U.S. v. Cullen

• Decision Date: 23 August 2007
• Docket Number: Docket No. 06-0607-cr.
• Citation: 499 F.3d 157
• Parties: UNITED STATES of America, Appellee, v. Thomas CULLEN, aka Thomas J.V. Cullen, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

499 F.3d 157

UNITED STATES of America, Appellee, v. Thomas CULLEN, aka Thomas J.V. Cullen, Defendant-Appellant.

Docket No. 06-0607-cr.

United States Court of Appeals, Second Circuit.

Argued December 5, 2006.

Decided August 23, 2007.

Peter R. Ginsberg, Law Office of Peter R. Ginsberg, P.C., New York, NY, for Defendant-Appellant.

Jesse M. Furman, Assistant United States Attorney, New York, NY, (Michael J. Garcia, United States Attorney, Stephen J. Ritchin, John M. Hillebrecht, Assistant United States Attorneys, Southern District of New York, New York, NY, of counsel), for Appellee.

Before: CARDAMONE, STRAUB, Circuit Judges, and KOELTL^*, District Judge.

CARDAMONE, Circuit Judge:

We have before us a case that is unusual in several respects. In the first place, defendant was prosecuted, convicted and sentenced under the Wild Bird Conservation Act of 1992 (Wild Bird Act or Act), 16 U.S.C. § 4901 et seq., a federal statute that includes civil and criminal penalties. There have been very few, if any, previous prosecutions for violations of the Act's criminal penalties. Second, the defendant Thomas Cullen (defendant or appellant), an enigmatic and colorful figure, whose home is in Goshen, New York, is an internationally known professional falconer. He was hired at one time by the City of New York to bring bald eagles back to Inwood Hill Park in Manhattan. Yet, defendant also has a history of questionable activity involving exotic birds. Third, defendant was charged with illegally importing Black Sparrowhawks. Judicial opinions often characterize an odd provision of the law or an ingenious argument of counsel as a "rare bird" (rara avis). But in this case we have before us as the subject matter literally a rara avis in terris or a rare bird on the earth.

The rare bird which is the subject of this litigation is the Black Sparrowhawk. The Black Sparrowhawk is an African bird that for the most part lives in the southeastern corner of the African continent. Its length ranges from 18 to 23 inches; it has a black head and black upperparts, white underparts, yellow legs, and a silver-grey tail. The Black Sparrowhawk eats mainly other birds (mostly doves), although it has been known to devour on occasion small mammals and snakes. It is usually silent and unobtrusive except when it is breeding. For the most part, this bird stays inside the cover of trees, only soaring sometimes in the sky. See Gordon Lindsay Maclean, Roberts' Birds of Southern Africa 138 (6th ed.1993).

Thomas Cullen appeals from a judgment of conviction entered February 2, 2006 in the United States District Court for the Southern District of New York (McMahon, J.) following a jury trial. Defendant was convicted of knowingly importing exotic birds into the United States in violation of the Wild Bird Act and of making false statements relating to such importation with the United States Fish and Wildlife Service (Wildlife Service) in violation of 18 U.S.C. §§ 1001 and 1002. Cullen challenges his conviction on the grounds that: (1) the Wild Bird Act does not apply to captive-bred birds; (2) the Act is unconstitutionally vague because it does not define the term personal pet; and (3) the jury instruction given by the trial court was incorrect. Because those challenges are all without merit, we affirm.

BACKGROUND

A. Statutory and Regulatory Background

A total of 21 nations including the United States in 1973 signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 (CITES or Convention). The Convention's purpose is to regulate the trade of endangered plants and animals. It contains three appendices that list the species subject to its regulations. Over the years the appendices have grown steadily and more than 5,000 species of animals, including nearly 1,700 species of birds, are currently listed in one or another of the appendices. See Discover CITES, http://www.cites.org/ eng/disc/species.shtml (last visited July 13, 2007). Among the species of birds listed are accipiter melanoleucus, the Black Sparrowhawk, and falco cherrug, the Saker falcon. See Checklist of CITES Species, http://www.cites.org/common/ resources/2003_CITES_CheckList.pdf. The Black Sparrowhawk has been listed since 1979 and the Saker falcon has been listed since 1975.

To promote the conservation of exotic birds Congress passed the Wild Bird Act, which prohibits the importation into the United States of any exotic bird of a species listed in any of CITES' three appendices. See 16 U.S.C. § 4904(c). Thus, it ordinarily violates the Wild Bird Act to import Black Sparrowhawks or Saker falcons into the United States. Violations may carry civil or criminal penalties. 16 U.S.C. § 4912. The Act provides, however, that the Secretary of the Interior may authorize importation of a species listed in a CITES appendix if (1) such importation is not detrimental to the survival of the species, and (2) the bird is being imported exclusively for any of four enumerated purposes. 16 U.S.C. § 4911. These four purposes are scientific research; personally owned pets of a person returning to the United States after being out of the country for at least one year; zoological breeding or display programs; and certain cooperative breeding programs. Id. Pursuant to these provisions, the Secretary of the Interior has promulgated detailed regulations that require a party seeking to import an exotic bird pursuant to one of the exceptions to submit an application to the Wildlife Service demonstrating compliance with the statutory and regulatory requirements. 50 C.F.R. §§ 15.21-.26. Once obtained a permit is neither transferable nor assignable. 50 C.F.R. § 13.25.

B. Defendant Cullen's Actions

Cullen is New York's "acknowledged expert on birds of prey" and an internationally known and respected falconer. David Kocieniewski, City Eagle Expert Has Past Littered with Illegal Exotic Birds, N.Y. Times, Apr. 17, 2005, § 1, at 33. He claimed he once owned the largest private collection of birds of prey anywhere in this country and, at the time of his 2005 trial for violation of the Wild Bird Act, Cullen owned 47 birds of prey that he maintained at his home in Goshen, New York.

In 1999 there was only one living Black Sparrowhawk in captivity anywhere in North America. It was not owned by defendant. It seems Cullen wanted to add Black Sparrowhawks to his collection of exotic birds, but he could not fit himself within any of the specified exceptions to the Act's ban on their importation into the United States. That is, he had not been away from the United States for more than a year, so he could not come within the personally owned pet exception; he was conducting no scientific research, nor was he involved in zoological breeding or display programs; and he was not engaging in cooperative breeding programs under the auspices of "an avicultural, conservation, or zoological organization." See 16 U.S.C. § 4911. In other words, there was no legal avenue for Cullen to follow to add Black Sparrowhawks from outside the United States to his collection of exotic birds.

Joseph and Kristen Kulak were Americans living abroad in England in 1999. They had each been abroad for more than a year. Were the Kulaks suddenly to decide to buy exotic birds as their personally owned pets, they would each qualify for the Wild Bird Act's personal pet exception. It turned out that Joseph Kulak worked for Cullen's wife in a large American insurance business with a branch in London. The Kulaks had no interest in Black Sparrowhawks and no background training or experience in handling them. Nonetheless, on October 27, 1999 Cullen mailed to the Wildlife Service applications signed by Joseph and Kristen Kulak indicating the Kulaks' desire to import into the United States three Black Sparrowhawks as their personally owned pets. Defendant also submitted to the Wildlife Service a receipt of purchase indicating the three Sparrowhawks had been sold to the Kulaks. According to the applications, two of the birds were Joseph Kulak's pets, while the third was Kristen Kulak's pet. In November 1999 the importation permits were granted.

Joseph Kulak's two pet Sparrowhawks (the third bird, ostensibly Kristen Kulak's pet, died in transit) arrived in the United States on January 6, 2000 from the United Kingdom. Cullen paid the purchase price for the birds that amounted to 500 English pounds sterling apiece. On June 10, 1999 when the birds were sold in England, 500 English pounds sterling was the equivalent of $800.10. See http://federalreserve.gov/ releases/ h10/19990614/ (exchange rate of $1.6002/pound on June 10). Defendant made and paid for all the travel arrangements for the birds from England to the United States.

Upon the birds' arrival in this country, Cullen went to the airport to pick them up. Ann Marie Holmes, the Wildlife Service Inspector at JFK Airport, doubted defendant's story that he was just picking up Kulak's birds on Kulak's behalf since Kulak was, after all, still living in England. As a result of her doubts she refused to turn the birds over to Cullen. She quarantined them in a facility run by the Department of Agriculture where, unfortunately, another one of the birds died. Subsequently, the one living Sparrowhawk was turned over to the Wildlife Service pending an investigation into whether or not the bird had been legally imported into the United States.

Meanwhile, Joseph Kulak had submitted an affidavit to the Wildlife Service reaffirming that the Sparrowhawk was his personal pet. Thus, in August 2000 the Sparrowhawk was released to Cullen with instructions that he return it to Kulak. Instead of turning the male bird over to Kulak, Cullen loaned it to Craig Culver, a breeder in California who owned North America's other Black Sparrowhawk, a female. Culver and Cullen entered into two "breeding loan agreements" that divvied up any future offspring. Neither of these...