Environmental Crimes Bulletin September 2023 Week 4

In this issue:

• United States v. Pedro Gavino, et al., No. 1:18-CR-00231 (E.D. Calif.), AUSA Karen Escobar
• United States v. Didion Milling, Inc., et al., No. 3:22-CR-00055 (W.D. Wisc.), ECS Trial Attorney Charlie Lord, ECS Senior Trial Attorney RJ Powers, ECS Trial Attorney Joel LaBissonniere, and ECS Paralegal Chloe Harris
• United States v. Jennifer M. Payne, No. 4:23-CR-03068 (D. Neb.), AUSA Tessie Smith
• United States v. XionWei Xiao, et al., No. 3:23-CR-00983 (S.D. Calif.), AUSA Melanie Pierson

United States v. Pedro Gavino, et al., No. 1:18-CR-00231 (E.D. Calif.), AUSA Karen Escobar

On September 25, 2023, a court sentenced Pedro Gavino to 87 months’ incarceration followed by 36 months’ supervised release. Gavino pleaded guilty to selling firearms without a license and conspiring to violate the Animal Welfare Act by selling gamecocks and participating in cockfighting events (18 U.S.C. §§ 922, 371). The court dismissed charges against Gavino’s father, Pedro Gavino-Robles.

Between February 2017 and October 2018, Gavino negotiated the sale of 28 firearms at Gavino’s ranch in Orosi, California, and at several gas stations in Selma, California. He sold 24 weapons, including AR-15-type pistols and AR-15-type short-barreled rifles that had been privately made using unfinished receivers, also known as “ghost guns.”

On February 14, 2018, during one of the illegal gun transactions, Gavino sold two American Game Fowl-type birds, commonly used for cockfighting and six Mexican slashers (also known as short knives) which are attached to a rooster’s legs during fights.

On April 15, 2018, Gavino brought five gamecocks to a large cockfighting event in an orchard in Orosi where 200 to 300 spectators gathered. After two of the defendant’s gamecocks fought and won, there was a dispute, gunshots were fired, and the crowd dispersed.

While executing a search warrant at Gavino’s ranch in October 2018, agents found 128 gamecocks, 30 hens used for breeding gamecocks, and 278 Mexican slashers.

The Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. Department of Agriculture-Office of Inspector General conducted the investigation, with assistance from the California Highway Patrol and the Fresno Police Department Multi-Agency Gang Enforcement Consortium.

United States v. Didion Milling, Inc., et al., No. 3:22-CR-00055 (W.D. Wisc.), ECS Trial Attorney Charlie Lord, ECS Senior Trial Attorney RJ Powers, ECS Trial Attorney Joel LaBissonniere, and ECS Paralegal Chloe Harris

On September 29, 2023, Didion Milling, Inc. (DMI) pleaded guilty to violations related to an explosion that killed five employees and wounded others. Former shift manager Joel Niemeyer pleaded guilty September 26, 2023, to conspiring to falsify documents in matters under the jurisdiction of the Occupational Health and Safety Administration (OSHA) and the U.S. Environmental Protection Agency (EPA). Former shift supervisor Anthony Hess pleaded guilty on September 19, 2023, to obstructing an OSHA proceeding by making false statements to OSHA and the Department of Labor.

DMI owned and operated a corn mill in Cambria, Wisconsin. Corn dust is combustible and can fuel explosions if mixed with air in a sufficient concentration and exposed to an ignition source. OSHA standards require grain facilities to develop and implement effective “housekeeping” programs to remove accumulations of dust and prevent explosions. EPA regulations further required DMI to operate and maintain baghouses to reduce grain dust emissions. DMI’s failure to comply with these standards caused the deaths of five employees following an explosion at the mill on May 31, 2017.

DMI, vice president of operations Derrick Clark, and former food safety superintendent Shawn Mesner conspired to commit fraud by concealing these activities, including falsifying the cleaning logbook to conceal the fact that DMI failed to follow its written cleaning policy. This enabled the company to maintain its food safety certification and continue to sell its products to food and beverage manufacturers (18 U.S.C. § 1349, 1505, 1519, 1001(a)(3)).

DMI, as an employer under the OSH Act, willfully violated the housekeeping safety standards and caused the death of its five employees in the May 2017 explosion (29 U.S.C. § 666(e)). DMI, Clark, Mesner, and co-defendant Joel Niemeyer, conspired to conceal unsafe conditions from auditors and government agencies. This included falsifying cleaning logs and baghouse monitoring logs, submitting false environmental compliance certifications, and providing false testimony to government officials. Clark and DMI also obstructed justice by providing false and misleading testimony concerning their knowledge of combustible dust hazards at DMI to OSHA following the May 2017 explosion. A jury convicted Clark, Mesner and Niemeyer on October 13, 2023.

The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.

United States v. Jennifer M. Payne, No. 4:23-CR-03068 (D. Neb.), AUSA Tessie Smith

On September 29, 2023, a court sentenced Jennifer M. Payne to pay a $5,000 fine, complete a two-year term of probation, perform 100 hours of community service, and pay $5,000 in restitution to the Nebraska Game and Parks Commission. While under supervision, Payne is prohibited from hunting, fishing, trapping, or any involvement in guiding or outfitting services. She pleaded guilty to violating the Lacey Act (16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(2)).

In September 2019, Payne conducted a guided mule deer hunt during the archery season. During the hunt, Payne unlawfully shot a mule deer in Lincoln County, Nebraska, and subsequently caused the shipment of unlawfully taken trophy deer parts to a commercial tannery in Michigan.

This case is part of ongoing prosecutions related to violations committed by Noble Outdoors and its owner, associates, and clients between 2015 and 2021. In total, 18 defendants have been sentenced and ordered to pay more than $75,000 in fines and restitution for state and federal violations related to the interstate transport of unlawfully taken wildlife, shooting deer from the road, taking deer and pronghorn without a valid permit, taking deer with a firearm during archery season, taking deer during night-time closed season hours, dumping carcasses in waters of the state, hunting without permission, and improperly checking or registering big game.

The U.S. Fish and Wildlife Service Office of Law Enforcement and the Nebraska Game and Parks Commission Law Enforcement Division conducted the investigation.

United States v. XionWei Xiao, et al., No. 3:23-CR-00983 (S.D. Calif.), AUSA Melanie Pierson

On September 29, 2023, a court sentenced XionWei Xiao to time-served followed by three years’ supervised release. Xiao also will pay $10,222 in restitution to Procuraduria Federal de Proteccion al Ambiente, the Mexican governmental entity responsible for protecting the environment of Mexico. Xiao and Zunyu Zhao pleaded guilty to conspiring to illegally import sea cucumbers. Zhao also pleaded guilty to smuggling and is scheduled for sentencing on November 17, 2023 (18 U.S.C. §§ 371, 545).

Between May 2017 and February 2019, Zhao and Xiao conspired to illegally import sea cucumbers, a species protected under Appendix III of the Convention on International Trade in Endangered Species, without the appropriate permits and documentation.

In May 2017, authorities stopped Zhao at the Calexico Port of Entry, where he was attempting to smuggle 11.50 kilograms of sea cucumbers into the United States. In February 2019, Zhao was stopped once again with 2 kg of undeclared sea cucumbers. Between 2017 and 2019, Zhao and Xiao exchanged messages and photos as proof for Xiao of each shipment Zhao smuggled into the United States. Using a calculation of $435 per kilogram, the court determined the total fair market value of the trafficked sea cucumbers to be $10,222.

The U.S. Fish and Wildlife Service Office of Law Enforcement, Homeland Security Investigations, and Customs and Border Protection conducted the investigation.

Environmental Crimes Bulletin