U.S. v. Manneh

• Decision Date: 31 December 2008
• Docket Number: No. 06 CR 248(RJD).,06 CR 248(RJD).
• Citation: 645 F.Supp.2d 98
• Parties: UNITED STATES of America v. Mamie MANNEH, Defendant.
• Court: U.S. District Court — Eastern District of New York

Page 98

645 F.Supp.2d 98

UNITED STATES of America v. Mamie MANNEH, Defendant.

No. 06 CR 248(RJD).

United States District Court, E.D. New York.

December 31, 2008.

COPYRIGHT MATERIAL OMITTED

Benton J. Campbell, United States Attorney, by: Jonathan E. Green, Assistant United States Attorney, Brooklyn, NY, for the Government.

Federal Defenders of New York, Inc., by: Jan Alison Rostal, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

DEARIE, Chief Judge.

Defendant Mamie Manneh has been indicted under 18 U.S.C. § 545 for importing parts of certain endangered African primate species without the permit required by the international treaty protecting those species or the license required of all United States wildlife importers, and for failing to disclose to border officials the true nature of the product she was importing. On her motion pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure to dismiss the indictment, she claims that by requiring her to comply with these licensing, permitting and disclosure requirements—and by prosecuting her for failing to do so—the government has substantially burdened the exercise of her sincerely held religious beliefs in violation of the Free Exercise Clause of the First Amendment of the United States Constitution as codified by the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb et seq. At an evidentiary hearing on the RFRA claim following the initial round of briefing, the Court observed the testimony of defendant and others, and admitted the extensive body of religious and cultural scholarship and related secondary literature that defendant offered. Substantial post-hearing submissions were received as well.

For the reasons that follow, defendant's motion is denied.

FACTUAL BACKGROUND

A. The Nature of the Charges

1. Undisputed Facts

The principal facts involving the shipment at issue—what it contained, how it was labeled, and what the required paperwork (either by declaration or omission) disclosed about its contents—are not disputed. On January 9, 2006, an air cargo shipment arrived at John F. Kennedy Airport aboard Royal Air Maroc that was found, upon inspection, to contain primate parts secreted beneath layers of smoked fish and items of apparel. The shipment, which originated in the Republic of Guinea, consisted of twelve boxes weighing a total of approximately 327 kilograms (720 pounds). Inspectors, first from the United States Customs and Border Protection ("Customs") and then from the United States Fish and Wildlife Service of the Department of the Interior ("Fish & Wildlife"), found primate parts, or "bushmeat," "commingled with" smoked fish and "concealed under the top layers" of fish in "multiple boxes" of the shipment. Complaint and Affidavit in Support of Arrest Warrant, sworn to February 3, 2006 (the "Complaint") at ¶ 7.¹ In all, inspectors found and seized 65 individual pieces of bushmeat, including skulls, limbs and torsos. Id. ¶ 8.

The shipping and related documents speak for themselves. The airway bill names defendant's cousin in Guinea as shipper and defendant, at her home address in Staten Island, as intended recipient, and none of the documents discloses the presence of primate parts in the shipment. Inter alia, (1) the airway bill, prepared on the shipping end, identified the goods as "Foodstuff," "Smoked Fish/African Wear," and "Perissable" [sic]; (2) the airline's flight manifest, prepared by the airline on the basis of the contents of the airway bill and electronically submitted to Customs in advance of the plane's arrival, described the shipment as containing "Foodstuuf" [sic]; and (3) a third form, a PPQ Form 368 prepared by Cargo Hut, a freight forwarder engaged by defendant to assist her with customs clearance, was filed with the Animal and Plant Health Inspection Service of the United States Department of Agriculture and listed "eleven cartons" of "smoked fish" and "one carton" of "African dresses."²

2. The Specific Laws that Defendant Violated

Particularizing the general "contrary to law" language of Section 545 and the indictment,³ the government points to several laws that together delineate the paperwork trail an importer must follow in order to import primate parts. The seminal provision is an important international treaty that regulates the trade of certain wildlife species believed to be in danger of extinction, the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES" or "the Convention"), 27 U.S.T. § 1087, signed by the United States and 160 other nations.⁴ The Convention categorizes species according to the perceived level of threat to their survival, as follows: (i) those in Appendix I are "threatened with extinction," and trade in specimens of these species "must only be authorized in exceptional circumstances;" (ii) species in Appendix II are those which, "although not necessarily now threatened with extinction, may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival"; and (iii) those in Appendix III are "already subject to regulation in particular jurisdictions" and "need[] the cooperation of other parties [to] control" their trade. 27 U.S.T. § 1087, Art. II, 1-3. Forensic tests confirmed that the primate parts found in the seized January 9 shipment addressed to defendant contained specimens of two different Appendix-II species from the primate family Cercopithecidae—hamadryas baboons (Papio hamadryas) and green monkeys (Chlorocebus aethiops sabaeus).

Article IV of the Convention outlines the requirements for trade in Article-II species. It provides, inter alia, that "export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit," and that the import of any such species, likewise, "shall require the prior presentation of either an export permit or a re-export certificate." Id., Art. IV. This Article also delineates the prerequisites for the issuance of such permits: in brief, the nation of export must be satisfied that the export will not be detrimental to the survival of the species and that the specimen was not obtained in violation of that nation's laws; the nation of import must make comparable determinations, and must also be "satisfied that the specimen was imported ... in accordance with the provisions of the [] Convention." Id.

The United States has implemented the Convention through the Endangered Species Act, 16 U.S.C. § 1538(c)(1) ("[i]t is unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of the Convention"), and regulations promulgated by Fish & Wildlife at Part 23 of Title 50 of the Code of Federal Regulations ("Part 23"). See 50 C.F.R. § 23.1(c) ("We, the U.S. Fish and Wildlife Service, implement CITES through the Endangered Species Act"); § 23.1(a) ("[t]he regulations in this part implement [CITES]"); and § 23.13(a) (it is "unlawful" to "[i]mport, export, re-export, or engage in international trade with any specimen of a species listed in Appendix I, II, or III of CITES" unless the license and permit requirements are satisfied).

Part 23 begins with several provision that, in quite accessible language, index the ensuing regulations and guide would-be importers through the licensing and permit process. See, e.g., § 23.1 (titled, "What are the purposes of these regulations and CITES?"); § 23.2 (a decision tree entitled, "How do I decide if these regulations apply to my shipment or me?"); § 23.3 ("What other wildlife and plant regulations may apply?"); § 23.7 ("What office do I contact for CITES information?") (which includes telephone numbers and web addresses); and § 23.20 ("What documents are required for international trade?"). Other Part 23 regulations explain the basic categories of species reflected in the three CITES appendices. See 50 C.F.R. § 23.4 ("What are Appendices I, II and III?").

According to the government and the Court's own assessment of the regulatory scheme—within which, the government claims, are the predicate provisions giving rise to the "contrary to law" prosecution under Section 545—four principal steps appear to be required of any individual seeking to import specimens of Appendix-II species (some are CITES-specific, while others apply to importers generally). First, the importer must obtain a CITES export permit from the country of origin of the wildlife in question. See 50 C.F.R. § 23.20(e).⁵ Second, the importer must obtain a Fish & Wildlife "import/export license," a requirement imposed even on importers of animals not covered by CITES). See 50 C.F.R. §§ 14.91(a) and (c)(7).⁶ Third, in addition to the entry documents (principally, Form 3461) that any importer must file with Customs, on which a truthful declaration of the shipment's contents must be made, wildlife importers must also separately declare the shipment to Fish & Wildlife on that service's own form, the Declaration for Importation or Exportation of Fish or Wildlife, known as Form 3-177. 50 C.F.R. § 14.61. Section 14.61 states the filing requirement in plain language—in pertinent part, that "importers or their agents must file with [Fish & Wildlife] a completed Declaration for Importation or Exportation of Fish or Wildlife (Form 3-177), signed by the importer or the importer's agent, upon the importation of any wildlife at the place where [Fish & Wildlife] clearance ... is requested." Id. Form 3-177 conspicuously requests the importer's CITES permit number, along with other information contained in a properly issued CITES permit. The Form further states that providing the requested information is mandatory, and that the importer (or agent) must certify that the information furnished is true and complete to the best of his/her knowledge and belief. See 50 C.F.R. § 14.61. Finally, the importer must...