* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 c ount indictment with conspiracy to violate the Lacey Act, interstate tra nsportation of wildlife taken in violation of state law, and creation of false recor ds for interstate transportation of illegally taken wildlife. After a jury found Nystr om 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 $5,0 00. Nystrom appeals his conviction claiming: 1) there were two instances of prosecutorial misconduct violating his Fourteenth Amendment rights; 2) the g overnment obtained evidence pursuant to a general warrant in violation of the F ourth and Sixth Amendments; 3) the statutes underlying Nystrom’s conviction of Cou nt VII are vague and the court gave an inadequate response to a jury question abou t those statutes; 4) there was insufficient evidence to support Nystrom’s convicti on of Count VI and the court erred in responding to a jury question regarding th at 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 Nyst rom on one count of conspiracy to violate the Lacey Act, 18 U.S.C. § 37 1; five counts of interstate transportation of wildlife taken in violation of st ate law under 16 U.S.C. §§ 3372(a)(2)(A) & 3373(d)(1)(B); and one count of cre ating a false record for interstate transportation of illegally taken wildli fe under 16 U.S.C. §§ 3372(d)(2) & 3373(d)(3)(A)(ii). Nystrom was an owner and operator of a big game out fitting company: Wolf Lake Outfitters of Pinedale, Wyoming. His son s, Mike S. Nystrom Jr. and Greg Nystrom, were co-owners of Wolf Lake Outfitter s. At trial, the government presented evidence that Nystrom arranged for out-of -state hunters to use his, or-3-

other employees of Wolf Lake Outfitters’, hunting l icenses to place on animals after shooting them. Nystrom and his employees the n arranged for these animals to be mounted and transported out of state to the u nlicensed and non-resident hunters. Nystrom, along with several of his employ ees, also prepared false outfitter reports, filing them with the Wyoming Gam e and Fish Department and the Wyoming Outfitter Board. The government presen ted evidence that this activity occurred from approximately January 1, 198 7 through January 1, 1994. The United States Fish and Wildlife Service investi gated Wolf Lake Outfitters and on April 15, 1993, special agents ex ecuted a search warrant on the business premises. The warrant was obtained based on probable cause established by Special Agent Robert Prieksat’s affidavit descri bing the investigation. Nystrom did not contest that probable cause existed to support the warrant. Pursuant to the warrant, the agents seized approxi mately 5,000 documents including photos, bank records, index cards contain ing customer names, receipts, invoices, cards, and financial records. Based on t he 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. Cri m. P., and the Fourth Amendment to the Constitution of the United States. The district court denied that motion, finding the warrant was sufficiently s pecific.-4-

On August 18, 1995, Nystrom moved to dismiss the in dictment for failure of the grand jury evidence to support the indictmen t. The district court agreed with respect to Count IV and dismissed that count w ithout 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 itwas sworn, Nystrom filed a Motion to Dismiss the Indictment for Prosecutoria l Misconduct. Nystrom alleged, as he does before this court, that the Ass istant United States Attorney and government investigators threatened witnesses to th e extent that they could not choose to testify truthfully. To resolve Nystrom’s motion, the district court held

an in cameraproceeding in which the court interviewed each of the witnesses to determine whether they had been threatened or coerc ed by the government. Nystrom and his counsel were allowed to be present at the proceeding. The district court ordered counsel for both sides not t o communicate with the witnesses before the in camera proceedings and did not allow counsel for either side to examine or cross-examine the witnesses duri ng 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 SixthAmendment rights had not been violated.1 Jury Instruction number 57 stated that the Prosecut ion has the burden of

proving beyond a reasonable doubt: “That the Defen dant’s submission of a false record concerning the wildlife involved the sale orpurchase 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 orother consideration to offer or provide--(A) guiding, outfitting, or other services ; or (B) a hunting or fishing license or permit; for the illegal taking, acquirin g, 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 t he 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 m ake two separate clarifications. First, the jury asked for a clarif ication 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 closel y or connect.” Second, the jury requested clarification with respect to Count VI an d jury instruction number 29. 2 Specifically, the jury questioned whether the consi deration for the sale of wildlife3 Count VI alleged that on approximately October 31, 1991 and August 31,

1992, Nystrom knowingly sold and transported a buckmule 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, Nyst rom 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 take s 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 t hese 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 prosecuto rial misconduct by threatening and discouraging defense witnesses fromtestifying. He also claims the district court erred when it ordered defense co unsel 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 cameraproceedings, and refused Nystrom’s right to cross-examine witnesses in the p resence of the jury concerning prosecutorial misconduct. Nystrom submitted each of these claims to the distr ict court in his Motion for Judgment of Acquittal, to Dismiss, and for a Ne w Trial. The district court4 Although Nystrom characterized his motion as a Moti on to Dismiss as well

as for Judgment of Acquittal and for a New Trial, h is motion was merely an amalgam and reiteration of his prior arguments befo re the district court regarding prosecutorial misconduct and not in fact a motion t o 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.

5 We 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 cl aim 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 mi sconduct, the district court found Nystrom had not presented sufficient ev idence that the government had engaged in prosecutorial misconduct. The key c ase 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 tr uth; the witness later refused to testify. 5 The Supreme Court held that “the judge’s threaten ing remarks, directed only at the single witness for the defense, effecti vely drove the witness off the stand, and thus deprived the petitioner of due proc ess 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 f reely and voluntarily decide to testify . . . , thus depriving [the defendant] of h is defense.” United States v. Smith , 997 F.2d 674, 679 (10th Cir. 1993). Furthermore, “[j]udges and6Nystrom claims that with respect to one witness, De lbert Parks, his Fifth

and Sixth Amendment rights were violated throughoutthe trial because he was never permitted to interview Parks about the prosec utorial 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 fac e 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 distr ict court found that the government had made no statements “which exerted su ch duress on the witness’ mind as to preclude any one of them from making a f ree 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, otherthan truthfully.” Id. at 5. Because nothing in the record illustrates the gover nment did anything more than admonish witnesses that they would be prosecuted fo r perjury if they testified falsely, the district court did not abuse its discr etion in denying Nystrom’s motion. See Gabaldon , 91 F.3d at 93-94. With respect to Nystrom’s assertion of error regard ing the in camera proceedings, we note the district court first found that the allegations in Nystrom’s motion, standing alone, did not support afinding that the government had engaged in misconduct. Nevertheless, the distr ict court proceeded to conduct its own investigation of the witnesses to determine whether such alleged misconduct had occurred. 6time. We note, however, that the court was unable to interview Parks because he

was out of state. The court thus prohibited counse l 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 defe nse witness, even though the government had offered him use immunity. Because P arks was never called, the prohibition of counsel interviews about that subjec t remained throughout trial. -9- Nystrom presents this court with no precedent or authority supporting his claims that the district court’s method of investig ating charges of prosecutorial misconduct violated his Fifth and Sixth Amendment r ights. The government by analogy relies upon jury misconduct cases. In suchsituations, district courts are accorded broad discretion to develop appropriate pr ocedures for determining the facts necessary to resolve claims of jury misconduc t. 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 pro cedures the district court employed were essentially fair and did not interfer e 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 wer e allowed to interview or examine the witnesses, they were allowed to be pres ent with their clients and suggest questions for the court. Nystrom has faile d 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 f rom the procedures the court utilized in conducting its in camerainterviews 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 s earch 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; can celed checks; bank records[,] including money transfers and depos it records; credit card receipts; hunt contracts; hunt calendars; hunt er client schedules; diaries; advertisements; news letters; hunting repo rts; notebooks; business ledgers; outfitter license records; guide license records; employee records; names; addresses and telephone in formation for outfitter clients; and computer records, including but not limited to information or data stored in the form of electroni c or magnetic coding on computer media or on media capable of bei ng read by a computer or computer related equipment. This inclu des, but is not limited to fixed hard disks and removable hard diskcartridges, laser disks, magnetic tapes, floppy diskettes, and any ot her media capable of storing digital or magnetic coding containing al l 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 r eviewing the lower court’s ruling, we apply the clear error standard to the fi ndings of fact and consider the evidence in the light most favorable to the distric t 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 su fficiently specific. See Andresen v. Maryland, 427 U.S. 463, 478-82 (1976) (broad warrant justif ied where crime involved complex scheme); United States v. Leary , 846 F.2d 592, 600 (10th Cir. 1988) (warrant describing items to b e seized in broad terms may be valid where description is as specific as circumsta nces 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 ter ms was valid when description was as specific as circumstances allowed). The testimony of Special Agent Prieksat, on whose a ffidavit the search warrant was based, supported the proposition that abroad 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 act ed in bad faith and with flagrant disregard for terms of warrant, thus blank et 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 outsi de 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 sear ch of only Nystrom’s business account would have been insufficient. Likewise, ac cording 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. Bec ause of the complex nature of the crime and the investigation in this case, we fi nd the district court did not err in finding that the “description set forth in Attac hment ‘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)-13-

Next, Nystrom argues that 16 U.S.C. §§ 3372(d) and 3373(d)(3), the statutes underlying Nystrom’s conviction of Count V II, are unconstitutionally vague. 16 U.S.C. § 3372(d) provides: “It is unlaw ful 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 inte nded 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) sh all be fined under Title 18, or imprisoned for not more than 5 years, or both, if t he offense involves . . . (ii) the sale or purchase, offer of sale or purchase, or com mission 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, Nyst rom 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 o rdinary people can understand what conduct is prohibited and in a manner that doe s not encourage arbitrary and discriminatory enforcement.” United States v. Meraz-Valeta , 26 F.3d 992, 997 (10th Cir. 1994). In reaching questions of a statu te’s unconstitutional vagueness, our inquiry is whether the statute at issue provide d a defendant with notice or-14-

“fair warning” that the conduct contemplated is for bidden 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 te rm “involves” does not deprive the ordinary person of notice or fair warni ng of prohibited conduct. As the court below noted: “it is clear that when a fa lse 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 se ll or purchase wildlife with a market value exceeding $350.00[,] a violation of th e statutes occurs.” We agree. B. Court’s Response to Jury Inquiry Nystrom also claims that the district court erred i n responding to the jury’s question regarding Jury Instruction Number 57 and the meaning of the word “involve.” Nystrom does not, however, appear to co mplain about the jury instruction itself. The standard of review for rev iewing 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 reviewin g 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 issu es 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 was8Nystrom also appears to argue that his acquittal of Count III and conviction on Count VII are inconsistent. Other th an 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). -15- prejudicial when viewed in light of the entire reco rd.” 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 “involve s”; the court rejected both. Instead, the court gave the jury a definition of th e 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 didnot 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 V I Nystrom next claims that there was insufficient evi dence to support his conviction on Count VI for knowingly and unlawfullyselling and causing to be transported in interstate commerce one buck mule de er 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 areasonable doubt.” United States v. Sullivan , 919 F.2d 1403, 1431 (10th Cir. 1990). In order t o determine whether the evidence supporting Count VI was suffic ient, 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 de monstrates that Byrne provided consideration by staying at the outfitters’ camp, a ssisting Nystrom in providing guide services, and removing the game of other hunt ers. 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 wil dlife” 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 t axidermy services for the deer he shot. Byrne also sent a check for $82.36 t o 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 re asonable jury to find that Byrne gave consideration for the use of Nystrom’s t ag. A reasonable jury could have found that Byrne’s assistance to Nystrom, workat the cabin, and payments to Nystrom for taxidermy services were consideratio n 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 rev iew the record as a whole to determine whether the court’s response stated the g overning 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 instruc tions). We reverse convictions “due to an erroneous [response] only if the error w as 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 a greed upon prior to the beginning of the actual hunt, or could it occur aft er the kill, i.e. , packing the wildlife out?” Nystrom requested the court to answ er 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 thatthey’ve presented me for an answer.” The court indicated that it would admonis h the jury to consider its instructions as a whole and not to speculate otherw ise about the meaning of terms. Nystrom argues that the jury was requesting a clari fication of the timing of the agreement, stating “it is axiomatic that a meet ing of the minds must precede performance to distinguish a sale from a gift provi ded after the fact[, and it is likely that] the jury wondered whether Byrne’s grat uitous payment after the fact could serve as the necessary consideration.” The Lacey Act does not provide a definition of cons ideration or a requirement with respect to the timing of the agree ment for a “sale of wildlife.” Rather, the Act states only that a “sale of wildlif e” occurs when a person offers or provides money or other consideration for guiding o r outfitting services or a hunting license for the illegal taking, transportin g, 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. Consequentl y, the district court provided-19-

the jury with the proper governing law and an under standing of the applicable issues and standards. Furthermore, Nystrom has fai led to show how the district court’s response caused him prejudice. Thus, we fi nd 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 Distric t of Wyoming. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge