury that fairly represents a cross section of the community. Coleman v. McCormick, 874 F.2d 1280, 1283 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 110 S. Ct. 349, 107 L. Ed. 2d 337 (1989). That does not mean that the jury venire must contain members from every group in the community. Id. If a jury venire did not adequately represent a cross section of the community, then a defendant is entitled to have his conviction set aside.

The defendant bears the burden of showing that the jury venire did not contain a fair cross section of the community. Id. at 1284. The defendant must establish that: (1) the excluded group was a distinctive group in the community, (2) the group is not fairly represented on the jury venire in relation to the number of group members in the community; and (3) the group is under-represented on jury venires because the selection process systematically excludes group members. Id. If a defendant fails to establish any of the above elements, then his challenge fails. United States v. Nelson, 718 F.2d 315, 319 (9th Cir. 1983) ("The litigant forfeits his claim [of under-representation] if he fails to make the prima facie showing in district court").

Frank claims that his jury venire did not fairly represent a cross section of the community because it did not include any members of the Haida Nation. This circuit has recognized that Native Americans are a distinct group that should be fairly represented on jury venires. United States v. Herbert, 698 F.2d 981, 984 (9th Cir.), cert. denied, 464 U.S. 821, 104 S. Ct. 87, 78 L. Ed. 2d 95 (1983). Although Frank has not shown that each Native American tribe must be treated as a distinctive group, we, like the district court, can assume without deciding that Frank met the first element of his prima facie case.

Frank did not present any evidence to the district court that established that members of the Haida Nation were not represented on jury venires drawn for Anchorage trials. Similarly, Frank presented no evidence to show that the venire selection process was designed to systematically exclude from service members of the Haida Nation. The district court did not err when it found that Frank had failed to present any evidence to show the jury venire in his case did not fairly represent a cross section of the community.

C. Motion for Acquittal.

After trial, Frank moved for an acquittal on the ground that the government had not established that he had violated any of the Alaska regulations on which the Lacey Act charges were based. The indictment charged that Frank had violated two Alaska regulations: Alaska Admin Code tit. 5, Sec. 01.010 and Sec. 01.730. Section 01.010 prohibits the sale of "subsistence-taken fish, their parts, or their eggs...." Section 01.730 prohibits taking salmon, trout, char or herring roe on kelp unless done so "under authority of a subsistence fishing permit."

Frank argues for the first time on appeal that he could not have violated Section 01.010 because the proper interpretation of the regulation is that it prohibits the sale of roe which has been removed from a fish taken under a subsistence permit. Since Frank failed to raise this argument in front of the district court, we will not permit him to raise it for the first time on appeal. United States v. Hayden, 860 F.2d 1483, 1485 (9th Cir. 1989); United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984).

Regardless of the proper interpretation of section 01.010, it is clear that Frank violated section 01.730. Frank does not assert that he had sufficient permits to cover the amount of herring roe on kelp harvested in 1985-87.²  Moreover, it is apparent that the regulations do not contemplate an aggregation of permits for the purpose of conducting what amounts to a rather large commercial venture. Frank's violations of section 01.730 properly constituted predicate acts to support his convictions on the Lacey Act charges. Frank was not entitled to an acquittal.

D. Conflict Between Alaska Regulations and ANILCA.

Frank argues that the regulations conflict with ANILCA on its face and as applied. We have previously considered and rejected those arguments. See United States v. Skinna, No. 88-3286, slip op. 8843 (9th Cir. August 14, 1990).

Frank's convictions are AFFIRMED.