Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1988)

MEMORANDUM^** 

Goldberg challenges his convictions for two counts of violating the Migratory Bird Treaty Act. 16 U.S.C. §§ 703-712. We reject his arguments and affirm his convictions.

BACKGROUND

In October 1986, Goldberg received from the United States Fish and Wildlife Service a permit for taxidermy and to obtain certain marked migratory waterfowl. Through the Alaska Department of Fish and Game he arranged to get migratory birds for "educational and scientific purposes." All of these birds were protected under the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712.¹ 

Before receiving them, Goldberg spoke with Hilpert, a local taxidermist, and discussed trading animal parts, including birds from the Alaska Department of Fish and Game. Hilpert notified the Idaho Department of Fish and Game that he suspected Goldberg of trading animal parts illegally. The Idaho department and the U.S. Department of Fish and Game investigated.

When the birds arrived, Goldberg took some of them to Hilpert and proposed to trade for two elk racks. He acknowledged that the Migratory Bird Treaty Act prohibited such a commercial transaction, but told Hilpert that the Act did not prohibit gifts between friends.

As part of its investigation, the Department of Fish and Game gave Hilpert two elk racks to offer to Goldberg. Undercover officers were present when Goldberg went to Hilpert's home to see the racks. Goldberg rejected them because they were too small. Out of the presence of the undercover officers, he offered to sell Hilpert two scoters for $300. By direction from the department, Hilpert declined.

Goldberg communicated with Anderson, another taxidermist. He gave Anderson several waterfowl and Anderson gave him a Spruce Grouse and a pheasant, valued at $260. Goldberg told him that the birds were from the Alaska Department. He said also that their trade was not illegal as an exchange of gifts between friends. Goldberg asked Anderson for a receipt.

Three months thereafter, Anderson signed an affidavit describing the transaction as a barter and not a gift. He pleaded guilty to violating regulations under the Act and agreed to testify before the Grand Jury and at trial. At trial, Anderson recanted his earlier characterization of the transaction and described it as a gift exchange.

The court tried Goldberg without a jury and convicted him on two counts of violating the Migratory Bird Treaty Act and fined him $500 and put him on probation for one year.

ANALYSIS

Goldberg argues that the court violated his Sixth Amendment right to a jury trial. The Sixth Amendment guarantees the right to a jury trial for all but "petty" offenses. District of Columbia v. Clawans, 300 U.S. 617, 624 (1937). "The general rule is that an offense is petty if the penalty provided does not exceed six months imprisonment, a $500 fine, or both." United States v. Stansell, No. 87-3101, slip op. at 6187 (9th Cir. May 27, 1988).

If the legislature has not specified a maximum sentence for an offense, the defendant has no right to a jury trial unless the court actually imposes a sentence greater than six months. Rife v. Godbehere, 814 F.2d 563, 564 (9th Cir. 1987). Similarly, when the defendant is charged with multiple petty offenses, and the court may impose concurrent or consecutive sentences, the defendant is not entitled to a jury trial unless the court actually imposes a penalty outside the terms of a petty offense. Maita v. Whitmore, 508 F.2d 143, 146 (9th Cir.), cert. denied, 421 U.S. 947 (1975) (citing Taylor v. Hayes, 418 U.S. 488 (1974)).

Each violation of the Migratory Bird Treaty Act is a petty offense because the maximum potential sentence is six months and $500. Goldberg was charged with two violations. His maximum potential sentence was one year and $1000. But the judge exercised his discretion and imposed a $500 fine, punishment is within the limits of a petty offense, and Goldberg was not entitled to a jury trial.

Goldberg claims that the evidence was insufficient to support conviction on either count and that the court erred in denying his motion for dismissal or acquittal. In considering the sufficiency of the evidence and reviewing the denial of the motion, we "view the evidence in the light most favorable to the prosecution" to determine whether "a rational trier of fact could have found the elements of the crime charged beyond a reasonable doubt." United States v. Terry, 760 F.2d 939, 941 (9th Cir. 1985); see also United States v. Wolf, 820 F.2d 1499, 1502 (9th Cir. 1987), cert. denied, 108 S. Ct. 1222 (1988).

Goldberg cites two inadequacies in the proof. First, the government never established that the waterfowl were not pen reared. If they were pen reared, the Act does not proscribe trading them. Second, because Anderson recanted his earlier statement, the government failed to establish that their exchange was an illegal barter.

A. Evidence That The Waterfowl Were Not Pen Reared

Special Agent Sutton testified that he could not know for a fact that the birds were not pen reared. Goldberg claims that his admission shows that the government failed to prove its case beyond a reasonable doubt.

The record contains abundant evidence from which a rational trier of fact could conclude that the birds were not pen reared. Goldberg told Hilpert and Anderson that he received them from the Alaska Department. That department verified that it sent the birds to him and that they were caught in the wild. Sutton testified that the birds had tags indicating that they were caught in the wild. He testified also that they were not clipped, tattooed, or tagged as pen reared birds would be. Goldberg offered no evidence to the contrary. A rational fact finder could conclude beyond a reasonable doubt that the birds were not pen reared and were protected by the Act.

B. Evidence that Goldberg Bartered with Anderson

Goldberg argues that the government lacked sufficient proof of the barter with Anderson because the latter recanted at trial his statement that the transaction was a trade and not an exchange of gifts.

Despite that in-court testimony, the record has evidence from which a court could conclude that Goldberg bartered the birds. An exchange took place. Anderson took the waterfowl on the same day that Goldberg took the grouse and the pheasant. He told Anderson that they should structure the transaction as an exchange of gifts, rather than as a trade, to avoid the Act's prohibition. This indicates that the transaction was prohibited by the Act. Finally, Goldberg asked Anderson to give a receipt. This suggests that the transaction was commercial and not an exchange of gifts.

Only Anderson's in-court statement supports a conclusion that the transaction was a gift exchange. All other evidence supports the conclusion that the transaction was bartered in violation of the Act. A rational trier of fact could find beyond a reasonable doubt that Goldberg bartered the migratory birds for Anderson's mounted grouse and pheasant.

In direct examination of Anderson, the government impeached his in-court testimony with evidence of his guilty plea. That plea was admissible for this purpose. United States v. Solomon, 795 F.2d 747, 748 (9th Cir. 1986). The court could not consider it as evidence of Goldberg's guilt. Id. The record does not show that the court considered it for impeachment only.

Because Goldberg did not object at trial, we review for plain error. Solomon, 795 F.2d at 749; see also Fed. R. Crim. P. 52(b). To reverse we must find, in the context of the entire trial, that admitting evidence of the guilty plea "undermine [d] the fundamental fairness of the trial and contribute [d] to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16 (1985). The plain error doctrine allows us "to correct only 'particularly egregious errors,' those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings.' " Young, 470 U.S. at 17 (citations omitted).

Even assuming that the court improperly considered Anderson's guilty plea, its admission of the evidence does not rise to the level of plain error when viewed in the context of the entire trial. The evidence was strong, even without Anderson's guilty plea. Goldberg followed a similar pattern in trying to barter with Hilpert. He tried to structure the exchange to avoid the Act's prohibitions. He and Anderson exchanged birds in what appeared objectively to be a bartered deal. Because evidence of the plea bargain could be admitted for a proper purpose, and the evidence against Goldberg was strong, its admission was not plain error.

Goldberg raises an entrapment defense for the first time on appeal. We recognize three exceptions to the general rule that issues not raised at trial will not be heard on appeal. First, "where a new theory or issue arises while an appeal is pending because of a change in the law." United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). Second, "where the issue conceded or neglected below is purely one of law" and the factual record is fully developed. Id. Third, "where plain error has occurred and injustice might otherwise result." Id. Although the record could be developed more fully, it contains enough facts so that we may consider the argument.

To determine whether Goldberg was entrapped, we focus on "the defendant's predisposition to commit the crime," United States v. Diggs, 649 F.2d 731, 738 (9th Cir.) cert. denied, 454 U.S. 970 (1981). The standard of review is whether, viewing the evidence in the light most favorable to the prosecution, a reasonable jury could find that the defendant was not predisposed to commit the crime charged. United States v. Stenberg, 803 F.2d 422, 432 (9th Cir. 1986).

Five factors are relevant:

(1) The defendant's reputation.

(2) Whether the initial suggestion of criminal activity was made by the government.

(3) Whether the defendant engaged in the alleged criminal conduct for profit.

(4) Whether the defendant displayed reluctance to engage in the activity, which was overcome by repeated government persuasion.

(5) The nature of the inducement or persuasion.

Diggs, 649 F.2d at 739. The fourth factor, the defendant's reluctance, is critical to establishing the defense. Diggs, 649 F.2d at 739 n. 7.

Applying these factors, we conclude that a reasonable jury could not find that Goldberg was not predisposed to trade the migratory waterfowl in violation of the Act. In particular, the record shows that he, not the government, initiated the illegal trades. The government was not involved until after he approached Hilpert and Anderson on his own. Goldberg set the terms of the trade with Hilpert. The government offered only what Goldberg asked for--two elk racks. Significantly, the record shows that he displayed no reluctance to barter the waterfowl. Although Goldberg rejected the elk racks offered by Hilpert, he tried to barter the birds for cash. These facts suggest that he wanted to consummate the trades.

The only fact supporting his defense is that government agencies investigated him and made the elk racks available. Given the overwhelming evidence that Goldberg initiated the trades, set their terms, and eagerly consummated them, a reasonable jury could not find that he was entrapped.

CONCLUSION

The convictions are AFFIRMED.