USA v. Kulow et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff,
v.
LAVOY LINTON EBORN,
Defendant.
Case No. 4:24-cr-00200-BLW
MEMORANDUM DECISION
AND ORDER
INTRODUCTION
Before the Court is Defendant Lavoy Eborn’s Motion to Dismiss Counts 3,
4, 5, 6, 8, 9, and 11 (Dkt. 64). For the reasons explained below, the Court will deny
the motion.
BACKGROUND
Mr. Eborn and his two codefendants, Chad Kulow and Andrea Major, face
charges stemming from a series of mountain lion hunts. All three defendants were
licensed hunting guides working for licensed outfitters, but they allegedly acted
outside the scope of their employment in violation of Idaho law. According to the
indictment, Mr. Eborn issued hunt contracts to clients without his outfitter’s
knowledge or supervision under the auspices of an unlicensed business called E-N
Hunting Services. These allegedly unlawful hunts resulted in the killing of at least
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twelve mountain lions in Idaho and Wyoming, and the carcasses were then
transported to other states. Mr. Eborn faces one count of Conspiracy and seven
counts of Lacey Act violation. He now moves to dismiss the Lacey Act charges.
LEGAL STANDARD
Rule 12 of the Federal Rules of Criminal Procedure authorizes a defendant
to move to dismiss an indictment for a variety of reasons, including a
lack of specificity and failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(iii),
(v). On a motion to dismiss for failure to state an offense, “the district court is
bound by the four corners of the indictment.” United States v. Boren, 278 F.3d 911,
914 (9th Cir. 2002). This is a purely legal question, and the court must accept all
factual allegations as true. Id.
When a defendant seeks to dismiss an indictment for lack of specificity, the
Court reviews the indictment “in its entirety” and with “common sense and
practicality.” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007) The test
is not “whether the indictment could have been framed in a more satisfactory
manner,” but “whether it conforms to the minimal constitutional standards.” United
States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009). An indictment meets
constitutional and procedural muster if it “states the elements of the offense
charged with sufficient clarity to apprise a defendant of the charge against which
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he must defend and enable him to plead double jeopardy.” United States v. Hinton,
222 F.3d 664, 672 (9th Cir. 2000).
ANALYSIS
The Lacey Act makes it unlawful for any person “to import, export,
transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or
possessed in violation of any law, treaty, or regulation of the United States or in
violation of any Indian tribal law.” 16 U.S.C. § 3372(a)(1). This is a two-step
inquiry: (1) the wildlife is illegally taken, and (2) the defendant does something to
the illegally taken wildlife. United States v. Carpenter, 933 F.2d 748, 750 (9th Cir.
1991). Mr. Eborn’s motion focuses primarily on the first prong of the analysis,
arguing that the Indictment misstates Idaho law and therefore fails to allege that the
mountain lions were unlawfully taken. The Court considered and rejected a similar
theory asserted months ago by Mr. Eborn’s codefendant. See Dkt. 55. This new
iteration likewise fails to persuade.
In Idaho, a hunting guide must obtain a license and work under the
supervision of a licensed outfitter. Idaho statute makes this relationship explicit:
“‘Guide’ is any natural person who is employed by a licensed outfitter to furnish
personal services for the conduct of outdoor recreational activities directly related
to the conduct of activities for which the employing outfitter is licensed.” Idaho
Code § 36-2102(c). A licensed outfitter, in turn, is any person who “(1) advertises
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or otherwise holds himself out to the public for hire; (2) provides facilities and
services for consideration; and (3) maintains, leases, or otherwise uses equipment
or accommodations for compensation for the conduct of [covered recreational
activities].” Id. § 36-2102(b). Idaho regulations further clarify that “[a] guide
license is valid only while the guide is under the employment of an Idaho licensed
outfitter” and that a guide must act “in the scope of employment.” Idaho Admin
Code r. 24.35.01.103.03, 24.35.01.201.
Mr. Eborn argues that the Indictment materially mischaracterizes the law by
stating that “a licensed guide is only permitted to guide hunts or other regulated
outfitting activities under the direct authorization and employment of a licensed
outfitter.” Dkt. 2 ¶ 3 (emphasis added). This language, he says, is an “executive
fiat” that not only narrows the statute but amounts to prosecutorial misconduct. He
also objects to the Indictment’s representation that “[b]ooking and payment for
regulated outfitting activities, including guided hunts, must be done through the
licensed outfitter.” Id. In his reading, the Indictment alleges no real wrong-doing
because he had a guide license and worked for a licensed outfitter, albeit without
“direct authorization” for the hunts charged in the Indictment.
Mr. Eborn’s characterization of the statutory framework strains credulity,
and his reading of the Indictment stretches its language nearly to breaking-point.
The Indictment provides an accurate explanation of a complex legal scheme. The
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reference to “direct authorization or employment” reasonably sums up the
requirement that a guide must be both employed by an outfitter and acting within
the scope of employment. See Idaho Admin Code r. 24.35.01.103.03,
24.35.01.201. The reference to booking and payment reflects Idaho’s definition of
an outfitter—not a guide—as one who “hold himself out to the public for hire,”
provides “services for consideration,” and “uses equipment or accommodations for
compensation.” Idaho Code § 36-2102(b). Whether “direct authorization”
represents the best possible phrasing of the applicable law is something to quibble
about when crafting jury instructions, not a basis for dismissing the charges. And
to the extent that Mr. Eborn alleges that the charged hunts did in fact take place
under an outfitter’s authorization, that is a question for the jury.
Mr. Eborn’s other complaints are mostly factual disputes inappropriate for a
motion to dismiss. He claims that Count 11 was a personal hunt not conducted for
consideration and that he complied with the state reporting requirements identified
as part of the violation in Count 6. These are determinations for the jury. At this
stage, accepting the facts alleged in the Indictment as true, the Government has
properly brought each Lacey Act count against Mr. Eborn.
The Indictment is also sufficiently specific. It includes extensive details,
such as dates of hunts and information about payments. This is enough to apprise
Mr. Eborn of the charges against him, enable him to prepare an effective defense,
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and allow him to mount a claim of double jeopardy should these same allegations
be used as the basis for subsequent charges.
In short, there is no reason to dismiss the charges against Mr. Eborn, and
there is certainly no basis for his inflammatory allegations of prosecutorial
misconduct.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Defendant’s Motion to
Dismiss Counts 3, 4, 5, 6, 8, 9, and 11 (Dkt. 64) is DENIED.
DATED: November 20, 2025
_________________________
B. Lynn Winmill
U.S. District Court Judge
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