US v. One Handbag of Crocodilus Species, 91-CV-2982 (DRH)
| Decision Date | 25 June 1994 |
| Docket Number | and 92-CV-4338 (DRH).,No. 91-CV-2982 (DRH),90-CV-0836 (DRH),91-CV-2982 (DRH) |
| Citation | 856 F. Supp. 128 |
| Parties | UNITED STATES of America, Plaintiff, v. ONE HANDBAG OF CROCODILUS SPECIES and Two Handbags of Caiman Crocodilus Yacare, Defendants. UNITED STATES of America, Plaintiff, v. THIRTY-FIVE HANDBAGS OF CAIMAN CROCODILUS YACARE and One Handbag of Melanosuchus Niger, Defendants. UNITED STATES of America, Plaintiff, v. THIRTEEN HANDBAGS OF CAIMAN CROCODILUS YACARE; Two Caiman Crocodilus Yacare Belts; One Handbag of Crocodilus Species and Alligator Mississippiensis; and Two Handbags of Varanus Species, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Zachary W. Carter by Gary R. Brown, Shari D. Leventhal, Asst. U.S. Attys., U.S. Atty., E.D.N.Y., Brooklyn, NY, for plaintiff.
Soller, Shayne & Horn, J.S. Suarez Inc. by Carl R. Soller, Ellen L. Federman, Margaret H. Sachter, New York City, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The United States seeks forfeiture of each of the seized defendant properties listed in the three captioned actions, which total fifty-seven items. The plaintiff seeks forfeiture of these items under Section 11(e)(4)(A) of the Endangered Species Act, 16 U.S.C. § 1540(e)(4)(A).1
Plaintiff contends that defendant products are subject to forfeiture because they were manufactured from hides of crocodilians designated as endangered under the Endangered Species Act and/or because the items were improperly identified on their relevant Convention on International Trade in Endangered Species ("CITES") importation certificates.
The claimant, J.S. Suarez, Inc., imported, and claims ownership of the defendant properties. As such, it seeks their return, arguing that forfeiture does not properly lie because of, inter alia, due process violations and plaintiff's failure to establish grounds for forfeiture. More particularly, the claimant has framed six issues for the Court's consideration, the resolution of which, it maintains, requires that the seized items be returned to the claimant. Those six issues are set forth on page 19 of claimant's post-trial Memorandum of Law, and are as follows:
1. Is the identification of products alleged to be made from caiman crocodilus yacare ("yacare") too uncertain to constitute notice of the violation adequate for due process?
2. Did the delays that preceded initiation of the forfeiture action violate due process?
3. Did the government lack probable cause to seize this merchandise?
4. Did the government fail to demonstrate probable cause for forfeiture of this merchandise?
5. Did the Claimant prove by a preponderance of evidence of geographical origin that the merchandise was not made from the subspecies yacare?
6. In the alternative, if the merchandise is subject to forfeiture, did the Claimant establish a good-faith defense?
By way of a brief synopsis, the following testimony was presented to the Court during the course of the non-jury consolidated trial:
1. Testimony of John Meehan.
John Meehan, a Special Agent of the United States Fish and Wildlife Service ("USFWS") testified that the defendant products were detained by USFWS inspectors and, following their examination by Peter Brazaitis, ultimately seized, based on the belief that they had been imported in violation of CITES and/or the Endangered Species Act.
2. Testimony of Peter Brazaitis.
Mr. Brazaitis testified as a herpetologist, i.e., a specialist in the study of reptiles and amphibians. His specific field of expertise is the identification of crocodilians. At the request of the USFWS, he examined the products which Special Agent Meehan had ordered detained, and determined that fifty-two were manufactured, at least in part, from skins taken from yacare, an endangered crocodilian subspecies. In addition, he identified one item as having been manufactured from the endangered black caiman, and found that four others were improperly identified in their CITES permits.
With respect to Mr. Brazaitis, I found him to be a credible witness. He testified in considerable detail that certain distinguishing characteristics of the various crocodile subspecies survive the tanning and finishing process, including the shape and pattern of the skin scales, the presence or absence of keeling, and the number of tail inclusions. Such characteristics, if viewed individually rather than cumulatively, are not "fail safe" methods of identification of a particular subspecies, because of a partial overlap of these characteristics between and among the subspecies. However, it should be emphasized that such overlaps are typically only partial, and, therefore, the combination of certain characteristics may greatly enhance the identification process. By way of example, in caiman crocodilus ("crocodilus") and caiman crocodilus fuscus ("fuscus") two non-endangered subspecies of crocodilians, it is atypical to see either chain pattern flank rows or multiple tail inclusions, and it is highly improbable that either subspecies would possess both characteristics, whereas both are commonly seen in the endangered subspecies yacare.
By analyzing the total number of various characteristics and their combinations within a given defendant product, the witness was able to identify, in a manner in which the Court found highly credible, the type of disputed skin or skins used to manufacture the product in question.
3. Testimony of Doctor Robert Madden.
Doctor Madden testified as an expert witness on the use of statistical methods to resolve disputes in biology. Using data supplied by Mr. Brazaitis, Doctor Madden performed a statistical analysis to determine whether certain scale characteristics could provide a suitable basis for identifying whether a given product was manufactured solely from crocodilus or fuscus skins or whether the product contained any yacare skins. His analysis focused on five scale characteristics, viz. the arrangement of flank rows, the number of unkeeled flank rows, the number of tail inclusions, the number of flank rows that have elongated scales, and the total number of flank rows. Via this method, he determined whether the items listed on their CITES permits as either fuscus or crocodilus were correctly identified. Illustrative of the methodology used is the analysis of the defendant product that was marked as Exhibit 5(a)(2). Claimant identified that product as "fuscus". Yet it contained, as explained by Mr. Brazaitis, "chain pattern rows" and three "tail inclusions" together with one "elongated scale row". That combination of skin characteristics, according to the testimony of Doctor Madden, creates a "zero" statistical probability that the skin used to manufacture Exhibit 5(a)(2) is fuscus, as claimed in its CITES document. See Exhibit PX-18, entitled "Summary of Yacare Identification Characteristics and Statistical Correlation".
4. Testimony of Doctor Wayne King.
Doctor Wayne King was called as the claimant's expert on crocodilian identification. The thrust of his testimony was that for a number of reasons, including the fact that the defendant products were in a finished state, it was not possible to identify the majority of the defendants by subspecies. That being the case, in Doctor King's view, plaintiff cannot legitimately claim that the defendant property is subject to forfeiture as being made from the skins of endangered species or because of incorrect CITES identifications.
The Court had an opportunity to listen to the testimony of Doctor King and Mr. Brazaitis. Each had impressive credentials. However, Mr. Brazaitis was considerably more knowledgeable concerning recent developments in the field of reptile and amphibian identification. Accordingly, I accept Mr. Brazaitis' testimony, and conclude that the plaintiff, using current identification methods, was able to, and did in fact, properly identify the skins used in the manufacture of the defendant products. Those skins were taken from endangered species and/or were incorrectly identified in CITES documents.
5. Testimony of Joseph Suarez.
Mr. Suarez testified as the president of the claimant J.S. Suarez, Inc. One-third of the corporation's business involves reptile skins and approximately ninety-eight percent of its merchandise is imported from Italy.
J.S. Suarez's primary supplier of caiman products is Franco Parmigiani, with whom Mr. Suarez has enjoyed a long business relationship. Mr. Suarez indicated that he relied on Mr. Parmigiani to make sure that the skins shipped to this country were in conformity with law and properly identified. He acknowledged that it was his obligation, as the importer, to have proper CITES documentation, although, given the logistics involved, he relied on his supplier. He further testified that although he previously answered certain interrogatories by indicating that he would not pay for the seized merchandise unless and until it was released by the government, that he had, in fact, paid for and was the owner of the defendant products.
By way of format the Court will discuss, ad seriatim, each of the issues raised by the claimant.
DUE PROCESS CLAIMS:
1. INABILITY TO IDENTIFY YACARE
The claimant maintains that the forfeiture of his merchandise for allegedly containing yacare is a denial of due process, because that subspecies of caiman is not identifiable with reasonable certainty.
The Court has already rejected, at least in part, the premises for the present argument by concluding that an expert is capable of identifying products made of yacare with reasonable certainty. However, there are apparently a limited number of such experts, and it may well be that businesspersons in the trade rarely possess the requisite expertise.
Presumably this problem is not limited to commerce in certain caiman skins. Difficulty in identification of many endangered species is to be expected due to the rarity of...
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