*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 23 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MIKE R. NYSTROM, SR.,

Defendant-Appellant.

No. 96-8082

(Dist. of Wyoming)

(D.C. No. 95-CR-054-1D)

ORDER AND JUDGMENT*

Before PORFILIO, LUCERO, and MURPHY, Circuit Judges. 

The government charged Mike R. Nystrom in a seven count indictment with

conspiracy to violate the Lacey Act, interstate transportation of wildlife taken in

violation of state law, and creation of false records for interstate transportation of

illegally taken wildlife. After a jury found Nystrom guilty of Counts VI and VII,

the district court sentenced Nystrom to six months incarceration followed by two
-2-

years supervised release and imposed a fine of $5,000. Nystrom appeals his

conviction claiming: 1) there were two instances of prosecutorial misconduct

violating his Fourteenth Amendment rights; 2) the government obtained evidence

pursuant to a general warrant in violation of the Fourth and Sixth Amendments; 3)

the statutes underlying Nystrom’s conviction of Count VII are vague and the court

gave an inadequate response to a jury question about those statutes; 4) there was

insufficient evidence to support Nystrom’s conviction of Count VI and the court

erred in responding to a jury question regarding that count. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRMS Nystrom’s conviction.

BACKGROUND

On May 18, 1995, a federal grand jury indicted Nystrom on one count of

conspiracy to violate the Lacey Act, 18 U.S.C. § 371; five counts of interstate

transportation of wildlife taken in violation of state law under 16 U.S.C. §§

3372(a)(2)(A) & 3373(d)(1)(B); and one count of creating a false record for

interstate transportation of illegally taken wildlife under 16 U.S.C. §§ 3372(d)(2)

& 3373(d)(3)(A)(ii).

Nystrom was an owner and operator of a big game outfitting company:

Wolf Lake Outfitters of Pinedale, Wyoming. His sons, Mike S. Nystrom Jr. and

Greg Nystrom, were co-owners of Wolf Lake Outfitters. At trial, the government

presented evidence that Nystrom arranged for out-of-state hunters to use his, or
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other employees of Wolf Lake Outfitters’, hunting licenses to place on animals

after shooting them. Nystrom and his employees then arranged for these animals

to be mounted and transported out of state to the unlicensed and non-resident

hunters. Nystrom, along with several of his employees, also prepared false

outfitter reports, filing them with the Wyoming Game and Fish Department and

the Wyoming Outfitter Board. The government presented evidence that this

activity occurred from approximately January 1, 1987 through January 1, 1994.

The United States Fish and Wildlife Service investigated Wolf Lake

Outfitters and on April 15, 1993, special agents executed a search warrant on the

business premises. The warrant was obtained based on probable cause established

by Special Agent Robert Prieksat’s affidavit describing the investigation. 

Nystrom did not contest that probable cause existed to support the warrant. 

 Pursuant to the warrant, the agents seized approximately 5,000 documents

including photos, bank records, index cards containing customer names, receipts,

invoices, cards, and financial records. Based on the findings of the search,

Nystrom was arrested. During trial, Nystrom filed a Motion to Suppress and for

Return of Property Pursuant to Rule 41, Fed. R. Crim. P., and the Fourth

Amendment to the Constitution of the United States. The district court denied

that motion, finding the warrant was sufficiently specific.
-4-

On August 18, 1995, Nystrom moved to dismiss the indictment for failure

of the grand jury evidence to support the indictment. The district court agreed

with respect to Count IV and dismissed that count without prejudice, finding “it is

undisputed that no evidence was presented to support Count IV of the

indictment.”

After a petit jury had been selected, but before it was sworn, Nystrom filed

a Motion to Dismiss the Indictment for Prosecutorial Misconduct. Nystrom

alleged, as he does before this court, that the Assistant United States Attorney and

government investigators threatened witnesses to the extent that they could not

choose to testify truthfully. To resolve Nystrom’s motion, the district court held

an in camera proceeding in which the court interviewed each of the witnesses to

determine whether they had been threatened or coerced by the government. 

Nystrom and his counsel were allowed to be present at the proceeding. The

district court ordered counsel for both sides not to communicate with the

witnesses before the in camera proceedings and did not allow counsel for either

side to examine or cross-examine the witnesses during the proceeding. The court

did, however, allow both sides to propose questions for the court to propound. 

After its examination, the court found no evidence of prosecutorial misconduct

and thus found that Nystrom’s due process and Sixth Amendment rights had not

been violated.
1

Jury Instruction number 57 stated that the Prosecution has the burden of

proving beyond a reasonable doubt: “That the Defendant’s submission of a false

record concerning the wildlife involved the sale or purchase of wildlife with a

market value greater than $350.”

2

Jury Instruction number 29 concerned the “sale” component of 16 U.S.C. §

3372(c) and stated, in part: “It is deemed to be a sale of . . . wildlife . . . in

violation of this chapter for a person for money or other consideration to offer or

provide--(A) guiding, outfitting, or other services; or (B) a hunting or fishing

license or permit; for the illegal taking, acquiring, receiving, transporting, or

possessing of . . . wildlife.”

-5-

Another witness testified during trial that he was “afraid” of counsel for the

government. The court convened a hearing outside the presence of the jury and

again found insufficient evidence that the witness had been threatened or

intimidated by the government. Nystrom again filed a Motion to Dismiss for

Prosecutorial Misconduct based on the same claims; the motion was denied.

During deliberations, the jury asked the court to make two separate

clarifications. First, the jury asked for a clarification with respect to Count VII

and part four of jury instruction number 57.1

 Referring to 16 U.S.C. §

3373(d)(3)(A)(ii), the jury asked: Does “‘involve’ mean defendant made the sale

or that the sale was able to occur due to defendant’s involvement by submission

of a false record?” The court responded by giving the jurors a dictionary

definition of the word “involve”: “to relate closely or connect.” Second, the jury

requested clarification with respect to Count VI and jury instruction number 29.2

Specifically, the jury questioned whether the consideration for the sale of wildlife
3Count VI alleged that on approximately October 31, 1991 and August 31,

1992, Nystrom knowingly sold and transported a buck mule deer to Patrick Byrne

in violation of state law and 16 U.S.C. §§ 3372(a)(2)(A) & 3373(d)(1)(B). Count

VII alleged that on or about October 22, 1991, Nystrom sold a bull elk and

knowingly made a false game tag affidavit, with the intent to mount and transport

the elk in interstate commerce in violation of 16 U.S.C. §§ 3372(d)(2) &

3373(d)(3)(A)(ii).

-6-

has to be agreed upon before or after the hunt takes place. The court admonished

the jury to “carefully review” the instructions and not to “speculate about the

meaning of this term but apply it as set forth in these instructions.” The jury then

returned verdicts of guilty with respect to Counts VI and VII.3

 Nystrom now

appeals.

ANALYSIS

I. PROSECUTORIAL MISCONDUCT

 Nystrom claims the government engaged in prosecutorial misconduct by

threatening and discouraging defense witnesses from testifying. He also claims

the district court erred when it ordered defense counsel not to interview witnesses

until after the court conducted its in camera interviews, refused Nystrom’s right

to cross-examine the witnesses during the in camera proceedings, and refused

Nystrom’s right to cross-examine witnesses in the presence of the jury concerning

prosecutorial misconduct. 

Nystrom submitted each of these claims to the district court in his Motion

for Judgment of Acquittal, to Dismiss, and for a New Trial. The district court
4Although Nystrom characterized his motion as a Motion to Dismiss as well

as for Judgment of Acquittal and for a New Trial, his motion was merely an

amalgam and reiteration of his prior arguments before the district court regarding

prosecutorial misconduct and not in fact a motion to dismiss. Thus, because it

was essentially a motion for judgment of acquittal and new trial, we apply an

abuse of discretion rather than a de novo standard of review.

5We note that neither Webb nor the instant case involved statements made

to witnesses in the presence of the jury. See Webb, 409 U.S. at 95.

-7-

denied the motion. This court reviews Nystrom’s claim of error for an abuse of

discretion. See United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir. 1996)

(noting standard of review on motions for new trial is abuse of discretion).4

In its order denying dismissal for prosecutorial misconduct, the district

court found Nystrom had not presented sufficient evidence that the government

had engaged in prosecutorial misconduct. The key case on prosecutorial

misconduct is Webb v. Texas, 409 U.S. 95 (1972). Webb involved a district

court’s lengthy warning to a witness to tell the truth; the witness later refused to

testify.5

 The Supreme Court held that “the judge’s threatening remarks, directed

only at the single witness for the defense, effectively drove the witness off the

stand, and thus deprived the petitioner of due process of law under the Fourteenth

Amendment.” Id. at 98. The ultimate issue is whether a prosecutor’s statements

result in “such duress that [a] witness could not freely and voluntarily decide to

testify . . . , thus depriving [the defendant] of his defense.” United States v.

Smith, 997 F.2d 674, 679 (10th Cir. 1993). Furthermore, “[j]udges and
6Nystrom claims that with respect to one witness, Delbert Parks, his Fifth

and Sixth Amendment rights were violated throughout the trial because he was

never permitted to interview Parks about the prosecutorial misconduct at any

-8-

prosecutors do not necessarily commit a Webb-type violation merely by advising a

witness of the possibility that he or she could face prosecution for perjury if his or

her testimony differs from that he or she has given previously.” Id. at 680. 

Based on its examination of each witness, the district court found that the

government had made no statements “which exerted such duress on the witness’

mind as to preclude any one of them from making a free and voluntary choice

whether or not to testify.” Dist. Ct. Opin. at 4-5. The government did not suggest

the witnesses “testify in any particular way, other than truthfully.” Id. at 5. 

Because nothing in the record illustrates the government did anything more than

admonish witnesses that they would be prosecuted for perjury if they testified

falsely, the district court did not abuse its discretion in denying Nystrom’s

motion. See Gabaldon, 91 F.3d at 93-94.

With respect to Nystrom’s assertion of error regarding the in camera

proceedings, we note the district court first found that the allegations in

Nystrom’s motion, standing alone, did not support a finding that the government

had engaged in misconduct. Nevertheless, the district court proceeded to conduct

its own investigation of the witnesses to determine whether such alleged

misconduct had occurred.6

 
time. We note, however, that the court was unable to interview Parks because he

was out of state. The court thus prohibited counsel for either side from

interviewing him about the misconduct claims until the court had an opportunity

to interview him. Parks was never called as a defense witness, even though the

government had offered him use immunity. Because Parks was never called, the

prohibition of counsel interviews about that subject remained throughout trial.

-9-

Nystrom presents this court with no precedent or authority supporting his

claims that the district court’s method of investigating charges of prosecutorial

misconduct violated his Fifth and Sixth Amendment rights. The government by

analogy relies upon jury misconduct cases. In such situations, district courts are

accorded broad discretion to develop appropriate procedures for determining the

facts necessary to resolve claims of jury misconduct. See United States v.

Santiago, 977 F.2d 517, 522 (10th Cir. 1992); United States v. Bradshaw, 787

F.2d 1385, 1388-90 (10th Cir. 1986).

The district court did not abuse its discretion in its examination of

Nystrom’s prosecutorial misconduct claims. The procedures the district court

employed were essentially fair and did not interfere with Nystrom’s right to a

“reasonably substantial . . . opportunity to defend against the charge[s]” in the

indictment. Santiago, 977 F.2d at 522 (quoting Snyder v. Massachusetts, 291

U.S. 97, 105-06 (1934)). While neither counsel were allowed to interview or

examine the witnesses, they were allowed to be present with their clients and

suggest questions for the court. Nystrom has failed to reference any line of
-10-

proposed questioning which was rejected by the district court. Moreover,

Nystrom has failed to show that any harm resulted from the procedures the court

utilized in conducting its in camera interviews and in dealing with the

prosecutorial misconduct claims. We therefore find no error. 

II. GENERAL SEARCH WARRANT

Nystrom next claims that the government’s general search warrant was too

broad and violated his Fourth Amendment rights because it failed to state the

items to be seized with sufficient particularity. Attachment C to the search

warrant described the following items to be seized: 

Business records pertaining to big game outfitting for the years 1987

through 1992, including but not limited to invoices; receipts; booking

reservations; copies of applications; client bio-data; client

correspondence; telephone records; photographs; canceled checks;

bank records[,] including money transfers and deposit records; credit

card receipts; hunt contracts; hunt calendars; hunter client schedules;

diaries; advertisements; news letters; hunting reports; notebooks;

business ledgers; outfitter license records; guide license records;

employee records; names; addresses and telephone information for

outfitter clients; and computer records, including but not limited to

information or data stored in the form of electronic or magnetic

coding on computer media or on media capable of being read by a

computer or computer related equipment. This includes, but is not

limited to fixed hard disks and removable hard disk cartridges, laser

disks, magnetic tapes, floppy diskettes, and any other media capable

of storing digital or magnetic coding containing all or some of the

above mentioned information for customers, clients, friends, guides,

and employees.

Record vol. V at 990.
-11-

Nystrom also raised this Fourth Amendment issue by motion to the district

court. The district court denied his motion. In reviewing the lower court’s

ruling, we apply the clear error standard to the findings of fact and consider the

evidence in the light most favorable to the district court’s ruling. See United

States v. Richardson, 86 F.3d 1537, 1543 (10th Cir.), cert. denied, 117 S.Ct. 588

(1996). Questions whether a warrant is overbroad are reviewed de novo. See

United States v. Janus Indus., 48 F.3d 1548, 1554 (10th Cir.), cert. denied, 116

S.Ct. 87 (1995).

This court finds, as did the district court below, that in light of the breadth

of Nystrom’s suspected activity, the warrant was sufficiently specific. See

Andresen v. Maryland, 427 U.S. 463, 478-82 (1976) (broad warrant justified

where crime involved complex scheme); United States v. Leary, 846 F.2d 592,

600 (10th Cir. 1988) (warrant describing items to be seized in broad terms may be

valid where description is as specific as circumstances and nature of suspected

activity permit); United States v. Robertson, 21 F.3d 1030, 1033 (10th Cir. 1994)

(warrant describing items to be seized in broad terms was valid when description

was as specific as circumstances allowed).

The testimony of Special Agent Prieksat, on whose affidavit the search

warrant was based, supported the proposition that a broad search was required to

uncover the extent and nature of the violations of which Nystrom was suspected. 
7Nystrom claimed that a small number of items seized were outside the

scope of the warrant. The district court found the agents made a good faith

attempt to stay within the confines of the warrant. See United States v. Foster,

100 F.2d 846, 852-53 (10th Cir. 1996) (officers acted in bad faith and with

flagrant disregard for terms of warrant, thus blanket suppression was appropriate

remedy). This court finds nothing in the record to support a finding of error with

respect to this ruling. Furthermore, the district court appropriately ordered any

items seized outside the scope of the warrant to be suppressed and returned to

Nystrom immediately. See United States v. Robertson, 21 F.3d 1030, 1035 (10th

Cir. 1994) (suppressing items taken that were outside scope of warrant).

-12-

Specifically, Prieksat testified that based on his experience, outfitters did not

always use their business accounts with respect to their clients, but often

deposited checks in any bank account. Thus, a search of only Nystrom’s business

account would have been insufficient. Likewise, according to Prieksat’s

affidavit, based on his experience that outfitters generally maintained records on

hunters in their offices, the broad search warrant would enable the government to

identify other potential clients of Nystrom’s. Because of the complex nature of

the crime and the investigation in this case, we find the district court did not err

in finding that the “description set forth in Attachment ‘C’ to the warrant, was as

specific as the circumstances and the nature of the activity under investigation

permitted.”7

III. COUNT VII ISSUES

A. Vagueness of 16 U.S.C. §§ 3372(d) & 3373(d)(3)
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Next, Nystrom argues that 16 U.S.C. §§ 3372(d) and 3373(d)(3), the

statutes underlying Nystrom’s conviction of Count VII, are unconstitutionally

vague. 16 U.S.C. § 3372(d) provides: “It is unlawful for any person to make or

submit any false record, account, or label for, or any false identification of, any

fish, wildlife, or plant which has been, or is intended to be . . . (2) transported in

interstate or foreign commerce.” 16 U.S.C. § 3373(d)(3) provides: “Any person

who knowingly violates section 3372(d) . . . (A) shall be fined under Title 18, or

imprisoned for not more than 5 years, or both, if the offense involves . . . (ii) the

sale or purchase, offer of sale or purchase, or commission of an act with intent to

sell or purchase fish or wildlife or plants with a market value greater than $350.” 

Although his argument is not elucidated fully, Nystrom appears to claim that the

term “involves” is ambiguous.

Whether a statute is unconstitutionally vague is a question of law to be

reviewed de novo. See United States v. Murphy, 977 F.2d 503, 504 (10th Cir.

1992). “The void-for-vagueness doctrine requires that a penal statute define a

criminal offense with sufficient specificity that ordinary people can understand

what conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” United States v. Meraz-Valeta, 26 F.3d 992, 997

(10th Cir. 1994). In reaching questions of a statute’s unconstitutional vagueness,

our inquiry is whether the statute at issue provided a defendant with notice or
-14-

“fair warning” that the conduct contemplated is forbidden by law. See United

States v. Protex Indus. Inc., 874 F.2d 740, 743 (10th Cir. 1989).

This court finds, as did the district court, the term “involves” does not

deprive the ordinary person of notice or fair warning of prohibited conduct. As

the court below noted: “it is clear that when a false record is knowingly

submitted in connection with or involving the sale or purchase, offer of sale or

purchase, or commission of an act with intent to sell or purchase wildlife with a

market value exceeding $350.00[,] a violation of the statutes occurs.” We agree.

B. Court’s Response to Jury Inquiry

Nystrom also claims that the district court erred in responding to the jury’s

question regarding Jury Instruction Number 57 and the meaning of the word

“involve.” Nystrom does not, however, appear to complain about the jury

instruction itself. The standard of review for reviewing the court’s response to

jury questions is the same as the standard applied to reviewing jury instructions. 

See United States v. Castillo, 844 F.2d 1379, 1391 (9th Cir. 1988). In reviewing

Nystrom’s challenge to the court’s response to the jury’s inquiry, we review the

record as a whole to determine whether the response stated the governing law and

provided the jury with an understanding of the issues and legal standards. See

United States v. Grey, 56 F.3d 1219, 1222 (10th Cir. 1995). In addition, we

reverse convictions “due to an erroneous [response] only if the error was
8Nystrom also appears to argue that his acquittal of Count III and

conviction on Count VII are inconsistent. Other than this bare assertion, Nystrom

makes no effort to show why those verdicts provide a basis for reversing his

conviction. An alleged inconsistency in verdicts, without more, will not as a

matter of law support a reversal of a conviction. See United States v. Powell, 469

U.S. 57, 64-65 (1984); United States v. Nelson, 54 F.3d 1540, 1546-47 (10th Cir.

1995).

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prejudicial when viewed in light of the entire record.” United States v. Martin, 18

F.3d 1515, 1519 (10th Cir. 1994).

Both Nystrom and the government presented proposed responses to the jury

inquiry concerning the meaning of the term “involves”; the court rejected both. 

Instead, the court gave the jury a definition of the word “involves” and

admonished it to refer to the instructions to reach its own conclusions. We find

nothing in the record to show that the response did not state the law governing the

case or was unfair to the parties. See Durflinger v. Artiles, 727 F.2d 888, 895

(10th Cir. 1984) (jury instructions did not constitute reversible error because they

stated governing law and were fair).8

 

IV. COUNT VI ISSUES

A. Insufficiency of Evidence to Convict on Count VI

Nystrom next claims that there was insufficient evidence to support his

conviction on Count VI for knowingly and unlawfully selling and causing to be

transported in interstate commerce one buck mule deer to Patrick Byrne in

violation of Wyoming law. In reviewing a challenge to sufficiency of the
-16-

evidence, “we are bound to view the proof presented in the light most favorable to

the government to ascertain if there is sufficient substantial proof, direct and

circumstantial, together with reasonable inferences to be drawn therefrom, from

which a jury might find a defendant guilty beyond a reasonable doubt.” United

States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir. 1990). In order to determine

whether the evidence supporting Count VI was sufficient, we review the record de

novo. See United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir. 1992). 

Nystrom specifically claims there was insufficient evidence to prove that

Byrne provided Nystrom with any consideration for the deer which was

transported out of state to Byrne. The evidence demonstrates that Byrne provided

consideration by staying at the outfitters’ camp, assisting Nystrom in providing

guide services, and removing the game of other hunters. According to the

government, this exchange of work at Nystrom’s camp for an opportunity to hunt

with Nystrom and to use Nystrom’s license satisfies the consideration requirement

for “sale of wildlife” under 16 U.S.C. § 3372(c)(1). See United States v.

Atkinson, 966 F.2d 1270, 1273 (9th Cir. 1992) (“sale of wildlife” occurs when,

for money or other consideration, person provides “guiding, outfitting, or other

services” or “license or permit” for illegal taking of wildlife). The record also

reveals evidence that Byrne paid Nystrom $400 for taxidermy services for the

deer he shot. Byrne also sent a check for $82.36 to Nystrom to pay for additional
-17-

taxidermy services. Finally, the deer was transported to Byrne in California by an

employee of Nystrom’s.

We find that there was sufficient evidence for a reasonable jury to find that

Byrne gave consideration for the use of Nystrom’s tag. A reasonable jury could

have found that Byrne’s assistance to Nystrom, work at the cabin, and payments

to Nystrom for taxidermy services were consideration given for the opportunity to

hunt and tag a deer.

B. Court’s Response to Jury Inquiry

Nystrom finally claims the district court erred by not responding to a jury

inquiry in the manner he requested. Again, we review the record as a whole to

determine whether the court’s response stated the governing law and provided the

jury with an understanding of the issues and legal standards. Grey, 56 F.3d at

1222; see also Castillo, 844 F.2d at 1391 (standard of review for court’s response

to jury inquiries same as standard for jury instructions). We reverse convictions

“due to an erroneous [response] only if the error was prejudicial when viewed in

light of the entire record.” Martin, 18 F.3d at 1519.

Jury Instruction No. 29 generated the following jury question: whether a

“sale of wildlife” under the Lacey Act had “to be agreed upon prior to the

beginning of the actual hunt, or could it occur after the kill, i.e., packing the

wildlife out?” Nystrom requested the court to answer that “the providing of
-18-

services of the illegal taking of wildlife must be agreed upon before the services

are performed.” The court rejected this proposal, noting that “there are

instructions that deal directly with the issue that they’ve presented me for an

answer.” The court indicated that it would admonish the jury to consider its

instructions as a whole and not to speculate otherwise about the meaning of terms.

Nystrom argues that the jury was requesting a clarification of the timing of

the agreement, stating “it is axiomatic that a meeting of the minds must precede

performance to distinguish a sale from a gift provided after the fact[, and it is

likely that] the jury wondered whether Byrne’s gratuitous payment after the fact

could serve as the necessary consideration.”

The Lacey Act does not provide a definition of consideration or a

requirement with respect to the timing of the agreement for a “sale of wildlife.” 

Rather, the Act states only that a “sale of wildlife” occurs when a person offers or

provides money or other consideration for guiding or outfitting services or a

hunting license for the illegal taking, transporting, or possessing of wildlife. The

crime prohibited by the Act is allowing the use of one’s license to make the hunt

look legal, regardless of when the agreement to use that license takes place. 

There is thus no statutory basis for the timing of the agreement as asserted by

Nystrom. Rather, a jury must only find that there was consideration given for the

use of the guide services and license. Consequently, the district court provided
-19-

the jury with the proper governing law and an understanding of the applicable

issues and standards. Furthermore, Nystrom has failed to show how the district

court’s response caused him prejudice. Thus, we find the district court did not err

by failing to give Nystrom’s requested response to the jury’s inquiry. 

CONCLUSION

For the reasons set forth above, we AFFIRM Nystrom’s conviction entered

in the United States District Court for the District of Wyoming.

ENTERED FOR THE COURT,

Michael R. Murphy

Circuit Judge