OPINION AND ORDER
FOGEL, District Judge.
On August 4, 1977, the Grand Jury returned a thirty count indictment charging defendants with numerous statutory violations arising from an alleged conspiracy to smuggle snakes and sundry other reptiles into this country.
Although we do not find it necessary to rule on the constitutionality of the Lacey Act, defendants' motion will be granted in part for the reasons set forth fully below.
I. THE INDICTMENT:
The charges in the indictment which are relevant to the present issue may be summarized as follows:
1. From 1973, to 1974, defendant Molt owned and operated the Philadelphia Reptile Exchange of Willow Grove, Pennsylvania, which engaged in the business of buying and selling reptiles and animals.
2. Defendant Christensen, an amateur herpetologist, accepted Molt's invitation to accompany him during the summer of 1973, on a world-wide trip for the purpose of collecting reptiles for personal gain and profit.
3. Defendant Udell, also an amateur herpetologist, managed the Philadelphia Reptile Exchange during Molt's absence from about June 23, 1973, until early August of 1973.
4. During June, 1973, Molt and Christensen made numerous shipments from Fiji to the Sacramento City Zoo, California, of reptiles collected in Fiji. Upon arrival, the reptiles were forwarded to Udell at the Philadelphia Reptile Exchange.
5. During July, 1973, Molt and Christensen purchased reptiles in Papua New Guinea. Some of the reptiles were sent to the Philadelphia Zoo; some were sent to Willow Grove, Pennsylvania. The others were
6. During the fall of 1973, Molt and Christensen transported some of the reptiles they had sent to the Philadelphia Reptile Exchange from Fiji, Hong Kong and New Guinea, to zoos in Washington, D. C., New York, Texas, and Pennsylvania.
7. Defendants never obtained any permit or authorization from the Fiji Custom Service, Exchange Control Ordinance, Suva, Fiji, or the Conservatory of Fauna, Department of Agriculture, Stock and Fisheries, Port Moresby, Papua New Guinea, which would have permitted their acquisition and exportation of reptiles in Fiji and Papua New Guinea respectively.
II. THE ACT:
The Lacey Act provides in pertinent part as follows:
III. ASSIMILATION OF FOREIGN LAW:
Defendants contend that because the Act assimilates foreign laws without limitations similar to those imposed on Congress by our Constitution, the statute must be held to be unconstitutional. Although we do not accept this conclusion, we do find that the instant case does not fall within the ambit of the Act.
In reaching our decision we are mindful of the possibility that the foreign laws assimilated by the Lacey Act could conflict with constitutional guarantees. However, it is well settled that courts are bound to uphold the validity of a statute when a reasonable construction of the statute removes constitutional impediments. United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 803, 98 L.Ed. 989 (1954). Hence, the mere fact that a foreign law could prove unconstitutional does not in and of itself provide a sufficient basis for invalidating the statute. The Supreme Court, in United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958), stated the following with respect to such an approach:
We do not believe that Congress intended to attach substantial criminal sanctions
A Senate Report was issued in connection with the 1969 Amendments to the Lacey Act which described the underlying purpose of the Act as follows:
Thus, the underlying purpose of the Act is to protect and preserve the endangered wildlife species of the United States and foreign countries. In view of this specific expression of legislative intent, and the requirement that criminal statutes be strictly construed,
A. FIJIAN LAW:
A hearing was held in the present case to ascertain the precise character and substance of the foreign laws which were allegedly violated.
1. It prohibits the exportation of any goods, other than passenger's baggage, unless an export entry is made for such goods — (N.T. p. 13);
2. It requires the payment of duties in connection with the exportation of goods — (N.T. p. 13);
3. Its purpose is to facilitate the collection of duties on exportation of goods— (N.T. p. 20); and
4. It had not been amended as of January, 1978 — (N.T. p. 22); Robin Nair also testified that in June, July, and August of 1973, (the time period during which the defendants allegedly illegally exported wildlife from Fiji), Fiji did not have any laws prohibiting the exportation of wildlife — (N.T. p. 20).
In view of this unrebutted testimony, we find that the Fijian law which the defendants allegedly violated was a revenue law, and not a law designed for the protection of wildlife. Accordingly, we hold that
B. PAPUA NEW GUINEA LAW:
At the same hearing, Judge James Staples, an Australian Federal Judge, and a member of the Bar of the High Court of Australia testified as to the alleged violations of the law of Papua New Guinea, Customs Prohibited Regulation, 1973, Regulation 2, Item 5,
1. This law, as well as all other laws of Papua New Guinea, derived from legislation created by the Parliament of Australia — (N.T. p. 34);
2. The Papua New Guinea Act of 1949 to 1973, enacted by the Parliament of Australia, created a House of Assembly in Papua New Guinea — (N.T. p. 34);
3. As of 1963, the House of Assembly of Papua New Guinea possessed the power to make ordinances for the peace, order and government of New Guinea with the exceptions of the areas of national defense and foreign affairs — (N.T. p. 35);
4. The House of Assembly of Papua New Guinea enacted legislation granting legislative authority to an Administrator to promulgate regulations for the peace, order and government of New Guinea — (N.T. p. 35);
5. To the best of his knowledge there is no legal decision or doctrine delimiting the scope of the grant of legislative power "for the peace, order and government" of New Guinea — (N.T. p. 43);
6. Papua New Guinea Customs Prohibited Regulation 2, Item 5 was promulgated by the Administrator pursuant to his power to promulgate rules for the peace, order and government of Papua New Guinea — (N.T. p. 41);
7. In Judge Staples' opinion, Customs Prohibited Regulation 2, Item 5 was designed
Despite Judge Staples' opinion regarding the underlying purpose of this Regulation, we find that the Government has failed to prove beyond a reasonable doubt that it was designed for the protection of wildlife.
An order will be issued dismissing those counts of the indictment based solely upon defendants' alleged violations of the laws of Fiji and Papua New Guinea.
FootNotes
(d) Any person who knowingly and willfully violates any provision of subsection (a) or (b) of this section shall, upon conviction, be fined not more than $10,000 or imposed for not more than one year, or both.
(e) Any wildlife or products thereof seized in connection with any knowing and willful violation of this section with respect to which a penalty may be imposed pursuant to subsection (d) shall, upon conviction of such violation, be forfeited to the Secretary to be disposed of by him in such manner as he deems appropriate. . . .
See also, Mourning v. Family Publications Service, 411 U.S. 356, 375, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 97 L.Ed. 260 (1952); McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917).
Reg. 2 SCHEDULE.
Item No. Description of Goods Nature of Conditions (etc.)
or Name of Person to Give
Permission.
* * *
5. Fauna (other than animal products Permission of the
of the pastoral or fishing Administrator
industries)
Comment
User Comments