U.S. v. Mitchell

• Decision Date: 13 June 1977
• Docket Number: No. 76-2908,76-2908
• Parties: , 43 A.L.R.Fed. 585, 7 Envtl. L. Rep. 20,484 UNITED STATES of America, Plaintiff-Appellee, v. Jerry D. MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 996

553 F.2d 996

10 ERC 1177, 43 A.L.R.Fed. 585, 7

Envtl. L. Rep. 20,484

UNITED STATES of America, Plaintiff-Appellee, v. Jerry D. MITCHELL, Defendant-Appellant.

No. 76-2908.

United States Court of Appeals, Fifth Circuit.

June 13, 1977.

Theodore J. Sakowitz, Federal Public Defender, Edward B. Galante, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Nathaniel H. Speights, Thomas M. Sherouse, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM and GEE, Circuit Judges, and BOOTLE, ^* District Judge.

WISDOM, Circuit Judge:

This appeal turns on whether the Marine Mammal Protection Act of 1972 (MMPA), 16 U.S.C. § 1361 et seq., and related regulations, 50 C.F.R. § 216.11 (1974), apply to an American citizen taking dolphins within the territorial waters of a foreign sovereign state. The defendant-appellant, Jerry Mitchell, is an American citizen convicted of violating the Act by capturing 21 dolphins within the three-mile limit of the Commonwealth of the Bahamas. We hold that the criminal prohibitions of the Act do not reach conduct in the territorial waters of a foreign sovereignty. We reverse the conviction.

I.

The parties stipulated that Mitchell had a Bahamian work permit to capture the dolphins (Atlantic Bottlenose Dolphins). He admits taking them during 1974 while employed by George Curtis Johnson, the owner of Seafloor Aquarium, a marine attraction in Nassau, Bahamas. Johnson, a Bahamian citizen, obtained Mitchell's permit from the Bahamian government with the intention of exporting dolphins to Great Britain. Seafloor paid the defendant $800 for each captured dolphin. None of the dolphins were imported into the United States.

The Government's evidence as to its practices in issuing permits applicable to American citizens in foreign territorial waters suffers from a lack of clarity. According to government witnesses, in March 1973 the National Marine Fisheries Service of the Department of Commerce (NMFS) learned of Mitchell's plan to establish a dolphin-capturing business. Charles Fuss, Chief of Law Enforcement for the Service, and another agent met with Mitchell and an Englishman to discuss the proposed venture, which at that time was to be based in Haiti. Fuss testified that he cautioned Mitchell that the moratorium provision of MMPA prohibited American citizens from capturing marine mammals anywhere, and he advised Mitchell to seek legal advice, both from a lawyer and from the Service's Washington office. Fuss stated that Seafloor would not be granted a United States permit to capture dolphins because "that facility is located in a foreign country".

W. A. Haskell, a Florida agent for the Service, testified that Mitchell telephoned him on March 20, 1973, and asked what he should do to obtain a permit to capture marine mammals and when the Marine Mammal Commission would be appointed. Haskell informed Mitchell that he would need a permit from the Commission, but that he did not know when the Commission would be appointed.

Rupert Bonner, a staff assistant with the Service's Washington office, in charge of processing permits, testified that he would not be able to issue Seafloor or Mitchell a permit because "We do not issue permits in other countries". But he also stated: "(W)e would allow that the animal be taken in another country if it was approved by the country in which the applicant stated it would be taken." When recalled to the stand to clarify his testimony, he testified on re-direct examination that he had issued permits to allow the capture of dolphins in Mexico and Canada. On cross-examination he was asked: "Are your permits issued to Seaquariums and Seafloor-like institutions that are wholly owned by Americans for taking dolphins in the territorial waters of (a foreign) nation?" He answered, compounding the confusion, "They are not, no."

The Government introduced two letters in evidence, both from Fuss, but drafted by Haskell. The first, dated January 23, 1974, referred only to importation of dolphins. It enclosed a copy of the 1973 regulations. It stated, in principal part: "It has come to our attention that you intend to import certain marine mammals from abroad. . . . Before importing any marine mammals or marine mammal products into the United States, you must comply with the requirements of Section 216.14 as cited above." Mitchell never had any intention to import dolphins into the United States. The second letter, dated May 7, 1974, stated that it has "come to our attention that you proposed to move to the Bahama Islands and set up a porpoise catching operation". It enclosed a copy of the 1974 revisions in the regulations and quoted Section 216.11c, that a "prohibited taking" applied to "(a)ny person subject to the jurisdiction of the United States . . . tak(ing) any marine mammal during the moratorium".

Mitchell testified that as a result of his conversation with Fuss he consulted an attorney. The attorney, James E. Nelson of Miami, whose firm had handled the incorporation of Mitchell's business, advised him that his activities in the Bahamas would be lawful. The defendant also testified that Fuss did not know at the time of their meeting if it (dolphin capturing in Bahamian waters) was legal or not. Government counsel no doubt confused the jury and the defendant by asking "Do you recall the letter of January 23, 1974, that Agent Haskell sent with regard to the New Marine Mammal Protection Act, and U.S. citizens would be violating the law no matter where they captured dolphin". This statement was not contained in the letter; the letter dealt only with importation of marine mammals. Mitchell was asked the same question with regard to the letter of May 7, which also lacks the statement on which the question was predicated. Mitchell confused the issue by answering "yes" to both questions. He also admitted that he had read the regulations attached to the letters. Nevertheless, he continued his operations in the territorial waters of the Bahamas because his lawyer advised that he was not subject to the jurisdiction of the United States.

In a 32-count indictment, the Government charged Mitchell with taking four dolphins on May 11, 1974, nine in June or July, and two on August 9, all in violation of the NMFS regulation. ¹ Stated without a geographical restriction, the regulation purports to prohibit all unauthorized takings of marine mammals by United States citizens. The indictment also charged that Mitchell possessed these same dolphins in violation of another regulation ² and that he transported and sold the animals in violation of the same provision. The jury found Mitchell guilty of these twenty-three counts, as well as of one count of conspiracy to violate the Act and the regulations. The jury acquitted the defendant of eight counts of taking, possessing, transporting, and selling six dolphins in violation of the MMPA sections prohibiting takings on the high seas, ³ possession of illegally taken mammals, ⁴ and transport or sale of such mammals. ⁵

The district court entered judgment on the jury's verdict and sentenced Mitchell to a period of ninety days incarceration on the conspiracy charge and one year probation on each remaining count. The periods of probation were to run consecutively with the confinement and concurrently with each other. Of the three grounds urged on appeal for reversal ⁶, we consider only the question of the extraterritorial scope of the statute.

II.

Congress passed the Marine Mammal Protection Act in 1972 after finding that "certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities". 16 U.S.C. § 1361(1). Section 1361(2) states, in part:

such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.

To attain this goal, section 1371 ⁷ establishes what the Conference Report terms a "permanent moratorium." This is defined as a "complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products, except as provided in this chapter". Id. at § 1362(7). During the moratorium, however, the Secretary of Commerce may issue permits for the taking of marine mammals for various purposes, including public display, provided that the taking is reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established by the Act. The Commission and Committee must recommend approval of any proposed taking that is consistent with the purposes stated in section 1361. Id. at § 1371(a). After consultation with the Commission, the Secretary must promulgate regulations governing takings, importation, permits, applications for permits, and general waivers of the moratorium. Id. at §§ 1373(a), 1374(b), 1371(a)(3)(A). The statute does not attempt to define the geographic extent of the moratorium.

The Act also announces a series of specific prohibitions with clear geographic scope. Id. at § 1372. Except as permitted by regulation, permit, or treaty, "it is unlawful for any person subject to the jurisdiction of the United States . . . to take any marine mammal on the high seas", id. at § 1372(a) (1), or from the "waters or on lands under the jurisdiction of the United States", id. at § 1372(a)(2)(A). It is also unlawful for any person to "possess any such mammal; or to transport, sell or offer for sale any such mammal", id. at § 1372(a)(3), or "to import into the United States . . . any marine mammal taken in violation" of the Act or "taken in another country in...