U.S. v. Grigsby
| Decision Date | 02 May 1997 |
| Docket Number | No. 93-9426,93-9426 |
| Citation | 111 F.3d 806 |
| Court | U.S. Court of Appeals — Eleventh Circuit |
| Parties | , 10 Fla. L. Weekly Fed. C 859 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. David GRIGSBY, Doris Grigsby, Defendants-Appellants, Cross-Appellees. |
Kevin Brehm, Fed. Def. Program, Inc., Atlanta, GA, for David Grigsby.
Lauren L. Becker, Atlanta, GA, for Doris Grigsby.
Gerrilyn G. Brill, Acting U.S. Atty., Atlanta, GA, Bryan J. Farrell, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, Albert M. Ferlo, Jr., U.S. Dept. of Justice, Washington, DC, for U.S.
Appeals from the United States District Court for the Northern District of Georgia.
Before BIRCH, Circuit Judge, and KRAVITCH and HENDERSON, Senior Circuit Judges.
These appeals from convictions for conspiracy to import raw African elephant ivory in violation of the African Elephant Conservation Act ("AECA"), 16 U.S.C. § 4223(1), violations of the Endangered Species Act of 1973, 16 U.S.C. § 1538(c)(1), and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(a), challenge the jury instructions as being erroneous and incomplete with respect to the AECA, and the verdicts regarding the other wildlife statutes as being contrary to the evidence and jury instructions. The district court instructed that general intent was all that was required to violate the AECA, omitted relevant exceptions to that statute, and instructed that the household effects exception applied to all of the statutes. Because we conclude that the district court's AECA jury instructions were erroneous and incomplete and that the jury's verdicts as to the other wildlife statutes were contrary to the jury instructions and evidence, we REVERSE and REMAND with instructions to grant the motions for judgments of acquittal.
In 1978, defendants-appellants David and Doris Grigsby, husband and wife and United States citizens, moved from Ohio to Stittsville, Ontario, Canada, and began operating a taxidermy business. David, a professional taxidermist, performed the taxidermy work, and Doris, who has a high school education, handled the business aspects. In 1987, one of their customers, R.W. Ashton, asked them to sell his sport-hunted trophies, including eight elephant tusks brought into Canada from several African safaris between 1965 and 1973. 1 Illinois resident Kenneth Enright, who owned a company that manufactured cutlery, archery, and pistol handles from ivory, responded to the Grigsbys' advertisement in June, 1988. After negotiating with the Grigsbys from June through October, 1988, Enright agreed on a price of fifty United States dollars ($50) per pound for the ivory tusks.
Before traveling to Canada to view the ivory, Enright asked Doris Grigsby to inquire about Canadian export permits. Since she had no previous experience with export documents, Doris Grigsby contacted Gordon Shearer, the District Conservation Officer Coordinator of the Ontario Office of the Interior Ministry of Natural Resources, who issued export permits under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249 (entered into force July 1, 1975) [hereinafter "CITES" or "Convention"] 2 and who had known the Grigsbys since their arrival in Canada. Shearer testified that he remembered receiving Doris Grigsby's inquiry concerning the export permits, but that he had never issued export permits for African elephant ivory and was unfamiliar with the process.
Ashton transferred the original certificates of ownership for two of the ivory tusks. The Canadian Wildlife Service was satisfied that, because the harvesting was before the applicability of CITES, a permit could be issued for all of the ivory tusks. After Doris Grigsby applied for the original eight African elephant tusks, a Canadian export CITES permit was issued on October 20, 1988. She informed Enright by telephone on October 24, 1988, that the CITES export permit had been issued.
On November 8, 1988, Enright arrived in Canada to purchase the ivory tusks. He brought a completed, certified check for twenty-six thousand United States dollars ($26,000) drawn on the account of his Illinois company and payable to Grigsby Taxidermy. Enright then learned that an additional ivory tusk had been added for sale by Ashton, making a total of nine tusks available for sale. After examining the tusks and determining that the quality of the ivory did not meet his expectation, Enright negotiated directly with Ashton to reduce the sales price from fifty to forty United States dollars ($50-$40) per pound.
Upon consummation of the sale with Ashton, Enright tendered to Doris Grigsby the completed, certified check. Since the check was payable to Grigsby Taxidermy instead of Ashton and exceeded the final sales price, Doris Grigsby took Enright to her Canadian bank, where the certified check was converted to a Canadian bank draft payable to Ashton in Canadian funds, with Enright retaining the difference. Doris Grigsby gave Enright a receipt for the purchase of the ivory in the amount of twenty thousand, five hundred ninety-four Canadian dollars ($20,594), the dollar amount of the Canadian bank draft payable to Ashton.
Following this bank transaction, when the United States funds were converted to Canadian funds, Enright told Doris Grigsby for the first time that his plans had changed and that he no longer wanted the ivory shipped to the United States but, instead, to a subsidiary company in Hong Kong. He explained that the United States recently had enacted the AECA, which prohibited the importation of African elephant ivory from nonivory producing countries, including Canada. 3
Enright asked Doris Grigsby to return to the Canadian Ministry to obtain a CITES permit for Hong Kong. He gave her his company mailing label, pretyped to the address of George Wong, an ivory broker in Hong Kong, for shipment of the ivory tusks that Enright had purchased. Accommodating Enright's request, Doris Grigsby telephoned Shearer at the Canadian Interior Ministry of Natural Resources and advised him that the plans had changed necessitating a CITES permit for Hong Kong and the addition of the ninth tusk. Shearer testified that Doris Grigsby told him that she had just learned of the change in the United States law precluding taking the ivory shipment into the United States, although she had a Canadian permit for it. A second CITES permit was issued on November 8, 1988, for the nine ivory tusks to be exported to Hong Kong.
When Doris Grigsby obtained the CITES permit from Shearer's office on November 8, 1988, she noticed and took a free Fish & Wildlife "Facts" sheet printed by the Fish and Wildlife Service of the United States Department of the Interior. This document specifically addressed ivory and contained information concerning the importation of noncommercial shipments of ivory. In pertinent part, the Facts sheet stated:
2. African elephant (Loxodonta africana ).
....
A. Non-commercial shipments. Raw and worked ivory may be imported and reexported for personal use (accompanying personal baggage) without CITES documents.
Ivory, Fish and Wildlife Facts (Fish & Wildlife Serv., U.S. Dept. of the Interior, Washington, D.C.), Jan. 1988 (Defendant's Exhibit No. 20) (emphasis added).
When Doris Grigsby returned to her home after obtaining the CITES permit, Enright had crated the ivory tusks, which filled one entire side of the Grigsbys' carport. For the additional trouble in returning to Shearer's office a second time, Enright offered the Grigsbys five hundred United States dollars ($500). Following his meeting with David and Doris Grigsby in November, 1988, Enright's subsequent contacts were with Doris Grigsby only. Ashton died following this sale of the ivory tusks to Enright.
After the crates had been in the Grigsbys' carport for two weeks, Doris Grigsby called Enright in Illinois to inquire why the ivory had not been removed. He informed her that his plans to sell the ivory tusks in Hong Kong had not materialized. Doris Grigsby then told Enright that she would charge him one hundred United States dollars ($100) per month as a storage fee for each month that the ivory tusks remained on the Grigsbys' property after the December 20, 1988, expiration date for the CITES permit to Hong Kong.
The Grigsbys did not hear from Enright regarding his investment in excess of twenty thousand United States dollars ($20,000) until July, 1989, eight months after his purchase. He authorized the Grigsbys to sell the ivory tusks in Canada for him. Enright further wanted the Grigsbys to resell his ivory for his preferred selling price of sixty-five United States dollars ($65), but not less than fifty United States dollars ($50) per pound. After advertising the ivory tusks for sale, Doris Grigsby sold two tusks. On August 14, 1989, she sent Enright a bank draft for four thousand Canadian dollars ($4,000) for the two sales and added two thousand Canadian dollars ($2,000) of her own without retaining her ten percent sales commission to which Enright previously had agreed. Nevertheless, Enright neither attempted to obtain the ivory tusks for which he had paid nor compensated the Grigsbys any storage fees during 1990. Consequently, the ivory tusks were stored in the Grigsbys' carport in Canada from November, 1988, until 1991.
In the summer of 1991, the deteriorating health of David Grigsby, who suffered from degenerative arthritis, necessitated the Grigsbys' return to the United States for a warmer climate. They moved temporarily to Toccoa, Georgia. The ivory tusks, however, remained in Canada at their residence there. In March, 1992, Doris Grigsby called Enright to inform him that she would be in Canada in June and July, 1992, for the family's final move to the United States. She beseeched Enright to pay the outstanding storage fees for four years of storing the ivory tusks and to...
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