United States v. Place

Decision Date21 August 2012
Docket NumberNo. 11–1246.,11–1246.
Citation693 F.3d 219
PartiesUNITED STATES, Appellee, v. David L. PLACE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

J. Martin Richey, Federal Defender Office, for appellant.

Robert G. Dreher, Acting Assistant Attorney General, Environment & Natural Res. Division, with whom Gary Donner, James B. Nelson, and Allen M. Brabender, Attorneys, U.S. Dep't of Justice, Environment & Natural Res. Division, were on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

But still another inquiry remains ... whether Leviathan can long endure so wide a chase, and so remorseless a havoc; whether he must not at last be exterminated from the waters, and the last whale, like the last man, smoke his last pipe, and then himself evaporate in the final puff.

Herman Melville, Moby Dick.

David L. Place appeals his convictions for illegally trafficking in sperm whale teeth and narwhal tusks. Specifically, a jury found that Place's whale-tooth dealings violated CITES, an international compact implemented in the United States via the Endangered Species Act (ESA) and regulations authorized by the ESA.1 But Place says the district judge should have instructed the jury on certain lesser-included offenses because he did not actually know his transactions were illegal, even if he should have known. He also says his smuggling convictions are legally wrong because his conduct violated only regulations, not statutes. We disagree with both lines of argument and therefore affirm.

I. Facts and Background
A. Trafficking in Whale Teeth

For decades, David Place sold various antiques, artifacts, and Nantucket-related paraphernalia from a shop on the island and, beginning in the 1990s, over the internet. An apparently lucrative element of Place's business was selling scrimshawed narwhal tusks and sperm whale teeth—that is, teeth carved with images and designs—to wealthy Nantucket tourists eager for a piece of the island's whaling history. He also sold uninscribed, or “raw,” teeth to local scrimshanders—artisans who would then carve designs into the teeth. Place frequently obtained tusks and teeth—both scrimshawed and raw-over the internet and turned them around for a healthy profit.

On August 7, 1999, Place received an email from Tim Balda (apparently a friend of his) informing Place that “Federal Fish and Game” (apparently the United States Fish and Wildlife Service) had confiscated a narwhal tusk from him because he did not have “all the documentation required for it,” and that [t]heir view is that ALL interstate transport of endangered species parts is illegal. Old or not, scrimshawed or not.” Balda said Fish and Game had elected not to indict him but that they could: “The fine for the narwhal tusk could have been as high as $30,000 with a 5 year jail term attached to it. Whale teeth are not much better in the punishment department.” Place responded to Balda: “Thanks for the note.... I think the time has come to just do private selling ... as I don't think anyone wants to go to prison or lose their shirts for the sake of a few sales.”

Place indeed pursued his “private selling” (which we will discuss only generally because the details of each individual transaction are not at issue here). He tracked down suppliers: Jake Bell, a native of Connecticut who shipped the whale teeth from Ukraine to a friend in the states whom Place had to meet in person to pick up the teeth 2; Greg Logan, a retired Canadian Mounty who would bring narwhal tusks across the border when visiting his summer home in Maine; and Andrei “Andy” Mikhalyov, a Ukraine-based dealer who acquired teeth from local private collections and sold them to various overseas customers. Place also found buyers: Nantucket scrimshanders and tourists; an internet customer named Bill Feeney, who bought 39 pounds of sperm whale teeth; and various auction-winners on eBay, where he listed his wares surreptitiously (in Place's words, [n]ever actually state what they are” but instead say they are a nice ivory color” and “a whale of a deal”). 3

Over the course of these purchases and sales, Place occasionally referenced his awareness that he was breaking the law by ignoring permits required by CITES. For example, on May 17, 2001, Place sent an email to Nina Logan, who'd transacted in narwhal tusks with him: “next time we do this I would like to get whatever documents I can certifying that these were taken legally, but for now I have managed without.” On May 26, 2002, he had another exchange with Logan:

Place: “... everytime I mention the tusks to anyone they want to know if they have papers.”

Logan: “... your customers are very correct in requesting supporting documentation....”

Place: “I can still sell them without papers to other customers, but it would be wonderful if everything were above board with papers, if you know what I mean!”

Around the same time, Logan referred Place to another narwhal-tusk seller, Ryan Bartlett, who emailed Place: “You are no doubt familiar if dealing in ivory items of this nature one must have documentation—this is where the problem arose as I am unable to provide any formal documentation.... I truly do not wish to create a situation where someone becomes the focus of an investigation or worse.” To that, Place replied: “I have a customer who could care less about papers and other customers who require them.... I still wish to go ahead with this.” And so he did.

B. CITES, the Lacey Act, and the Smuggling Statute

The papers Place disregarded were indeed necessary for trade in sperm whale teeth. CITES, again, is a treaty that the vast majority of countries, including the United States, have entered into.4 CITES places different levels of protection on different species, divided into three Appendices: Appendix I provides the highest level of protection for the most critically endangered species, including sperm whales; Appendix II is the intermediate level and includes narwhals. CITES art. II(1); 50 C.F.R. § 23.4(a) (2007) (Appendix I); CITES art. II(2); 50 C.F.R. § 23.4(b) (2007) (Appendix II). Appendix III is not at issue here. Among other restrictions, an export permit is required for international trade in specimens of species from either Appendix I or II, CITES arts. III(2), IV(2); 50 C.F.R. §§ 23.12(a)(1), 23.12(a)(2), 23.15 (2004),5 and an import permit is additionally required for trade in Appendix I species, CITES art. III(3); 50 C.F.R. § 23.12(a)(1) (2004). Further, CITES places an absolute ban on international trade in Appendix I species for “primarily commercial purposes.” CITES art. III(3)(c); 50 C.F.R. § 23.15(d)(7) (2004).

In the United States, CITES has been implemented by the ESA. 16 U.S.C. §§ 1537A, 1538(c)(1). 16 U.S.C. § 1537 authorizes the Secretary of the Interior to do all things necessary and proper to implement CITES; under this authority, Interior has promulgated regulations. See50 C.F.R. §§ 23.1–23.92. Each of the CITES provisions mentioned above has been re-codified in these domestic regulations (as cited above). This means it is and has been abundantly clear that international trade in sperm whale teeth and narwhal tusks requires an export permit, and international trade in sperm whale teeth requires an additional import permit and cannot be for primarily commercial purposes.6

Two statutes criminalize violations of CITES and its domestic counterparts. The Lacey Act creates two levels of criminality: any person who transports, buys, or sells wildlife in knowing violation of any law, treaty, or regulation—including CITES, the ESA, and the CITES regulations—is guilty of a felony; any person who transports, buys, or sells wildlife that he should have known violated a law, treaty, or regulation is guilty of a misdemeanor.16 U.S.C. § 3373(d)(1)-(2). The smuggling statute (titled “Smuggling goods into the United States”) imposes criminal sanctions on anyone who “receives, conceals, buys, [or] sells ... merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law....” 18 U.S.C. § 545.

C. Customs Bust at JFK Airport & Investigation

Back to the facts: in February 2004, government agents intercepted a shipment of 548 sperm whale teeth (listed in shipping documents as “tooth of white whale,” undoubtedly a reference to fictional sperm whale Moby Dick) from Mikhalyov to James Saunders, who essentially acted as U.S.-based distributor for Mikhalyov. As agents combed through Mikhalyov's and Saunders's records, they found that Place had purchased sperm whale teeth from both men between 2002 and 2004. Consequently, the government turned its attention to Place.

In the meantime, Mikhalyov, Saunders, and Place exchanged a flurry of emails. Saunders sent a message noting that even items that fell under CITES's “exceptions” generally required permits. After Place professed ignorance in a brief email, Saunders sent another email apologizing for the first and blaming the whale teeth's courier for the lack of documentation. Place sent an email wondering why he was not receiving permit papers if the couriers were supposed to be dealing with paperwork; he followed that by asking about another shipment of teeth due to him. Saunders asked what kinds of teeth were legal to import; Place disclaimed any knowledge. Place asked again for CITES paperwork. Mikhalyov bypassed the CITES question and said he would send more teeth to Place without involving Saunders; he said he would be careful to use small packages marked “souvinirs[sic]/carving/lapidary material or antique ornaments.” Place agreed, and things appeared to settle down for a while.

Then on March 8, 2007, Special Agent Troy Audyatis from the National Oceanographic and Atmospheric Administration (NOAA) and two other officers visited Place at his home on Nantucket. They interviewed Place for three hours, resulting in a handwritten sworn...

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