law.’ The ESA as implemented through the Code of Federal Regulations clearly and
unambiguously protects all sub-taxonomic branches of protected taxa. The Government
presented abundant testimony by USFWS agents and other evidence at trial confirming this
interpretation of the law. Under the law, the only circumstance under which a hybrid of two
subspecies would not be protected would be if one or both of the subspecies were not protected.
Thus, as a matter of fact and law, Kapp was properly precluded from arguing his hybrid
theory to the jury, or presenting exhibits to the jury as evidence thereof. It is within the
discretion of the trial court to determine the exhibits and evidence to be presented to the jury, and

to withhold from the jury those items that are confusing or irrelevant. United States v. Gross.

451 F.2d 1355, 1359 (7th Cir. 1971). Because Kapp’s hybrid argument was insufficient as a
matter of law to present at trial, exhibits presenting this theory would have been confusing and
irrelevant.

Additionally, Kapp contends that the Government failed to produce sufficient evidence at
trial to prove Kapp’s guilt beyond a reasonable doubt. After reviewing the evidence in the light
most favorable to the Government, this Court finds that the Government presented sufficient
evidence for the jury to reasonably conclude that Kapp: (1) violated the ESA by knowingly and
without permission killing endangered tigers and leopards within the United States, transporting
endangered tigers in interstate commerce during the course of commercial activity, and selling
and offering to sell an endangered leopard in interstate commerce; (2) violated the Lacey act by

knowingly selling tigers and leopards and their parts having a value exceeding $350, knowing

7 Moreover, as explained above, to the extent that Kapp relied on the Fact Sheet, such
reliance was not reasonable under the circumstances.

19


with informal assurances from “{t]he guy in Washington and the girl I used to date,” (Gov. Ex.
Tr. 2 at 2) but rather would have sought further, official clarification of the ESA and USFWS
policy before proceeding.
Furthermore, regardless of the alleged assurances, any reliance was not in good faith. In

the very transcript Kapp proffers as evidence of his reliance on authority, he is quoted as telling a
Government agent,

Kapp: Imean you can legally mount ‘em .. . as long as you have

the proper paperwork. .. . That’s what Fish & Wildlife really

pushes is that the animals have to be donated, nothing can change,

exchange hands.

(Agent) Roche: Do they believe that though?

Kapp: No, look at us here . . . but they don’t care.
Kapp exhibits no good faith interest in obeying the law. Rather, his conduct shows that he was
interested in establishing a defensible posture should his conduct ever come under scrutiny.
Kapp discusses the need for the “proper paperwork” showing that the animals were not imported
into the United States and that Kapp was “donating” the animals rather than selling them to
customers, thus making his trafficking activities appear lawful. If anything, this demonstrates
Kapp’s awareness that his conduct was at best of questionable legality, and provides evidence of
his intent to use a few well-placed documents to camouflage his illegal activities. Further, the
conversations demonstrate Kapp’s motivation for repeatedly falsifying USDA Form 7020 as one
way of hiding his tracks. Indeed, in one recorded conversation, Kapp acknowledges that “[i]t’s

illegal to actually sell the animal,” and describes to an undercover Government agent “all sorts of

[other] little tricks” he used to give his unlawful transactions the appearance of propriety.

13


witnesses, resolve evidentiary conflicts, and draw reasonable
inferences.

United States v. Reed, 875 F.2d 107, 111 (7th Cir. 1989). In short, the court views all the
evidence in the government's favor and is absolutely barred from second-guessing the jury's
credibility determinations or findings of fact. Id. Instead, the court merely assesses the record to
determine if all the admissible evidence supports the defendant’s adjudication of guilt beyond a
reasonable doubt. Id.

Rule 33 permits the Court to order a new trial “in the interests of justice.” Unlike a
motion for acquittal under Rule 29, in ruling on a motion for a new trial under Rule 33, the court
is not required to view the evidence in a light most favorable to the government. United States v.
Washington, 184 F.3d 653, 657 (7th Cir. 1999); 58 Am.Jur.2d New Trial § 391 (2001). Despite
the more lenient standard, however, Rule 33 motions are nevertheless disfavored and courts

generally should only grant in “the most extreme cases.” United States v. Linwood, 142 F.3d

418, 422 (7th Cir. 1998). See also United States v. Kamel, 965 F.2d 484, 490 n. 7 (7th Cir.

1992). The trial court “may not re-weigh the evidence and set aside the verdict simply because it
feels some other result would be more reasonable.” Reed, 875 F.2d at 113. The court may only
order a new trial if “the verdict is against the manifest weight of the evidence” and a guilty

verdict would result in a “miscarriage of justice.” Washington, 184 F.3d at 657.


that these animals and animal parts were taken, possessed, transported, or sold in violation of,
and in a manner unlawful and knowingly making and causing to be made false records related to
endangered tigers and leopards and their parts, knowing that the animals and animal parts had
been, or were intended to be, transported in interstate commerce; and (3) conspired to violate the
ESA and the Lacey Act.

There was abundant evidence of Kapp’s guilt, including recordings of conversations in
which Kapp discussed plans to transport, kill, and sell endangered tigers and leopards, the
testimony of USFWS agents and other witnesses as to their conversations with Kapp regarding
his plans to traffic in endangered tigers and leopards, a videotape showing Kapp shooting a tiger,
mounts of tigers and leopards purchased, killed, processed, transported and sold by Kapp, and
documentary evidence of Kapp’s processing and sale of endangered tigers and leopards.
Furthermore, the Government presented sufficient evidence to show that Kapp knowingly
trafficked in endangered tigers and leopards protected under the ESA, including expert testimony
as to the identity of the animal mounts, recorded conversations in which Kapp discussed the
tigers and leopards and his awareness of the unlawfulness of trafficking in them, witnesses who
testified to such conversations, and documentary evidence of Kapp’s awareness that the subject
animals were protected tigers and leopards and his attempt to camouflage his trafficking.

Consequently, in interpreting the evidence in the light most favorable to the Government,
this Court finds that the jury could reasonably have found beyond a reasonable doubt that Kapp
committed the charged acts and that Kapp’s right to a fair trial was not unduly prejudiced and
that this is not an “exceptional case” where “the verdict is against the manifest weight of the

evidence.” Washington, 184 F.3d at 657.

20


Kapp’s right to a fair trial was not unduly prejudiced and that this is not an “exceptional case”
where “the verdict is against the manifest weight of the evidence” and the guilty verdict would
result in a “miscarriage of justice. Washington, 184 F.3d at 657.

IV. __Kapp’s Argument and Exhibit Concerning Hybrids

Kapp additionally contends that he is entitled to a judgment of acquittal and a new trial
because this Court improperly precluded him from arguing and presenting evidence that the
subject animals were hybrids and not protected under the ESA.

Kapp’s contention that hybrids are, as a general rule, excluded from protection under the
ESA is apparently based upon his interpretation of the Fact Sheet. The Fact Sheet defined a
hybrid as “the offspring of animals . . . where each parent is from a different species/subspecies
and where at least one parent is listed under the Act.” The Fact Sheet further stated that
“(hybrid offspring of animals bred or propagated in captivity are not protected by the [ESA].”
Therefore, according to Kapp, hybrids of subspecies are not protected by the ESA, even where
the species is protected. According to this understanding of the law, even if tigers were protected
at the species level, hybrids of tiger subspecies would not be protected.

Pursuant to the ESA, the USFWS has promuigated and maintained a list of endangered
and threatened wildlife. 50 C.F.R. § 10.1 (2003); 50 C.F.R. § 17.11 (2003). Tigers and leopards
have been included on the USFWS’s list of endangered and protected wildlife since 1970. 50
C.F.R. § 17.11(h). The tiger (Panthera tigris) is listed as endangered everywhere in the world;
the leopard (Panthera pardus) is listed as endangered everywhere in the world except for some
parts of Africa, where it is listed as threatened. Id. Thus, if the subject animals were tigers and

leopards, they were endangered species under 50 C.F.R. § 17.11(h), and hence protected by the

17


statement was “reasonable in light of the identity of the agent, the point of law represented, and
the substance of the misrepresentation,” and (4) the reliance was in good faith. Howell, 37 F.3d
at 1204. A party asserting this defense bears a heavy burden not only of proving the elements of
the defense, but also of outweighing “the strong, countervailing interest in obedience to the law.”
United States v. McGaughey, 977 F.2d 1067, 1074 (7th Cir. 1992).

Here, Kapp contends that he reasonably relied on the Fact Sheet published in March,
1998 (“Fact Sheet”) by the United States Fish and Wildlife Service (“USFWS”) in determining
that his conduct was lawful. According to Kapp, the Fact Sheet led him to believe that the
animals he participated in killing, processing, and selling were not protected by the ESA because
they were hybrids. After reviewing the trial testimony, however, this Court finds that Kapp
presented insufficient evidence at trial to suggest that he either relied on the Fact Sheet or that
any such reliance was reasonable.

The Fact Sheet in question was one in a series of periodic updates issued by the USFWS
to alert the public about laws and regulations within the USFWS’s purview, including those
concerning the protection of endangered species. The Fact Sheet included a passage that,
according to Kapp, set forth a definition of hybrids — a category of animals not protected by the
ESA- that was broader than the definition given in other versions of the Fact Sheet, including
those published both before and after March, 1998. The Fact Sheet stated:

[H]ybrids [are] the offspring of animals or plants where each
parent is from a different species/subspecies and where at least one
parent is listed under the [ESA]. . . . Hybrid offspring of animals
bred or propagated in captivity are not protected by the [ESA].

(Emphasis added.) Kapp contends that this broader definition led him to believe that the subject


the defendant is not reason enough to exclude evidence. United States v. Curry, 79 F.3d 1489,
1496 (7th Cir. 1996). Because most relevant evidence is prejudicial, to be excluded, the
evidence must be unfairly prejudicial. Id. The Comments to Rule 403 state that “unfair
prejudice means an undue tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” Thus, courts apply Rule 403 in a manner that favors the
admission of relevant evidence, and only exclude evidence when unfair prejudice threatens to
overwhelm its probative value. The greater the probative value of the evidence, the more willing

the court will be to tolerate some risk of prejudice. United States v. Torres, 977 F.2d 321, 328

(7th Cir. 1992). The question of admissibility of evidence under Rule 403 is essentially the
province of the trial court, which is in the best position to make evidentiary determinations. Id.
at 329,

Courts have permitted prejudicial evidence in a variety of circumstances where the
evidence was necessary for the jury to assess some element of the prosecution or the defense.

See United States v. Lightfoot, 224 F.3d 586, 588 (2000). For example, courts have admitted

evidence of prior unlawful conduct to illustrate a defendant’s modus operandi, Curry, 79 F.3d at
1496, evidence of a defendant’s spending habits to show an incriminating pattern of behavior in a
prosecution for bank robbery, United States v. Blackburn, 992 F.2d 666, 669 (7th Cir. 1993),
and, notably, potentially shocking or upsetting documentary evidence to illustrate the testimony
of a Government witness. United States v. Salameh, 152 F.3d 88, 122-23 (2d Cir.
1998)(permitting admission of graphic photographs of victims of the first World Trade Center
bombing to support expert testimony about nature of explosion); United States v. Davidson, 122

F.3d 531, 538 (8th Cir. 1997) (permitting the use of “graphic” autopsy photographs in


ANALYSIS

Kapp contends the he is entitled to a judgment of acquittal or a new trial based on:
(D) the admission of mounted tigers and leopards into evidence; (II) the denial of Kapp’s request
to present a reliance on public authority defense; (II) the giving of an improper jury instruction
on the knowledge requirement under the ESA; and (IV) the Court’s refusal to permit Kapp to
argue to the jury that crosses of multiple subspecies of tigers are not protected under the ESA and
the denial of his motion for acquittal after the close of evidence on the same theory. The Court
will address each of these contentions in turn.
I. The Admission of Mounted Tiger and Leopards

Kapp contends that the Court erred in not granting his motion in limine to preclude the
Government from presenting to the jury the mounted skulls and hides of tigers and leopards that
were seized from Kapp. Kapp contends that the presentation of the animal mounts to the jury
was unduly prejudicial and improperly aroused the emotions of the jury by focusing on the
“heinousness of [Kapp’s] conduct, i.e. his bad character,” while providing little in the way of
probative evidence that Kapp violated federal law. According to Kapp, this evidence was not
relevant because the matter in dispute was not whether he killed the leopards and the tigers and
had them mounted, but rather whether the animals were endangered.

In denying Kapp’s motion in limine, this Court held that under Federal Rule of Evidence

403, “the admission of the mounted animals is not substantially outweighed by the danger of
unfair prejudice.” (March 20, 2003, Memorandum and Order, at 3.) Under Rule 403, relevant
evidence should only be excluded where its probative value is “substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury.” Mere prejudice to


ESA.

Kapp thus misapprehends the scope of protection afforded by the ESA and its application
to the present facts. In its explanatory preface to the list of endangered species, the Code of
Federal Regulations makes clear that “[t]he listing of a particular taxon includes all lower
taxonomic units . . . [including] all . . . populations of that taxon.” 50 C.F.R. § 17.11(g). In
metaphoric terms, if the taxonomic classification of the animal kingdom is a family tree,
illustrating in descending visual order kingdom (the broadest taxon, or classification), phylum,
order, class, family, genus, species, and where pertinent, subspecies (the most narrow taxon), this
means that if one branch of the tree is listed as endangered, all of that branch’s sub-branches, and
those sub-branches’ sub-branches, and so on, are included. Because tigers and leopards are both
listed as endangered at the species level, all lower taxonomic units within those species groups,
Le., recognized sub-species and the entire populations of tigers and leopards, are likewise
protected. 50 C.F.R. § 17.11(g). Thus, Kapp’s contention that some of the subject animals may
be inter-subspecific hybrids (¢.g., a hybrid of two sub-species of tigers or a hybrid of two sub-
species of leopards) is irrelevant because if the subject animals were subspecies of tigers or
leopards, they were protected under the ESA.°

Therefore, even if Kapp’s reading of the USFWS Fact Sheet was correct, it is not the

° Such a claim might be relevant if there were evidence that a subject animal was a hybrid
of one taxon protected under the ESA and one not protected by the ESA. For example, if a
subject animal were a hybrid of two sub-species of tiger, where one subspecies was protected and
the other not, then Kapp would be correct in asserting that such a hybrid might not be subject to
ESA protection. However, because all tigers (and leopards), including all sub-species, are
protected under the ESA, this contention is unavailing.

18


Il. Reliance on Public Authority Defense

Kapp further contends that the Court erred in: (1) not entering a judgment of acquittal
prior to the verdict based on Kapp’s defense of reliance on public authority; (2) not giving
Seventh Circuit Pattern Instruction No. 6.07 (reliance on public authority); and (3) ruling that
there was insufficient evidence for Kapp to present the public authority defense to the jury. In
reviewing these contentions, the Court will examine whether Kapp presented sufficient evidence
of reliance on public authority and was therefore entitled to present the defense.

The standard for determining whether Kapp presented sufficient evidence to warrant
submission of a jury instruction as to a defense is analogous to the standard for determining

whether he presented enough evidence to raise the defense at trial. United States v. Santiago-

Godinez, 12 F.3d 722, 726 (7th Cir. 1993). A defendant is entitled to assert a defense if: (1) the
defendant proposes a correct statement of the law; (2) the defendant’s theory is supported by the
evidence; (3) the defendant’s theory is not part of the government’s charge; and (4) the failure to
include an instruction as to the defendant’s theory of defense would render the defendant’s trial
unfair. Id. at 728 n.4.

To present the defense of “reliance on public authority,”or “entrapment by estoppel,” the
defendant must produce sufficient evidence upon which a rational jury could find the elements of
the defense, namely that a public official affirmatively misled the defendant and that the
defendant reasonably relied on the public official in engaging in the unlawful charged conduct.
See Santiago-Godinez, 12 F.3d at 726; United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.
1994). More particularly, the defendant must show that: (1) he was misled by an official of the

state; (2) the official actively misled him; and (3) the reliance on the official’s misleading


Minute Onder Formn (06/57)

United States District Court, Northern District of Illinois

Mail AO 450 form.

Name of Assigned Judge annin: Sitting Judge if Other
or Magistrate Judge Blanche M. M 8 than Assigned Judge
CASE NUMBER 02 CR 418 DATE November 4, 2003
CASE United States of America v. Kapp
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION: nature of the motion being presented]

DOCKET ENTRY:

qd) qo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oO Answer brief to motion due . Reply to answer brief due

(4) im Ruling/Hearing on set for at

(5) o Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) Oo Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) O General Rule21 OO FRCP41(a)(1) ( FRCP41(a)(2).

(10) 0 [Other docket entry] For the reasons set forth in the attached Memorandum and Order, this Court
DENIES Defendant Kapp’s Motion for a Judgment of Acquittal, or in the Alternative for a New Trial,
pursuant to Federal Rules of Criminal Procedure 29 and 33 [120-1 and 2]. It is so ordered.

(1) a {For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.
No notices required. umber of notices

WY | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices. AGS Legs

Copy to judge/magistrate judge.

a
3]

oct

Nov 85 2003

RTS

courtroom
deputy’s
initials

Date/time received in
central Clerk's Office



definition of hybrids. However, neither the excerpts cited by Kapp nor any other portion of the
recorded conversations suggest that Kapp relied on any definition of hybrids other than that
adduced at trial as the official USFWS definition of unprotected hybrids, as set forth in the Code
of Federal Regulations and as consistently articulated as the policy of USFWS.

Indeed, far from proving that Kapp relied on an incorrect understanding of hybrids under
the ESA and USFWS policy, the taped conversations offered by Kapp show that he correctly
understood that, as a general rule, only inter-species hybrids were excluded from ESA protection,
not intra-species hybrids.* For example, Kapp quotes himself as saying, “As long as... it’s a
non - - it can’t reproduce anything to the species . . . then you can legally put it down.” This
suggests that Kapp understood the distinction between the two types of hybrids and the
significance of the distinction. Kapp’s use of the word “species” implies his correct
understanding that inter-species hybrids, which cannot “reproduce anything to the species,” are
not protected under the ESA, while intra-species hybrids, which clearly do continue to reproduce
into the species, are protected. Kapp’s own words undermine his attempts to claim that intra-
species hybrids are not protected under the ESA.

Additionally, Kapp contends to have received assurances from personal acquaintances
with the USFWS that his conduct was legal. For example, Kapp was recorded stating that:
“there was a girl I used to date that was with Fish and Wildlife and then I knew a bunch of the
investigators — And that’s talking with them, they said as far as we’re concerned, we want this

stuff dead. We don’t think anybody should be allowed to have this stuff as pets.” There are

“ As discussed below, intra-species hybrids are excluded from protection only in the rare
case in which they are listed by the ESA solely at the sub-species level.

11


animals were not protected by the ESA, because the animals were subspecies hybrids of tigers
and leopards, and according to Kapp’s interpretation of the Fact Sheet, subspecies hybrids are not
protected.”

Kapp contends that his reliance on the Fact Sheet can be inferred from the fact that a copy
of the Fact Sheet was recovered from his home during a search by USFWS agents. This alone,
however, is insufficient evidence that Kapp actually relied on the Fact Sheet because Kapp
engaged in much of the charged conduct, including the conduct charged in at least ten counts of
the Indictment, prior to the publication of the Fact Sheet. Kapp obviously could not have relied
on a publication that was not even in existence at the time he committed his unlawful acts. The
defense of reliance on public authority is inapplicable if the defendant has not acted on the basis
of having been misled. United States v. Tallmadge, 829 F.2d 767, 775 n.1. (9th Cir. 1987).

Furthermore, as to the conduct committed during and after March, 1998, after the Fact
Sheet had been published, while it is unclear when Kapp received the Fact Sheet, Kapp presented
no testimony or other evidence at trial that he had, in fact, read or relied upon the Fact Sheet
before engaging in the balance of the charged conduct.> Kapp cites to transcripts of his

conversations with USFWS agents as evidence of his reliance on the USFWS’s allegedly broader

? As discussed below, this purported interpretation of the Fact Sheet is not the law. Under
the ESA and its regulations, all sub- (or intra-) species hybrids of an animal are protected where
the animal is protected at the species level, as with tigers and leopards. What are generally not
protected by the ESA are inter-species hybrids and sub-(or intra-)species hybrids of an animal
that is protected solely at the sub-species level. The animals in question here were protected at
the species level and were not inter-species hybrids, and hence were protected whether or not
they were sub-species hybrids.

*In fact, as the Government contends, “Kapp, through counsel, disclaimed any argument
that Kapp actually saw and relied upon” the Fact Sheet.

10


conjunction with a doctor’s testimony).

Here, the Court finds that the animal mounts were very relevant to the case against Kapp.
The Government presented the animal mounts to demonstrate: (1) Kapp’s purpose in killing the
animals (to manufacture and sell the mounts to customers); and (2) to rebut Kapp’s claim that the
animals were hybrids and thus not protected as endangered species under the ESA. The mounts
allowed the jury to see that the animals had been killed, how they were processed after killing,
and Kapp’s motive in participating in their killing and processing. Furthermore, the mounts
allowed the Government to demonstrate, and the jury to observe from the best available physical
evidence, that the animals in question were, indeed, endangered leopards and tigers protected by
the ESA.

Assuming that there was some prejudice to Kapp from the display of the mounts, the
prejudice did not “substantially outweigh[]” the probative value, as required by Rule 403. While
the mounts were unusual courtroom exhibits, it was not because of their shock value, but rather
because they gave jurors a rare look into the world of taxidermy. The mounts were no more
shocking or disturbing than the mounted animals displayed at any museum of natural history,
including the Field Museum of Natural History in Chicago. Therefore, even if the mounts were
slightly disturbing to some jurors, whatever upset they caused did not result in unfair prejudice to
Kapp.

Thus, because the animal mounts were probative of Kapp’s culpability as to the charged
offenses, and the risk of undue prejudice was not great, the admission of the mounts was proper

under Rule 403, and Kapp was not entitled to exclusion of the evidence.


CONCLUSION
For the reasons set forth above, this Court DENIES Defendant Kapp’s Motion for a
Judgment of Acquittal, or in the Alternative for a New Trial, pursuant to Federal Rules of

Criminal Procedure 29 and 33 [120-1 and 2]. It is so ordered.

ENTER: Bly wede MH Wanaity

BLANCHE M. MANNING
U.S. DISTRICT COURT JUDGE

DATE: //- £03

21


their probative value. This Court denied the motion, ruling that the mounts had sufficient
probative value, and presented little risk of unfair prejudice to Kapp.

At trial, the Government presented evidence that included recorded conversations in
which Kapp discussed plans to transport, kill, and sell endangered tigers and leopards, the
testimony of USFWS agents and other witnesses as to their conversations with Kapp regarding
his plans to traffic in endangered tigers and leopards, a videotape showing Kapp shooting a tiger,
mounts of tigers and leopards purchased, killed, processed, transported and sold by Kapp, expert
testimony as to the identity of the animal mounts, and documentary evidence of Kapp’s
processing and sale of endangered tigers and leopards and Kapp’s falsification of USDA forms.

At the close of evidence but before the verdict was rendered, Kapp moved for a Judgment
of Acquittal, which was denied. The jury subsequently found Kapp guilty as to seventeen counts
(nos. 1, 2,3, 7, 8, 11, 13, 14, 16, 17, 18, 20, 21, 22, 23, 24 and 26), and not guilty as to two
counts (nos. 5 and 25). Kapp now comes before this Court for a judgment of acquittal, or in the
alternative for a new trial, pursuant to Rules 29 and 33.

STANDARD OF REVIEW

Under Rule 29, a court may acquit a defendant of “one or more offenses charged in the
indictment or information after the evidence on either side is closed if the evidence is insufficient
to sustain a conviction of such offense or offenses.” When reviewing a motion for judgment of
acquittal pursuant to Rule 29, the Seventh Circuit mandates that the district court determine:

whether at the time of the motion there was relevant evidence from
which the jury could reasonably find [the defendant] guilty beyond
a reasonable doubt, viewing the evidence in the light most

favorable to the government . . . bearing in mind that it is the
exclusive function of the jury to determine the credibility of


As further evidence of Kapp’s awareness of the unlawfulness of his conduct, the
Government presented uncontradicted evidence that several of Kapp’s prospective customers
decided not to make purchases from Kapp after being advised by USFWS that such transactions
were illegal, and Kapp knew that his prospective customers had been so advised. The
Government also offers several excerpts of conversations occurring in 1999 in which Kapp
affirmatively indicated his understanding that it was illegal to sell and to offer to sell tiger and
leopard mounts under the ESA, repeatedly using the terms “protected” and “endangered” in
reference to tigers and leopards. Thus, Kapp’s claim to have relied mistakenly, reasonably, and
in good faith on official assurances as to the legality of his conduct is unavailing.

Accordingly, because Kapp failed to show he was actually misled or that he reasonably
and in good faith relied on government information, under the standards set forth by the Seventh
Circuit, Kapp was not entitled to argue to the jury, or to present a jury instruction on, the defense
of reliance on public authority.

Ill. The Knowledge Requirement Under the ESA

Kapp also contends that this Court erred in instructing the jury as to the requisite mental
state needed to constitute a violation under the ESA. The instruction in question stated in
pertinent part that “it is sufficient that the government prove that the defendant knew that he was
taking, selling, offering for sale, delivering, receiving, carrying, or transporting, or causing to be
delivered, received, carried, or transported, a tiger or leopard.” The instruction further stated
that the jurors “may, but are not required to, infer that the defendant acted knowingly if you find
that the defendant knew that the animal he took looked like a tiger or leopard.” Kapp contends

that this instruction misstated the law because it permitted the jury to find Kapp guilty upon

14


shot a protected animal without knowing it was protected; the knowledge requirement was
satisfied because the defendant “knew he was shooting an animal, and that animal turned out to
bea protected gray wolf.” The Fifth Circuit established a more stringent requirement, holding
that a jury must find that the defendant not only knew that the subject animal was an animal, but
also that it was an animal of particular type (e.g., a turtle). Nguyen, 916 F.2d at 1018. While the
two courts differed slightly in their interpretation of the mental state requirement under the ESA,
neither standard requires that the defendant knew that the subject animal was protected under the
ESA.

Here, in giving the above instruction, this Court imposed upon the Government the more
onerous requirement set out in Nguyen by requiring that the Government prove that Kapp knew
the subject animal was a tiger or a leopard.

Kapp further contends that the instruction was flawed because it directed the jury to
presume that, if Kapp knew the subject animals looked like a tiger or a leopard, then “Kapp could
‘know’ they were illegal.” The instruction submitted by this Court does no such thing. The
instruction permitted the jury, if it chose, to make the logical inference that, if Kapp recognized
an animal as looking like a tiger or a leopard, he knew the animal was a tiger or a leopard.
Inviting, but not requiring, a jury to make an inference is permissible, so long as there is some
rational way the jury can make the connection suggested by the inference. See County Court of
Ulster County, N.Y. v. Allen, 442 U.S. 140, 157 (1979). It is certainly rational to infer that if
Kapp knew that the animals appeared to be tigers and leopards, he knew they were tigers and
leopards,

Consequently, this Court finds that it did not err in giving the above instruction and that

16


mounting of the animal carcasses, which included transporting and skinning the carcasses,
processing the carcasses for use as meat, shipping the hides to New York for tanning, shipping
the fully mounted hide and skull of the leopard, and falsifying United States Department of
Agriculture Form 7020 to make it appear that the animals had been “donated” rather than sold to
end users. The indictment further charged that Kapp participated in the March, 1998 killing of
eight endangered tigers in Alsip, Illinois, as well as their subsequent processing and sale.

Before trial Kapp moved to dismiss the indictment on the grounds that: (1) the indictment
failed to allege sufficient facts to constitute a violation of federal law; and (2) the relevant
provisions of the ESA are unconstitutionally vague. In denying the motion, this Court found
that: (1) the Government’s failure to specifically allege that the animals at issue were captive
wildlife and not unprotected hybrids was not fatally insufficient; and (2) the ESA and its
regulations were not void for vagueness because they are detailed enough to put a reasonable
person on notice as to what conduct is prohibited.

Before the start of trial, the Court granted the Government’s motions in limine to:

(1) preclude Kapp from presenting evidence or argument intended to elicit jury nullification;

(2) admit evidence of the remains of other endangered animals found in Kapp’s home;

(3) preclude reference to the 1999 suicide of a local taxidermist; (4) preclude reference to Kapp’s
disability; (5) preclude evidence of drug use and prior arrests of Government witnesses without
notice to the Government; and (6) preclude Kapp from defining reasonable doubt to the jury.

Likewise, Kapp moved under Rule 403 of the Federal Rules of Evidence to preclude the
admission of the mounted tigers and leopards seized from Kapp’s home. Kapp contended that

the unfair prejudice from the presentation of the mounts to the jury would substantially outweigh


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES of AMERICA )
) Hon. Blanche M. Manning
v. )
) 02 CR 418-1
WILLIAM R. KAPP )

MEMORANDUM AND ORDER

After an eight-day trial, a jury found Defendant William R. Kapp guilty of violating and
conspiring to violate the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. and the
Lacey Act, 16 U.S.C. § 3272 et seq. The present matter comes before the Court on Kapp’s
Motion for a Judgment of Acquittal, or in the Alternative for a New Trial, pursuant to Federal
Rules of Criminal Procedure 29 and 33. For the reasons set forth below, this Court DENIES
Kapp’s motion.

BACKGROUND!

The Government’s 28-Count Indictment alleged that Kapp was involved in the unlawful
trafficking of the meat and hides of endangered animals. Kapp purchased endangered wildlife,
including tigers (Panthera tigris) and leopards (Panthera pardus), from exotic animal exhibitors
and dealers, shot, killed, skinned and transported the animals, caused others to shoot, kill, skin,
and transport the animals, and transported and sold the hides and meat of the animals for profit.

In August of 1997, Kapp met with others at the Funky Monkey Animal Park in Crete,
Lllinois, and participated in the killing of three caged, endangered animals, including one leopard

and two Bengal Tigers. Kapp then participated in the pre-arranged sale, processing, and

1 The facts in the Background section are taken from the Indictment, evidence and

testimony presented at trial, and the parties’ submissions.

7]



several problems with this contention. First, Kapp presents no evidence that such conversations
actually took place other than transcripts recounting his own self-serving statements to
Government agents. Two, as with the Fact Sheet, the alleged assurances by USFWS officials
were given in Spring of 1998, well after Kapp had committed many of the acts charged in the
indictment. Third, however plausible, these alleged assurances do not constitute a defense to
Kapp’s criminal conduct because even if Kapp received such assurances, it was unreasonable for
him to rely on them.

A defendant's reliance on information is reasonable only if “a person sincerely desirous of
obeying the law would have accepted the information as true, and would not have been put on

notice to make further inquiries.” Brebner, 951 F.2d at 1025. Reliance on assurances by public

officials is reasonable only if there is substantial evidence that advice was given by officials or
government agencies of sufficient knowledge and authority to offer such advice. See, e.g.
Tallmadge, 829 F.2d at 775 (finding defendant’s reliance on gun dealer’s assurances that weapon
ownership was legal was reasonable when it was congruous with the advice of defendant’s
attorney’s and comments by prosecutor and judge at defendant’s probation hearing); United
States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990) (permitting defense of reliance of public
authority where defendant presented abundant evidence that he had received advice from an Air
Force Standards of Conduct Officer).

Here, Kapp claims to have relied solely on personal and informal conversations with
USFWS officials before engaging in the act of killing and trafficking in animals that he at least
suspected were protected by the ESA. If Kapp had been truly desirous of obeying the law, i.e.

not killing and trading in animals protected by law, it is unlikely he would have been satisfied

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finding a lesser degree of mens rea than required under the ESA.

Courts have held that violations of the ESA are crimes of general intent. United States v.
McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998); United States v. Nguyen, 916 F.2d 1016, 1018
(Sth Cir. 1990). General intent offenses are those offenses for which the requisite mental state is
merely that the defendant was aware of his conduct when he committed the acts giving rise to the
offense. See United States v. Bates, 96 F.3d 964, 967-68 (7th Cir. 1996). Unlike specific intent
offenses, general intent crimes do not require proof that a defendant had a criminal objective
when he engaged in the charged conduct. Id. For example, robbery is a general intent crime
because it has no explicit intent requirement; the criminal culpability is implicit in the
commission of thefi by force or threat of force. People y. Lewis, 651 N.E.2d 72, 87 (Ill. 1995).
By contrast, burglary is specific intent offense because intent to commit a felony is an element of
the crime. People v. Camp, 559 N.E.2d 26, 29 (Ill. App. Ct. 1990).

Because the ESA does not require proof that the defendant had a criminal objective or
was even aware of the unlawfulness of his conduct, courts have held that the ESA is a general
intent statute. McKittrick, 142 F.3d at 1177; Nguyen, 916 F.2d at 1018.° The statute merely
requires that the Government show that the defendant knowingly violated a provision of the Act.
16 U.S.C. 1540 (b).

The Fifth and the Ninth Circuits have both considered the question of what constitutes a
“knowing” violation of the ESA. The Ninth Circuit set a low threshold for proving knowledge in

McKittrick, 142 F.3d at 1177, where it held that the defendant had violated the ESA when he

> “The plain intent of Congress. . . was to halt . . . species extinction, whatever the cost. .
. . Congress intended to make violations of [the ESA’s] provisions a general intent crime.”
Nguyen, 916 F.2d at 1018.

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