United States v. Rodebaugh

798 F.3d 1281

UNITED STATES of America, Plaintiff–Appellee

v.Dennis Eugene RODEBAUGH, d/b/a D & S Guide and Outfitter, Defendant–Appellant.

No. 13–1081.

United States Court of Appeals, Tenth Circuit.

Aug. 25, 2015.

Jeffrey R. Edelman, Jeffrey R. Edelman, P.C., Parker, CO, appearing for Appellant.

Allen M. Brabender (John C. Cruden, Assistant Attorney General, J. Ronald Sutcliffe and Mark T. Romley, with him on the brief), Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., appearing for Appellee.

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

Opinion

PER CURIAM.

In this appeal, the court affirms on all issues. This disposition is addressed in two opinions: one by Judge Matheson and one by Judge Bacharach.

Parts I and II(A)-(D) of Judge Matheson's opinion represent the unanimous opinion of the court. There, the court affirms the conviction and prison sentence, rejecting Mr. Dennis Rodebaugh's challenges to the district court's denial of the motion to suppress, the validity of the underlying Colorado regulations, the sufficiency of the evidence to support the conviction on each count, and the application of enhancements to the base offense level under the U.S. Sentencing Guidelines.

Judge Bacharach's opinion is joined by Judge Moritz and represents the opinion of the court with respect to Mr. Rodebaugh's challenges to an occupational restriction among the terms of supervised release. On these issues, Judge Matheson dissents, as discussed in Part II(E) of his opinion.

Finally, we deny Mr. Rodebaugh's “First Motion to Supplement the Record on Appeal.”

MATHESON, Circuit Judge.

Dennis E. Rodebaugh ran D & S Guide and Outfitters (“D & S”), an outfitting and guide service in Meeker, Colorado.¹ Through D & S, Mr. Rodebaugh took mostly out-of-state clients on elk and deer hunts in the White River National Forest near Meeker, where they waited in tree stands for elk and deer to approach before shooting them.² To attract the elk and deer, Mr. Rodebaugh spread salt around the base of the tree stands. Colorado law prohibits this practice of “baiting.” And selling wildlife taken in violation of state law is a federal crime under the Lacey Act.

After an extensive investigation, Mr. Rodebaugh was indicted for several Lacey Act violations. A jury found him guilty on six counts. The district court sentenced him to 41 months in prison and three years of supervised release. He appeals, raising various trial and sentencing issues. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

I. BACKGROUND

A. Legal Background

Colorado law makes it unlawful for any person to hunt, take, or possess any wildlife except as authorized by statute or regulation. Colo.Rev.Stat. § 33–6–109(1). Elk and deer, alive or dead, are “wildlife” in Colorado. Id. § 33–1–102(51).

Colorado law prohibits the use of baiting. 2 Colo.Code Regs. § 406–0:004(A) (“[T]he use of baits and other aids in hunting or taking big game, small game and furbearers is prohibited.”). “Baiting” is the “placing, exposing, depositing, distributing, or scattering of any salt, mineral, grain, or other feed so as to constitute a lure, attraction or enticement for wildlife.” Id. § 406–0:000(A)(4).

The Lacey Act makes it a federal crime to sell in interstate commerce wildlife that is taken in violation of state law:

It is unlawful for any person—

...

(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce—

(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law....

16 U.S.C. § 3372(a). The sale of wildlife includes the sale of “guiding, outfitting, or other services ... for the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife.” Id. § 3372(c)(1).

B. Factual History

1. Mr. Rodebaugh's Business and Baiting Activities

In 1987, Mr. Rodebaugh purchased D & S from Jack Peters. Through D & S, Mr. Rodebaugh led out-of-state hunting clients on elk and deer hunts in the White River National Forest.

Mr. Rodebaugh offered his clients “bugle” hunts and “tree-stand” hunts. In bugle hunts, hunters called for elk with a bugle. When the hunter was close enough to an elk, the hunter could shoot. This kind of hunt involved a lot of moving around. Mr. Rodebaugh could take, at most, only two to three people on these hunts.

In tree-stand hunts, the hunters remained stationary, waiting for a target to come into range. Mr. Rodebaugh's tree stands had nicknames such as “Big Ridge,” “Mike's,” “Cathy's,” “Upper Duck,” “Lower Duck,” and “Paul's.” Most of the stands were erected near wallows, where male deer and elk urinate and roll around to attract does and cows during mating season. On most trips, Mr. Rodebaugh would take a few hunters out on bugle hunts and leave the other hunters in the tree stands. The tree stands allowed Mr. Rodebaugh to take more hunters and make more money on each trip.

Mr. Rodebaugh's hunters enjoyed “very high success rates, specifically on elk.” ROA, Vol. III at 530. The “shot percentage”—the opportunity to take a shot at an animal—was in “the high 80s or low 90[s].” Id. at 1376. To accomplish this success, Mr. Rodebaugh baited using sheep salt, a mineral supplement commonly used by sheep ranchers. Mr. Rodebaugh bought the salt at Snyder & Counts feed store and placed it on the ground around the stands. He testified he used the salt because he knew animals would come for it. He said animals needed the minerals from the salt to grow horns and provide for their offspring. He placed the salt under logs and rocks so the animals would not use it too quickly and so it would have time to soak into the soil, meaning it would be available for longer periods of time.

2. The Investigation and Confession

In August 2005, a landowner informed a state wildlife officer that he suspected Mr. Rodebaugh was baiting the tree stands to attract elk and deer for his clients. An extensive state and federal investigation of Mr. Rodebaugh's activities ensued. Law enforcement agents hid cameras near tree stands and worked undercover as hunting clients. Eventually, investigators searched Mr. Rodebaugh's home, which uncovered evidence, including receipts for salt from Snyder & Counts.

During the search, law enforcement agents interviewed Mr. Rodebaugh. Initially, he denied placing salt near the stands, telling the investigators that people might think he salted his stands because some of them were located over “old cowboy salt licks.” Id. at 877–78. But when the agents said they had a photograph of him placing salt, Mr. Rodebaugh admitted to baiting, saying he learned the practice from Mr. Peters. He baited every year as early as April, but never past August because “he was afraid that the hunters would be able to see the salt, and he didn't want to get caught.” Id. at 881. He admitted to purchasing the salt from Snyder & Counts. He knew baiting was illegal and that animals were attracted to the stands as a result of his illegal activities:

“What I did is absolutely not right.” Id. at 880–81.

C. Procedural History

A federal grand jury indicted Mr. Rodebaugh with one count of conspiracy to violate the Lacey Act (Count 1) and nine counts of violating the Lacey Act for the “[i]nterstate sale of outfitting and guiding services ... to [certain clients] for the unlawful taking of [certain elk and deer]” between January 2005 and September 2007 (Counts 210). ROA, Vol. I at 31–32.³

On May 11, 2011, Mr. Rodebaugh moved to suppress his confession, arguing in part that his confession was involuntary, and moved to dismiss the indictment, arguing the Colorado regulations prohibiting baiting were unconstitutionally vague. On June 15, 2012, the district court held a hearing on the motion to suppress, at which Mr. Rodebaugh testified. At the end of the hearing, the court denied the motion. On August 22, 2012, the district court denied the motion to dismiss the indictment without prejudice but granted leave to raise the vagueness issue at trial.

A multi-day trial commenced on September 10, 2012. During trial, Mr. Rodebaugh raised his vagueness challenge again, which the district court rejected. The jury found Mr. Rodebaugh guilty of six Lacey Act violations (Counts 2–5, 8–9). It acquitted him of the conspiracy charge (Count 1) and Counts 7 and 10.⁴

Before sentencing, Mr. Rodebaugh filed written objections to the Probation Office's presentence report (“PSR”), which recommended a special condition restricting Mr. Rodebaugh's hunting and fishing activities. At the sentencing hearing on February 13, 2013, the district court applied three enhancements to the base offense level: a six-level enhancement because the value of the unlawfully-taken wildlife was greater than $30,000; a two-level enhancement because Mr. Rodebaugh's conduct created a significant risk of disease transmission among the wildlife; and a two-level enhancement for obstruction of justice. These enhancements, along with several other enhancements not at issue in this appeal, brought Mr. Rodebaugh's total offense level to 22, with a resultant Guidelines range of 41–51 months.

The district court sentenced Mr. Rodebaugh to 41 months in prison and three years of supervised release. It imposed the following supervised release special condition: “The defendant shall not be allowed to hunt and/or kill any wildlife or fish. He may not guide or outfit hunters in any state and may not hunt or fish, or accompany anyone hunting or fishing anywhere in the United States.” ROA, Vol. II at 764.

II. DISCUSSION

The briefs are organized around five issues, several of which encompass sub-issues. We consider whether: (A) the district court erred in denying the motion to suppress because the confession was involuntary and the court made Mr. Rodebaugh present first at the suppression hearing, (B) the Colorado regulations are void for vagueness, (C) the evidence is sufficient to...