UNITED STATES v. MOLT

Submitted Under Third Circuit Rule 12(6) November 17, 1978.

OPINION OF THE COURT

DUMBAULD, Senior District Judge:

Defendants were indicted in six indictments containing numerous counts charging a conspiracy to smuggle snakes and other reptiles into the United States in violation of the Act of December 5, 1969, 18 U.S.C. 43, commonly known as the Lacey Act. The District Court granted defendants' motion to dismiss counts based upon alleged violations of the law of Fiji and upon alleged violations of the law of Papua New Guinea.

The applicable statute, 18 U.S.C. 43(a)(2), provides in pertinent part:

The District Court held, and we agree, that the foreign laws and regulations referred to in the above passage are laws and regulations designed and intended for the protection of wildlife in those countries.1

This interpretation is plainly supported by the legislative history.

The District Court held a hearing, in accordance with Rule 26.1, FRCrP,3 at which experts on the laws of Fiji and Papua New Guinea testified.

The District Court also held (452 F.Supp. at 1204), and we agree, that the Fiji law is not a law for the protection of wildlife, but a revenue law. The expert witness testified that at the relevant time period Fiji had no laws relating to prohibition of export of wildlife. (App. 20). The general prohibition of all exports, unless the customs formalities are complied with, is simply ancillary to the collection of export duties. The Customs ordinance upon which the Government relies is plainly merely a revenue law and does not trigger the applicability of the Lacey Act.

With respect to the Papua New Guinea law, however, we are satisfied that the pertinent provision does amount to a protection of wildlife. These regulations (see 452 F.Supp. at 1205) deal specifically with "prohibited exports" of "certain goods." They are not, like the Fiji ordinance, applicable to all goods unless customs formalities are complied with. Item 5 in the schedule of prohibited exports refers to "Fauna (other than animal products of the pastoral or fishing industries)." This clearly indicates that protection is contemplated for wildlife other than the conventional products of commercial agriculture and fisheries. The fact that exportation of fauna is allowed if permission of the administrator is obtained does not detract from the protection accorded by the provision. Undoubtedly in appropriate cases it would be in the public interest or for the advancement of science, an international enterprise in the area of herpetology as well as medicine, physics, and other more familiar fields of co-operative international endeavor for the public good, for particular shipments to be authorized. Perhaps even some of defendants' shipments, destined for the Philadelphia zoo, might have been authorized if they had chosen to respect the law of the host state. Not having done so, they cannot complain of the consequences.

The expert witness, an Australian Federal Judge with extensive practical experience (App. 38), definitely stated that the Papua New Guinea regulation under consideration was one for the protection of fauna (App. 40-41). The District Court overlooked the specific character of the testimony given by Judge James Staples and focussed upon the breadth of legislative power delegated to provide for the "peace, order, and good government," of the territory involved.

However, such broad language, akin to the generality of the Preamble to the United States Constitution, while obviously including within its scope the particular area of wildlife protection, does not detract from the specific provisions of the applicable regulations relating to protection of fauna. Those regulations should therefore be deemed to be foreign law of the sort referred to in the Lacey Act.

Therefore the judgment below is affirmed with respect to dismissal of counts based on the Fiji transactions, but must be reversed with respect to counts based on the Papua New Guinea transactions.

The prosecution with respect to the latter counts shall therefore proceed in due course to trial. In this connection we wish to call to the attention of the parties that a prior decision of this Court, U.S. v. Molt, 3d Cir., 589 F.2d 1247, decided on December 28, 1978, held that certain evidence obtained by illegal seizure, together with any "fruit of the poisonous tree" should be suppressed. It is quite possible that elimination of such evidence may impair the viability of the Government's case with respect to the counts which remain for trial. Prudence and conservation of professional time and effort, as well as economy of judicial administration, would seem to require careful analysis of the status of the case by the attorneys involved, and its handling in a manner that will minimize fruitless effort.

Reversed in part and remanded.