U.S.A. v. Bronx Reptiles

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1686
• Citation: 217 F.3d 82
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. BRONX REPTILES, INC., Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 82

217 F.3d 82 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. BRONX REPTILES, INC., Defendant-Appellant.

Docket No. 98-1686

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted: May 7, 1999)

Decided: June 30, 2000

The defendant, Bronx Reptiles, Inc., appeals from a final order of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) affirming a judgment of Magistrate Judge Cheryl L. Pollak convicting the defendant of violating that portion of the Lacey Act, as amended, that makes it a misdemeanor "knowingly to cause or permit any wild animal... to be transported to the United States ... under inhumane or unhealthful conditions." 18 U.S.C. §42(c). We hold that the government's burden under §42(c) is to prove not only that the defendant knowinglycaused or permitted the transportation to the United States of a wild animal, but also that the defendant knew the conditions under which the animal was transported were "inhumane or unhealthful."

Reversed.

IRVING HEISLER, New York, NY, for Defendant-Appellant.

STANLEY N. ALPERT, Assistant United States Attorney, Eastern District of New York (Zachary W. Carter, United States Attorney, Eastern District of New York, and Emily Berger, Assistant United States Attorney, Eastern District of New York, of counsel), for Appellee.

Before: OAKES, CABRANES, and SACK, Circuit Judges.

Judge OAKES dissents in a separate opinion.

SACK, Circuit Judge:

We return in this appeal to a vexatious problem. When a criminal statute renders unlawful an act "knowingly" undertaken by the defendant, what must the extent of the defendant's knowledge be to permit conviction?

The defendant, Bronx Reptiles, Inc., was convicted following a bench trial in the United States District Court for the Eastern District of New York (Cheryl L. Pollak, Magistrate Judge) of violating that portion of the Lacey Act, codified as amended at 18 U.S.C. § 42(c), that makes it a misdemeanor "for any person, including any importer, knowingly to cause or permit any wild animal or bird to be transported to the United States, or any Territory or district thereof, under inhumane or unhealthful conditions or in violation of such requirements" as the Secretary of the Interior may prescribe. See United States v. Bronx Reptiles, Inc., 949 F. Supp. 1004 (E.D.N.Y. 1996). The district court (Sterling Johnson, Jr., Judge) affirmed. See United States v. Bronx Reptiles, Inc., 26 F. Supp. 2d 481 (E.D.N.Y. 1998). The defendant argues on appeal that under §42(c), the government was required to prove not only that the defendant knowingly caused the transportation to the United States of a wild animal or bird, but also that the defendant knew the conditions under which the animal or bird was transported were "inhumane or unhealthful." We agree. Because the magistrate judge concluded that there was no evidence to support such a finding, see Bronx Reptiles, 949 F. Supp. at 1012 n.14, we reverse.

BACKGROUND

On May 9, 1995, Leo Yen, an inspector for the United States Fish and Wildlife Service, went to the United Airlines cargo facility at John F. Kennedy International Airport to inspect a shipment that had just arrived from the Solomon Islands. It was bound for the defendant, Bronx Reptiles, Inc., a large commercial importer and wholesale distributor of animals. Yen met one of the defendant's employees who handed Yen the import-entry paperwork for the shipment.

The shipment consisted of two identical wooden boxes, each approximately two and one-half to three feet wide and four to five feet long. One of the boxes had airline tape around it but its lid was nonetheless ajar. Opening that box, Yen found that about three-quarters of the box contained skinks,¹ all of which appeared to be in good condition. But crushed together in a compartment at the end of the box were several dozen frogs. At first the frogs appeared to be dead, but on closer examination, Yen saw that a few of them were still moving. The second box contained only skinks, all of which appeared undamaged.

Yen released the shipment to the defendant so that it could tend to the skinks and the surviving frogs, but he refused to sign off on the importation. On a Report of Refused Clearance, Yen wrote: "no damp materials, [a] shallow container, no separate bags, no water tray w/sponge." Yen instructed the defendant through its employee to separate the dead frogs from the live frogs and to return the dead ones to Yen. The next day he received a package from the defendant containing all the frogs that had been shipped; all had died.

On May 9, 1995, the Fish and Wildlife Service issued a Violation Notice to the defendant charging it with violation of 18 U.S.C. §42(c). On April 17, 1996, the case was tried, on consent of the parties pursuant to 18 U.S.C. § 3401(b), before Magistrate Judge Pollak in the Eastern District of New York. The government called three witnesses: Yen, Peter Brazaitis, and Saverio LiBrandi.

Brazaitis, a curator of animals at the Central Park Zoo and a herpetologist, was qualified as an expert in the care, management, and transport of live reptiles and amphibians. He testified that if a frog becomes dehydrated, its respiratory functions are impaired, causing stress to the animal and resulting in the rapid production of mucous, urine, and toxins, which ultimately kills the animal. In order to protect frogs against dehydration, they should be shipped with a reservoir of water available to them. They also should be packed in relatively small compartments in order to prevent them from leaping about and injuring themselves. And a relatively small number of frogs should be placed in each compartment to protect against the spread of noxious bacteria from a single frog to the entire population. Brazaitis opined that based on his examination of the shipment in this case, the method and conditions of shipment were improper, both because there was no water vessel or moist towel in the crate and because the frogs were not packed in small groups in separate containers.

Brazaitis further testified that in his experience as an importer of wild animals, it was customary for the importer to ensure the health and well-being of the animals for which the importer has placed an order. He testified that there are standards promulgated by the International Air Transport Association ("IATA") that specify the size of the box, environmental conditions, and other requirements necessary to ensure the health of animals being shipped. When he was responsible for such importation, he said, he personally reviewed the qualifications of the shipper, sought out references, and called the shipper to make sure it was aware of shipping requirements, including IATA standards. He admitted during cross-examination, however, that he did not necessarily visit the foreign countries from which he purchased animals, and that he relied on the shipper to package the animals properly. Brazaitis also testified that had the frogs been shipped to the defendant properly packaged, the costs of shipping would have been higher.

LiBrandi, a special agent for the Division of Law Enforcement of the Fish and Wildlife Service, testified that the defendant was responsible for about two shipments of live animals into the United States a week. He testified that the Fish and Wildlife Service had assessed civil penalties against the defendant on at least three previous occasions. The first involved two importations of live reptiles from Colombia in March 1993, in which some of the reptiles arrived dead as a result of improper ventilation and labeling. In the course of his investigation of the incident, LiBrandi spoke to a representative of the defendant, one Bruce Edelman, who told LiBrandi that he (Edelman) was aware of the IATA guidelines for shipping animals and thought that as an importer he was liable for the conditions under which wildlife enters the United States. The defendant was also assessed a penalty by the Fish and Wildlife Service in March 1994 when several dead animals were discovered in a shipment of small mammals and reptiles from Egypt. An investigation of the incident revealed that the company had failed to follow applicable IATA guidelines and that the packaging of the animals had been improper. And in March 1995, the Fish and Wildlife Service cited the defendant for a violation involving the importation of chameleons, skinks, geckos, other lizards, and frogs.

The defendant presented no witnesses at trial.

In an opinion and order dated December 17, 1996, the magistrate judge found the defendant guilty of violating 18 U.S.C. §42(c). See Bronx Reptiles, 949 F. Supp. at 1014. First, she concluded that the government had established beyond a reasonable doubt both that the defendant had caused the transportation to the United States of the frogs and that the conditions under which the frogs were transported were inhumane and unhealthful. See id. at 1009. Second, she rejected the defendant's argument that because frogs are reptiles, they are not covered by the statute; the magistrate judge found that frogs, in fact, are amphibians, but that in any event both amphibians and reptiles fall within the ambit of the statutory proscription. See id. at 1010. Third, the magistrate judge determined that in order to be held liable under §42(c), an importer need only have knowingly caused the transportation to the United States of the wild animal or bird, and need not have done so knowing that the conditions of transportation were inhumane or unhealthful. See id. at 1011-13. She noted in a footnote that the government had failed to prove that the defendant knew, or consciously avoided knowing, of the unhealthful or inhumane conditions under which the frogs were transported to the United States. See id. at 1012 n.14. Because the magistrate judge concluded that the defendant "knowingly" caused the frogs to be transported to...