U.S. v. Nguyen, No. 90-2023

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, THORNBERRY, and HIGGINBOTHAM; THORNBERRY
Citation916 F.2d 1016
Docket NumberNo. 90-2023
Decision Date30 October 1990
Parties21 Envtl. L. Rep. 20,486 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Oanh Vu NGUYEN, Defendant-Appellant, Cross-Appellee.

Page 1016

916 F.2d 1016
21 Envtl. L. Rep. 20,486
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,
v.
Oanh Vu NGUYEN, Defendant-Appellant, Cross-Appellee.
No. 90-2023.
United States Court of Appeals,
Fifth Circuit.
Oct. 30, 1990.

Page 1017

Roland E. Dahlin, II, Federal Public Defender, Thomas S. Berg, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant, cross-appellee.

Kathlyn G. Snyder, Paula Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee, cross-appellant.

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

Before CLARK, Chief Judge, THORNBERRY, and HIGGINBOTHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

A jury convicted the defendant, Oanh Vu Nguyen, of violating the Endangered Species Act by illegally possessing a threatened species of sea turtle, see 16 U.S.C.A. Secs. 1538(a)(1)(G), 1540(b)(1) (West 1985 & Supp.1990); 50 C.F.R. Sec. 227.71(d) (1989), and by illegally importing the turtle, see 16 U.S.C.A. Secs. 1538(a)(1)(G), 1540(b)(1); 50 C.F.R. Sec. 227.71(a) (1989). The trial judge instructed the jury that they could convict Nguyen even if he did not know that the turtle was a threatened species or that his conduct was illegal. On appeal, Nguyen contends that the trial judge committed reversible error by failing to impose a mens rea requirement, but because the legislative history shows that Congress intended to make violations of this provision of the Endangered Species Act a general intent crime, we AFFIRM his conviction.

Nguyen was convicted of a class B misdemeanor. See 18 U.S.C.A. Sec. 3559(a)(7) (West Supp.1990). Therefore, the district court was required to impose a $10 special assessment for each conviction. See id. Sec. 3013(a)(1)(A)(ii). Because it failed to do so, we MODIFY the judgment to impose the mandatory special assessment.

FACTS AND PROCEDURAL HISTORY

On May 4, 1989, off the coast of Galveston, Texas, in the Gulf of Mexico, two Coast Guard Officials boarded the fishing vessel Diana because its home port was not visible on its stern. The officers asked the three crew members which one of them was the captain. The defendant, Nguyen, allegedly stepped forward. Then one of the officers, Officer Kevin Walker, conducted a safety sweep of the vessel while the other, Officer Jeffery Kelley, remained with the crew.

During the safety inspection, Walker discovered an ice chest, covered with condensation, concealed in the insulating space between the engine room and the ice hold. He brought the chest back onto the deck. Kelley asked Walker what was in the chest, but before Walker could respond, Nguyen came forward and said, "Turtle." The officers opened the cooler and discovered the four flippers, the edible portions, of a sea turtle. The shell, head, and intestines had been discarded. The parties stipulated that the turtle was a Loggerhead sea turtle (caretta caretta ), a threatened species. See 50 C.F.R. Sec. 227.4(b) (1989).

Nguyen stated that he and his crew had hauled the turtle up in their shrimp net and that it was dead when they brought it on board the vessel. Nguyen advised the crew that it was illegal to keep the turtle, but they persuaded him to let them salvage the edible portions. The only disputed evidence concerned Nguyen's responsibility for the Diana and its crew. Nguyen testified that one of the other two men was the captain of the boat but that he came forward to speak with the Coast Guard officers because he was the only one who could speak English.

The Coast Guard escorted the Diana and its crew to the Galveston Coast Guard base. Nguyen was charged with two violations of the Endangered Species Act. In count one, he was charged with knowingly possessing a threatened species of sea turtle, see 16 U.S.C.A. Secs. 1538(a)(1)(G), 1540(b)(1) (West 1985 & Supp.1990); 50 C.F.R. Sec. 227.71(d) (1989). The judge instructed the jury that Nguyen could be found guilty of that charge if the government proved beyond a reasonable doubt that (1) "the defendant knowingly possessed a sea turtle or its parts"; (2) "the sea turtle was an animal listed as a threatened

Page 1018

species of wildlife by the United States"; and (3) "the animal had been taken either upon the high seas or in the territorial sea of the United States." In count two, Nguyen was charged with knowingly importing or attempting to import a sea turtle into the United States. See 16 U.S.C.A. Secs. 1538(a)(1)(G), 1540(b)(1); 50 C.F.R. Sec. 227.71(a) (1989). In his charge to the jury, the judge stated that Nguyen could be found guilty on this count if the government proved beyond a reasonable doubt that (1) "the defendant did an act"; (2) "the act was a knowing attempt to import something"; (3) "the thing was a threatened species"; and (4) "the attempted importation was into the United States."

In October 1989, the jury found Nguyen guilty on both counts. The court sentenced him to two years probation and, as a special condition of his probation, required him to teach English to five Vietnamese Americans. The court also decided not to impose a special assessment on the convictions.

DISCUSSION

I.

The Endangered Species Act is codified in sections 1531 to 1544 of title sixteen. Section nine makes it unlawful for any...

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16 practice notes
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...discretion to waive it based on the defendant's ability to pay nor does the Constitution require him to do so. United States v. Nguyen, 916 F.2d 1016, 1020 (5th Cir.1990); United States v. Rivera-Velez, 839 F.2d 8 (1st...
  • U.S. v. Grigsby, No. 93-9426
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 2, 1997
    ...v. Ivey, 949 F.2d 759, 766 (5th Cir.1991), cert. denied, 506 U.S. 819, 113 S.Ct. 64, 121 L.Ed.2d 32 (1992); United States v. Nguyen, 916 F.2d 1016, 1018-20 (5th Cir.1990); United States v. Billie, 667 F.Supp. 1485, 1492-93 (S.D.Fla.1987). In denying Doris Grigsby's motion for a new trial, t......
  • United States v. Johnman, No. 18-2048
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 28, 2020
    ..., 11 F.3d 7, 10 (1st Cir. 1993) (holding that each felony requires a separate special assessment); United States v. Oanh Vu Nguyen , 916 F.2d 1016, 1020 (5th Cir. 1990) (holding that the district court needed to impose an assessment for each conviction); United States v. McGuire , 909 F.2d ......
  • WildEarth Guardians v. U.S. Dep't of Justice, No. CV–13–00392–TUC–DCB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • June 19, 2017
    ...he shot the animal in question."). The Fifth Circuit has reached the same conclusion in related situations. See United States v. Nguyen , 916 F.2d 1016, 1017–18 (5th Cir.1990) (sustaining possession conviction did not require that defendant know animal's ESA-protected status); United States......
  • Request a trial to view additional results
14 cases
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...discretion to waive it based on the defendant's ability to pay nor does the Constitution require him to do so. United States v. Nguyen, 916 F.2d 1016, 1020 (5th Cir.1990); United States v. Rivera-Velez, 839 F.2d 8 (1st...
  • U.S. v. Grigsby, No. 93-9426
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 2, 1997
    ...v. Ivey, 949 F.2d 759, 766 (5th Cir.1991), cert. denied, 506 U.S. 819, 113 S.Ct. 64, 121 L.Ed.2d 32 (1992); United States v. Nguyen, 916 F.2d 1016, 1018-20 (5th Cir.1990); United States v. Billie, 667 F.Supp. 1485, 1492-93 (S.D.Fla.1987). In denying Doris Grigsby's motion for a new trial, t......
  • United States v. Johnman, No. 18-2048
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 28, 2020
    ..., 11 F.3d 7, 10 (1st Cir. 1993) (holding that each felony requires a separate special assessment); United States v. Oanh Vu Nguyen , 916 F.2d 1016, 1020 (5th Cir. 1990) (holding that the district court needed to impose an assessment for each conviction); United States v. McGuire , 909 F.2d ......
  • WildEarth Guardians v. U.S. Dep't of Justice, No. CV–13–00392–TUC–DCB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • June 19, 2017
    ...he shot the animal in question."). The Fifth Circuit has reached the same conclusion in related situations. See United States v. Nguyen , 916 F.2d 1016, 1017–18 (5th Cir.1990) (sustaining possession conviction did not require that defendant know animal's ESA-protected status); United States......
  • Request a trial to view additional results
2 books & journal articles
  • Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take
    • United States
    • Environmental Law Reporter Nbr. 46-6, June 2016
    • June 1, 2016
    ...U.S.C. §§1538(a)(1), 1540(b). 4. See United States v. McKittrick, 142 F.3d 1170, 28 ELR 21197 (9th Cir. 1998); United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990). Several district courts have also addressed this question, similarly ruling that knowledge that an action will take a partic......
  • Enforcement and Citizen Suits
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...Stat. ESA §11. 9. Id. §1540(a)(1), ELR Stat. ESA §11(a)(1). 10. Id. §1540(b)(1), ELR Stat. ESA §11(b)(1). See United States v. Nguyen, 916 F.2d 1016, 21 ELR 20486 (5th Cir. 1990) (ESA jail sentences are Class B misdemeanors under federal law). 11. 16 U.S.C. §1540(a)(1), ELR Stat. ESA §10(a)......

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