U.S. v. Labs of Virginia, Inc.

Decision Date22 July 2003
Docket NumberNo. 02 CR 0312.,02 CR 0312.
CourtU.S. District Court — Northern District of Illinois
PartiesUNITED STATES of America v. LABS OF VIRGINIA, INC., David M. Taub, Charles J. Stern, and William Curtis Henley III

Diane MacArthur, United States Attorney's Office, Chicago, IL, for Plaintiff.

Robert H. King, Jr., James G. Richmond, Greenberg Traurig, Chicago, IL, Michael L. Fayad, Greenbert Taurig, P.C., Samuel J. Buffone, Robert J. Kovacev, Ropes & Gray, Washington, DC, Robert H. King, Jr., James G. Richmond, Greenberg Traurig, Chicago, IL, Charles Scott Graber, Graber & Baldwin, Beaufort, SC, Gerald A. Feffer, David M. Zinn, Williams & Connolly, Washington, DC, Robert H. King, Jr., James G. Richmond, Greenberg Traurig, Chicago, IL, Michael L. Fayad, Greenbert Taurig, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Presently before the Court is Defendants Charles J. Stern and William Curtis Henley III's renewed motion to dismiss Count V of the indictment on the grounds that certain Government responses to the bill of particulars now demonstrate that a part of the Government's proof would require this Court to invalidate an official act of the Indonesian government, which is barred under the act of state doctrine. For the following reasons, the motion is denied. (R. 94-1.)

RELEVANT FACTS1

The United States of America and Indonesia became parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES") in 1974 and 1979, respectively. CITES was enacted as a result of a growing recognition "that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade." See CITES, Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249, Preamble. Indeed, in the spirit of international cooperation, CITES requires contracting states to "take appropriate measures to enforce the provisions of the [treaty] and to prohibit trade in specimens in violation thereof." Id., Art. VIII, § 1. Under the terms of the treaty, "[t]he Parties shall not allow trade in specimens of species [listed in three attached appendices] except in accordance with the provisions of [the treaty]." Id., Art. II. Appendix II to CITES includes wildlife species that may become endangered if trade in those species is not strictly limited. Accordingly, species listed in Appendix II may not be exported or imported unless accompanied by a valid foreign export permit from the country of origin. An export permit shall be granted only when the following conditions have been met: "(a) the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species; (b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and (c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment." Id., Art. IV. Long-tailed, crab-eating macaque monkeys are listed on Appendix II.

The United States Fish and Wildlife Service ("USFWS") issues regulations to enforce CITES within the United States. All wildlife imported into the United States must first be inspected by the USFWS and United States Customs Service personnel. The Lacey Act, 16 U.S.C. § 3371 et seq., is one of the statutes governing the importation of species covered by CITES into the United States. The Lacey Act prohibits the import, export, transportation, sale, receipt, acquisition or purchase in interstate or foreign commerce of any fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State or in violation of any foreign law. 16 U.S.C. § 3372(a)(2)(A).

Defendants are involved in breeding and selling primates for medical research. In about May 1996 Defendant Labs of Virginia ("Labs") learned that Inquatex, an Indonesian company in the business of capturing, breeding and exporting primates, was selling a breeding colony of long-tail, crab-eating macaque monkeys. Labs, through Defendants Taub, Stern and Henley, began negotiations to purchase the Inquatex breeding colony. One of Labs's employees traveled to Indonesia to inspect the Inquatex colony in June 1996. According to the indictment, the employee learned, and reported back to Taub, Henley and Curtis, that the colony contained almost 1,400 crab-eating macaques, of which 668 were wild-caught and 762 were captive-bred. The indictment also alleges that the employee informed the defendants that importing wild-caught macaque monkeys was against Indonesian law and that Inquatex had bribed government officials to obtain permits for their release.

In late July 1996 Labs prepared a purchase agreement for the Inquatex colony and arranged for the first shipment of crab-eating macaques. In January 1997 the parties signed the purchase agreement for approximately 1,312 crab-eating macaques. The agreement stipulated that each party was to provide the other with all necessary applications and documents filed as a part of the permit process. Subsequently, the Inquatex colony was shipped to the United States in seven separate shipments; four shipments entered the United States at O'Hare International Airport in Chicago. A Labs employee was present at Inquatex prior to each shipment to monitor the selection and preparation of the monkeys for shipment to the United States. The indictment alleges that the four O'Hare shipments contained a mix of wild-caught and captive-bred monkeys; the permits and health certificates for each shipment, however, falsely specified that the shipments contained only captive-bred monkeys.

The Government charged Defendants with violating various provisions of the Lacey Act, 16 U.S.C. § 3371 et seq., and other import laws, 18 U.S.C. § 545; 50 C.F.R. § 14.105(b)(2) in a twelve-count indictment. Defendants Stern and Henley were charged in Count V with illegal trafficking of species protected under Indonesian law. See 16 U.S.C. § 3372(a)(2)(A). Following their indictment Stern and Henley moved to dismiss Count V under the void-for-vagueness doctrine, the act of state doctrine and for failure to allege a predicate act or factual basis for the charge. Additionally, the defendants moved for a bill of particulars, seeking information to clarify the Government's theory of the case as well as facts relating to Henley and Stern. We denied the motion to dismiss Count V, (R. 79-1), but granted the motion for the bill of particulars (R. 82-1). Based on the Government's responses to the defendants' bill of particulars, Stern and Henley renewed their motion to dismiss Count V in April 2003, which is presently pending before this Court.

LEGAL STANDARDS

To withstand a motion to dismiss pursuant to Federal Rule of Criminal Procedure 12, an indictment must include the essential elements of the crimes alleged therein. United States v. Torres, 191 F.3d 799, 804 (7th Cir.1999). An indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a defense that may be decided solely on issues of law. See, e.g., United States v. Tallant, 407 F.Supp. 878, 885 (N.D.Ga.1975).

ANALYSIS

Count V of the indictment charges Stern and Henley with misdemeanor violations of §§ 3372(a)(2)(A) and 3373(d) of the Lacey Act.2 As noted above, those sections make it unlawful "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce — any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law." 16 U.S.C. § 3372(a)(2)(A). "[A]ny person who knowingly engages in conduct prohibited by any provision of this chapter ... and in the exercise of due care should know that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation shall be fined ... or imprisoned ..., or both." 16 U.S.C. § 3373. The combined statutory scheme under the Lacey Act for trafficking misdemeanors requires the Government to prove the following four elements: (1) the wildlife at issue is covered by the Lacey Act; (2) the wildlife was taken, possessed, transported, or sold in violation of a wildlife-related state, federal, or foreign law or regulation; (3) the defendants imported, exported, transported, received, acquired, or purchased the illegal wildlife or attempted to do so; and (4) the defendants knew or should have known of the wildlife's illegality. 16 U.S.C. §§ 3372, 3373; see also Robert S. Anderson, The Lacey Act: America's Premier Weapon in the Fight Against Unlawful Wildlife Trafficking, 16 Pub. Land L.Rev. 27, 58 (1995).

The first prong is satisfied because the indictment properly alleges that Defendants violated the Lacey Act when they imported wild-caught, crab-eating macaques, a species protected under Indonesian law and thus covered by the Lacey Act. The defendants have not challenged the third and fourth prongs and the Government properly alleges the requisite acts and knowledge by the defendants. Thus, at issue in the present motion is whether the Government sufficiently alleges that the wildlife was taken, possessed, transported or sold in violation of a wildlife-related foreign law or regulation. In this case, the indictment alleges that the shipments at issue violated the Decree of the Indonesian Minister of Forestry No. 26/Kpts-11/94, which bans the export of wildcaught crab-eating macaques but not captive-bred macaques.3

Defendants argue, however, that the indictment is defective in light of the admissions contained within the bill of particulars either because: (1) it is now clear that the...

To continue reading

Request your trial
17 cases
  • U.S. v. Black, No. 05 CR 727.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 21, 2006
    ...if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003); see also United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005) ("[t]he propriety of granting a motion to dis......
  • United States v. One Etched Ivory Tusk of African Elephant
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 17, 2012
    ...underlie the doctrine are not present. See United States v. Giffen, 326 F.Supp.2d 497, 502 (S.D.N.Y.2004); United States v. Labs of Va., Inc., 272 F.Supp.2d 764, 771 (N.D.Ill.2003). These opinions cohere with the test that Bigio establishes: where the United States Government has brought su......
  • U.S. v. Mubayyid
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 8, 2007
    ...if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003); see also United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005); United States v. Tawahongva, 456 F.Supp.2d 1......
  • U.S. v. Vasquez
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 19, 2008
    ...may be decided solely on issues of law." United States v. Black, 469 F.Supp.2d 513, 518 (N.D.Ill.2006); United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003). B. THE ADAM WALSH ACT AND THE SEX OFFENDER REGISTRATION AND NOTIFICATION Title I of the Adam Walsh Child Pr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT