Oleh-oleh dari Chatham House-London Direktur Jenderal Bina Produksi Kehutanan

Transcription

1 Oleh-oleh dari Chatham House-London Direktur Jenderal Bina Produksi Kehutanan Tanggal Juni 2009 UP DATE LACEY ACT Oleh Elinor Colbourn,, Senior Trial Attorney Environmental Crimes Section Environment and Natural Resources Division, U.S. Department of Justice

2 Lacey Act As Applied: Case Studies Chatham House June 23-24, 24, 2009 London Elinor Colbourn, Senior Trial Attorney Environmental Crimes Section Environment and Natural Resources Division, U.S. Department of Justice

3 Background: The Lacey Act The United State s oldest wildlife protection statute First enacted in 1900 to combat impact of: domestic hunting to supply commercial markets, interstate shipment of unlawfully killed game, introduction of harmful exotic species Significantly amended in 1981, 1988, 2008 Now tool to combat trafficking in illegal wildlife, fish or plants and products thereof 3

4 Basic Requirements to Bring a Criminal Lacey Case: 1. Admissible Evidence 2. Proving Beyond A Reasonable Doubt That: TRAFFICKING CASE 1. The F/W/P At Issue Were Illegal/Contraband Under Lacey 2. The Defendant Dealt With The F/W/P either Knew or Should Have Known it was Illegal FALSE LABELING CASE 1. Actual or intended interstate/foreign shipment 2. The Defendant Knowingly Made or Submitted False Record FAILURE TO DECLARE CASE 1. The Defendant Knowingly Imported a F/W/P 2. The Defendant Knowingly Did Not File A Complete Declaration 4

5 Comments Heard Following Amendments: True/False Quiz Lacey Act Requires/Allows Importer/Foreign Gov t to Prove/Certify Legality Lacey Act Applies Only To Non-U.S. Nationals/Exporters Lacey Act Applies Only To Importers Of Record Lacey Act Is Used By Competitors To Unfairly Interfere With Shipments Lacey Act Does Not Apply to Domestic U.S. F/W/P Lacey Act Cases Will Be Virtually Impossible To Prosecute Lacey Act Amendments Will Be Prohibitively Expensive/Burdensome Lacey Act Amendments Are Being Enforced Only As To Plants Products Listed In The Enforcement Phase In Schedule?????????? 5

6 REALITIES CASE STUDY 1 Lacey Act Requires/Allows Importer/Foreign Gov t to Prove/Certify Legality FALSE U.S. v. Labs of Virginia No burden of proof or certification on those dealing in F/W/P as in all U.S. criminal cases, burden of proof is on U.S. BUT Conversely, no certification or document will protect against liability where the U.S. can meet its burden of proof 6

7 CASE STUDY 2 (a, b and c) Lacey Act Applies Only To Non-U.S. Nationals/Exporters - FALSE Lacey Act Applies Only To Importers Of Record - FALSE U.S. v. Crutchfield 1998 Importer/U.S. national U.S. v. Style Craft Furniture Exporter/foreign national U.S. v. Virginia Star Both sides 7

8 CASE STUDY 3 Lacey Act Is Used By Competitors To Unfairly Interfere With Shipments FALSE U.S. v. McNab

9 CASE STUDY 4 Lacey Act Does Not Apply to Domestic U.S. F/W/P - FALSE Rockfish cases 9

10 Lacey Act Amendments Are Being Enforced Now As to All Plants and Plant Products Initial Enforcement Phase of the Declaration Requirement April 1, 2009 September 30, 2009 HTS Chapters: 4401 (Fuel Wood) 4403 (Wood in the rough) 4404 (Hoopwood; poles, piles, stakes) 4406 (Railway or tramway sleepers) 4407 (Wood sawn or chipped lengthwise) 4408 (Sheets for veneering) 4409 (Wood continuously shaped) 4417 (tools, tool handles, broom handles) 4418 (Builders joinery and carpentry of wood)

11 THUS Lacey Act Cases Have Been and Will Be Prosecuted Lacey Act Amendments Require No More Funds To Implement Than Any Other Criminal Prohibitions 11

12 SOME POTENTIALLY RELEVANT U.S. STATUTES ALL PLANTS Customs Laws: Class E felonies: 18 U.S.C. 541 (entry of falsely classified goods) 2 years, $250,000/$500,000; 542 (entry of goods by means of false statement) 2 years, $250,000/$500,000; 545 (importation contrary to law) - 5 years, $250,000/$500,000 False statements, 18 U.S.C Class D felony (5 years, $250,000/$500,000, or twice the gross gain or loss) Conspiracy, 18 U.S.C Class D felony (5 years, $250,000/$500,000, or twice the gross gain or loss) Money Laundering, 18 U.S.C. 1956, 1957 Class C felonies (20 years $500,000; 10 years, $250,000 respectively) Plant Protection Act, 7 U.S.C Class A misdemeanor (1 year, $100,000 or twice the gross gain or loss) Lacey Act, 16 U.S.C. 3372, 3373 Class D felony (5 years, $250,000, or twice the gross gain or loss) Class A misdemeanor (reasonably should have known) (1 year, $100,000, or twice the gross gain or loss) CITES/ESA LISTED PLANTS Endangered Species Act, 16 U.S.C. 1538, 1540 Class A misdemeanor (1 year, $100,000/$200,000, or twice the gross gain or loss) Class B misdemeanor (6 months, $25,000/$25,000, or twice the gross gain or loss) **These are only some of the major statutes likely to be implicated in a timber trade case; particular fact patterns may bring to play additional statutes such as those related to obstruction of justice. All United States statutes can be found at All United States regulations can be found at

13 U.S. ENFORCEMENT CONTACTS/REFERENCES Customs and Border Protection Bruce Lewke ph fax Immigration and Customs Enforcement Special Agent Patrick Lewis ICE, SAC/LA, Trade Fraud office cell Sarah Baerwald Group Supervisor, Trade Fraud office David Nehls Assistant Special Agent in Charge, Financial ph U.S. Department of Justice Environmental Crimes Section Elinor Colbourn Senior Trial Attorney office cell USDA, Forest Service Alex Wiedenhoft USDA Forest Products Lab ph US Fish and Wildlife Service Special Agent Kevin Garlick Special Agent Gary Moad USDA, OIG Brian L. Haaser Special Agent in Charge Northeast Region office cell USDA, IES Robert Huttenlocker Director USDA, APHIS, PPQ Dr. John Veremis National CITES Coordinator ph fax Timothy J. Torbett Botanist/CITES Specialist

14 Information on the Internet To look up genus/species, go to: 14