United States v. Place , 693 F.3d 219 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1246
UNITED STATES,
Appellee,
v.
DAVID L. PLACE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
J. Martin Richey, Federal Defender Office, for appellant.
Robert G. Dreher, Acting Assistant Attorney General,
Environment & Natural Res. Division, with whom Gary Donner, James
B. Nelson, and Allen M. Brabender, Attorneys, U.S. Dep't of
Justice, Environment & Natural Res. Division, were on brief, for
appellee.
August 21, 2012
THOMPSON, Circuit Judge.
But still another inquiry remains . . . whether Leviathan
can long endure so wide a chase, and so remorseless a
havoc; whether he must not at last be exterminated from
the waters, and the last whale, like the last man, smoke
his last pipe, and then himself evaporate in the final
puff.
Herman Melville, Moby Dick.
David L. Place appeals his convictions for illegally
trafficking in sperm whale teeth and narwhal tusks. Specifically,
a jury found that Place's whale-tooth dealings violated CITES, an
international compact implemented in the United States via the
Endangered Species Act (ESA) and regulations authorized by the
ESA.1 But Place says the district judge should have instructed the
jury on certain lesser-included offenses because he did not
actually know his transactions were illegal, even if he should have
known. He also says his smuggling convictions are legally wrong
because his conduct violated only regulations, not statutes. We
disagree with both lines of argument and therefore affirm.
I. Facts and Background
A. Trafficking in Whale Teeth
For decades, David Place sold various antiques, artifacts, and
Nantucket-related paraphernalia from a shop on the island and,
1
CITES stands for the Convention on International Trade in
Endangered Species of Wild Flora and Fauna, March 3, 1973, 27
U.S.T. 1087; relevant implementing provisions of the ESA may be
found at 16 U.S.C. §§ 1537A, 1538(c)(1); and the Department of
Interior regulations further implementing CITES may be found at 50
C.F.R. §§ 23.1-23.92.
-2-
beginning in the 1990s, over the internet. An apparently lucrative
element of Place's business was selling scrimshawed narwhal tusks
and sperm whale teeth – that is, teeth carved with images and
designs – to wealthy Nantucket tourists eager for a piece of the
island's whaling history. He also sold uninscribed, or "raw,"
teeth to local scrimshanders – artisans who would then carve
designs into the teeth. Place frequently obtained tusks and teeth
– both scrimshawed and raw – over the internet and turned them
around for a healthy profit.
On August 7, 1999, Place received an email from Tim Balda
(apparently a friend of his) informing Place that "Federal Fish and
Game" (apparently the United States Fish and Wildlife Service) had
confiscated a narwhal tusk from him because he did not have "all
the documentation required for it," and that "[t]heir view is that
ALL interstate transport of endangered species parts is illegal.
Old or not, scrimshawed or not." Balda said Fish and Game had
elected not to indict him but that they could: "The fine for the
narwhal tusk could have been as high as $30,000 with a 5 year jail
term attached to it. Whale teeth are not much better in the
punishment department." Place responded to Balda: "Thanks for the
note . . . . I think the time has come to just do private selling
. . . as I don't think anyone wants to go to prison or lose their
shirts for the sake of a few sales."
-3-
Place indeed pursued his "private selling" (which we will
discuss only generally because the details of each individual
transaction are not at issue here). He tracked down suppliers:
Jake Bell, a native of Connecticut who shipped the whale teeth from
Ukraine to a friend in the states whom Place had to meet in person
to pick up the teeth2 ; Greg Logan, a retired Canadian Mounty who
would bring narwhal tusks across the border when visiting his
summer home in Maine; and Andrei "Andy" Mikhalyov, a Ukraine-based
dealer who acquired teeth from local private collections and sold
them to various overseas customers. Place also found buyers:
Nantucket scrimshanders and tourists; an internet customer named
Bill Feeney, who bought 39 pounds of sperm whale teeth; and various
auction-winners on eBay, where he listed his wares surreptitiously
(in Place's words, "[n]ever actually state what they are" but
instead say "they are a nice ivory color" and "a whale of a
deal").3
Over the course of these purchases and sales, Place
occasionally referenced his awareness that he was breaking the law
2
Receipts for the purchase of teeth from Bell listed the
purchased items as "paintings," not teeth.
3
Place regularly had whale-tooth auctions shut down by eBay
on the ground of illegality; his obfuscatory efforts were a
response to these shutdowns. It is also worth noting that the
shutdown notice from eBay included the following admonishment: "The
export/import of marine mammals typically requires CITES as well as
other state and/or federal permits. Users should contact the U.S.
Fish & Wildlife Service and/or National Marine Fisheries Service
before importing or exporting marine mammal products."
-4-
by ignoring permits required by CITES. For example, on May 17,
2001, Place sent an email to Nina Logan, who'd transacted in
narwhal tusks with him: "next time we do this I would like to get
whatever documents I can certifying that these were taken legally,
but for now I have managed without." On May 26, 2002, he had
another exchange with Logan:
Place: ". . . everytime I mention the tusks to anyone
they want to know if they have papers."
Logan: ". . . your customers are very correct in
requesting supporting documentation . . . ."
Place: "I can still sell them without papers to other
customers, but it would be wonderful if everything were
above board with papers, if you know what I mean!"
Around the same time, Logan referred Place to another narwhal-tusk
seller, Ryan Bartlett, who emailed Place: "You are no doubt
familiar if dealing in ivory items of this nature one must have
documentation – this is where the problem arose as I am unable to
provide any formal documentation . . . . I truly do not wish to
create a situation where someone becomes the focus of an
investigation or worse." To that, Place replied: "I have a
customer who could care less about papers and other customers who
require them. . . . I still wish to go ahead with this." And
so he did.
-5-
B. CITES, the Lacey Act, and the Smuggling Statute
The papers Place disregarded were indeed necessary for trade
in sperm whale teeth. CITES, again, is a treaty that the vast
majority of countries, including the United States, have entered
into.4 CITES places different levels of protection on different
species, divided into three Appendices: Appendix I provides the
highest level of protection for the most critically endangered
species, including sperm whales; Appendix II is the intermediate
level and includes narwhals. CITES art. II(1); 50 C.F.R. § 23.4(a)
(2007) (Appendix I); CITES art. II(2); 50 C.F.R. § 23.4(b) (2007)
(Appendix II). Appendix III is not at issue here. Among other
restrictions, an export permit is required for international trade
in specimens of species from either Appendix I or II, CITES arts.
III(2), IV(2); 50 C.F.R. §§ 23.12(a)(1), 23.12(a)(2), 23.15
(2004),5 and an import permit is additionally required for trade in
Appendix I species, CITES art. III(3); 50 C.F.R. § 23.12(a)(1)
(2004). Further, CITES places an absolute ban on international
trade in Appendix I species for "primarily commercial purposes."
CITES art. III(3)(c); 50 C.F.R. § 23.15(d)(7) (2004).
In the United States, CITES has been implemented by the ESA.
4
For a list of member countries, see CITES Member countries,
http://www.cites.org/eng/disc/parties/index.php (last visited July
26, 2012).
5
The CITES regulations were rewritten in 2007; Place's
conduct was governed by the pre-2007 regulations.
-6-
16 U.S.C. §§ 1537A, 1538(c)(1). 16 U.S.C. § 1537 authorizes the
Secretary of the Interior to do all things necessary and proper to
implement CITES; under this authority, Interior has promulgated
regulations. See 50 C.F.R. §§ 23.1-23.92. Each of the CITES
provisions mentioned above has been re-codified in these domestic
regulations (as cited above). This means it is and has been
abundantly clear that international trade in sperm whale teeth and
narwhal tusks requires an export permit, and international trade in
sperm whale teeth requires an additional import permit and cannot
be for primarily commercial purposes.6
Two statutes criminalize violations of CITES and its domestic
counterparts. The Lacey Act creates two levels of criminality: any
person who transports, buys, or sells wildlife in knowing violation
of any law, treaty, or regulation – including CITES, the ESA, and
the CITES regulations – is guilty of a felony; any person who
transports, buys, or sells wildlife that he should have known
6
Place's overarching theory of the case is that he did not
know his conduct was illegal but instead believed that old,
scrimshawed, and Inuit-origin whale teeth were exempt from
regulation. On appeal, his counsel explains this belief further
(while conceding that it is "mistaken"): under the heading
"Exceptions," 16 U.S.C. § 1539(f) allows the Secretary of the
Interior to issue trade permits for raw and scrimshawed teeth taken
before 1973; § 1539(e) allows subsistence whaling by Alaskan
natives. Neither of these provisions even arguably applies to
Place, who is not a native Alaskan (or at least nothing in the
record suggests he is) and who never sought a permit from the
Secretary of the Interior; instead, the very fact that Place was
aware of these completely inapplicable statutory "Exceptions" cuts
in favor of the jury's determination that he knew what he was doing
was illegal.
-7-
violated a law, treaty, or regulation is guilty of a misdemeanor.
16 U.S.C. § 3373(d)(1)-(2). The smuggling statute (titled
"Smuggling goods into the United States") imposes criminal
sanctions on anyone who "receives, conceals, buys, [or] sells . . .
merchandise after importation, knowing the same to have been
imported or brought into the United States contrary to law . . . ."
18 U.S.C. § 545.
C. Customs Bust at JFK Airport & Investigation
Back to the facts: in February 2004, government agents
intercepted a shipment of 548 sperm whale teeth (listed in shipping
documents as "tooth of white whale," undoubtedly a reference to
fictional sperm whale Moby Dick) from Mikhalyov to James Saunders,
who essentially acted as U.S.-based distributor for Mikhalyov. As
agents combed through Mikhalyov's and Saunders's records, they
found that Place had purchased sperm whale teeth from both men
between 2002 and 2004. Consequently, the government turned its
attention to Place.
In the meantime, Mikhalyov, Saunders, and Place exchanged a
flurry of emails. Saunders sent a message noting that even items
that fell under CITES's "exceptions" generally required permits.
After Place professed ignorance in a brief email, Saunders sent
another email apologizing for the first and blaming the whale
teeth's courier for the lack of documentation. Place sent an email
wondering why he was not receiving permit papers if the couriers
-8-
were supposed to be dealing with paperwork; he followed that by
asking about another shipment of teeth due to him. Saunders asked
what kinds of teeth were legal to import; Place disclaimed any
knowledge. Place asked again for CITES paperwork. Mikhalyov
bypassed the CITES question and said he would send more teeth to
Place without involving Saunders; he said he would be careful to
use small packages marked "souvinirs[sic]/carving/lapidary material
or antique ornaments." Place agreed, and things appeared to settle
down for a while.
Then on March 8, 2007, Special Agent Troy Audyatis from the
National Oceanographic and Atmospheric Administration (NOAA) and
two other officers visited Place at his home on Nantucket. They
interviewed Place for three hours, resulting in a handwritten sworn
statement from Place that he believed "raw teeth without documents
must be 100 years old for importation. Scrimshawed teeth must be
1972 or older for import. Any native peoples (Inuit) pieces of any
sort are exempt from import restrictions." This asserted (and
plainly wrong; see footnote 6 above) belief is the main basis for
Place's defense.
D. Charges, Trial, Conviction, and Appeal
Despite his claimed lack of knowledge, Place was indicted on
nine counts related to illegal trafficking in whale teeth.7 He
7
For reference, the counts are as follows:
1. Misdemeanor conspiracy with Mikhalyov to commit
-9-
remained adamant that he did not know this trafficking was illegal,
took his case to trial, and testified at length. At trial, he
repeated his belief that old, scrimshawed, and native teeth were
exempt from regulation. But he also testified, e.g., that in his
dealings with Mikhalyov, Mikhalyov was supposed to "handle all the
documentation"; that to be legal his purchases needed "paperwork";
and that Mikhalyov "never did" provide that paperwork. He further
testified that he told Bell he "just want[ed] to make sure
everything [wa]s legal," to which Bell responded "Oh, yes. I've
got all the documentation"; however, he never received paperwork
from Bell either. And he testified that he "probably" told Logan
not to mark any narwhal-tusk packages as "narwhal" out of concern
that the packages would "get held up" at Customs. Finally, Place
testified that he had read a notice from eBay shutting down one of
his auctions and informing him that "export/import of marine
mammals typically requires CITES as well as other state and/or
Lacey Act violations, 2001-2004.
2. Misdemeanor Lacey Act violation based on the spring
2004 shipment seized at JFK Airport.
3. Felony Lacey Act violation based on the sale of 39
pounds of teeth to Bill Feeney in spring 2004.
4. Felony Lacey Act violation based on the purchase of
whale teeth from England via eBay in spring 2004.
5. Felony Lacey Act violation based on the purchase of
whale teeth from England via eBay in fall 2004.
6. Felony conspiracy with Jake Bell to violate the
Lacey Act and the smuggling statute, 2004-2007.
7. Felony Lacey Act violation based on a fall 2004
purchase from Bell.
8. Smuggling whale teeth from Bell, 2005-2006.
9. Smuggling narwhal tusks from Logan, 2005-2006.
-10-
federal permits," which prompted him to call eBay for
clarification.
After both sides had finished presenting evidence – and two
days after the court-imposed deadline for submitting proposed jury
instructions – Place moved for a lesser-included-offense
instruction. The requested instruction would have allowed the
jurors, if they could not agree that Place knowingly violated the
CITES permitting requirements, to consider a misdemeanor (should-
have-known) Lacey Act violation in addition to each felony charge,8
but the district judge took the matter under advisement and
eventually charged the jury without mentioning the lesser included
offenses.
The jury convicted Place on all counts but the second (the
misdemeanor Lacey Act violation stemming directly from the JFK
bust). The district judge sentenced him to 33 months in prison
followed by 24 months' supervised release, as well as a $725
special assessment. Place now appeals his convictions on counts 3
through 9; he does not challenge his conviction on count 1.
II. Analysis
A. Requested Jury Instruction
Place first takes issue with the district court's decision not
to give his requested instruction on misdemeanor Lacey Act
violations. Before considering this issue on the merits, though,
8
The felony Lacey Act counts were 3, 4, 5, 6, and 7.
-11-
we must address the government's argument that Place waived the
jury-instruction issue by raising it late below. Jury-instruction
requests are governed by Federal Rule of Criminal Procedure 30,
which says any such "request must be made at the close of the
evidence or at any earlier time that the court reasonably sets."
To determine whether Place complied with this rule and adequately
preserved the jury-instruction issue, we must take a close look at
what happened below.
At 2:54 pm on November 16, 2010 – day five of trial – the
district judge told the parties "if there are to be any offerings
of proposed verdict forms and/or supplemental instructions to the
jury, we will need them by the close of business today." Both
sides accordingly filed proposed supplemental instructions later
that day; the government followed with another set of supplemental
instructions the next day; and Place followed with yet another set
– the ones discussing lesser-included misdemeanor Lacey Act
violations9 – the following day at lunch, just after the close of
evidence and before the charge conference.
9
Specifically, Place's proposed supplemental instructions would
have charged the jury as follows: "[I]f, after reasonable efforts, you
are unable to reach a verdict, you should go on and consider whether the
government has proved beyond a reasonable doubt that Mr. Place is guilty
of the lesser offense of a misdemeanor-level violation of the Lacey Act."
The instructions went on to explain that "[i]nstead of proving beyond a
reasonable doubt that David knew that the wildlife was possessed, sold,
or transported" illegally, "for a misdemeanor-level violation the
government must prove beyond a reasonable doubt that David Place, in the
exercise of due care, should have known that the wildlife in question was
possessed, sold, or transported" illegally.
-12-
At the charge conference, the various proposed instructions
were minutely dissected and discussed in great detail; the lesser-
included request came up at the end. The judge said, "It's a
little late, Ms. Fried [Place's attorney], to be submitting things
that I've been inviting for the whole trial. But go ahead. I'll
allow you to orally argue this." Place's attorney repeated the
substance of the request: "We're asking for lessers to be given on
the felonies – the felony Lacey Acts. We're asking for misdemeanor
lesser included which have this different standard of knowledge."
The government pointed out that "[i]n the defendant's own pleading,
it states that lesser includeds can be given if the jury has been
unable to reach a verdict on the greater charge after reasonable
efforts," and asked that the court "wait on" the issue (suggesting
that the court only provide the instruction if the jury ended up
hung on the felony Lacey Act counts). The government then added
that "there has been ample evidence submitted of the defendant's
knowledge." Just before breaking, Place's attorney repeated, "It's
just that – I guess it's our position that we're entitled to any
lessers that are included within a greater offense because,
obviously, if the government's position is that the evidence
supports the greater offense, it also supports the lesser." "All
right," the judge said, "I'll take that matter under advisement."
The next day the judge charged the jury without mentioning the
lesser-included instruction Place had requested. At sidebar after
-13-
the charge, Place's attorney listed objections to the instructions,
advancing detailed arguments as to some but saying of the lesser-
included issue only this: "We also object to the Court's failure to
give our request for lesser included offenses." And that was that.
This exchange lends itself to a spirited debate as to whether
the lesser-included instruction issue was forfeited. Place's
request came two days after the judge asked for it, so it may have
been untimely under Rule 30, see United States v. Upton, 559 F.3d
3, 8-9 (1st Cir. 2009), and it arguably left inadequate time for
the government and the judge to look over the proposed instruction
before the charge conference. Moreover, on a somewhat different
note, it is puzzling that Place would wait so long to spring his
lesser-included offense argument on the government and the court,
given that the argument closely tracks Place's entire theory of the
case (that he lacked actual knowledge that his actions were
illegal). All that said, there are some factors that suggest Place
has preserved the issue: the judge originally gave the parties only
two hours' notice of the deadline for filing supplemental
instructions, and Place filed the instructions arguably at the
close of evidence, which might mean the filing technically complied
with Rule 30 (if we were to say the original notice of two hours
was not reasonable, as the Rule requires). And the parties give us
plenty of material to work through the jury-instruction argument on
appeal.
-14-
In the end, though, we need neither rescue this precarious set
of circumstances from the brink of forfeiture nor shove it over the
edge, because the district court simply did not err in failing to
give the requested instructions; therefore, whether the review is
de novo (as it would be if the issue were preserved, United States
v. Flores, 968 F.2d 1366, 1367-68 (1st Cir. 1992)) or plain error
(as it would be if the issue were forfeited, Upton, 559 F.3d at 9),
the result is the same. Our analysis follows.
Counts 3, 4, 5, 6, and 7 charged felony violations of the
Lacey Act. The Lacey Act, again, involves two levels of
criminality: a defendant who transports, buys, or sells wildlife in
knowing violation of any statute or treaty is guilty of a felony;
a defendant who transports, buys, or sells wildlife that he should
have known violated a statute or treaty is guilty of a misdemeanor.
16 U.S.C. § 3373(d)(1)-(2). Place argues that a jury reasonably
could have found him guilty only of misdemeanor Lacey Act
violations, and that he was therefore entitled to a jury
instruction on these lesser included charges. The government
responds that evidence of Place's actual knowledge of criminality
was overwhelming, and therefore that the district court was right
to instruct the jury only on the felony violations.
A criminal defendant is entitled to a jury instruction on a
lesser included offense if (1) the lesser offense is necessarily
included in the charged offense, (2) some contested fact separates
-15-
the two offenses, and (3) given the evidence, a jury could
rationally find the defendant guilty of the lesser offense while
acquitting him of the charged offense. United States v. Boidi, 568
F.3d 24, 27 (1st Cir. 2009). Here, items (1) and (2) are
uncontested – (1) a charge that Place should have known his
trafficking was illegal is necessarily included in the charge that
Place actually knew his trafficking was illegal, and (2) Place's
state of mind is contested – he is adamant that he lacked actual
knowledge. The only issue is (3) whether a rational jury could
have agreed with Place and found that he indeed lacked actual
knowledge that his whale-tooth transactions were illegal.
Place says the jury could have believed his attested-to
ignorance notwithstanding years of emails demonstrating knowledge;
the government says the emails and other circumstantial evidence –
receiving tipoffs from friends; disguising the contents of packages
on customs forms; creatively routing those packages to evade
customs; having myriad whale-tooth auctions shut down on eBay;
reading the content of those eBay shutdown notices, which informed
him of the broad CITES requirements – overwhelmingly prove actual
knowledge. The government has the better of this argument.
Place's emails (which acknowledged that the teeth required
permits to be legal and admitted buying and selling without the
permits) directly prove knowledge that his transactions were
illegal; his testimony at trial echoes the emails; he took steps to
-16-
hide his transactions from authorities; he repeatedly suggested
that these steps would help him avoid a criminal investigation or
prison time; and the only contrary evidence is a set of post hoc,
self-serving statements that he believed his transactions were
exempt from CITES because the teeth he sold were old, scrimshawed,
or Inuit in origin. His own emails, testimony, and conduct,
though, belie the validity of that purported belief. No reasonable
jury could have accepted his testimony and rejected the mountain of
evidence that Place knew his conduct was illegal; therefore, Place
was not entitled to a lesser-included Lacey Act instruction.
B. Smuggling Conviction
Place's other argument assails his convictions on Counts 8
(smuggling sperm whale teeth) and 9 (smuggling narwhal tusks); he
says the smuggling statute does not criminalize violations of
regulations like those implementing CITES. Specifically, he says
the smuggling statute, which does criminalize violations of some
non-criminal laws, is ambiguous; that a comparison to other laws
shows Congress knows how to penalize regulatory violations when it
wants to, but it did not do so here; and that in any event, the
rule of lenity counsels that we should resolve the statute's
ambiguity in his favor. The government makes various counter-
arguments; we will address each of Place's and the government's
arguments in turn. This smuggling-statute issue is one of
statutory interpretation that we review de novo. United States v.
-17-
Godin, 534 F.3d 51, 56 (1st Cir. 2008).
We start with a more detailed review of the smuggling statute.
The statute imposes criminal sanctions on anyone who "receives,
conceals, buys, [or] sells . . . merchandise after importation,
knowing the same to have been imported or brought into the United
States contrary to law . . . ." 18 U.S.C. § 545. As we have said,
the phrase "contrary to law" means that the smuggling statute
criminalizes conduct that may be illegal under other sources of law
but is not necessarily criminal according to those sources' own
terms. For example, in 1999 we considered a sentencing appeal
where the underlying conviction was for smuggling freon into the
United States from Canada: the Clean Air Act imposed permitting
requirements that the defendant had violated, and the smuggling
statute rendered these violations criminal. See United States v.
LeBlanc, 169 F.3d 94, 94-95 (1st Cir. 1999). That case involved
the smuggling statute's criminalizing a violation of a statute, and
this (criminalizing statutory violations) is apparently its most
common application; in this case, though, the question is whether
the smuggling statute may similarly criminalize violations of the
regulations like those implementing CITES.10 This question hinges
10
A refresher: CITES is directly, but only broadly,
implemented in the United States by the ESA, 16 U.S.C. §§ 1537A,
1538(c)(1); the ESA also authorizes the Secretary of the Interior
to promulgate CITES-based regulations, id. § 1537; Interior has in
fact issued regulations that mirror the language of CITES, 50
C.F.R. §§ 23.1-23.92; and these regulations impose, e.g.,
permitting requirements, id. §§ 23.12(a), 23.15 (2004), and a ban
-18-
on whether Congress intended that the statutory word "law" be
limited to statutory law or whether Congress meant for the word to
include regulatory law as well.
First, Place says the word "law" has many meanings, any of
which Congress could conceivably have been employing in the
smuggling statute. "Law" is indeed a broad word with many
meanings, including, most notably for our purposes, "[t]he
aggregate of legislation, judicial precedents, and accepted legal
principles; the body of authoritative grounds of judicial and
administrative action." Black's Law Dictionary (9th ed. 2009).
Then again, "law" may also be defined as narrowly as "a statute"
(though in the latter case the word generally appears with an
article, e.g. "Congress passed a law").11 Id. Given these
on international trade in Appendix I species for "primarily
commercial purposes," id. § 23.15(d)(7). CITES's domestic
structure means that its specific requirements are generally
contained in its regulations, not in the ESA. And Place was
convicted of smuggling whale teeth into the United States without
the documentation required by these regulations.
11
Here is Black's Law Dictionary's full definition of "law":
1. The regime that orders human activities and relations
through systematic application of the force of
politically organized society, or through social
pressure, backed by force, in such a society; the legal
system . 2. The aggregate of
legislation, judicial precedents, and accepted legal
principles; the body of authoritative grounds of judicial
and administrative action; esp., the body of rules,
standards, and principles that the courts of a particular
jurisdiction apply in deciding controversies brought
before them . 3. The set of rules or
principles dealing with a specific area of a legal system
-19-
differing definitions, we must try to discern what Congress
actually meant when it used the word "law" in the smuggling
statute.
Place argues that Congress meant only for the narrowest
definition of "law" – "a statute" – to apply here; the government
responds that the Congress more likely intended "law" to have its
much more common, broad meaning – one that includes regulations.
In fact, the government points out, the Supreme Court has said that
the analogous phrase "authorized by law" plainly includes at least
some regulations, see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96
(1979) ("[i]t would . . . take a clear showing of contrary
legislative intent before the phrase 'authorized by law' . . .
could be held to have a narrower ambit than the traditional
understanding" – an understanding that "law" encompasses
regulations). And, the government concludes, every circuit court
to have considered the question in the context of the smuggling
statute has likewise agreed that "contrary to law" similarly
includes at least some regulations, see United States v.
Alghazouli, 517 F.3d 1179, 1183 (9th Cir. 2008); United States v.
Mitchell, 39 F.3d 465, 468-70 (4th Cir. 1994); Estes v. United
. 4. The judicial and administrative
process; legal action and proceedings . 5. A statute . — Abbr. L. 6.
common law . 7. The legal profession
.
-20-
States, 227 F. 818, 821-22 (8th Cir. 1915) (interpreting an older
version of the smuggling statute that even then contained the
phrase "contrary to law").12 The government puts on a persuasive
case: the word "law" is much more commonly understood to include
regulations, so Place has a steep climb before he can show that
Congress intended a narrower reading.
Place's next argument attempts to accomplish this climb by
comparing the smuggling statute with certain other statutes – most
notably, 18 U.S.C. § 554 (titled "Smuggling goods from the United
States"). Enacted years after § 545, § 554 includes the phrase
"contrary to law or regulation," which Place insists shows that
12
Place does not raise the question whether the word "law" may
include some regulations but exclude others. Nor does he raise the
issue of which regulations the word "law" might include, an issue
on which other circuits have taken potentially conflicting stances.
Compare Alghazouli, 517 F.3d at 1187 (holding that "[t]he term
includes a regulation only if there is a statute (a 'law') that
specifies that violation of that regulation is a crime"), with
Mitchell, 39 F.3d at 469 (holding that the term includes
"regulations having the force and effect of law," with no
discussion of whether violation of these regulations need
independently amount to a criminal offense). And, finally, Place
does not argue that if the word "law" indeed does include at least
some regulations, it nevertheless excludes the CITES implementing
regulations.
Instead, Place has presented the issue as an all-or-nothing
proposition: he says simply that "[t]he district court erred by
instructing the jury that regulatory violations were sufficient to
establish guilt." In fact, he goes further and asks us to reject
the Ninth Circuit's efforts in Alghazouli to distinguish among
different types of regulations for purposes of determining which
are "law," suggesting we simply declare that no regulations are
"law." Absent nuanced argument on this delicate point that has
split our sister circuits, we consider the argument as Place has
presented it and say only that some regulations are "law,"
including those implementing CITES.
-21-
Congress does not generally intend the word "law" to include
regulations. After all, the disjunctive "or" can only mean that
"law" and "regulation" are two wholly different concepts – or so
Place argues. But "the views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one,"
Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
117-18 (1980) (quoting United States v. Price, 361 U.S. 304, 313
(1960)), and section 554 was enacted well over a hundred years
after the original version of the smuggling statute (from which the
phrase "contrary to law" has been passed along through several
generations). See Mitchell, 39 F.3d at 469 (tracing the smuggling
statute's history). The addition of the words "or regulation" to
the phrase "contrary to law" in later statutes perhaps reflects no
more than Congress's attempt to head off the type of argument made
here; it certainly does not suggest that "contrary to law" should
exclude regulations. If anything, in fact, subsequent legislative
history tells us the opposite: we presume Congress is aware of
judicial interpretations of existing statutes when it passes new
laws, Lorillard v. Pons, 434 U.S. 575, 580 (1978), and in
reenacting the smuggling statute multiple times Congress has never
sought to exclude regulations despite almost a century of circuit-
court precedent holding that the word "law" in the statute includes
regulations.
Finally, Place argues that we should apply the rule of lenity
-22-
to exclude regulations from the ambit of the word "law" in the
smuggling statute. The rule of lenity counsels that ambiguities in
criminal statutes should be resolved in a defendant's favor. See
Godin, 534 F.3d at 60-61. But, again, the most common meaning of
the word "law" is quite broad, and for that reason the Supreme
Court has said only "a clear showing of . . . legislative intent"
can overcome the "traditional understanding" that "law" encompasses
regulations. Chrysler Corp., 441 U.S. at 295-96. There is simply
no indicator of any legislative intent that the smuggling statute
applies as narrowly as Place would have us read it. Given the
absence of any textual or contextual clues that the smuggling
statute should be narrowly construed, Place's smuggling conviction
is substantively appropriate.13
III. Wrapping up
After ruminating on the whale's possible extinction,
Melville's Ishmael eventually "account[ed] the whale immortal in
his species, however perishable in his individuality." The United
States and most other countries, however, have made a contrary
judgment and decided to use what legal tools they can to eliminate
the international market for whale parts so the species may survive
13
Because we hold that Place's CITES-noncompliant imports were
"contrary to law," we need not consider the government's argument
(raised only briefly in a footnote) that the same conduct was also
"contrary to" the ESA, which is plainly "law."
-23-
and flourish.14 Place was charged, fairly tried, and properly
convicted for knowingly flouting these laws and the regulations
implementing them. Rejecting his arguments on appeal for the
reasons set forth above, we now affirm these convictions in full.
14
For example, the preamble to CITES says "that international
co-operation is essential for the protection of certain species of
wild fauna and flora against over-exploitation through
international trade"; CITES art. II says that Appendix I species
like the sperm whale "must be subject to particularly strict
regulation in order not to endanger further their survival"; and,
moving on from the treaty, 16 U.S.C. § 917 includes congressional
findings that "whales have been overexploited by man for many
years, severely reducing several species and endangering others"
and that "the conservation and protection of certain species of
whales, including the . . . sperm . . . whale, are of particular
interest to citizens of the United States."
-24-