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United States v. Macinnes

United States District Court, E.D. Pennsylvania

May 30, 2014


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Juan R. Sánchez, J.

In November 2013, following a jury trial, Defendants Robroy MacInnes and Robert Keszey were convicted of participating in a conspiracy to traffic in illegally obtained animals; MacInnes was also convicted of trafficking in illegally obtained animals in violation of the Lacey Act. Both Defendants have filed motions for a new trial under Federal Rule of Criminal Procedure 33, raising a variety of evidentiary and legal errors that allegedly deprived them of a fair trial.[1] For the reasons set forth below, the Court finds Defendants are not entitled to a new trial, and their motions will be denied.


On November 13, 2012, Defendants Glades Herp Farm, Inc. (Glades), MacInnes, and Keszey were charged in a two-count indictment. Count One of the indictment charged all three Defendants with conspiracy to traffic in illegal animals, including the Eastern Timber Rattlesnake (referred to herein as timber rattlesnakes or timbers).[2] Count Two charged MacInnes and Glades with purchasing protected timber rattlesnakes, knowing those snakes were illegally collected from the wild in New York, in violation of the Lacey Act. Glades, based in Bushnell, Florida, was MacInnes and Keszey's business, which bought and sold reptiles and other exotic animals.[3]

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In July 2008, two individuals from New York, Darren Paolini and Justin Munsterman,[4] collected two adult timber rattlesnakes from the wild in New York without a permit. The next month, each of those rattlesnakes gave birth to clutches of eleven or twelve babies. Munsterman then sold two of the babies to an undercover agent from the New York Department of Environmental Conservation (NY DEC), Lieutenant Richard Thomas. During this transaction, Munsterman told Thomas he intended to sell the additional timber rattlesnakes to Glades, which piqued Thomas's interest and prompted the authorities to monitor Glades's website. Not long after Munsterman sold the snakes to Thomas, N.Y. DEC investigators and Special Agent Randy Cottrell of the U.S. Fish and Wildlife Service observed that the inventory of timber rattlesnakes on Glades's website had increased.

Loren Zuck, the chief government witness in the case, began working as Glades's agent starting in the early 2000s, often manning a table sponsored by Glades at reptile shows held multiple times per year in Hamburg, Pennsylvania. During these shows, Zuck was in frequent contact with Defendants because he was not allowed to buy or trade animals without the permission of one of Glades's proprietors. Munsterman and Paolini knew Zuck through the reptile shows and contacted him in August 2008 to determine whether Glades would be interested in purchasing the adult timber rattlesnakes or their offspring. Zuck testified that after contacting Defendants regarding Munsterman and Paolini's proposed transaction, they authorized Zuck to purchase the timbers, with the understanding that he would then ship those snakes to Glades. On September 21, 2008, Paolini and Munsterman met with Zuck in Easton, Pennsylvania, and gave him two adult timber rattlesnakes and the remaining babies in exchange for approximately $900 in Glades store credit. Later that day, Zuck shipped all but two of the juvenile timber rattlesnakes from Philadelphia to Tampa, Florida, where MacInnes received and signed for the shipment.[5] Approximately two weeks later, on October 8, 2008, Keszey shipped 20 timber rattlesnakes to an associate in Germany because, as Zuck testified, timber rattlesnakes are more valuable in Europe than in the United States.

During trial, the defense maintained that Zuck did not actually send the timber rattlesnakes he purchased from Paolini and Munsterman to Glades in Florida, and the September 21, 2008, shipment contained other reptiles. According to the defense, facing criminal charges and under pressure from the Government, Zuck manufactured the story against Keszey and MacInnes. Defendants also argued Glades had a number of other, legal sources for timber rattlesnakes and the snakes Glades sold in the fall of 2008 came from one of these alternative sources.

To counter Defendants' alternative-source theory, the Government called Kristen Wiley, who, along with her husband, James Harrison, is employed by the

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Kentucky Reptile Zoo. Wiley testified that in January 2008, she and Harrison shipped to Glades rock rattlesnakes and two clutches of juvenile timber rattlesnakes that had been born in the zoo. Wiley testified she and Harrison only engaged in that single transaction with Glades, and the snakes at issue in this case could not have been the same snakes from the January 2008 transaction given the age differences and different markings between the timbers sent by the Kentucky Reptile Zoo and the timbers offered for sale by Glades in the fall of 2008. On cross-examination, Defendants attempted to suggest Harrison could have surreptitiously included other adult timber rattlesnakes in the shipment, but Wiley stated this would not have occurred without her knowledge. During closing, Defendants argued that Harrison was Keszey's personal contact for timber rattlesnakes, but MacInnes may have had other contacts, including defense witness Eric Timaeus.


Under Federal Rule of Criminal Procedure 33, a district court " may vacate a judgment and order a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A court may grant a motion for new trial if it finds errors occurred during the trial and these errors " when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial." United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993). Harmless errors that do not deprive a defendant of a fair trial provide no basis for granting a defendant's Rule 33 motion. Id. The defendant bears the burden of proving a new trial should be granted, and must therefore show " (1) that error occurred at trial, and (2) that error had a substantial influence on the verdict." United States v. Amirnazmi, 648 F.Supp.2d 718, 720 (E.D. Pa. 2009), aff'd, 645 F.3d 564 (3d Cir. 2011). Motions for a new trial are disfavored and " only granted with great caution and at the discretion of the trial court." United States v. Martinez, 69 F.App'x 513, 516 (3d Cir. 2003).

Defendants raise many purported errors in an effort to gain a new trial. Although asserted errors will be addressed individually below, the errors generally fall within the following categories: (1) improperly admitted evidence; (2) improper prohibitions on lines of questioning and improperly excluded evidence; and (3) jury instructions errors. MacInnes also contends that during closing the Government improperly commented on his Fifth Amendment right to remain silent.

A. Admitted Evidence

1. Munsterman's Statement of Intent

First, Defendants maintain that the Court improperly admitted a statement made by Justin Munsterman under the hearsay exception found in Federal Rule of Evidence 803(3). Prior to trial, the Government moved in limine for a ruling permitting it to introduce, through Lieutenant Thomas, a statement Munsterman made to Thomas while Thomas was acting undercover. Munsterman sold two timber rattlesnakes to Thomas and then told Thomas he was planning on selling the other snakes in his possession to Glades. By Order of November 7, 2013, the Court ruled that Munsterman's statement to this effect was admissible under the state of mind exception found in Rule 803(3). Defendants now contest the admission of the following testimony:

Q. Did Mr. Munsterman say there were additional snakes?
A. Yes, he did.
Q. What did he say he was intending to do with those additional snakes?
A. He said those additional snakes were going to [Loren Zuck] in Pennsylvania

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that ran the Glades Herp's booth and he and another individual were selling those ...

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