## Facts

- Marvin Carpenter owned and operated Carpenter’s Gold Fish Farm, Inc., a large commercial goldfish farm near Merced, California.
- Birds that preyed on the farm’s fish were treated as pests; Carpenter employed workers whose primary job was to kill birds.
- Evidence showed birds were shot, poisoned with sodium cyanide, and trapped; thousands were killed annually between 1983 and 1988, and carcasses were disposed of on the property.
- After a complaint, a state game warden warned that the shooting had to stop; Carpenter later obtained a federal depredation permit authorizing only limited takes of specified migratory bird species.
- Despite the permit, the farm continued killing birds in far greater numbers and including species not authorized by the permit.
- Carpenter submitted annual reports to the U.S. Fish and Wildlife Service reporting the number and type of birds taken under the permit; the 1987 report stated only permitted takes occurred.
- A federal investigation, including former employee testimony, indicated the annual reporting was materially inaccurate.
- A jury in the Eastern District of California convicted Carpenter and the company of (1) making false statements under 18 U.S.C. § 1001, (2) unlawful taking of migratory birds under the Migratory Bird Treaty Act (MBTA), and (3) Lacey Act violations under 16 U.S.C. § 3372 predicated on the MBTA.

## Issues

1. Whether sufficient evidence supported the finding that Carpenter knowingly made a materially false statement in the 1987 annual report, in violation of 18 U.S.C. § 1001.
2. Whether the Lacey Act’s prohibition on “acquir[ing]” wildlife “taken or possessed” in violation of federal law is satisfied by the same act as the initial unlawful killing under the MBTA, or instead requires conduct distinct from and subsequent to the initial taking.
3. Whether the convictions should be remanded for resentencing after reversal of the Lacey Act counts.

## Decision

- Affirmed the § 1001 false-statement convictions.
- Reversed the Lacey Act convictions.
- Affirmed the MBTA convictions.
- Remanded for resentencing under the MBTA in light of the reversal of the Lacey Act counts.

## Legal Principles

- A § 1001 “knowing” false statement may be proved by circumstantial evidence, including a defendant’s operational control, the scale of the underlying conduct, and the implausibility or mechanical regularity of reported figures compared to proved activity.
- Under 16 U.S.C. § 3372, the Lacey Act applies to conduct directed at wildlife that has already been “taken or possessed” in violation of law; it does not automatically criminalize the original unlawful taking itself through the statute’s “acquire” language.
- When some counts of conviction are reversed on appeal, resentencing is appropriate to ensure the sentence reflects only the remaining valid convictions.

## Conclusion

The Ninth Circuit held that the evidence permitted a jury to find Carpenter knowingly filed a false annual depredation report, upheld the MBTA convictions for killing migratory birds beyond permit limits, but rejected the government’s attempt to treat the initial unlawful killing as a Lacey Act “acquisition,” reversing those counts and remanding for resentencing on the remaining offenses.


United States v. Carpenter, 933 F.2d 748 (9th Cir. 1991)