U.S. v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep ( 1992 )

United States Court of Appeals,
Fifth Circuit.
No. 91–7085
Summary Calendar.
UNITED STATES OF AMERICA, Plaintiff–Appellee,
v.
ONE AFGHAN URIAL OVIS ORIENTALIS BLANFORDI FULLY MOUNTED SHEEP,
Defendant,
Joel Pat Latham, Claimant–Appellant.
June 30, 1992.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges.
PER CURIAM:
Claimant Joel Pat Latham appeals from the district court's order denying his motion to
reconsider the grant of summary judgment ordering the respondent sheep forfeited to the
Government. We affirm.
I. FACTS AND PROCEDURAL HISTORY
The respondent sheep, known as an Afghan Urial ovis orientalis blanfordi, was hunted, killed,
and skinned ("harvested") by Claimant in the province of Baluchistan, Pakistan, in November of 1987.
Claimant removed the respondent sheep's horns and hide from Pakistan to Frankfurt, Germany, with
an export permit issued by the province of Baluchistan. Claimant then took the horns and hide from
Germany to Spain. At Claimant's direction the horns and hide were then shipped to the United States
and delivered to his residence in Arlington, Texas.
Believing that the respondent sheep had been imported illegally into the United States, agents
of the United States Fish and Wildlife Service ("USFWS") seized the respondent sheep from a cabinet
shop in Arlington pursuant to the Lacey Act, 16 U.S.C. § 3374(a)(1). Claimant was notified of the
seizure, and the USFWS initiated administrative forfeiture proceedings against the respondent sheep.
The USFWS and United States Attorney's Office began an investigation into the possibility of
bringing charges against Claimant in connection with the importation of the respondent sheep into
the United States, but ultimately declined to bring any criminal action. The district court then ordered
the respondent sheep arrested, and notice given of the forfeiture proceedings.
Claimant was the only person to file a claim to the respondent sheep. Both Claimant and the
Government filed motions for summary judgment, after which the district court entered judgment
granting the Government's motion and ordering forfeiture of the respondent sheep to the
Government.
Claimant timely served a motion to reconsider the judgment pursuant to Federal Rule of Civil
Procedure 59(e), which the district court denied. Claimant filed a timely notice of appeal.
II. DISCUSSION
This court reviews the grant of summary judgment de novo, using the same criteria used by
the district court in the first instance. Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th
Cir.1991); Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). The pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, must
demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322–24, 106 S. Ct. 2548, 2552–53, 91 L. Ed. 2d 265 (1986).
This court has not yet had occasion to interpret or apply the forfeiture provisions of the
Lacey Act, 16 U.S.C. § 3374(a)(1),1 which provide for the forfeiture of all wildlife imported or
1
Section 3374(a)(1) provides, in relevant part, as follows:
(1) All fish or wildlife or plants imported, exported, transported, sold, received,
acquired contrary to 16 U.S.C. § 3372(a)(2)(A). Section 3372(a)(2)(A) makes it unlawful for any
person to import or acquire any wildlife transpo rted or sold in violation of any foreign law.2 See
United States v. Lee, 937 F.2d 1388, 1391 (9th Cir.1991) ("foreign law," for purposes of Lacey Act,
includes Taiwanese fishing regulations), cert. denied, ––– U.S. ––––, 112 S. Ct. 977, 117 L. Ed. 2d 141
(1992); United States v. 594.464 Pounds of Salmon, 871 F.2d 824, 826 (9th Cir.1989) (same);
United States v. 2,507 Live Canary Winged Parakeets, 689 F. Supp. 1106, 1113 (S.D.Fla.1988)
(violation of Lacey Act where birds exported in violation of Peruvian "Supreme Decree"). The
legislative history establishes that the forfeiture statute provides for strict liability, thereby eliminating
any "innocent owner" defense to forfeiture of wildlife imported or acquired in violation of any foreign
law. 2,507 Live Canary Winged Parakeets, 689 F. Supp. at 1117 (quoting Senate Rep. No. 123, 97th
Cong., 1st Sess. 13 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1760).
The Government bears t he initial burden of establishing probable cause for the forfeiture.
16 U.S.C. § 3374(b) (incorporating forfeiture provisions of customs laws into 16 U.S.C. §§
3371–78); 2,507 Live Canary Winged Parakeets, 689 F. Supp. at 1113; see also 19 U.S.C. § 1615.
Probable cause is defined as a "reasonable ground for belief ... supported by less than prima facie
proof but more than mere suspicion." United States v. One 1978 Chevrolet Impala, 614 F.2d 983,
984 (5th Cir.1980).
acquired, or purchased contrary to the provisions of section 3372 of this title ...
shall be subject to forfeiture to the United States notwithstanding any culpability
requirements for civil penalty assessment or criminal prosecution included in
section 3373 of this title.
2
Section 3372(a) provides as follows:
It is unlawful for any person
(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or
foreign commerce—
(A) any fish or wildlife taken, possessed, transported, or sold in violation of
any law or regulation of any State or in violation of any foreign law[.]
Once the Government establishes probable cause, the burden of proof shifts, and any claimant
to the property must establish either that a defense to the forfeiture applies or that the property is not
subject to forfeiture. United States v. Little Al, 712 F.2d 133, 136 (5th Cir.1983). If unrebutted, a
showing of such probable cause alone is sufficient to support a forfeiture of the respondent sheep.
Id. at 136.
Claimant concedes that he took the respondent sheep out of Pakistan, and that he then
imported it into the United States. To establish probable cause and therefore be entitled to a
judgment as a matter of law under 16 U.S.C. § 3374(a)(1), the Government need only establish that
importation of the respondent sheep into the United States violated the laws of Pakistan. 16 U.S.C.
§ 3374(a)(1); see United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F. Supp.
1281, 1285–86 (S.D.Fla.1986) (violation of Bolivian law prohibiting hunting of caimans below a
specific size).
Federal courts are competent to make determinations of foreign law. Fed.R.Civ.P. 44.1.
Such determinations are considered questions of law on appeal and are subject to de novo review.
Id.; Perez & Compania (Cataluna), S.A. v. M/V Mexico I, 826 F.2d 1449, 1450 (5th Cir.1987).
Claimant contends that he was entitled to bring the respondent sheep into the United States
because he possessed an export permit issued by the province of Baluchistan. On its face, the export
permit authorized Claimant to take the respondent sheep out of the province of Baluchistan.
Claimant argues that because there is no national Pakistani law enacted for the protection of wildlife,
no Pakistani law interferes with his right to remove the respondent sheep from Pakistan based upon
the provincial permit.
We disagree. According to the Pakistan Constitution, the National Parliament may make laws
for the whole country and a province may make laws for the province. Pakistan Const., part V, ch.
1, § 141. The National Parliament has the exclusive authority to legislate in certain fields, including
carriage of passengers and goods by sea or by air, and import and export across customs frontiers.
Id. at § 142(a), referencing Fourth Schedule part I, §§ 24, 27, and 43. The Constitution specifically
states that if any provision of any law enacted by a provincial assembly is repugnant to any provision
of an act of the National Parliament, then the provincial law shall be void to the extent of the conflict
with the national law. Id. at § 143.
Pursuant to its powers to regulate imports and exports, the National Assembly of Pakistan
promulgated the Imports and Exports Control Act of 1950 (the "Imports and Exports Act"). The
Imports and Exports Act establishes the authority for the Ministry of Commerce to issue orders
detailing particular goods that may not be exported from Pakistan. According to Export Trade
Order, 1987, the export of any goods specified in Schedule I (Essential Commodities) is prohibited.
Schedule I specifically prohibits the export of "wild animal skins and garments made from such skins,
products or derivatives of such skins." This prohibition leaves little room for doubt that the national
government of Pakistan did not intend to allow the export of the remains of the respondent sheep.3
As to Claimant's provincial permit, the Baluchistan export permit authorizes removal of the
respondent sheep from the province; it does not authorize export from the country. Indeed, even
if the Baluchistan export permit authorized removal of the respondent sheep from Pakistan, it would
be void as repugnant to the Imports and Exports Act. See Pakistan Const. part V, ch. 1, § 143.
Moreover, the fact that the Imports and Exports Act was enacted to regulate trade, and not
specifically to protect wildlife, is of no moment. The legislative history of the Lacey Act reveals that
the foreign law need only "relat[e] or refer[ ] to" wildlife and need not have been enacted for its
protection. Senate Rep. No. 123, 97th Cong., 1st Sess. 6 (1981), reprinted in 1981 U.S.C.C.A.N.
3
Pakistan has also acceded to the Convention of International Trade in Endangered Species of
Wild Fauna and Flora ("CITES") in 1976 which, in accordance with other Pakistani national laws,
prohibits the hunting, trapping, and export of all wild mammals except for those accompanied by
authentic CITES permits. Claimant did not possess a CITES permit for the respondent sheep.
1748, 1752. Claimant cites us no requirement that the law violated must have been enacted
exclusively for the protection of wildlife.
Next, Claimant argues that despite his lack of a federally issued permit to export the
respondent sheep, Pakistan's national government "ratified" his provincial hunting and export permit
when its customs officials allowed him to leave the country with the respondent sheep in his personal
baggage. There is, however, no provision in the Imports and Exports Act for the "ratification" by
customs agents of an otherwise illegal export, and Claimant has pointed to no authority for such
ratification.4
The Government has established probable cause for the forfeiture, and Claimant has not
demonstrated that any genuine issue of material fact exists which would preclude the award of
summary judgment and order of forfeiture in the Government's favor.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is, in all respects, AFFIRMED.
.....
4
Claimant also argues that there is a personal baggage exemption from Export Trade Order,
1987. That order provides, however, that the exemption applies only to goods listed in Schedules
II–VI, not goods, such as the respondent sheep, listed in Schedule I.