United States Fish and Wildlife Service Office of Law Enforcement

United States Fish and Wildlife Service Office of Law Enforcement 1

Overview of the U.S. Fish and Wildlife Service, Office of Law Enforcement Lacey Act Plant Amendments of 2008 Case Study Gibson Guitar Corp. 3

U.S. Fish & Wildlife Service Regions 4

U.S. Fish & Wildlife Service - OLE Office of Law Enforcement Field Structure Chief, Law Enforcement Special Agent In Charge, Law Enforcement Assistant Special Agent In Charge, Law Enforcement Resident Agent In Charge Resident Agent In Charge Resident Agent In Charge Special Agents Wildlife Inspectors

LACEY ACT (16 United States Code 3371-3378) Oldest U.S. wildlife protection statute (1901) Includes criminal penalties, civil fines, forfeitures

Lacey Act Prohibits: Making or submitting any false record Failing to submit declaration Trafficking in illegal fish and wildlife, or plants

SIGNIFICANT DEFINITIONS (16 U.S.C. 3371) Fish or wildlife means any wild animal, whether alive or dead, including any wild mammal, bird, reptile, amphibian, fish, whether or not bred, hatched or born in captivity, and includes any part, product, egg or offspring thereof. Plant means any wild member of the plant kingdom, including roots, seeds and other parts thereof (not food crops), and including trees from either natural or planted forest stands

Definitions (con t.) Law, treaty, regulation and Indian tribal law means laws, treaties, regulations which regulate the taking, possession, importation, exportation, transportation, or sale of fish, wildlife or plants Must be wildlife related or within list of types of plant statutes Taken means captured, killed or collected and, as to plants, harvested, cut, logged or removed Import means land on, bring into, or introduce into, any place subject to the jurisdiction of the United States

Exclusions Excluded from Lacey Act plant coverage Common cultivars (except trees) Common food crops Scientific specimens for research and plants to remain planted or be replanted, that are NOT listed on CITES, under the ESA or under any State law that provides for the conservation of species * 10

LACEY ACT FALSE LABELING: WILD-LYING Easiest violation to prove and use: Unlawful for any person to make or submit any false record, account, or label for, or any false identification of, any fish, wildlife or plant which has been, or is intended to be: (1) imported, exported, transported, sold, purchased or received from any foreign country, or (2) transported in interstate or foreign commerce

Mental State Standards for Lacey Act Knowingly -- an act is done knowingly if the defendant is aware of the act and does not act (or fails to act) through ignorance, mistake, or accident. The government is not required to prove that the defendant knew that his or her acts or omissions were unlawful.

False Labeling Item has been/is intended to be trafficked in foreign commerce D knowingly makes or submits false record of some kind D knew it was false Offense involved: Import/Export FELONY Sale/Purchase or offer, or action with intent, to sell or purchase and value over $350 FELONY Nothing More MISDEMEANOR

LACEY ACT DECLARATION OFFENSES PLANT DECLARATION REQUIREMENT Unlawful for any person to import any plant unless the person files upon importation a declaration that contains The scientific name of any plant (genus and species) Value of the importations Quantity of the plant Name of country from which plant taken (harvested) 16 USC 3372(f) * Enforcement Schedule http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml

Declaration Violation Plant covered by declaration requirement (e.g., not packaging material) D knowingly fails to file upon import a declaration or fails to include all requirement information Offense involves: Import/Export FELONY Sale/Purchase or offer, or action with intent, to sell or purchase and value over $350 FELONY Nothing More MISDEMEANOR

LACEY ACT TRAFFICKING OFFENSES Heart of the Lacey Act The Lacey Act prohibits doing certain things with wildlife or plants that are already illegal. Thus, all trafficking offenses require a two-step process: First, the wildlife or plant is illegally taken, possessed, transported or sold by someone (not necessarily the defendant) in violation of an underlying law, Second, wildlife or plant is imported, exported, transported, sold, received, acquired or purchased by the defendant.

Prohibited Acts (Underlying foreign law) It is unlawful for any person (2) to import/export/transport /sell/ receive/acquire/purchase in interstate or foreign commerce (A) any fish, wildlife or plant taken/possessed/transported/sold in violation of foreign law or regulation 16 USC 3372(a)(2)(A)

Mental State Standards (1) Knowing means that the person knew something was done unlawfully. (2) Due care means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances

International Plant Trafficking 1. Plant Taken, Possessed, Transported or Sold In Violation of Underlying Law FELONY 2. Defendant Knowingly MISDEMEANOR (1) Imported or (2) sold or purchased, offered to sell or purchase or intended to sell or purchase over $350 of plants or (3) attempted or aided and abetted someone else to Imported, exported, transported, sold, received, acquired, or purchased in foreign commerce, or attempted or aided and abetted someone else to 19 Knowing that plant had been taken, possessed, transported or sold in violation of underlying law In The Exercise Of Due Care Should Have known that plant had been taken, possessed, transported or sold in violation of underlying law

Due Care Ninth Circuit Pattern Jury Instructions Due care means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances. Legislative History Due care simply requires that a person facing a particular set of circumstances undertakes certain steps which a reasonable man would take to do his best to insure that he is not violating the law.

Due Care Due care is applied differently to different categories of persons with varying degrees of knowledge and responsibility. For example, zoo curators, as professionals, are expected to apply their knowledge to each purchase of wildlife. If they know that a reptile is Australian and that Australia does not allow export of that reptile without special permits, they would fail to exercise due care unless they check for those permits. On the other hand, the airline company which shipped the reptile might not have the expertise to know that Australia does not normally allow that particular reptile to be exported. However, if an airline is notified of the problem and still transships the reptile, then it would probably fail to pass the due care test.

Due Care (con t) EXAMPLES OF SOME COMMON-SENSE RED FLAGS Goods significantly below going market rate Cash only, or lower price for goods without paperwork Paperwork facially invalid or otherwise suspect, such as does not match product ordered or anticipated/possible country of origin Unusual sales methods or practices deserted loading dock at midnight Transactions fit description of illegal transactions discussed in industry publication News articles or internet information indicating a potential problem Inability to get rationale answers to questions, eg. discrepant markings on timber

U.S. v. Harlan Crouch and Cocobolo, Inc., Wood From Peru Valued At $7,500.00 Strict Liability Administrative Forfeiture Under Lacey Act Petition for Remission Denied June 2010 Found no mitigating circumstances regarding petitioner s intent and degree of compliance where In the past broker had correctly classified product but in this case declared it under an incorrect tariff code: correct code was already on declaration enforcement schedule whereas incorrect code used was not Petitioner could have, and did not (1) request genus and species information from the Peruvian supplier to prepare the necessary declaration, (2) checked on the supplier with the Peruvian government; (3) consulted with USDA APHIS or CBP. Petitioner should have been on notice that he was dealing with an individual and not a licensed company at all when the supplier requested payment directly to her individual name after supplier told petitioner that the company he was dealing with had gone out of business 23

Lacey Act Penalties Felony knowing violations - Up to 5 years imprisonment and/or a fine up to $250,000 for individuals or $500,000 for organizations, or twice profit or loss Misdemeanor due care violations - Up to 1 year imprisonment and/or a fine up to $100,000 for individuals and $200,000 for organizations or twice profit or loss Civil Penalty - $10,000 or maximum allowed by underlying law, and $250 max. for marking violations Permit Sanctions suspend, modify or cancel Federal hunting or fishing license, permit, if convicted of criminal violation Forfeiture strict liability

16 USC 3374 Lacey Act Forfeiture (a)(1) Creates strict liability forfeiture for fish/wildlife/plants involved in a Lacey Act violation (but government must follow forfeiture procedures) (a)(2) Requires a felony conviction before forfeiture of other property is allowed, e.g., vehicles, equipment

United States Fish and Wildlife Service Office of Law Enforcement

R.T. - supplier Madagascar Gibson Guitar Corporation - USA T.N. - timber buyer Germany Delivery Service (unwitting) - USA HTC Corp. = T.N. s USA company 27

Conspiracy: 18 U.S.C. 371 Lacey Act: 16 U.S.C. 3372, 3373 Smuggling: 18 U.S.C. 545 28

Malagasy Laws D.M. 923/05, 10/6/2005 33 Interministerial Order 17939/2004 Departmental Memorandum 02-04/MINENVEF/Mi Departmental Memorandum 175/05-MINENVEF/ME Departmental Memorandum 001/2005-REG-SAV Interministerial Order 7204/2005 Departmental Memorandum 923/05-MINENVEF/Mi and related Communiqué Interministerial Order 16.030/2006 Interministerial Order 10885/2007 Interministerial Order 003/2009 Allows the export of semi-worked or worked wood from officially declared stocks of ebony. Directed the District Offices of the Environment, Water, and Forests, to update stockpile records every fifteen days to ensure that no wood other than the wood that had been officially declared was exported. Incorporates and reaffirms the definitions of semi-worked wood and worked wood from Interministerial Order 17939/2004. Communiqué issued July 20, 2006: Announces that all wood permitted to be exported under D.M. 923/05 had been exported and that all remaining stockpiles of ebony were illegal. The retrieval of illegal stockpiles was prohibited.

Illegality of Ebony under Malagasy Law 34 RT exports (from Madagascar to TN GMBH (Germany) on or about: 10/13/2006 12/5/2006 2/2/2007 4/25/2007 8/8/2007 12/16/2007 3/26/2009 At the same time, RT is exporting from Madagascar significant quantities to other companies as well. He also had steady exports in 2005.

Illegality of Ebony under Malagasy Law 35 Ebony received by Gibson as fingerboard blanks, Significant additional processing required to be legal under Malagasy law.

July 27, 2012 Criminal Enforcement Agreement (publicly available) Madagascar Ebony Gibson Representative on trip to Madagascar was informed that the harvest of ebony was illegal and that instrument part blanks were illegal to export. 7 Gibson president and representative advised of other information concerning questionable legality of ebony they ordered. 8 Gibson representative advised company from who ebony ordered would be from the grey market, referring to wood that was not documented to be the product of sustainable forestry practices. 11

Gibson acknowledged: Before ordering or accepting delivery of the fingerboards, Gibson should have taken a more active role and exercised additional diligence with respect to documentation of legal forestry practice in the areas of Madagascar from which those shipments from its wood supplier may have originated. Information received by [Gibson] during [a trip] to Madagascar was not further investigated or acted upon....information sent to company management... Also was not further investigated or acted upon....instead, Gibson continued to purchase Madagascar ebony...

Criminal Settlement agreement July 2012 - $300,000 fine - $50,000 community service payment to National Fish and Wildlife Foundation - Full cooperation with the federal government in investigation and prosecution of other LA violations - Implement of Lacey Act Compliance Program at Gibson Guitar - Related civil forfeiture agreement for forfeiture of all Madagascar ebony unlawfully imported by Gibson