US v. 3,210 Crusted Sides of Caiman Crocodilus Yacare

• Decision Date: 28 May 1986
• Docket Number: No. 84-0959-CIV.,84-0959-CIV.
• Citation: 636 F. Supp. 1281
• Parties: UNITED STATES of America, Plaintiff, v. 3,210 CRUSTED SIDES OF CAIMAN CROCODILUS YACARE, a certain species of wildlife, plus an additional 7,665 crusted sides of Caiman crocodilus yacare, Defendant.
• Court: U.S. District Court — Southern District of Florida

636 F. Supp. 1281

UNITED STATES of America, Plaintiff, v. 3,210 CRUSTED SIDES OF CAIMAN CROCODILUS YACARE, a certain species of wildlife, plus an additional 7,665 crusted sides of Caiman crocodilus yacare, Defendant.

No. 84-0959-CIV.

United States District Court, S.D. Florida, N.D.

May 28, 1986.

Robert Rosenberg, Asst. U.S. Atty., Miami, Fla., for plaintiff.

David Weider, Miami, Fla., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GONZALEZ, District Judge.

The plaintiff, the United States of America, seeks forfeiture of the defendant, 10,870 crusted sides of Caiman crocodilus yacare, an endangered species of wildlife (hides), pursuant to the Endangered Species Act of 1973 (Endangered Species Act), 16 U.S.C. § 1538(a)(1)(A) (1985); The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Convention done at Washington, D.C., August 3, 1973, T.I.A.S. No. 8249, implemented by 16 U.S.C. § 1531(a)(4)(F); and the Lacey Act Amendments of 1981 (Lacey Act), 16 U.S.C. § 3372(a)(2)(A) (1985). Societe Des Fourrures Maurice, S.A. a/k/a Frutradimex (Frutradimex) and Marva Sr. Ltds. Disposicion de Fru Tradimex (Marva) claim ownership of the defendant hides and contest their forfeiture. The court has jurisdiction pursuant to 16 U.S.C. § 1540(c) (1985) and 28 U.S.C. §§ 1345 (1976) and 1355 (1985).

FINDINGS OF FACT

1. A consignment of crocodile hides, or crusted sides of Caiman, were shipped from Santa Cruz, Bolivia by Curtiembre San Matias Ltd. The ultimate destination of the hides was given as Marva S.R. Ltd., Paris, France.

2. The term "crusted sides of Caiman" refers to the fact that the hides have undergone a preliminary tanning process.

3. The hides arrived at Miami International Airport, Miami, Florida, on September 16, 1982.

4. The hides were shipped aboard Lloyd Aero Boliviano (LAB) Flight No. 908 under Airway Bill No. 051-05660944.

5. The airway bill listed the hides as Caiman crocodilus crocodilus.

6. The CITES permit accompanying the hides described the hides as Caiman crocodilus crocodilus. Bolivia was given as the country of origin for the hides and their number was given as 3,210. The permit indicates 1,605 animals, which equals 3,210 skins.¹

7. During a routine inspection, inspectors for the United States Fish and Wildlife Service (Fish and Wildlife Service), decided to detain the hides, because the country of origin listed on the CITES permit accompanying the hides was deemed to be suspicious.

8. Inspection of the hides was assigned to Special Agent Patrick McIntosh who preliminarily determined that the hides were Caiman crocodilus yacare (an endangered species), and not Caiman crocodilus crocodilus as the accompanying documentation indicated. Special Agent McIntosh based his conclusions on the fact that the subspecies crocodilus crocodilus is not native to Bolivia and that a count of the scales on the hides indicated that the hides were crocodilus yacare and not crocodilus crocodilus.

9. The Fish and Wildlife Service obtained expert identification and classification of the subspecies from Dr. Wayne King of the Florida State Museum on November 2, 1982. On December 2, 1982, Dr. King indicated that the hides were in fact Caiman crocodilus yacare.

10. Eighty-four percent of the seized hides were smaller than 85 centimeters.

11. The number of hides listed on the CITES permit was 3,210, when in fact, the correct number of hides was 10,875.

12. The claimants, Frutradimex and Marva, were jointly engaged in the business of procuring and shipping hides from Bolivia to France, in association with Curtiembre San Matias Ltd., of Bolivia.

CONCLUSIONS OF LAW

1. A forfeiture action is a proceeding in rem, in which the property is considered to be the offender. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 684, 94 S.Ct. 2080, 2092, 40 L.Ed.2d 452 (1974) quoting The Palmyra, 12 Wheat. 1, 14-15, 6 L.Ed. 531 (1827).

2. To contest a forfeiture action a claimant must "first demonstrate an interest in the seized item sufficient to satisfy the court of its standing to contest the forfeiture." United States v. $364,960.00 in United States Currency, 661 F.2d 319, 326 (5th Cir. Unit B 1981); See also United States v. Five Hundred Thousand Dollars, 730 F.2d 1437, 1439 (11th Cir.1984). Standing is a threshold issue and the burden, of proving standing in a forfeiture action, rests on the claimant. Id.

3. The claimants, Frutradimex and Marva, have demonstrated a sufficient interest in the defendant hides to meet the standing requirements in a forfeiture proceeding. The testimony at trial established that Marva and Frutradimex were members of a joint venture and entered into this joint venture for the purpose of purchasing and shipping hides. Consequently, each of the members has equal rights to possession of the subject res, and accordingly, has standing to contest the forfeiture. Sasportes v. M/V Sol De Copacabana, 581 F.2d 1204, 1208 (5th Cir.1978).

4. Once the claimants have established standing, the forfeiture proceeding commences with the government bearing the initial burden of proof to establish that probable cause exists to initiate the forfeiture action. United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210, 212 (5th Cir.1974). This burden is set forth in 19 U.S.C. § 1615 (1985 Supp.), as incorporated by 16 U.S.C. § 1540(e)(5) (1985) (the enforcement provision of the Endangered Species Act).

In all suits or actions ... brought for the forfeiture of any vessel, vehicle, aircraft, merchandise, or baggage seized under the provisions of any law relating to the collection of duties or imports or tonnage, where property is claimed by any person, the burden of proof shall lie upon such claimant.... Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged by the court.

19 U.S.C. § 1615 (1985 Supp.).

5. Once the government has met its burden of proving probable cause to bring the forfeiture proceeding, "the burden then shifts to the claimant to show by a preponderence of the evidence that the property was not subject to forfeiture." United States v. $22,287.00 in United States Currency, 709 F.2d 442, 446 (6th Cir.1983); Accord United States v. One 1975 Ford F100 Pick Up Truck, 558 F.2d 755, 765 (5th Cir.1977).

6. Probable cause in forfeiture proceedings is defined as a "reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980) (citations omitted).

7. The government has predicated probable cause for instituting the forfeiture proceeding on the following:

a) That importation of the defendant hides into the United States was a violation of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(A) (1985), in that Caiman crocodilus yacare appears on the Endangered Species List of the Secretary of the Interior as published at 50 C.F.R. § 17.11.

b) That importation of the defendant hides into the United States is a violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

c) That the vast majority of the subject hides are undersized and the hides are res imported in violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A) (1985).

8. The court finds that the government had probable cause to bring this forfeiture proceeding on each of the three asserted grounds:

a) Probable Cause as to Violations of the Endangered Species Act

There were reasonable grounds on which to base a belief that the hides were of the subspecies yacare, and subject to forfeiture under the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(A) (1985). Section 1538(a)(1)(A) provides that "it is unlawful for any person subject to the jurisdiction of the United States to — (A) import any such species into, or export any such species from the United States...."

The term import is defined as meaning "to land on, bring into, or introduce into, or attempt to land on, bring into any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States." 16 U.S.C. § 1532(10) (1985).

LAB Flight No. 908 made an unscheduled landing at the Miami International Airport. The claimants argue that an unscheduled landing does not constitute importation within the meaning of § 1532(10). The court has considered the claimants' arguments and finds that as a matter of law the hides were imported, within the meaning of § 1532(10).

Special Agent McIntosh testified, based on his training and experience, that the specimen hides were of the subspecies yacare, and were not crocodilus, as maintained by the claimants. Special Agent McIntosh formed his belief after counting the rows of scales on the hides. The government also consulted Dr. Wayne King of the Florida State Museum, who determined that the hides were yacare. The probable cause which must exist is "reasonable ground for belief of guilt supported by less than prima facie proof but more than a mere suspicion." One 1978 Chevrolet Impala, 614 F.2d at 984. The court is satisfied that there existed, at the time the suit was instituted, sufficient probable cause to bring proceedings of forfeiture for violation of the Endangered Species Act b) Probable Cause as to Violations of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

There were reasonable grounds on which to base a belief that the defendant hides were imported into the United States in violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), thus constituting a violation of 16 U.S.C. § 1531(a)(4)(F) and § 1538(c)(1). Title 16 Section 1538(c)(1) provides: "it is unlawful for any person subject to the jurisdiction of the United States to engage in trade in...