MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL N.O.V.

STEARNS, District Judge.

On April 11, 2011, at the conclusion of a five-day trial, defendant Stephen Delaney was convicted of one felony count of false labeling of fish in violation of the Lacey Act, 16 U.S.C. §§ 3373(d)(2) and 3373(d)(3)(A) and one lesser (misdemeanor) count of false labeling of fish in violation of the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 331(a), 333(a)(2) and 343(a)(1). A felony conviction under the Lacey Act requires proof that a defendant: (1) knowingly made or submitted a false record, account, or label for, or false identification of fish; (2) that had been or were intended to be transported in interstate or foreign commerce; and (3) that the making or submission of a false record, account or label for, or false identification of fish, involved the sale or purchase of, or offer of sale or purchase of, fish with a market value greater than $350. A misdemeanor conviction under the FDCA requires proof that a defendant: (1) knowingly introduced or delivered for introduction into or receiving in interstate commerce food; (2) that was misbranded. Delaney now renews his motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c). A hearing on the motion was held on June 28, 2011.

The standard for a judgment n.o.v. is a familiar one. "A federal court may not set aside a jury verdict and direct the entry of a contrary verdict unless no reasonable jury could have returned a verdict adverse to the moving party." Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1483 (1st Cir.1994). A verdict will be set aside only if "after examining the evidence of record and drawing all reasonable inferences in favor of the nonmoving party, the record reveals no sufficient evidentiary basis for the verdict." Zimmerman v. Direct Fed. Cred. Union, 262 F.3d 70, 75 (1st Cir.2001). In reviewing a motion for judgment n.o.v., the court "may not weigh the evidence, undertake credibility determinations, or engage in differential factfinding." Id. "In the end, the jury's verdict must stand unless the evidence, taken in the light most favorable to the prevailing party, points unerringly to an opposite conclusion." Id.

I will turn to Delaney's first argument for acquittal on the Lacey Act conviction as it is the easier to resolve. Delaney looks not to the operative sections of the statute itself, but to its definition of the meaning of "fish or wildlife." Section 3371(a) of the Lacey Act defines "fish or wildlife" as:

According to Delaney, "[t]he plain language of this definition includes animals that were `bred, hatched, or born in captivity,' but it does not include animals that spent their entire lives in captivity and which never lived in the wild." Def.'s Mot. J. of Acquittal at 2. As the fish that figure in Count 4 were pollock, for which no evidence was offered by the government suggesting that they ever "lived outside of captivity," Delaney contends that the government failed to establish an essential element of its case.1 Id. at 7.

Assuming for purposes of argument that the § 3371(a) definition of "fish or wildlife" is an element of a criminal offense under the Lacey Act, the court disagrees with Delaney's contention that an animal at some point in its life span must live in a natural state to be deemed "wild." This notion is both unworkable in practice and contrary to the accepted biological distinction between wild and domesticated animals. "Domestication" is defined by the Britannica Concise Encyclopedia (among other sources) as the

Under Delaney's proposed definition of what it means to be wild, a domestic animal, say a house cat, that is separated from its owner and lives in a feral state, however briefly before finding its way home, would be classified as wildlife, while a lion that is born and raised in captivity and spends its life in a zoo would be classified as a domestic animal. The pollock at issue here, whether raised in a pen or caught on the high seas is an unmastered species that has not been bred to live under human care and therefore meets any reasonable biological definition of what it means to be a "wild" animal.

Delaney's second argument is conceptually the more difficult and is directed at the felony provisions of Count 4. Section 3372(d) of the Lacey Act makes it unlawful to falsely identify imported fish. Section 3373(d)(3), which sets out the penalties for a violation of § 3372(d), provides that a knowing violation of the statute shall be punished as a felony if:

As Delaney reads the statute, it requires proof of two elements: (1) that the fish were previously imported or transported in interstate commerce; and (2) that the charged offense involved the import, export, purchase, or sale of the fish. Conceding the interstate commerce element, Delaney argues that the statute separates persons like himself who simply mislabel fish fillets (misdemeanants) from persons like Thomas Katz (the government's cooperating witness) who import and sell the mislabeled product (felons).2 Delaney frames the issue as follows:

Def.'s Supplemental Mot. J. of Acquittal at 4-5. The ellipsis in the second quoted sentence is telling. The court's instruction continued in its entirety: "or involved the sale or purchase of fish with a market value greater than $350." (emphasis added). The natural reading of the statute defines a misdemeanor as an offense that (1) involves (relates to) misbranded fish that has not been imported or exported, subpart (3)(A)(I), or (2) misbranded fish that has been imported or exported, but has a commercial of less than $350, subpart (3)(A)(ii). This reading is consistent with the structure of § 3372(d), which sets out in the disjunctive (as does § 3372(d)(3)), the separate elements of either import or export of fish involving a foreign country or the transport of fish in interstate commerce. In the latter respect, subpart (3)(A)(ii) simply tracks other federal criminal statutes that set a minimum dollar amount as establishing federal jurisdiction, see, e.g., 18 U.S.C. § 2314 (interstate transportation of stolen property—value of $5,000 or more, a felony), or as defining the distinction between a felony and a misdemeanor offense, see, e.g., 18 U.S.C. § 1711 (misappropriation of postal funds—if $1,000 or less, a misdemeanor).

ORDER

For the foregoing reasons, defendant's motion for judgment of acquittal N.O.V. is DENIED.

SO ORDERED.