Illegal Sale of Gators & Eggs Addressed by Florida’s Second District

The Second District has addressed the illegal collection and sale of alligators and their eggs under section 379.409, Florida Statutes, in two interesting opinions published this year.

In Nichols v. State, 312 So. 3d 530 (Fla. 2d DCA 2021), the court reversed Wayne Nichols’ convictions for illegally killing, possessing, or capturing alligators under section 379.409 because jury instructions given at trial were incomplete, misleading, and confusing.

Nichols had been licensed by the Florida Fish and Wildlife Conservation Commission to operate an alligator farm.  Although Nichols was permitted to capture and kill alligators under his license, he still needed to comply with FFWC’s rules and regulations, which included documenting in detail what was done with each alligator.  After allegedly failing to properly document several alligators on his farm, he was charged with being in illegal possession of alligators, a violation of section 379.409(1).  That statute provides, in relevant part,  that “[i]t is unlawful to intentionally kill, injure, possess, or capture, or attempt to kill, injure, possess, or capture, an alligator or other crocodilian, or the eggs of an alligator or other crocodilian, unless authorized by the rules of the Fish and Wildlife Conservation Commission.” (emphasis added).

Nichols’ defense was that he was licensed to take the alligators despite having some “minor paperwork issues.”  He claimed that violations of the Administrative Code constituted lesser offenses of the charged crimes.  The trial court instructed the jury on the relevant provisions of the Administrative Code, but declined to include the “unless authorized” language from the statute in the jury instructions.  The Second District held that this omission rendered the instructions to the jury incomplete, misleading, and confusing.  Nichols’ convictions for illegal possession of alligators were reversed and remanded for a new trial.

More recently, in Pickle v. State, 2021 WL 4805034 (Fla. 2d DCA 2021), the Second District affirmed Carl Wayne Pickle, Jr.’s convictions for illegally killing, possessing, or capturing alligators or their eggs under section 379.409.  However, the court vacated his conviction for conspiracy to commit racketeering because, as of the date of Pickle’s offenses, illegally harvesting alligator eggs did not constitute a predicate offense for the crime of racketeering.

The court explained that FFWC had been secretly operating a licensed alligator egg processing facility called Sunshine Alligator Farms in an effort to crack down on the illegal collection and sale of alligator eggs.  A licensed egg collector approached an undercover FFWC officer who was operating the farm, offering to teach him about the alligator business in exchange for use of the facility.  The egg collector, in turn, hired Pickle to help collect eggs.  Although Pickle had previously been licensed to trap alligators, Pickle was not properly licensed for the 2016 season with which he was hired to assist.  Evidence was also presented that he—along with the egg collector, the undercover officer, and his codefendant—had collected eggs in excess of permit limits.

The Second District held that the State had failed to prove that Pickle had committed an underlying predicate offense for the crime of conspiracy to commit racketeering.  Pickle’s illegal taking of alligator eggs could not constitute the predicate offense of theft “because no individual person owned the alligator eggs while they were in the nests—neither the private landowners nor the State.”  The court explained that a landowner does not acquire an interest to wildlife on his own land unless and until it is in his actual possession.  And although the State has the authority and right to regulate and protect wildlife, it does not have a property right in the wildlife either.

Moreover, as of the date of Pickle’s offenses, the illegal harvesting of alligator eggs was not one of the enumerated offenses set forth by the legislature as predicate acts that could form the basis of a racketeering conviction.  Accordingly, the Second District reversed Pickle’s conviction for conspiracy to commit racketeering.  However, the court did note that the racketeering statute has since been amended to include illegal sale, purchase, collection, harvest, capture, or possession of wildlife in the definition of racketeering activity.

The court also held that Pickle was not entitled to a jury instruction on the misdemeanor offense of collecting alligator eggs without a license and permit as a lesser included offense of illegally killing, possessing, or capturing alligators or their eggs.  The court reasoned that it was not a necessarily lesser included offense and the criteria for it to be presented as a permissive lesser included offense had not been met.  Accordingly, the court affirmed Pickle’s convictions for illegally taking alligator eggs.

The full opinions are available here:

Nichols v. State

Pickle v. State