U.S. v. Mitchell

Decision Date03 November 1994
Docket NumberNo. 93-5728,93-5728
Citation39 F.3d 465
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard M. MITCHELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Tamara Lee Preiss, Sidley & Austin, Washington, DC, for appellant. David Glenn Barger, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Thomas C. Green, Mark D. Hopson, Sidley & Austin, Washington, DC, for appellant. Helen F. Fahey, U.S. Atty., W. Neil Hammerstrom, Jr., Asst. U.S. Atty., Alexandria, VA, for appellee.

Before MURNAGHAN, WILKINS, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Judge WILLIAMS joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

WILKINS, Circuit Judge:

Richard M. Mitchell appeals his conviction of importing merchandise contrary to law in violation of 18 U.S.C.A. Sec. 545 (West 1976). He principally argues that the "contrary to law" provision of Sec. 545 embraces only violations of other acts of Congress, not administrative regulations. In the alternative, he maintains that his felony conviction under Sec. 545 cannot be predicated on administrative regulations for which Congress has provided misdemeanor penalties. We disagree and accordingly affirm Mitchell's conviction.

I.

Mitchell was employed by the Fish and Wildlife Service of the United States Department of the Interior (FWS). His responsibilities included implementing international wildlife conservation programs, advising persons of the requirements for importing and exporting wildlife, and reviewing import and export applications. Outside his employment at the FWS, Mitchell booked big-game hunting trips to Asia and promoted sport-hunting programs of exotic wild animals.

An acquaintance of Mitchell, Don Cox, travelled to the Punjab Province of Pakistan where he illegally hunted and killed two Punjab urials and a Chinkara gazelle. Because he could not obtain permits from Pakistani wildlife authorities to export the hides and horns, Cox arranged to have Mitchell smuggle them out of Pakistan and into the United States.

On September 25, 1987, Mitchell arrived with the contraband at Dulles International Airport. He completed a United States Customs Service Declaration Form 6059-B (Customs Form 6059-B), but did not declare the hides and horns. Further, Mitchell did not complete a FWS Declaration for Importation or Exportation of Fish or Wildlife Form 3-177 (FWS Form 3-177). And, Mitchell failed to disclose that he was importing untanned animal hides into the United States.

In June 1992, a grand jury returned a nine-count indictment against Mitchell in which he was charged with numerous offenses relating to his business activities and to his bringing the hides and horns into the United States. Count Nine charged Mitchell with violating 18 U.S.C.A. Sec. 545 by importing merchandise contrary to law in that he failed to:

(1) declare the items to a Customs officer as required by 19 C.F.R. Sec. 148.11 (1987) ("the Customs regulation");

(2) file a completed FWS Form 3-177 as required by 50 C.F.R. Sec. 14.61 (1986) ("the FWS regulation"); and

(3) show the country of origin of the hides and horns on a commercial invoice or in some other manner satisfactory to the Deputy Administrator of Veterinary Services as required by 9 C.F.R. Sec. 95.2 (1987) ("the Agriculture regulation"). 1 Mitchell moved to dismiss Count Nine on the grounds that the "contrary to law" provision of Sec. 545 does not embrace violations of administrative regulations and that a felony conviction under Sec. 545 could not be predicated upon a violation of the FWS regulation for which Congress had provided a misdemeanor punishment under 16 U.S.C.A. Sec. 1540(b) (West 1985). 2 The district court denied the motion.

With respect to the regulations set forth in Count Nine, the district court instructed the jury in the disjunctive, stating that it need only find that one of the regulations had been violated in order to convict Mitchell. Mitchell agreed to this instruction. Although Mitchell was acquitted of Counts One through Eight, the jury returned a general verdict of guilt on Count Nine. The district court denied Mitchell's motion for a new trial or in the alternative for a judgment of acquittal, sentenced Mitchell to two years probation, and imposed a $1,000 fine and a $50 special assessment.

II.

Section 545 provides in pertinent part:

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law ... [s]hall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C.A. Sec. 545 (West 1976). Mitchell principally contends that the "contrary to law" provision of Sec. 545 embraces only conduct that violates acts of Congress, not conduct that violates administrative regulations. In the alternative, Mitchell contends that the "contrary to law" provision of Sec. 545 is ambiguous concerning whether it includes violations of regulations and that the rule of lenity therefore should apply. We review de novo the proper interpretation of a statutory provision, including whether the provision is ambiguous. United States v. Hall, 972 F.2d 67, 69 (4th Cir.1992).

A.

In determining the scope of the "contrary to law" provision of Sec. 545, we first examine the language of the statute. Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990). Because the word "law" within the meaning of Sec. 545 is not defined, we must give the word its ordinary meaning. Id. "Law" is commonly defined to include administrative regulations. See Black's Law Dictionary 796 (5th ed.1979); see also The Random House College Dictionary 759 (rev. ed.1980). In concluding that the word "law" in the "authorized by law" provision of 18 U.S.C.A. Sec. 1905 (West 1984) included administrative regulations, the Supreme Court observed:

It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law." This doctrine is so well established that agency regulations implementing federal statutes have been held to pre-empt state law under the Supremacy Clause. It would therefore take a clear showing of contrary legislative intent before the phrase "authorized by law" in Sec. 1905 could be held to have a narrower ambit than the traditional understanding.

Chrysler Corp. v. Brown, 441 U.S. 281, 295-96, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979) (footnotes omitted). Thus, the plain meaning of "law" includes regulations having the force and effect of law.

The plain language of the statute will control unless the legislative history demonstrates that Congress clearly intended a contrary meaning. See Reves v. Ernst & Young, --- U.S. ----, ----, 113 S.Ct. 1163, 1169, 122 L.Ed.2d 525 (1993). Mitchell contends that the ordinary meaning of the word "law" cannot be applied because when Congress enacted the "contrary to law" provision of Sec. 545 in 1866, 3 regulations were fairly uncommon and thus Congress could not have intended to include administrative regulations. Our review of the available legislative history of Sec. 545 discloses nothing to indicate that Congress clearly intended for the "contrary to law" provision to be limited to statutory violations. 4 Further, the "contrary to law" provision now codified at Sec. 545 was reenacted in 1922 and 1930. See Tariff Act of 1922, ch. 356, Sec. 593, 42 Stat. 858, 982 (1922); Tariff Act of 1930, ch. 497, Sec. 593, 46 Stat. 590, 751 (1930). 5 Prior to the 1922 and 1930 reenactments, it was well settled that the word "law" included substantive regulations having the force and effect of law. See, e.g., Maryland Casualty Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 157-58, 64 L.Ed. 297 (1920). Furthermore, the only court to have considered whether the "contrary to law" provision of the predecessor to Sec. 545 encompassed violations of administrative regulations prior to these reenactments concluded that it did. Estes v. United States, 227 F. 818, 821-22 (8th Cir.1915) ("contrary to law" includes regulations lawfully promulgated by the Secretary of Agriculture). "Congress is presumed to be aware of ... judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." Lorillard, a Div. of Loew's Theatres, Inc. v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (citations omitted). 6 Because Congress reenacted the predecessor to Sec. 545 with knowledge that the "contrary to law" provision had been interpreted to include regulations having the force and effect of law, we cannot conclude that Congress evinced a clear intent that Sec. 545 does not encompass administrative regulations. 7 Thus, we conclude that the "contrary to law" provision is unambiguous.

When ambiguity exists, " 'the ambit of criminal statutes should be resolved in favor of lenity.' " United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971)). However, the rule of lenity does not apply unless a " 'grievous ambiguity or uncertainty,' " Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974)), remains even after we have looked to the language, structure, and legislative history of the statute, Moskal, 498 U.S. at 108, 111 S.Ct. at 465. Because Sec. 545 is not ambiguous, we decline to apply the rule of lenity.

B.

Mitchell also claims that the "contrary to law" provision of Sec....

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