## Facts

- The United States charged William R. Kapp in a 28-count indictment arising from transactions involving meat and hides from endangered animals, including big cats protected by the Endangered Species Act (ESA), and related violations under the Lacey Act.
- After an eight-day jury trial, the jury found Kapp guilty on 17 counts and not guilty on the remaining counts.
- Kapp moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing the evidence and the law did not support the convictions.
- In the alternative, Kapp moved for a new trial under Rule 33, asserting that errors at trial (including legal and instructional issues tied to mental state) required a retrial.
- A central dispute concerned the ESA’s criminal mental-state requirement: Kapp contended the government had to prove more than that he knowingly engaged in the conduct that constituted a “take” or unlawful trafficking—he argued, in substance, that he lacked the required knowledge because he believed the ESA did not cover the animals or the conduct at issue.
- Kapp also sought to present a public-authority (or related official-authorization/reliance) defense. He claimed he relied on (1) a United States Fish and Wildlife Service (USFWS) fact sheet that he said led him to believe the animals he killed, processed, and sold were not subject to the ESA, and (2) assurances from personal acquaintances within USFWS that his conduct was lawful.
- Several charged counts concerned conduct that occurred before the USFWS fact sheet was published and before the claimed conversations with USFWS acquaintances took place.

## Issues

1. Whether the trial evidence, viewed in the light most favorable to the government, was sufficient to sustain Kapp’s convictions under the ESA and the Lacey Act (Rule 29).
2. Whether the interest of justice required a new trial based on claimed legal and trial errors, including challenges tied to the ESA knowledge requirement and related jury instructions (Rule 33).
3. Whether the ESA required proof that Kapp knew his conduct was unlawful or otherwise had a “criminal objective,” as opposed to proof that he knowingly engaged in the acts that constituted the offenses.
4. Whether Kapp made a sufficient showing to present a public-authority (or similar official-authorization/reliance) defense where his claimed sources of authorization post-dated some charged conduct and were based on a general agency fact sheet and informal statements by acquaintances.

## Decision

- The court denied Kapp’s Rule 29 motion for judgment of acquittal.
- The court denied Kapp’s Rule 33 motion for a new trial.
- The court rejected Kapp’s argument for a heightened ESA mens rea requirement and upheld the government’s theory that the ESA did not require proof that Kapp knew his conduct was unlawful or acted with an independent “criminal objective.”
- The court upheld the challenged approach to proving knowledge, including permitting the jury to infer knowledge tied to the animal’s identity from evidence that the animal Kapp acted upon appeared to be a tiger or leopard.
- The court ruled Kapp had not made the threshold showing required to present a public-authority (or similar) defense to the jury, particularly where the fact sheet and alleged assurances did not precede much of the charged conduct and did not amount to clear, authoritative authorization.

## Legal Principles

- A Rule 29 motion is denied if, taking the evidence in the government’s favor, a rational jury could find the elements of the offenses beyond a reasonable doubt.
- A Rule 33 motion may be granted only if the interest of justice requires a new trial; it is not a vehicle to relitigate the case absent a showing of serious error or unfairness.
- For ESA criminal liability, “knowingly” focuses on awareness of the defendant’s actions (the conduct constituting the offense), and the government need not prove the defendant knew his conduct was illegal or had a separate “criminal objective.”
- In proving the required knowledge tied to the act and the animal involved, the jury may be permitted to draw a commonsense inference (or permissive presumption) from evidence about the animal’s appearance (for example, that it looked like a tiger or leopard).
- A public-authority/official-authorization (including entrapment-by-estoppel style reliance) defense requires a substantial preliminary showing of a clear, affirmative assurance or authorization from a government official with actual authority, and reasonable reliance by the defendant.
- General agency materials and informal statements—especially when they occur after the charged conduct—do not ordinarily supply the concrete, timely, authoritative basis needed to submit a public-authority or official-authorization defense to the jury.

## Conclusion

The district court left Kapp’s 17-count jury verdict in place, denying acquittal and a new trial, and held that the ESA’s criminal provisions did not require proof that Kapp knew his conduct was unlawful or acted with a separate criminal purpose; it also found that the proof and instructions on knowledge (including an inference based on the animal’s tiger/leopard appearance) were legally sufficient and that Kapp failed to meet the threshold to present a public-authority defense grounded in a later-issued USFWS fact sheet and informal assurances from USFWS acquaintances.


United States v. Kapp, No. 02 CR 418-1, 2003 WL 23162408 (2003)