The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it five motions filed by the Government. On April 29, 2011, the Court held an evidentiary hearing, heard argument, and took the motions under advisement. The Court will resolve each motion below.
Defendant Davis is charged with 15 counts, including allegations that he conspired with four others to violate the Lacey Act and committed six separate Lacey Act violations. He is also charged with wire fraud, mail fraud, and bankruptcy fraud, among other charges. The indictment alleges that Davis provided guiding services for hunting clients from his residence at the Trail Creek Lodge without a license in violation of Idaho law and the Lacey Act. The indictment also alleges that Davis (1) sold and transported wildlife in interstate commerce in violation of the Lacey Act; (2) defrauded hunting clients by collecting fees without rendering services, and (3) failed to disclose assets in his Chapter 7 bankruptcy.
The evidentiary hearing concentrated on the Government's motion to preclude Davis from pursuing at trial the advice-of-counsel defense to the bankruptcy fraud charge. At that hearing, the Government called Davis's bankruptcy attorney, Criss James. The defense countered by calling Davis. The Court admitted into evidence 6 exhibits.
Government's Motion to Exclude Defenses of Vendetta and Estoppel
The Government seeks to preclude Davis from raising defenses that (1) the Government waited too long to charge him (the estoppel defense), and (2) a Government agent had a personal bias against Davis (the vendetta defense).
With regard to the estoppel defense, Davis represents that he will not argue that defense. With regard to the vendetta defense, Davis seeks to prove that the agent who pursued him on earlier Lacey Act charges -- Agent Hlavata -- had a personal bias against Davis and was a business competitor who would benefit financially if Davis lost his license and was forced to shut down his guiding business.
The Government responded that it will not be calling Agent Hlavata in its case-in-chief, and concedes that if he does testify, "defendant should be allowed to inquire as to any potential bias or vendetta that Hlavaty had against defendant." See Government Reply Brief (Dkt. 33) at p.
2. Davis makes no showing that the vendetta defense is relevant in the absence of Hlavata's testimony. Because it appears that Hlavata will not testify, the Court will grant this motion. Obviously, the Court's ruling is subject to change if the assumptions on which it is based change, i.e, that Hlavaty testifies.
Motion to Exclude Advice of Counsel Defense
The gist of the Government's evidence and argument is that Davis should be precluded from using the advice-of-counsel defense because the evidence is clear that he failed to make full disclosure to his bankruptcy attorney. For example, the Government argues that Davis failed to tell his bankruptcy attorney about his (1) interest in a five acre parcel of real property, and (2) claim against Karl Malone, among other matters. At the evidentiary hearing, Davis's bankruptcy attorney -- Criss James -- testified that (1) Davis did not tell him that he owned the five acre parcel, and (2) Davis told him that he had transferred his claim against Karl Malone to another person. Other evidence indicated that at the time of the bankruptcy, Davis ...