Cannon

MEMORANDUM **

David Cannon (“Cannon”) appeals his misdemeanor conviction under the Lacey Act, 16 U.S.C. § 3372 (a)(1), for transportation of wildlife taken in violation of a regulation of the United States. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291 , and reverse.

Cannon killed a coyote on Edwards Air Force Base in violation of Air Force Flight Test Center Instruction 32-8, then dragged the coyote carcass off-base. 1 Instruction 32-8 is not published in the Code of Federal Regulations or the Federal Register.

Cannon argues for the first time on appeal that the unpublished hunting regulations set out in Instruction 32-8 are not regulations for the purposes of the Lacey Act because they were not published. We review for plain error. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir.2006). Cannon’s argument is not persuasive. There is no case or statute to indicate that publication is a defining and necessary characteristic of a federal regulation.

Cannon next argues that, despite clear text prohibiting transport “by any means,” the Lacey Act…