United States v. Grigsby

United States Court of Appeals,
Eleventh Circuit.
No. 93-9426.
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,
v.
David GRIGSBY, Doris Grigsby, Defendants-Appellants, Cross-
Appellees.
May 2, 1997.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-6-2-ODE), Orinda D. Evans, Judge.
Before BIRCH, Circuit Judge, and KRAVITCH and HENDERSON, Senior
Circuit Judges.
BIRCH, Circuit Judge:
These appeals from convictions for conspiracy to import raw
African elephant ivory in violation of the African Elephant
Conservation Act ("AECA"), 16 U.S.C. § 4223(1), violations of the
Endangered Species Act of 1973, 16 U.S.C. § 1538(c)(1), and the
Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(a), challenge
the jury instructions as being erroneous and incomplete with
respect to the AECA, and the verdicts regarding the other wildlife
statutes as being contrary to the evidence and jury instructions.
The district court instructed that general intent was all that was
required to violate the AECA, omitted relevant exceptions to that
statute, and instructed that the household effects exception
applied to all of the statutes. Because we conclude that the
district court's AECA jury instructions were erroneous and
incomplete and that the jury's verdicts as to the other wildlife
statutes were contrary to the jury instructions and evidence, we
REVERSE and REMAND with instructions to grant the motions for
judgments of acquittal.
I. BACKGROUND
In 1978, defendants-appellants David and Doris Grigsby,
husband and wife and United States citizens, moved from Ohio to
Stittsville, Ontario, Canada, and began operating a taxidermy
business. David, a professional taxidermist, performed the
taxidermy work, and Doris, who has a high school education, handled
the business aspects. In 1987, one of their customers, R.W.
Ashton, asked them to sell his sport-hunted trophies, including
nine elephant tusks brought into Canada from several African
safaris between 1965 and 1973.1 Illinois resident Kenneth Enright,
who owned a company that manufactured cutlery, archery, and pistol
handles from ivory, responded to the Grigsbys' advertisement in
June, 1988. After negotiating with the Grigsbys from June through
October, 1988, Enright agreed on a price of fifty United States
dollars ($50) per pound for the ivory tusks.
Before traveling to Canada to view the ivory, Enright asked
Doris Grigsby to inquire about Canadian export permits. Since she
had no previous experience with export documents, Doris contacted
Gordon Shearer, the District Conservation Officer Coordinator of
the Ontario Office of the Interior Ministry of Natural Resources,
who issued export permits under the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973,
27 U.S.T. 1087, T.I.A.S. No. 8249 (entered into force July 1, 1975)
1
The elephant tusks averaged fifty to sixty pounds and were
fifty to sixty inches long.
[hereinafter "CITES" or "Convention"]2 and who had known the
Grigsbys since their arrival in Canada. Shearer testified that he
remembered receiving Doris Grigsby's inquiry concerning the export
permits, but that he had never issued export permits for African
elephant ivory and was unfamiliar with the process.
Ashton transferred the original certificates of ownership for
two of the ivory tusks. The Canadian Wildlife Service was
satisfied that, because the harvesting was before applicability of
CITES, a permit could be issued for all of the ivory tusks. After
Doris Grigsby applied for the original eight African elephant
tusks, a Canadian export CITES permit was issued on October 20,
1988. She informed Enright by telephone on October 24, 1988, that
the CITES export permit had been issued.
Enright arrived in Canada to purchase the ivory tusks on
November 8, 1988. He brought a completed, certified check for
twenty-six thousand United States dollars ($26,000) drawn on the
account of his Illinois company and payable to Grigsby Taxidermy.
Enright then learned that an additional ivory tusk had been added
for sale by Ashton, making a total of nine tusks available for
sale. After examining the tusks and determining that the quality
of the ivory did not meet his expectation, Enright negotiated
directly with Ashton to reduce the sales price from fifty to forty
United States dollars ($50-$40) per pound.
Upon consummation of the sale with Ashton, Enright tendered to
2
The purpose of CITES, 27 U.S.T. 1087, T.I.A.S. No. 8249, an
international treaty to which the United States is a signatory,
is to protect certain species of fish and wildlife from
exploitation.
Doris Grigsby the completed certified check. Since the check was
payable to Grigsby Taxidermy instead of Ashton and exceeded the
final sales price, Doris Grigsby took Enright to her Canadian bank,
where the certified check was converted to a Canadian bank draft
payable to Ashton in Canadian funds, with Enright retaining the
difference. Doris Grigsby gave Enright a receipt for the purchase
of the ivory in the amount of twenty thousand, five hundred
ninety-four Canadian dollars ($20,594), the dollar amount of the
Canadian bank draft payable to Ashton.
Following this bank transaction, when the United States funds
were converted to Canadian funds, Enright told Doris Grigsby for
the first time that his plans had changed and that he no longer
wanted the ivory shipped to the United States but instead to a
subsidiary company in Hong Kong. He explained that the United
States recently had enacted the AECA, which prohibited the
importation of African elephant ivory from nonivory producing
countries, including Canada.3
Enright asked Doris Grigsby to return to the Canadian Ministry
to obtain a CITES permit for Hong Kong. He gave her his company
mailing label, pretyped to the address of George Wong, an ivory
broker in Hong Kong, for shipment of the ivory tusks that Enright
had purchased. Accommodating Enright's request, Doris Grigsby
telephoned Shearer at the Canadian Interior Ministry of Natural
Resources and advised him that the plans had changed necessitating
a CITES permit for Hong Kong and the addition of the ninth tusk.
3
The AECA was signed into law by President Reagan on October
7, 1988, but the relevant ivory moratorium did not become
effective until June 9, 1989. 54 Fed.Reg. 24,758 (1989).
Shearer testified that Doris Grigsby told him that she had just
learned of the change in the United States law precluding taking
the shipment into the United States, although she had a Canadian
permit for it. A second CITES permit was issued on November 8,
1988, for the nine ivory tusks to be exported to Hong Kong.
When Doris Grigsby obtained the CITES permit from Shearer's
office on November 8, 1988, she noticed and took a free Fish &
Wildlife "Facts" sheet printed by the Fish and Wildlife Service of
the United States Department of the Interior. This document
specifically addressed ivory and contained information concerning
the importation of noncommercial shipments of ivory. In pertinent
part, the Facts sheet stated:
2. African elephant (Loxodonta africana ).
....
A. Non-commercial shipments. Raw and worked ivory may be
imported and reexported for personal use (accompanying
personal baggage) without CITES documents.
Ivory, Fish and Wildlife Facts (Fish & Wildlife Serv., U.S. Dept.
of the Interior, Washington, D.C.), Jan. 1988 (Defendant's Exhibit
No. 20) (emphasis added).
When Doris Grigsby returned to her home after obtaining the
CITES permit, Enright had crated the ivory tusks. For the
additional trouble in returning to Shearer's office a second time,
Enright offered the Grigsbys five hundred United States dollars
($500). The crated ivory tusks filled one entire side of the
Grigsbys' carport. Following his meeting with David and Doris
Grigsby in November, 1988, Enright's subsequent contacts were with
Doris Grigsby only. Ashton died following this sale of the ivory
tusks to Enright.
After the crates had been in the Grigsbys' carport for two
weeks, Doris Grigsby called Enright in Illinois to inquire why the
ivory had not been removed. He informed her that his plans to sell
the ivory tusks in Hong Kong had not materialized. Doris Grigsby
then told Enright that she would charge him one hundred United
States dollars ($100) per month as a storage fee for each month
that the ivory tusks remained on the Grigsbys' property after the
December 20, 1988, expiration date for the CITES permit to Hong
Kong.
The Grigsbys did not hear from Enright regarding his twenty
thousand United States dollar ($20,000) investment until July,
1989, ten months after his purchase. He authorized the Grigsbys to
sell the ivory tusks in Canada for him. Enright further wanted the
Grigsbys to resell his ivory for his preferred selling price of
sixty-five United States dollars ($65), but not less than fifty
United States dollars ($50) per pound. After advertising the ivory
tusks for sale, Doris Grigsby sold two ivory tusks. On August 14,
1989, she sent Enright a bank draft for four thousand Canadian
dollars ($4,000) for the two sales and added two thousand Canadian
dollars ($2,000) of her own without retaining her ten percent sales
commission to which Enright previously had agreed. Nevertheless,
Enright neither attempted to obtain the ivory tusks for which he
had paid nor compensated the Grigsbys any storage fees during 1990.
Consequently, the ivory tusks were stored in the Grigsbys' carport
in Canada from November, 1988, until 1991.
In the summer of 1991, the deteriorating health of David
Grigsby, who suffered from degenerative arthritis, necessitated
their return to the United States for a warmer climate. They moved
temporarily to Toccoa, Georgia. The ivory tusks, however, remained
in Canada at their residence there. In March, 1992, Doris Grigsby
called Enright to inform him that she would be in Canada in June
and July, 1992, for the family's final move to the United States.
She beseeched Enright to pay the outstanding storage fees for four
years of storing the ivory tusks and to obtain the ivory.
Doris Grigsby did not hear from Enright in June or July, 1992.
Instead, she heard from a stranger, Alan Zanotti, a former used car
repossesser, who informed her that he had purchased the ivory from
Enright, and that he was going to confiscate it. By July 31, 1992,
Doris Grigsby had received no communication from Enright confirming
Zanotti's information. Accordingly, she claimed ownership because
she believed that Enright had abandoned the ivory and that it had
reverted to her in satisfaction of the four years of past due
storage fees.
Enright finally contacted the Grigsbys and advised them that
he wanted to travel to Canada at the end of August or September to
obtain the ivory. This was unacceptable to the Grigsbys, who
needed to be in Georgia by that time to enroll their son in school.
Doris Grigsby further informed Enright that the ivory tusks were
packed in a moving van and were inaccessible. Enright reiterated
to the Grigsbys that it would be illegal to bring the ivory into
the United States. He also contacted the United States Fish and
Wildlife Service to report the imminent, allegedly illegal
importation of the ivory tusks.
The Grigsbys received two telephone calls from Zanotti to warn
them that someone was on the way to repossess the ivory tusks.
Suspecting trouble or possible violence and because the moving van
could not be closed or locked, Doris Grigsby decided to store the
ivory across the border, where it could be obtained on their way to
Georgia. Doris Grigsby, her son, and Kathy Rye, a neighbor's
daughter,4 took the ivory tusks into the United States at
Ogdensburg, New York, where they moved the ivory into a
miniwarehouse. Doris Grigsby signed all rental documents in her
name.
The Grigsbys did not obtain export or import permits for their
move from Canada to the United States. They relied on their
permits of ownership, which were trial exhibits, and the Fish and
Wildlife Service, Department of the Interior Facts sheet on ivory,
which stated that all wildlife could be moved with personal
belongings for a noncommercial purpose. Among their personal,
household effects moved by a private moving service were harp seal,
black and polar bear skins as well as certain migratory birds,
including a barred owl, saw whet owl, kestrel, and goshawk. At
United States Customs, the van driver wrote on the form "household
effects," and no search of the van was conducted. The Grigsbys
4
Kathy Rye was eleven years old at the time that these
events occurred. Her father, Tim Rye, had helped load the ivory
tusks into the Grigsby's minivan. Kathy Rye, who was twelve at
the time of trial, testified that Doris Grigsby told her to put
her blanket and pillow over the ivory tusks and to lie there.
She also testified that, when the minivan stopped at United
States Customs, Doris Grigsby said that she had a little girl
sleeping in the back of the van. Tim Rye testified that Doris
Grigsby said that she did not want to be "stuck at Customs with
paperwork." R11-264. Both Tim and Kathy Rye were granted
governmental immunity.
contend that they believed that it was lawful to move the ivory
tusks with the other wildlife that they owned and possessed for
their personal use as personal household belongings, since these
possessions were being taken into the United States for a
noncommercial purpose. Doris Grigsby testified at trial that, when
she brought the ivory and other personal wildlife into the United
States, she did not intend to violate any law. At trial,
government witness, Dr. Robert R. Campbell of the CITES Management
Authority of Canada, testified that, in August, 1992, the African
elephant, threatened with extinction, was a CITES Appendix I,
protected species. He also testified that Canada issued permits
for the noncommercial export of African elephant specimens to the
United States upon proof that the items were either pre-Convention
or a personal effect that had been in possession of the applicant
for a number of years.
By mid August, 1992, the Grigsbys had completed their move to
Toccoa, Georgia, including the ivory tusks. In late September,
1992, Doris Grigsby learned that Enright had telephoned Canada to
locate her. In response and to get his attention, Doris Grigsby
wrote Enright a letter dated September 30, 1992, which stated that
he could have the ivory for twenty-six thousand, five hundred
United States dollars ($26,500). Enright, cooperating with agents
of the Fish and Wildlife Service, specifically Special Fish and
Wildlife Agent John Decker, testified that he engaged the Grigsbys
in a series of telephone conversations and written correspondence
concerning disposition of the ivory tusks. After involved
negotiations, Enright counteroffered eight thousand United States
dollars ($8,000) in a letter dated November 18, 1992. He
calculated this amount as five thousand United States dollars
($5,000) for the ivory, computing one hundred United States dollars
($100) per month storage for four years and two months and three
thousand United States dollars ($3,000) for delivery. Doris
Grigsby's final offer was ten thousand United States dollars
($10,000).
Following additional written negotiations, Doris Grigsby
agreed to ship Enright one ivory tusk for two thousand United
States dollars ($2,000), cash on delivery. This shipment was
intercepted by federal agents and returned to the Grigsby's home in
Toccoa in an attempt to recover the remaining tusks. David Grigsby
accepted the package and identified it as "ivory." R13-519-20.
Skeptical of Enright's trustworthiness regarding the
protracted transaction, the Grigsbys loaded all of the remaining
ivory tusks into a van to be shipped to Enright. Doris Grigsby was
followed by federal and state wildlife agents. Suspecting that she
was being followed by Zanotti, Doris Grigsby stopped at a local
bait store, where she was arrested. A search of the minivan
revealed the six ivory tusks.
A subsequent search of the Grigsbys' Toccoa residence
disclosed the other wildlife items, including the harp seal, polar
and black bear skins and the migratory birds. Decker, who was
involved in the search of the Grigsby residence and arrest of David
Grigsby on December 17, 1992, testified that David Grigsby admitted
repackaging the returned tusk and wrapping three other tusks in
preparation for shipment to Enright. While David Grigsby told
Decker that he knew that Enright had represented that he could not
bring the tusks into the United States because of a "change in the
law," id. at 609, he also maintained to Decker that the tusks
belonged to the Grigsbys because Enright failed to pay the storage
costs for the tusks, while the Grigsbys stored the tusks in Canada.
Although his agency generally requires a written waiver when
interviewing a suspect, Decker testified that he did not obtain a
written waiver from David Grigsby before questioning him "because
I didn't have a waiver form with me," id. at 603, even though
Decker was involved directly in investigating the Grigsbys for two
months prior to the search of the Grigsby residence and arrest of
David Grigsby. On cross-examination, Decker acknowledged that he
did not record his questioning of David Grigsby, that he did not
prepare a summary of David Grigsby's purported statements for him
to review and sign, and that he did not ask David Grigsby to
prepare a written summary of his comments for Decker.
David and Doris Grigsby were charged in a superseding
indictment on five separate counts: (1) conspiracy to import
endangered species of wildlife, 18 U.S.C. §§ 371 and 545; (2)
violation of the AECA, 16 U.S.C. § 4223(1); (3) violation of the
Lacey Act, 16 U.S.C. §§ 3372(a)(1), (a)(4) and 3373(d)(1)(B); (4)
unlawful importation of endangered species, 18 U.S.C. § 545; and
(5) violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703and 707(a). At the conclusion of the government's case, counsel
for David Grigsby moved for judgment of acquittal on all five
counts of the superseding indictment under Rule 29 of the Federal
Rules of Criminal Procedure. The district judge denied this motion
because she believed that the Grigsbys were aware of export/import
law because of their taxidermy business. During discussion
regarding admissibility of certain government evidence, the
assistant United States attorney conceded that much of the evidence
will relate to actions and statements of Doris Grigsby, and that
"[t]here isn't much, nearly as much evidence against David
Grigsby." R10-7. Doris Grigsby testified at trial; David Grigsby
did not testify. At the end of all of the evidence and a renewed
Rule 29 motion, the district judge granted a judgment of acquittal
on violation of the Lacey Act and dismissed Count Three of the
indictment.
The transcript of the charge conference reveals that the
district judge, the government attorney, and counsel for the
defendants grappled with the proper jury instructions to give for
the violation of the AECA because there were no federal cases
interpreting this statute. They discussed whether the sport-hunted
trophies and pre-Convention harvest exceptions applied to the AECA
violation as well as whether the household effects exception was
applicable to the wildlife brought into the United States. The
assistant United States attorney consulted with Decker of the Fish
and Wildlife Service to answer the judge's question concerning the
residency, as opposed to citizenship, requirements of 50 C.F.R. §
23.13(d). R15-1066, 1072. The district judge expressed
exasperation throughout the charge conference with counsels'
inability to provide her with statutory and regulatory interpretive
assistance.5 When she instructed the jury, the district judge
explained that "[t]his case is unusually difficult on the law, and
all these times that you have been kept waiting in the jury room
are times wh[en] we have been wrestling with the legal issues in
this case." Id. at 1081.
The district judge then instructed the jury that violation of
5
Examples of the judge's frustration with counsels'
interpretive assistance occur throughout the charge conference:
THE COURT: You know, to tell you the truth, I'm just
about out of patience. I know that this case is
technically a difficult case, but, quite frankly, I'm
frustrated that more of the work on these difficult
issues has not been done outside this courtroom.
R15-984.
THE COURT: You didn't answer the question I'm asking,
though. I'm look[ing] still at this CFR exception in
23.13(d) and asking you why that exception doesn't
apply to the permit requirements, the import permit
requirement for the tusks, and the export permit
requirement for the bearskins?
Id. at 1070.
THE COURT: What does the term accompanying personal
baggage mean?
Id. at 1072.
THE COURT: That's the whole purpose of an exception,
though. That [explanation by Agent Decker that an
exception cannot defeat the purpose of a law] doesn't
make any sense.
Id. at 1075.
THE COURT: Now, we need to move ahead with this. My
patience is exhausted.
Regarding this requirement of the Fish and
Wildlife Declaration Form, what is supposed to be done
with this form? Is it supposed to be presented at
Customs?
Id. at 1076.
the AECA required general intent and did not give any instructions
regarding the sport-hunted trophies or pre-Convention exceptions to
the statute. The judge also instructed that a household effects
exception applied to all of the statutes governing the importation
into the United States of wildlife not intended for sale. The jury
convicted David and Doris Grigsby on all four remaining counts of
the superseding indictment.
Doris Grigsby was sentenced to five months of imprisonment,6
which is to be followed by three years of supervised release, the
first five months of which shall be home detention. David Grigsby
was sentenced to five years of probation. David and Doris Grigsby
individually were fined a special assessment of $150 for each count
of conviction and jointly were ordered to pay Enright, the owner of
the ivory tusks, restitution of $12,000 for the unlawful
importation of the tusks from Canada. The Grigsbys appeal their
respective convictions and sentences. They also challenge the
district court's denial of their motions for judgments of
acquittal. Because we reverse their convictions, we address only
the jury instructions for the statutes under which David and Doris
Grigsby were convicted and need not discuss their evidentiary and
sentencing issues raised on appeal.
II. ANALYSIS
A. Review of Jury Instructions
"We review jury instructions de novo to determine whether
6
Doris Grigsby was sentenced to five months of imprisonment
on each of the four counts under which she was convicted, the
terms to be served concurrently. She has not served her
imprisonment term pending appeal.
they misstate the law or mislead the jury to the prejudice of the
objecting party." United States v. Chandler, 996 F.2d 1073, 1085
(11th Cir.1993), cert. denied, 512 U.S. 1227, 114 S.Ct. 2724, 129
L.Ed.2d 848 (1994). Counsel's objections to proposed instructions
"should be sufficient to give the district court the chance to
correct errors before the case goes to the jury." United States v.
Sirang, 70 F.3d 588, 594 (11th Cir.1995); see Fed.R.Crim.P. 30.
A district judge's "refusal to give a requested jury instruction is
reviewed for abuse of discretion," because " "[a] defendant is
entitled to have the court instruct the jury on the theory of the
defense, as long as it has some basis in the evidence and has legal
support.' " United States v. Morris, 20 F.3d 1111, 1114-15 (11th
Cir.1994) (quoting United States v. Orr, 825 F.2d 1537, 1542 (11th
Cir.1987)).7 We reverse when "we are left with "a substantial and
ineradicable doubt as to whether the jury was properly guided in
its deliberations.' " Mark Seitman & Assocs. v. R.J. Reynolds
Tobacco Co., 837 F.2d 1527, 1531 (11th Cir.1988) (quoting Johnson
v. Bryant, 671 F.2d 1276, 1280 (11th Cir.1982)).
B. CITES: Implementing and Interrelating Legislation
CITES, which entered into force on July 1, 1975, resulted from
the recognition by the signatory countries "that international
cooperation is essential for the protection of certain species of
wild fauna and flora against over-exploitation through
international trade." CITES, 27 U.S.T. at 1090 (proclamation of
7
Furthermore, we have held: "There is no need to object to
a court's specific denial of a request for a jury instruction.
The presentation of the request and its denial [are] sufficient
to preserve the issue for appeal." Morris, 20 F.3d at 1114 n. 3.
the contracting states). The United States and Canada are CITES
signatories. CITES, 27 U.S.T. at 1346, 1349 (signatories to
CITES), 50 C.F.R. § 23.4 (1992). CITES establishes a "regulatory
system" that "monitors the trade in wildlife, both flora and fauna,
passing through one member country to another." United States v.
Stubbs, 11 F.3d 632, 637 (6th Cir.1993). With respect to protected
wildlife, such as that at issue in this case, "[t]he local
authorities, within the various signatory countries to CITES, must
know how many animals are being exported, in order to protect the
listed species from exploitation." United States v. 3,210 Crusted
Sides of Caiman Crocodilus Yacare, 636 F.Supp. 1281, 1287
(S.D.Fla.1986).
CITES classifies protected species according to the extent to
which they are endangered in appendices. Appendix I lists "all
species threatened with extinction which are or may be affected by
trade," and Appendix II includes "all species which although not
necessarily now threatened with extinction may become so unless
trade in specimens of such species is subject to strict regulation
in order to avoid utilization incompatible with their survival."
CITES, art. II, paras. 1, 2(a), 27 U.S.T. at 1092. Article VIII
of CITES requires each signatory country to enact laws to
effectuate the treaty. CITES, art. VIII, 27 U.S.T. at 1101.
The African elephant, Loxodonta africana, initially protected
in the United States by the Endangered Species Act of 1973,8 which,
8
The United States first implemented CITES through the
Endangered Species Act of 1973. See 16 U.S.C. § 1531(b) ("The
purposes of [the Endangered Species Act] are to provide a ...
program for the conservation of such endangered species and
threatened species, and to take such steps as may be appropriate
as amended, implemented CITES and utilized its appendices, was
listed on CITES Appendix II on February 4, 1977, and upgraded to
Appendix I in 1990. 50 C.F.R. § 23.23 (1989); 50 C.F.R. § 23.23(1990). On October 7, 1988, Congress enacted Public Law No. 100-
478, a two-part wildlife conservation amendment to the Endangered
Species Act of 1973: Title I is the Endangered Species Act of
1988, and Title II is the AECA. Endangered Species Act of 1988,
Pub.L. No. 100-478, 102 Stat. 2306 (codified as amended at 16
U.S.C. §§ 1531-1533, 1535, 1538-1540, 1542, 1544 (1988)); AECA,
Pub.L. No. 100-478, 102 Stat. 2315 (codified at 16 U.S.C. §§ 1538,
4201, 4203, 4211-4213, 4221-4225, 4241-4245 (1988)). Both the
Endangered Species Act of 1973, which includes the birds protected
by the Migratory Bird Treaty Act, see 16 U.S.C. § 1531(a)(4), and
the AECA use the CITES appendices and seek to implement the goals
of CITES. See 16 U.S.C. § 4241 (stating that the AECA supplements
the Endangered Species Act of 1973).
The AECA further implemented CITES with respect to the African
elephant. See 16 U.S.C. §§ 4223, 4242-44. The legislative history
for the AECA confirms that Congress determined that additional
legislation was necessary to protect the African elephant because
the CITES system for controlling ivory consumption had been
insufficient to prevent lucrative, unlawful poaching, which would
result in the extinction of the African elephant if the
to achieve the purposes of the treaties and conventions set forth
in subsection (a) of this section[, including CITES].");
Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279,
2297, 57 L.Ed.2d 117 (1978) ("The plain intent of Congress in
enacting [the Endangered Species Act] was to halt and reverse the
trend toward species extinction, whatever the cost.").
then-current rate of slaughter continued.9 To achieve this end and
9
In support of the original bill, which ultimately was
enacted as the AECA, Congressman Beilenson, who introduced H.R.
2999, explained:
Some people argue that the elephants belong to
Africa, and that, ultimately, it will be up to the
countries there to determine whether or not the
elephant will survive. However, it has become apparent
that even the best-intentioned and uncorrupted African
governments are limited in their ability to control
poachers because, like the drug trade, there is
enormous profit to be made from ivory. For that
reason, I believe very strongly that the United States,
and other ivory consuming nations, can and must play a
bigger role in restricting the ivory trade.
In 1985, the parties to the Convention on
International Trade in Endangered Species [CITES],
which is the international governmental organization
charged with regulating wildlife trade, took a first
step toward addressing the plight of the African
elephant. Together, the ivory-producing nations and
the ivory-consuming nations—including the United
States—agreed to a system which would limit the taking
of elephants, and track individual tusks, in an effort
to ensure that illegally poached ivory could not be
sold on the world market.
Unfortunately, this system, while
well-intentioned, has been unsuccessful so far in
eliminating the illegal trade because it has not been
aggressively enforced by those countries, such as the
United States, which import ivory. Our legislation
will provide the mechanisms necessary to enforce that
system at our borders, and it will encourage other
ivory-consuming nations to do the same.
Like gold and silver, ivory is a commodity used to
hedge against inflation. As the price of ivory rises,
more elephants are slaughtered. As more elephants are
killed, the increased fear that the supply will run out
drives the price of ivory up even more. The elephant
has thus become a most unfortunate victim of a vicious
upward spiral of supply and demand. In 1960, ivory
sold for $2.25 per pound; the going rate is now about
$68 per pound. With a single large tusk worth more
than $5,000 retail on the world market, and the average
per capita income at $300, an African poacher can earn
much more for himself and his family by killing one
elephant than by farming for 1 year, an enormously
powerful incentive to kill elephants that will not
to adhere to the CITES control of ivory trade, the ACEA established
moratoria provisions. 16 U.S.C. §§ 4221-4225. Several ivory
moratoria have been implemented in the United States pursuant to
the AECA.10 The latest moratorium, relevant for this case, precluded
the importation of raw and worked ivory from all ivory producing
and intermediary11 countries effective June 9, 1989.12 54 Fed.Reg.
disappear until we can reduce the value of ivory by
cutting demand.
....
The elephant simply will not survive another
decade if the current rate of killing continues. As a
major importer of carved ivory, we in the United States
can—and indeed must—play a role in seeing that the
demand for expensive ivory carvings, trinkets, and
jewelry is not permitted to continue at such an
uncontrolled rate, and at the expense of a truly unique
and beautiful species.
134 Cong. Rec. 21,012, 21,013 (1988) (statement of Rep.
Beilenson).
10
The following moratoria on raw and worked ivory imports
into the United States have been implemented pursuant to the
AECA: (1) on December 27, 1988, a moratorium was placed on all
ivory imports from countries which are not parties to CITES, 53
Fed.Reg. 52,242 (1988); (2) on February 24, 1989, a moratorium
was placed on all ivory imports from Somalia, 54 Fed.Reg. 8008
(1989); (3) on June 9, 1989, a moratorium was placed on all
ivory imports from all ivory producing and intermediary
countries, 54 Fed.Reg. 24,758 (1989).
11
The AECA defines a nonivory producing country, like the
United States or Canada, as an " "intermediary country,' "
meaning "a country that exports raw or worked ivory that does not
originate in that country." 16 U.S.C. § 4244(6); see 54
Fed.Reg. 24,761 (1989) (stating that the United States is an
"intermediary nation").
12
The purpose in delaying establishing the effective date
for this moratorium was to permit transit time for ivory
shipments in progress between Africa and intermediary countries.
H.R. Conf. Rep. No. 928, 100th Cong., 2d Sess., tit. II, at 29
(1988), U.S.Code Cong. & Admin.News 1988, at 2700, 2747
(Endangered Species Act Amendments of 1988, the AECA). "The
intent is to allow for the proverbial "slow boat to China.' "
24,758 (1989). Since the AECA is part of the Endangered Species
Act of 1973, as amended, the federal regulations that implement and
govern that statute as well as CITES also control the AECA.13
C. AECA
1. Requisite Intent for Violation
We review a district court's interpretation and application
of a statute de novo. International Union v. Jim Walter Resources,
Inc., 6 F.3d 722, 724 (11th Cir.1993). When statutory language is
clear and unambiguous, it controls interpretation " absent a
legislative intent to the contrary." Chandler, 996 F.2d at 1084
(citing United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct.
2524, 2527, 69 L.Ed.2d 246 (1981)) (emphasis added). We resort to
legislative history when the statutory language is unclear. United
States v. Rojas-Contreras, 474 U.S. 231, 235, 106 S.Ct. 555, 557,
88 L.Ed.2d 537 (1985). "Our objective when interpreting a statute
is to determine the drafters' intent." United States v. Castro,
829 F.2d 1038, 1049 (11th Cir.1987), modified on other grounds, 837
F.2d 441 (11th Cir.1988). Under these guiding interpretive
principles, we must examine the statutory language of the AECA to
determine if the district judge properly instructed the jury as to
its application given the facts in this case.
Regarding the prohibited importation act at issue, the AECA
states: "Except as provided in section 4222(e) [the sport-hunted
Id.13
Under 50 C.F.R. pt. 23, "Endangered Species Convention,"
are the federal regulations implementing CITES. See 50 C.F.R. §
23.1(a) (1992) ("The regulations in this part implement the
Convention on International Trade in Endangered Species of Wild
Fauna and Flora, TIAS 8249.").
trophies exception] of this title, it is unlawful for any person --
- to import raw ivory from any country other than an ivory
producing country." 16 U.S.C. § 4223(1). The AECA provides both
criminal and civil penalties. 16 U.S.C. §§ 4224(a) & (b). This
case was prosecuted criminally, and it is that statutory penalty
provision that has caused the interpretive determination of the
requisite intent: "Whoever knowingly violates section 4223 of this
title shall, upon conviction, be fined under Title 18, or
imprisoned for not more than one year, or both."14 16 U.S.C. §
4224(a) (emphasis added).
Although the district judge tentatively had been inclined
toward defense counsel's interpretation that "knowingly," as used
in section 4224(a) with reference to section 4223(1) meant specific
intent,15 she reverted to her original interpretation, urged by the
government, of general intent.16 Thus, the district judge
14
In contrast, the AECA civil penalty provides: "Whoever
violates section 4223 of this title may be assessed a civil
penalty by the Secretary of not more than $5,000 for each such
violation." 16 U.S.C. § 4224(b).
15
In leaning toward a specific intent interpretation for 16
U.S.C. § 4224(a), the district judge reasoned as follows:
THE COURT: I'm tentatively inclined to think Mr.
Brehm's [David Grigsby's counsel's] interpretation is
correct. It is true that the word knowingly normally
implies only that the act is volitional, but this
statute is somewhat different from the norm in that it
speaks of who[m]ever knowingly violates. It is
different from what the result would be if section 4223
were to say that it is unlawful for any person to
knowingly import raw ivory from any other country, et
cetera.
R14-938.
16
The district judge initially believed that "knowingly" in
16 U.S.C. § 4224(a) referred to general intent and, subsequently,
instructed the jury that violation of the AECA required only
general intent:
In order for a defendant to be found guilty of Count Two
[AECA violation], the government must prove the following
elements beyond a reasonable doubt.
That the defendant either knowingly or fraudulently
imported into the United States raw African elephant ivory.
And secondly, that the importation was from a non-ivory
producing country, in this case the country of Canada.
The word knowingly means that an act is done voluntarily
and intentionally, and not because of mistake or accident.17
returned to this view:
THE COURT: And the definition of knowingly is that an
act is done voluntarily and intentionally, and not
because of mistake or accident.
There isn't a specific intent requirement in that
act. There is no requirement that the defendant's
actions be done willfully; that is, with the specific
intent to do something the law forbids; that is, with
bad purpose either to disobey or disregard the law.
So, the government's evidence would have to show a
volitional act by the defendants.
....
Knowingly normally means volitional, general intent.
R14-917, 936 (emphasis added). Throughout the discussions
at the charge conference and in the proposed jury
instructions, "knowingly" is construed to mean general
intent, while "willfully" is interpreted to mean specific
intent.
17
The district judge essentially used the government's
proposed Request to Charge No. 15 to instruct the jury on
violation of the AECA:
Title 16, United States Code, Section 4223(1)
makes it unlawful to import raw ivory from any country
other than an ivory producing country. In order for
you to find the defendant guilty of Count Two of the
indictment, the Government must prove the following
elements beyond a reasonable doubt:
R15-1089-90.
Because no federal court had addressed whether "knowingly
violates" in section 4224(a) requires general or specific intent,
the district court was persuaded by the government's analogy to the
Endangered Species Act, which contains similar language.18 The
Fifth Circuit and a district court in our circuit have found that
general intent is sufficient to violate the Endangered Species Act.
United States 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, the district judge
clarified that she had adopted this rationale in determining that
general intent was required for violation of the AECA:
The court finds the analogy to the Endangered Species Act
persuasive, and agrees with the rationale of the Fifth Circuit
cases and the Billie case. The pattern of the language in §
4224(a) of the African Elephant Conservation Act ("whoever
knowingly violates") is identical to the language which has
been interpreted not to require specific intent under the
Endangered Species Act. The two acts are similar in purpose.
Both criminal violations are misdemeanors. Accordingly, the
court finds that the violation of § 4223(1) required only a
finding of general intent and that the court properly charged
the jury in this regard.
(1) That the Defendant knowingly or fraudulently
imported or brought into the United States raw
African elephant ivory, Loxodonta africana; and
(2) That the importation was from a non-ivory
producing country, in this case Canada.
R4-78-15 (citing 16 U.S.C. §§ 4223(1) & 4224(a)).
18
Under the Endangered Species Act, "[a]ny person who
knowingly violates any provision" under that Act or any provision
of any permit issued under the Act is subject to criminal
prosecution. 16 U.S.C. § 1540(b)(1).
R3-115-10-11.
David and Doris Grigsby argue that, to be convicted under
section 4224(a) of the AECA, the government must prove that the
importer had specific knowledge of the AECA as well as knowledge
that the specific, challenged conduct would be violative. David
Grigsby sought this jury instruction in his Request to Charge No.
11:
The African Elephant Conservation Act, 16 U.S.C. §
4223(1) and § 4224(a), makes it a violation of criminal law to
knowingly import raw ivory from any country other than an
ivory producing country. In order to prove a violation of
this law as alleged in Count Two of the indictment, the
government must prove beyond a reasonable doubt both of the
following two elements:
1. That the defendant imported raw ivory from a country
other than an ivory producing country as charged in the
indictment; and
2. The defendant imported raw ivory knowing that such
importation was in violation of federal law.
R4-74-11 (citing 16 U.S.C. §§ 4223(1) & 4224(a)) (emphasis added).
This request to charge, which was adopted by Doris Grigsby, was
rejected by the district judge.19 R15-957, 966.
19
The district judge also specifically refused to give David
Grigsby's Request to Charge No. 15, which addresses knowledge of
violating the AECA:
The Defendant, David Grigsby, is accused of
smuggling raw ivory into the United States. It is
against federal law to smuggle raw ivory into the
United States. For you to find David Grigsby guilty of
this crime, you must be convinced that the government
has proved each of these things beyond a reasonable
doubt:
First, that David Grigsby brought raw ivory into
the United States.
Second, that David Grigsby knew the raw ivory
should have been reported to customs authorities as
required by law.
Similarly, Doris Grigsby proposed jury instructions explaining
that knowledge that the importation was unlawful was required for
conviction in Request to Charge Nos. 17 and 20:
Ladies and gentlemen of the jury, with respect to the
charge alleging possession or concealment of smuggled goods,
I charge you that the law "does not make the mere receipt or
concealment of smuggled goods an offense. There must be, on
the part of the person receiving or concealing the goods after
their importation, knowledge of their illegal importation ....
It has been uniformly held that "the jury was not authorized
to convict unless the possession or concealment of the goods
was accompanied with knowledge on the part of the possessor
that they had been smuggled or imported contrary to law.' "
Third, that David Grigsby, intending to avoid the
United States customs laws, did not report the raw
ivory to the customs authorities.
R4-74-15 (citing Federal Judicial Center, Pattern Criminal
Jury Instructions No. 68 (1988)) (emphasis added). R15-966.
In discussing the knowledge/intent requirement with the
district judge prior to the finalization of the jury
instructions, David Grigsby's counsel explained his
position:
If you look at section 4223 of the Title 16 Act
[AECA], that sets forth the acts themselves which are
prohibited, and, of course, the charge in this case is
subpart (1), which is to import raw ivory from any
country other than an ivory producing country. That's
the conduct that is prohibited, but then if you look at
section 4224 right after that, that talks about
penalties and enforcement, and subpart (a) is the
criminal violation, and subpart (b) is civil.
It would be our position as to David Grigsby that
section 4224, subpart (a), the criminal violation,
which says whoever knowingly violates section 4223, it
is our position that that establishes a knowledge
requirement which is a knowledge of the law itself.
R14-935. Despite this explanatory background and the
district judge's comments that the evidence as to David
Grigsby was "pretty thin" and "a little bit close in my
mind," id. at 947, the judge did not give any instruction
clearly delineating that knowledge of the AECA was required
for its violation, which would demonstrate specific intent
for criminal violation of the statute.
R4-77-17 (quoting United States v. Sauer, 73 F. 671, 677
(W.D.Tex.1896) (emphasis added)).
Ladies and gentlemen of the jury, I charge you that you
are not to presume the Defendants knew, or should have known,
the sophisticated importation or customs laws of the United
States just because they were in the taxidermist business in
Canada.
Id. at 20 (citing One Lot Emerald Cut Stones & One Ring v. United
States, 409 U.S. 232, 234 n. 4, 93 S.Ct. 489, 491 n. 4, 34 L.Ed.2d
438 (1972) (per curiam)). The district judge refused to give both
of these proposed instructions. R15-978, 979. Thus, there was no
jury instruction that the government must prove that the importer
actually knew that the specified importation violated the AECA.
After the jury charge, Doris Grigsby's counsel included in her
objections to the charge the judge's giving government's Request to
Charge No. 15 and not giving Doris Grigsby's Request to Charge Nos.
17 and 20 as well as David Grigsby's Request to Charge No. 11.
R15-1100.
In the absence of federal case law interpreting the intent
requirement of section 4224(a), and with conflicting
interpretations advanced, we review the legislative history of this
statute to ascertain if there is interpretive guidance as to the
requisite intent for criminal violation of the statute.20 The AECA
was introduced in the House of Representatives on July 23, 1987, as
House Bill 2999 ("H.R. 2999"). In this initial draft, under the
Penalties and Enforcement section, civil penalties were provided
20
We note that the legislative history that we address was
before the district court in Doris Grigsby's supplemental brief
supporting her motion for a new trial and request for time to
file a reply brief. R3-111.
for "[a]ny person who knowingly violates, or who knowingly commits
an act in the course of a commercial activity which violates, any
provision of this Act." H.R. 2999, 100th Cong., 1st Sess. § 6(a)(1)
(1987) (emphasis added). The initial draft provided criminal
penalties for "[a]ny person who willfully commits an act which
violates any provision of this Act." Id. at § 6(b) (emphasis
added). Responding to the request for views on the proposed
legislation, B. Wayne Vance, General Counsel of the United States
Department of Transportation, emphasized the apparent interpretive
confusion in the legislative description of the civil and criminal
violative acts:
Section 6(a)(1) (page 5, lines 23-4) creates civil penalties
against a person who "knowingly violates" the bill, but
section 6(b) (page 7, lines 18-9) creates criminal penalties
against a person who "willfully commits an act" which violates
the bill. If a distinction between "knowingly" and
"willfully" is intended, it should be clarified in some way.
African Elephant Conservation: Hearing on H.R. 2999 and H.R. 4849
Before the Subcomm. on Fisheries and Wildlife Conservation and the
Environment of the House Comm. on Merchant Marine and Fisheries,
100th Cong., 2d Sess. 64-65 (1988) (letter of B. Wayne Vance,
General Counsel, U.S. Dept. of Transp.) (emphasis added).
In the final version of the AECA, codified at 16 U.S.C. §
4224(a), "[w]hoever knowingly violates section 4223," is subject to
criminal penalties and "[w]hoever violates section 4223" is subject
to civil penalties. 16 U.S.C. § 4224(a) & (b) (emphasis added).
While "knowingly" is omitted from the codified civil penalties
provision, it significantly is included in the criminal penalties
provision. Thus, in the final version of the statute, the adverb
"knowingly" modifies the verb "violates" and connotes deliberate,
cognitive or specific intent as a requirement for criminal
violation of section 4224(a).21
The Grigsbys acknowledge that the raw ivory was imported from
a nonivory producing or intermediary country, Canada. They argue,
however, that they did not have actual knowledge that this
importation was in violation of United States law; consequently,
they lacked specific intent to violate criminal section 4224(a) of
the AECA. At the outset, we note that the importation into the
United States of the ivory tusks in November, 1988, at the time of
Enright's purchase from Ashton, would not have violated the AECA,
since the applicable ivory moratorium for intermediary countries
did not become effective until June 9, 1989. 54 Fed.Reg. 24,758,
24,761 (1989). It was Enright's apparent misunderstanding that the
date of enactment, October 7, 1988, was the effective date of the
applicable moratorium and his subsequent failure to obtain the
tusks that he purchased from Ashton extending after the effective
date of the moratorium that caused the predicament for the Grigsbys
that became the basis of this case against them by the government.
The Grigsbys were not exporters/importers; they owned and
21
While there is no modifying adverb in the final version of
civil penalty section 4224(b), "knowingly" replaces "willfully"
as the modifying adverb in the initial statutory draft of
criminal penalty section 4224(a). This removal of "knowingly"
from section 4224(b) and its replacement in section 4224(a)
bolsters our view that violation of section 4223(1), resulting in
criminal penalties, requires purposeful violation of section
4223(1). See United States v. Miranda, 835 F.2d 830, 832 (11th
Cir.1988) (construing the definition of "knowingly" for criminal
violation of the analogous Lacey Act, 16 U.S.C. § 3373(d)(1)(B),
this court held that "knowledge [of offending the wildlife
statute] is necessary to trigger a Lacey Act violation" (emphasis
added)).
operated a Canadian taxidermy business.22 Most of their customers
appear to have been Canadian. The evidence showed that they had
not dealt in ivory tusks, which are not the usual objects of a
taxidermist's trade, and that they undertook assisting their
customer Ashton in selling the tusks as an accommodation to him.
Clearly, Enright did not expect the Grigsbys to have export/import
knowledge or he would not have asked them to obtain this
information and to get the proper Canadian export documentation.
The district judge, however, believed that the Grigsbys were fully
cognizant of export/import law because of their experience in the
taxidermy business. When David Grigsby's counsel moved for
acquittal on all counts under Rule 29 at the conclusion of the
government's case, the district judge stated:
Let me say this: I would love to be able to rule on these
points now, but, quite frankly, the law is just too difficult.
I am concerned about the issue of specific intent. If this
were a case involving two people who don't deal in wildlife,
I would throw all these charges out in a minute.
....
[T]he thing that gives me pause is the fact that the Grigsbys
are in the taxidermy business. I haven't heard as much
evidence relevant to Mr. Grigsby's intent as Mrs. Grigsby's,
but I think at this point the prudent thing to do is go ahead
and deny the Rule 29 motions, and that's what I'm going to do.
22
David Grigsby conducted taxidermy classes in Canada. As
part of that instruction, he advised that the proper permits were
required for shipping certain wildlife within the Canadian
provinces. The record does not show that David Grigsby was
knowledgeable regarding importation of wildlife into the United
States. With respect to the importation into the United States
of the ivory tusks at issue in this case, the record reveals that
neither David nor Doris Grigsby was aware of the United States
requirements. Thus, Doris Grigsby sought the advice of Gordon
Shearer, the Canadian conservation official at the Ontario Office
of the Interior Ministry of Natural Resources, who issued CITES
export permits and who also was unaware of United States import
requirements and regulations.
R13-681 (emphasis added).
The Grigsbys learned of United States law barring the
importation of ivory when Enright informed them, albeit erroneously
as to the effective date, upon his arrival in Canada presumably to
consummate the purchase of the ivory tusks. When Doris Grigsby
returned to the Canadian Ministry to obtain export documentation
for Hong Kong at Enright's request, Shearer, whose job entailed
knowledge of export/import laws, was unaware of the United States
law that placed any moratoria on African elephant ivory. In
contrast to Enright's verbal information concerning the United
States elephant ivory moratoria law about which Shearer was not
knowledgeable, Doris Grigsby saw and obtained the Facts sheet on
ivory issued by the United States Department of the Interior Fish
and Wildlife Service, while she was in Shearer's office on November
8, 1988. That publication specifically states that African
elephant ivory may be imported into the United States without CITES
documentation if it accompanies personal baggage. This official
document affects the Grigsbys' knowledge and intent concerning
moving the ivory tusks into the United States with their household
goods.23
23
Concerning her understanding of the information about
noncommercially moving raw ivory into the United States with
personal baggage that was conveyed by the United States
Department of the Interior, Fish and Wildlife Service Facts sheet
on ivory, Defendant's Exhibit 20, which is relevant to the
Grigsby's subsequent importation, Doris Grigsby testified as
follows:
By Ms. Becker [Doris Grigsby's counsel]:
Q. Is this the Facts, F-a-c-t-s sheet, or the top half
that you picked up at the U.S. Fish and Wildlife?
A. Yes, Ma'am.
Q. Okay. It says at the top Fish and Wildlife, and
United States Department of the Interior; is that
correct?
A. Yes.
Q. So, you believed that to be the United States of
America?
A. Oh, yes.
Q. And it obviously says ivory?
A. Correct.
Q. And then it says elephants, and you came down to the
African elephant; correct?
A. Correct.
Q. Because Mr. Ashton had indicated to you it was
African elephant; is that correct?
A. That's correct.
Q. Do you see here that it says the African elephant
and its parts [are] regulated under Appendix [II]?
A. Yes.
Q. And under paragraph (A) noncommercial shipments?
A. Yes, Ma'am.
Q. Does that Facts sheet advise that for noncommercial
shipments, as long as African elephant ivory is being
accompanied by personal baggage, you can export it—it
actually says without CITES documents?
A. Yes, it says I can export without CITES documents.
Q. Okay. So, you had that, and you just picked up all
that stuff with you; is that right?
A. That's correct.
Q. This is about November of 1988?
A. Correct.
It is the position of Doris Grigsby, who handled the
protracted business contacts with Enright for four years, during
which time she essentially begged him to remove the tusks from the
Grigsbys carport for which service he had paid no storage fees,
that Enright had abandoned the ivory tusks, which then became part
of the Grigsbys' household baggage when they moved back to the
United States. Doris Grigsby represents that the only reason that
the ivory tusks were moved separately was because she feared
personal harm from Zanotti, Enright's agent, whom she ostensibly
believed had relinquished his claim of ownership in the tusks
because of his failure to get them after four years and to pay her
storage.24 She used her name when she rented the locker in New York
to store the tusks until the Grigsbys could retrieve them when they
moved their household belongings to the United States.
Irrespective of whether this understanding of Doris Grigsby,
who had a high school education, is correct, it does affect the
Grigsbys' intent in moving the ivory tusks. If the Grigsbys truly
believed that moving the ivory tusks across the border did not
violate United States law based on specific information in the
Department of the Interior Facts sheet on ivory, a trial exhibit,
R14-782-83 (emphasis added).
24
We acknowledge that Doris Grigsby's continued
communications with Enright in which she repeatedly requested
that he obtain the ivory tusks as well as her selling two of the
tusks in Canada and sending him the proceeds work against her
argument that he had abandoned the tusks that he had purchased
from Ashton. Nevertheless, it is Doris Grigsby's mental intent
that determines the propriety of her conviction under criminal §
4224(a). The jurors should have been instructed so that they
could have made a factual determination as to whether the
Grigsbys had the specific intent to violate criminal § 4224(a).
then they could not have been convicted criminally under specific
intent section 4224(a). The jurors should have been so instructed.
Furthermore, we are troubled that the district judge
instructed the jury that section 4224(a) could be violated if the
Grigsbys "either knowingly or fraudulently imported into the United
States raw African elephant ivory." R15-1089 (emphasis added). By
including "fraudulently" in addition to "knowingly" as a modifier
for "imported," the judge used the indictment language which the
government provided in its proposed jury instruction rather than
the statutory wording.25 The judge recognized in discussing the
required intent for criminal violation of the AECA with counsel
that "fraudulently" was not in the statute: "I do note that Count
Two [the AECA count] of the indictment also contains the word
fraudulently, but I am unable to find that word in the Act." R14-
917.
We have determined that the district judge erred by including
the modifier "fraudulently" in her instruction to the jury with
respect to violation of the AECA because this adverb is not in the
statute. The jury could have been misled or confused by this
instruction in its consideration of the testimony concerning the
separate moving of the ivory tusks into the United States, for
25
The district judge's instruction, defining violation of
the AECA, tracks the language of the superseding indictment, R1-
47, and the government's Request to Charge No. 15, R4-78, quoted
in footnote 13, supra, instead of the statute, 16 U.S.C. §
4224(a). We additionally note that "fraudulently" does not
appear in the respective, proposed jury instructions describing
violation of § 4224(a) by David and Doris Grigsby. See R4-74-11;
R4-77-17. In contrast to the language of the superseding
indictment and the government's proposed instruction, the
Grigsbys' proposed instructions focus on specific knowledge of
violating the AECA.
example, the testimony of Kathy Rye. Was Doris Grigsby's
instruction to Kathy Rye to cover the tusks and to appear to be
sleeping on them fraud, resulting from her absolute knowledge that
she was violating the AECA, or was it her attempt to avoid having
to explain at Customs her purported rationale, based on the
Department of the Interior Facts sheet on ivory and her abandonment
theory, that the ivory tusks had become part of the Grigsbys'
household effects?26 The injection of fraud into the jurors'
consideration could have misled them and resulted in their
determination of guilt on Count Two, when their only consideration
should have been whether Doris and David Grigsby specifically knew
that they were violating the AECA in moving the ivory tusks into
the United States. The relevant intent for violation of section
4224(a) is the Grigsby's knowledge of violating the AECA when the
ivory tusks were transported into the United States. Additionally,
the evidence does not establish clearly that the Grigsbys had
formulated a commercial purpose at that point in time. If they
sincerely believed that the ivory tusks were theirs based on an
abandonment theory, then they could have believed that the tusks
were part of their household goods.
As we have explained, the district judge as well as the
government and defense counsel engaged in extended discussions
26
Indeed, in discussing the household effects exception, 50
C.F.R. § 23.13(d)(2), analyzed subsequently, the district judge
concluded that it was applicable to the AECA, the Endangered
Species Act, and the Migratory Bird Treaty Act. See R15-1071 ("I
think from what I have heard you all say so far that this
exception [the personal baggage/household effects exception] does
apply to the three contrary to law provisions that we have
discussed so far.").
concerning the intent required to violate section 4224(a) of the
AECA. With no definitive federal court interpretation and counsels'
disagreement as to the requisite intent, the district judge
understandably became exasperated with the lack of guidance
available to her. We particularly are troubled that, in their
prosecutions and convictions, David Grigsby, a taxidermist, and
Doris Grigsby, with a high-school education, neither of whom were
shown to be cognizant of United States import/export law, were held
to knowledge of the controlling law in this case that confused and
confounded the district judge, counsel, and even the United States
Department of the Interior, Fish and Wildlife Service agent, who
implements the law and attempted to explicate it for the judge.
Not only did the judge give a general instead of a specific
intent instruction, but also she instructed the jury to consider
fraud, rather than directing deliberations as to consideration of
specific knowledge of violating the AECA as the sole requirement
for conviction under criminal section 4224(a), as evidenced by the
legislative history. While David and Doris Grigsbys' conduct may
have been violative of civil section 4224(b), they should not have
been convicted criminally on specific intent section 4224(a) with
the general intent instruction given by the district judge, further
erroneously complicated by adding the consideration of fraud, which
is not in the statute. See Cruthirds v. RCI, Inc., 624 F.2d 632,
636 (5th Cir.1980) ("[W]e need not decide whether the verdict in
this case was against the great weight of the evidence, since our
own review of the record has revealed a fundamental error in the
district court's instructions to the jury."). In addition to the
district court's erroneous instruction that general intent was all
that was required for criminal violation of section 4223(1) of the
AECA and her refusal to give defense counsels' instructions on the
requisite specific intent required to violate the AECA knowingly,
we find the exceptions, addressed below, to be applicable.
2. Sport-Hunted Trophies Exception
Section 4223 of the AECA provides an exception to the United
States prohibition on importation of raw ivory for sport-hunted
trophies:
Individuals may import sport-hunted elephant trophies
that they have legally taken in an ivory producing country
that has submitted an ivory quota. The Secretary shall not
establish any moratorium under this section, pursuant to a
petition or otherwise, which prohibits the importation into
the United States of sport-hunted trophies from elephants that
are legally taken by the importer or the importer's principal
in an ivory producing country that has submitted an ivory
quota.
16 U.S.C. § 4222(e); 16 U.S.C. § 4223. The legislative history
for this exception reveals its purpose:
In a positive sense, I am pleased that this legislation
contains language exempting legitimate sport trophies from any
moratorium the Secretary may place on a particular country.
This language is critically important because without the
vital infusion of capital that sport hunters provide, there
would be no incentive to protect these elephants. Based on my
experience, there is no question that if the African elephant,
which is now a valuable commodity, no longer has any financial
value, then African governments will simply stop spending
their meager resources to protect them. As a result, these
elephants will be slaughtered—even in places like Botswana and
Zimbabwe—for meat and for the illegal ivory trade. Sport
hunted ivory, which is a minuscule percentage of ivory
exports, is biologically sound and it produces by far the
greatest economic return for the producing nation.
134 Cong. Rec. 21,013 (1988) (statement of Rep. Fields); see
H.R.Rep. No. 827, 100th Cong., 2d Sess., at 13 (1988) ("All wi[
]t[n]esses expressed opposition to a total ban [on raw ivory],
except Dr. Lieberman of the Humane Society."). Incorporated in the
AECA is the following congressional finding: "There is no evidence
that sport hunting is part of the poaching that contributes to the
illegal trade in African elephant ivory, and there is evidence that
the proper utilization of well-managed elephant populations
provides an important source of funding for African elephant
conservation programs." 16 U.S.C. § 4202(9).
Because section 4223 allows an exception for sport-hunted
trophies, ivory tusks acquired in compliance with section 4222(e)
are not part of the AECA moratoria. Furthermore, this exception
addresses only the importation of sport-hunted trophies; it does
not provide that the character of sport-hunted trophies changes if
they ultimately are sold and used commercially. That is, under the
plain language of section 4222(e), the characterization of
sport-hunted trophies remains the same, despite a later change in
ownership or the subsequent sale for a commercial purpose.
This exception is permitted because sport hunters do not
engage in the mass slaughter of African elephants because they are
controlled by the quota system of ivory producing countries, which
the statute recognizes. Thus, sport-hunted trophies consume a
finite amount of African elephant ivory. As the legislative
history of section 4222(e) reveals, allowing sport-hunted trophies
preserves the African elephant from destruction by Africans, who
appreciate the value placed on these elephants by sport hunters.
"In determining the meaning of the statute, we look not only to the
particular statutory language, but to the design of the statute as
a whole and to its object and policy." Crandon v. United States,
494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990)
(emphasis added); accord McCarthy v. Bronson, 500 U.S. 136, 139,
111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991); Chandler, 996 F.2d
at 1084. "[T]o perpetuate healthy populations of African
elephants" is the purpose of the AECA. 16 U.S.C. § 4201. The
conduct that the AECA seeks to prohibit is the "large illegal trade
in African elephant ivory[, which] is the major cause of th[e]
decline [of the African elephant population] and threatens the
continued existence of the African elephant." 16 U.S.C. § 4202(2).
The legislative history, congressional findings, and section
4222(e) evidence that lawful, sport-hunted trophies do not deplete
African elephants sufficiently to be protected under the AECA and
that preservation of elephants for sport hunters actually protects
African elephants by placing considerable value on live elephants.
Consequently, importation of sport-hunted trophies does not violate
section 4223(1) of the AECA and cannot be subject to criminal
penalties under section 4224(a).
All of the African elephant tusks at issue in this case were
sport-hunted lawfully in Africa by Ashton before the effective date
of the AECA and legally imported into Canada, where they remained
part of his private collection for approximately thirty years.27
Ashton commissioned the Grigsbys to locate a buyer for the ivory
tusks. Having Doris Grigsby cash his certified check made out to
Grigsby Taxidermy and give the money to him, Enright purchased the
tusks directly from Ashton on November 8, 1988. Thus, the Grigsbys
27
In its trial brief, the government concedes: "The
exception, denoted "Sport-hunted trophies' obviously refers to
the original hunter, in this instance, R.W. Ashton." R4-76-4.
served in an agent/bailee capacity for Ashton with respect to his
sale of the tusks to Enright.28 The ivory tusks, however, remained
on the Grigsbys' premises for four years following the purchase by
Enright from Ashton, who died during this time. Ashton did not
withdraw his agency authority given to the Grigsbys before his
death.
By August, 1992, the Grigsbys considered the tusks, for which
they had received no storage fees, to have been abandoned by
Enright. Because the tusks could not revert to the original owner,
Ashton, the Grigsbys believed that the tusks belonged to them as
Ashton's agents and were part of the Grigsbys' household goods.
There is no evidence in the statute or its legislative history that
the AECA was enacted to punish such a transfer of possession.
Rather, the AECA seeks to punish those who diminish African
elephant populations for a commercial purpose, as opposed to
sport-hunted elephants, which are covered by this exception. Thus,
the sport-hunted status of the ivory tusks at issue would inure to
the Grigsbys as Ashton's agents.
Significantly, the purchase of the ivory tusks by Enright or
their transportation into the United States by the Grigsbys does
not affect the original sport-hunted status of the elephants from
which the tusks came. Under section 4222(e), lawful, sport-hunted
ivory is exempted from coverage by the AECA. The ivory tusks at
28
In its trial brief, the government considers the Grigsbys
to have served as agents for Ashton and then Enright, after his
purchase of the ivory tusks: "The evidence in this case shows
that, with respect to the ivory, the Grigsbys were never more
tha[n] agents. It was owned by R.W. Ashton until November 8,
1988 and, thereafter, by Kenneth Enright." R4-76-3.
issue in this case, already excluded from AECA coverage under
section 4222(e) because of their sport-hunted origin, did not
become recharacterized or transformed in status because they were
purchased by Enright for a commercial purpose or because the
Grigsbys, after reestablishing residence in the United States,
attempted to have Enright pay them for one of the tusks, whether
their reason was to get his attention or greed.29 This limited
amount of ivory is not the "large illegal trade in African elephant
ivory" that the AECA prohibits. 16 U.S.C. § 4202(2).
In granting each defendant a three-level downward departure at
sentencing, the district judge stated her view that the "heart of
the illegal conduct in this case was bringing the ivory tusks into
the United States illegally," R16-78, and that "[t]here is no
evidence that they intended to traffic or to place them generally
on the market," id. at 79. Despite the district judge's
misunderstanding of the sport-hunted trophies exception to the
AECA,30 we agree with her conclusion that there is no evidence that
29
Indeed, the district judge apparently considered the
Grigsbys' attempt to obtain money for the tusks to be their most
culpable conduct in this case, although she acknowledged that it
was outside the coverage of any of the criminal statutes under
which they were indicted:
I think their plan was to try to take advantage of Mr.
Enright, which again, I think, is certainly culpable
conduct on their part, not the conduct they were
charged with, but in my mind it is the worst part. It
is the most morally culpable thing that they did in
this case, but again, that is a consideration that is
entirely outside the focus of these criminal statutes.
R16-79-80 (emphasis added).
30
The district judge agreed with the government's
interpretation that the AECA "is aimed at trafficking in these
items [ivory tusks]" because "bring[ing] these types of goods
the Grigsbys intended their attempt to sell the tusks to Enright to
be a commercial endeavor. The Grigsbys wanted to divest themselves
of the ivory tusks that they had stored for Enright for four years
without payment of storage fees. It is only illegal trade,
connoting unlawful commercial undertakings, that the AECA bans.
The ivory tusks at issue in this case were exempted from coverage
under the AECA because they were sport-hunted trophies. The sale
of the tusks to Enright, with the Grigsbys serving as his agents,
and the Grigsbys' subsequent attempt to obtain money from Enright
for whatever reason, including their storage services, are
irrelevant to the excepted, sport-hunted character of the tusks in
fulfilling the purpose of the AECA and in preventing a large-scale
or profitable incentive or trade in African elephant ivory.
The district judge rejected defense counsels' argument that "
"sport hunted trophies from elephants that are legally taken by the
into the United States ... may arguably tend to whet the appetite
of the public for such items, and thereby encourage more
trafficking." R16-79. Nevertheless, the judge viewed the
statutory purpose "as being a lesser goal of the statutes as
opposed to the goal of keeping people from going out and hunting
these species," which comports with the stated purpose of the
statute. Id. While recognizing that the ivory tusks at issue in
this case were sport-hunted, the judge misapprehended the purpose
of the sport-hunted trophies exception by confusing an illegal
commercial purpose in African elephant ivory trade with the
limited and lawfully controlled, sport-hunted trophies exception,
which preserves live African elephant populations:
The reason I think that is because the statutes
themselves do recognize an exemption for sport hunted
trophies. These are items that can be legally brought
into the United States, and it seems to me that the
presence of a sport hunted trophy such as these tusks
in the U.S. would tend to whet the public appetite for
ivory just as much as these tusks would in the
Grigsby's residence in Toccoa, Georgia.
Id. (emphasis added).
importer or the importer's principal in an ivory producing country
that has submitted to an ivory quota' " encompassed the Grigsbys as
Ashton's agents. R14-918 (quoting 16 U.S.C. § 4222(e)). Doris
Grigsby submitted Request to Charge No. 31, dealing with the
sport-hunted trophies exception and agency: "I charge you that it
is not a violation of the African Elephant Conservation Act to
import into the United States sport-hunted elephant trophies that
are legally taken by the importer or by the importer's principal in
an ivory producing country." R4-77-31 (citing 16 U.S.C. §
4222(e)). The district judge specifically refused to give this
instruction, R15-984, and Doris Grigsby's counsel objected to the
judge's failure to do so, id. at 1100.
Consequently, the jury was not informed that the sport-hunted
trophies exception applied to the ivory tusks in this case. We
conclude that the jury should have been instructed on the
sport-hunted character of the ivory tusks at issue in this case and
should have been told that the Grigsbys were acting as agents for
Ashton in the sale of the tusks to Enright, which entitled them to
coverage under the sport-hunted trophies exception. The district
judge erred in failing to instruct the jury on this exception.
Because the sport-hunted trophies exception was applicable to the
ivory tusks in this case, the Grigsbys' criminal violation of the
AECA under section 4224(a) is precluded.
3. Pre-Convention Exception
Articles III and IV of CITES govern the permits and
certification for import, export or re-export of species listed in
Appendices I and II. CITES provides an exemption from its
regulations
Where a Management Authority of the State of export or
re-export is satisfied that a specimen was acquired before the
provisions of the present Convention applied to that specimen,
the provisions of Articles III, IV and V shall not apply to
that specimen where the Management Authority issues a
certificate to that effect.
CITES, art. VII, para. 2, 27 U.S.T. at 1099 (emphasis added). The
Code of Federal Regulations has a similar exception:
The prohibitions in § 23.11(b) through (d) concerning
importation, exportation and re-exportation shall not apply to
wildlife or plants when a certificate has been issued by the
management authority of the country of origin or the country
of re-export to the effect that the wildlife or plant was
acquired prior to the date the Convention applied to it.
50 C.F.R. § 23.13(c) (emphasis added).
The government acknowledges in its trial brief that "[t]he
provisions of Article III do not apply in the case where a
Management Authority of the State of re-export (Canada) is
satisfied (1) that a specimen was acquired before the provisions of
the present convention applied to that specimen, and (2) the
Management Authority issues a certificate to that effect." R4-76-
2. The government's position, however, is that this exception is
inapplicable because "[t]he evidence in this case is that the
Canadian Management Authority has no record of any application or
permit in the names Doris Grigsby, David Grigsby and/or Grigsby
Taxidermy Studio." Id. (emphasis added). To the contrary, the
record contains two requisite Canadian, CITES export permits,
showing Doris Grigsby as the exporter for the ivory tusks. The
first export permit, Government Exhibit 49, was issued by the
Canada (Ontario) Management Authority on October 20, 1988, for
eight tusks harvested from 1965 through 1973. The consignee is
Enright at his Altamont Company in Thomasboro, Illinois. This
export permit was cancelled when Enright changed the destination or
consignee for the ivory tusks. The second export permit,
Government Exhibit 51, was issued by the Canada (Ontario)
Management Authority on November 8, 1988, for nine tusks harvested
from 1965 through 1973. This export permit, obtained when Enright
came to Canada, included the additional tusk for which he
negotiated directly with Ashton. The consignee for the second
export permit is George Wong at his factory in Kowloon, Hong Kong.
Both export permits show the country of origin for the tusks as the
Republic of Zambia.31
Significantly, the Canadian Management Authority, which, under
CITES, certifies endangered animals or animal parts for export from
Canada, twice has certified the ivory tusks in this case for export
as pre-Convention acquisitions. One of these certifications was to
the United States, which accepts such certification from a CITES
signatory country and would have excepted the tusks in question
under 50 C.F.R. § 23.13(c). The dates of harvest for the
31
Government Exhibit 47 is Ashton's certificate of
ownership, issued November 8, 1967, from the Republic of Zambia
for two of the tusks. While such official certificates of
ownership are not in the record for the other seven tusks, there
is testimonial evidence from a hunter who accompanied Ashton on
some of the safaris as to the dates of harvest and CITES markings
on the tusks. See CITES, art. VI, para. 7, 27 U.S.T. at 1099
(stating that, "[w]here appropriate and feasible," a "mark,"
consisting of "any indelible imprint" may be affixed "upon any
specimen to assist in identifying the specimen"). Moreover, the
Canadian Management Authority, which certifies the dates of
harvest and determines pre-CITES acquisition, was satisfied that
all of the ivory tusks involved in this case were obtained before
the application of CITES. This is all that is required by CITES
and, hence, the AECA, which uses the CITES identification system.
implicated tusks remain the same. Consequently, they are
pre-Convention acquisitions and exempt from the application of
CITES as stated in Article VII, paragraph 2, thereof and in 50
C.F.R. § 23.13(c). The fact that the Grigsbys did not have yet
another certificate for the same, previously and officially
declared pre-Convention ivory tusks, only seven of which were
transported into the United States in 1992,32 might have subjected
them to civil penalties under the AECA, but the lack of this
33
certification would not have made them criminally liable.
Clearly, the Canadian Management Authority would have issued
certification designating the tusks as harvested pre-Convention
because the tusks are exempt from CITES under Article VII,
paragraph 2 and, consequently, are excepted from the AECA under 50
C.F.R. § 23.13(c).34
In relevant part, Doris Grigsby's Request to Charge No. 22
explains the pre-Convention exception:
I further charge you that Article VII of the treaty
[CITES] provides that import and export permits are not
necessary for specimen[s] that have certificates showing they
were acquired before the effective date of the treaty. CITES,
T.I.A.S. 8249, 27 U.S.T. 1089, 1099.
Therefore, if you find that any or all of the species
which are the subject of the indictment were acquired before
the July 1, 1975 effective date of the treaty, then you can
32
The Grigsbys sold two of Ashton's nine ivory tusks in
Canada. Only seven tusks are at issue in this case.
33
The inability to indict and to prosecute the Grigsbys
criminally is augmented by the sport-hunted exception, addressed
previously, and the household effects exception, discussed
subsequently.
34
We reiterate that the African elephant first was protected
in the United States under CITES on February 4, 1977, after the
effective date of CITES on July 1, 1975.
find that those species are exempt from the provisions of the
treaty, and therefore are not subject to any of the United
States statutes enacted to enforce that treaty.
For example, if you find that the ivory tusks were
acquired by Mr. R.W. Ashton and or his family prior to July 1,
1975, based upon the certificate of ownership and testimony in
this case, then you can find that those items were acquired
prior to the effective date of the treaty. You can then find
that those items are exempt from the permit provisions of the
treaty and that those items are not subject to any United
States laws enacted to enforce the treaty, which are the laws
the defendants are charged with violating in this case, such
as the provisions regarding import or export permits for
certain species.
In the event you so find that the species are exempt,
then you must acquit these defendants.
R4-77-22-1-2 (citing CITES, 27 U.S.T. 1089, T.I.A.S. No. 8249).
At the charge conference, the district judge specifically
informed defense counsel that she would not give this instruction.35
Doris Grigsby's counsel attempted to explain that "there is a
pre-Convention exemption if you can show that that stuff was
acquired between '65 and '73 before the Convention, then it can
come in." R15-1079. The judge became diverted with Government
35
In reviewing the requests to charge submitted by defense
counsel at the charge conference, the district judge specifically
rejected Doris Grigsby's Request to Charge No. 22:
THE COURT: Any objection to 22? Never mind. I won't
give 22. This is the business about they are exempt
from the Act because Ashton had them before the Act
became effective. I won't give 22.
MS. BECKER [Doris Grigsby's attorney]: You won't give
22?
THE COURT: No.
MS. BECKER: Your Honor, that is one of the theories of
the defense.
THE COURT: Right.
R15-981.
Exhibit 47, the Zambian certificate of ownership issued to Ashton
for two of the tusks. After Doris Grigsby's counsel tried to
explain that the dates of harvest, ranging from 1965 through 1973,
were shown on Government Exhibit 51, one of the export permits
certified by the Canadian Management Authority, the district judge
concluded: "The court will rule that the provisions of section
23.13(c) do not apply in this case in that there is no evidence
that a proper certificate was issued by the management authority of
the country of origin, or the country of re-export." Id. at 1080.
Following the jury charge, Doris Grigsby's counsel specifically
objected to the district judge's failure to instruct the jury on
the pre-Convention exemption in her Request to Charge No. 22. Id.
at 1100.
Because the jury had no instruction on the pre-Convention
exception, it had no opportunity to determine whether the ivory
tusks in question were exempted from coverage under the AECA,
although they were harvested before the effective date of CITES.
With a proper instruction on the preConvention exception,36 the jury
should not have convicted the Grigsbys criminally under the AECA.
At sentencing, the district judge ironically recognized that the
age of the tusks, or their pre-Convention status, exempted them
36
The district judge mistakenly believed that, for
application of the pre-Convention exception, documentation from
the country of origin was necessary. In this case, such
documentation would have been relevant only to the Canadian
Management Authority to issue an export permit. Once the
Canadian Management Authority determined that the implicated
ivory tusks were excepted as pre-Convention harvests, the United
States would accept that determination from a CITES signatory
country. CITES, art. 7, para. 2, 27 U.S.T. at 1099; 50 C.F.R. §
23.13(c).
from the coverage and purpose of the AECA as an endangered species
statute enacted to implement CITES:
The thing that makes this case a bit idiosyncratic on its
facts in my opinion is the fact that these tusks were so old.
As I indicated, I think the whole thrust of these statutes is
to protect endangered wildlife, but these elephants were
killed before 1975 [CITES effective date], and the tusks were
in the legal possession of Mr. Ashton in Canada after that
date. I see the age of these tusks as being a factor that
tends to divorce the importation of the tusks from the social
harm that is sought to be protected by these wildlife acts.
R16-78 (emphasis added). We conclude that the district judge erred
in not giving the jury an instruction on the pre-Convention
exemption with respect to the ivory tusks in this case.37
D. Personal Baggage/Household Effects Exception
A household effects exemption is contained in CITES for
endangered species included thereunder:
The provisions of Articles III, IV and V shall not apply
to specimens that are personal or household effects. This
exemption shall not apply where:
(a) in the case of specimens of a species included in
Appendix I, they were acquired by the owner outside his
State of usual residence, and are being imported into
that State; or
(b) in the case of specimens of species included in
37
We want to be clear that our determination that the
subject tusks in this case are covered by the pre-Convention
exception is not intended to undermine the CITES ivory trade
control provisions or the AECA moratoria. We recognize that the
potential exists for untruthful representations in future cases
that imported ivory is exempt because it was harvested
pre-Convention. Accepting such false representations actually
could exacerbate the slaughter of African elephants and defeat
the purpose of CITES and the AECA to save African elephants from
extinction. We caution that our conclusion that the ivory tusks
in this case are exempt because they were harvested
pre-Convention is limited to the specific facts in the record,
including documentation and testimony verifying the
pre-Convention acquisition of the tusks. The ivory to which the
pre-Convention exception applies is a limited and closed class of
ivory.
Appendix II:
(i) they were acquired by the owner outside his
State of usual residence and in a State where
removal from the wild occurred;
(ii) they are being imported into the owner's State
of usual residence; and
(iii) the State where removal from the wild
occurred requires the prior grant of export permits
before any export of such specimens;
unless a Management Authority is satisfied that the specimens
were acquired before the provisions of the present Convention
applied to such specimens.
CITES, art. VII, para. 3, 27 U.S.T. at 1099-1100 (emphasis added).
Similarly, 50 C.F.R. § 23.13(d) provides:
The prohibitions in § 23.11(b) through (d) concerning
importation, exportation and re-exportation shall not apply to
wildlife or plants that are accompanying personal baggage or
part of a shipment of the household effects of persons moving
their residences to or from the United States: Provided, That
this exception shall not apply to:
(1) Importation by U.S. residents of wildlife or plants
listed in appendix I that were acquired outside the
United States; or
(2) Importation by U.S. residents of wildlife or plants
listed in appendix II that were taken from the wild in a
foreign country, if that country requires export permits.
50 C.F.R. § 23.13(d) (first emphasis added).
The following information, regarding noncommercial ivory
shipments, was stated in the Fish and Wildlife Facts information
sheet on ivory issued by the Fish and Wildlife Service of the
United States Department of the Interior that Doris Grigsby
obtained from the Canadian Management Authority when she acquired
the second export permit for the ivory tusks on November 8, 1988:
Non-commercial shipments. Raw and worked ivory may be
imported and reexported for personal use (accompanying
personal baggage) without CITES documents. However, some
foreign countries require that CITES permits be obtained prior
to entry/exit. We recommend that individuals contact foreign
countries prior to their travels to determine what is
required. Addresses of foreign authorities to contact are
available from the Office of Management Authority (OMA).
Ivory, Fish & Wildlife Facts (Fish & Wildlife Serv., U.S. Dept. of
the Interior, Washington, D.C.) Jan. 1988 (emphasis added).
The AECA defines "personal effects" in conjunction with moving
to or from the United States: "the term "personal effects' means
articles which are not intended for sale and are part of a shipment
of the household effects of a person who is moving his or her
residence to or from the United States, or are included in personal
accompanying baggage." 16 U.S.C. § 4244(9). The definition of
"personal effects" in the AECA is useful because that statute is
part of the Endangered Species Act of 1973, as amended, to which
the relevant federal regulations apply.38 Thus, the AECA "personal
effects" definition must be read in context with the overall
statutory scheme of which it is a part and not separate or in
conflict with the rest of the legislation. See Medtronic, Inc. v.
Lohr, --- U.S. ----, ----, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700(1996) (recognizing that the judicial interpretation of statutory
38
Struggling with the precise meaning of "accompanying
personal baggage," the district judge inquired about 50 C.F.R. §
23.13(d)(1):
THE COURT: What does the term accompanying personal
baggage mean?
MR. FARRELL [AUSA]: I don't think it is defined in the
regulations, Your Honor.
R15-1072. The useful definition of "personal effects" in 16
U.S.C. § 4244(9) cannot be isolated from the overall
wildlife protective scheme, embodied by the Endangered
Species Act of 1973, as amended, and accompanying federal
regulations implementing CITES, of which the AECA is a part.
language "does not occur in a contextual vacuum"); Passamaquoddy
Tribe v. Maine, 75 F.3d 784, 789 (1st Cir.1996) ("Put simply,
courts must recognize that Congress does not legislate in a
vacuum."). To allow a statutory subsection to subvert another part
of the regulatory scheme "would contravene the "elementary canon of
construction that a statute should be interpreted so as not to
render one part inoperative.' " Department of Revenue v. ACF
Indus., Inc., 510 U.S. 332, 340, 114 S.Ct. 843, 848, 127 L.Ed.2d
165 (1994) (quoting Mountain States Tel. & Tel. Co. v. Pueblo of
Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168(1985)); City of Jamestown v. James Cable Partners, L.P. (In re
James Cable Partners, L.P.), 27 F.3d 534, 537 (11th Cir.1994) (per
curiam) (determining that statutory subsections must be read in
conjunction with other parts of the statute).
The government's position in this case has been that the
Grigsbys violated United States law because they did not have
Canadian export permits for the elephant tusks, polar bear, black
bear, and harp sealskins, a barred owl, a saw whet owl, a kestrel,
and goshawk.39 Doris Grigsby submitted Request to Charge No. 24
regarding the personal baggage/household effects exception:
I charge you that under the federal statutes the
prohibition to importing endangered wildlife or plants shall
39
Although the indictment charges David and Doris Grigsby
with importation of additional endangered birds protected by the
Migratory Bird Treaty Act, the government's request to charge
states that "the defendants did in fact possess any one of the 4
migratory birds charged in the indictment, namely, a Barred Owl,
a Saw Whet Owl, a Kestrel, or the Goshawk," R4-78-24(1), and the
district judge instructed the jury regarding only these four
birds protected by the Migratory Bird Treaty Act, R15-1093.
Therefore, we conclude that the government proved that the
Grigsbys possessed these four endangered birds solely.
not apply to wildlife or plants that are accompanying personal
baggage or part of a shipment of the household effects of
persons moving their residences to the United States.
I also charge you that under the CITES treaty, the permit
provisions "shall not apply to specimens that are personal or
household effects."
R4-77-24 (citing 50 C.F.R. § 23.13; CITES, 27 U.S.T. 1099,
T.I.A.S. No. 8249).
The district judge specifically refused to give the household
effects instruction submitted by Doris Grigsby's counsel. R15-983.
In her discussion with counsel concerning this exception, however,
the district judge inquired about three aspects that were not clear
to her, and she commented that she "was hoping that [counsel] would
have a lot more background and perspective on this issue than [the
judge did]." Id. at 1062-63. First, she queried as to whether the
household effects exception applied to the wildlife protected under
the Endangered Species Act, or the bear and seal skins.40 Second,
she inquired as to the distinction between United States citizen
and resident regarding application of the household effects
exception.41 She concluded that section 23.13(d) applied to United
40
The following statement by the district judge indicates
her belief that the household effects exception applied to the
wildlife protected by the Endangered Species Act:
Well, I'm really looking at Count Four [the Endangered
Species Act violations] right now. So, it looks to me
like the importation of the harp seal skins would not
have been contrary to law if they constituted household
effects pursuant to the move, or if they were
accompanying personal luggage.
R15-1063 (emphasis added).
41
The following comments indicate the district judge's
concern with the distinction between United States citizen and
resident as to application of the household effects exception:
States residents and that "it is my impression that the Grigsbys
were perhaps planning on establishing a residency, but they weren't
residents when they crossed the border." Id. at 1067 (emphasis
23.13(d)(2), the prohibition is in section
23.11(b) through (d) concerning the importation and
exportation, and re-exportation shall not apply to
wildlife or plants that are accompanying personal
baggage or part of a shipment of the household effects
of persons moving their residences to or from the
United States.
I don't see anything in 23.11(b) that refers to
the fish or wildlife permit.
....
Section 23.13(d) says that the prohibitions in
section 23.11(b) through (d) concerning importation,
exportation, and re-exportation shall not apply to
wildlife or plants that are accompanying personal
baggage or part of a shipment of the household effects
of persons moving their residences to or from the
United States provided that this exception shall not
apply to importation by U.S. residents of wildlife or
plants listed in Appendix [I] or that were acquired
outside the United States, or importation by U.S.
residents of wildlife or plants listed in Appendix [II]
that were taken from the wild in a foreign country if
that country requires export permits.
Now, under the evidence, it seems to me that
neither Mr. or Mrs. Grigsby were U.S. residents. Do
you all disagree with that?
....
Okay. Let's work through it. Section 23.11(b)
through (d), those are prohibitions. 23.13(d) says that
those prohibitions do not apply to wildlife
accompanying personal baggage or part of a shipment of
the household effects of persons moving their
residences to or from the United States.
....
Yes, but that subsection [d](2) [of 50 C.F.R. §
23.13] specifically says importation by U.S. residents.
R15-1064, 1065, 1066, 1067 (emphasis added).
added). Third, she determined that the household effects exception
encompassed the elephant tusks.42
At the charge conference, the district judge correctly stated
that "if there is a possibility that they could qualify; in other
words, if they could convince the jury that the tusks or the seal
skins or the bearskins were household effects, then the jury should
be instructed about these provisions, but if as a matter of law
they can't be, then the instruction should not be given." Id. at
1061. Although the district judge instructed the jury that the
wildlife brought into the United States by the Grigsbys required
certain permits under the wildlife statutes at issue in this case,
she also instructed that the household effects exception applied.43
42
In discussing the household effects exception, the
district judge appeared to believe that it applied to the
elephant tusks as well as the other wildlife involved in this
case:
Well, then, it appears to me that section 23.13(d)
does apply, but now my question at this point would be
why wouldn't it apply to the elephant tusks? I mean
depending on what factual findings are made by the
jury, and why wouldn't it apply potentially to the
bearskins?
....
You didn't answer the question I'm asking, though.
I'm look[ing] still at this CFR exception in 23.13(d)
and asking you why that exception doesn't apply to the
permit requirements, the import permit requirement for
the tusks, and the export permit requirement for the
bearskins?
R15-1066, 1070 (emphasis added).
43
The district judge determined that the household effects
exception applied to the three wildlife statutes involved in this
case:
I think I agree with the defense that with respect
to the requirement of a wildlife permit, the
The judge gave the following instruction to the jury:
Now, I have described to you three respects in which the
government is contending that the importation of certain items
was contrary to law. I further instruct you that there is a
so-called household effects exception to all of these
provisions, and that exception provides that a permit or
wildlife declaration form is not required for household
effects which are being brought into the United States and
which are not intended for sale in the United States.
Id. at 1092-93 (emphasis added). Significantly, the district judge
did not advise the jury of the distinction that section 23.13(d)
does not apply to United States residents but to United States
citizens.44 At the end of the jury charge, Doris Grigsby's counsel
specifically objected to the judge's failure to give her Request to
Charge No. 24. Id. at 1100.
requirement of a fish and wildlife declaration form,
that the household effects exception and the
accompanying personal baggage exceptions are relevant,
and I will instruct the jury regarding that exception,
but what is still not clear to me is whether this
exception has a potential for application to the permit
requirements under CITES.
....
I think from what I have heard you all say so far that
this exception [§ 23.13(d) ] does apply to the three
contrary to law provisions that we have discussed so
far.
....
I'm going to charge the jury that there is an exception
for household effects not intended for sale, and that
that exception applies to all of them.
R15-1068-69, 1071, 1078 (emphasis added).
44
This distinction precluding United States residents from
moving endangered species with their household effects without
CITES permits prevents frequent trips to Canada, for example, and
returning to the United States with such endangered species.
United States citizens, who are moving their residences to or
from the United States, would occur infrequently. Thus, the
potential of abusing this exception is alleviated.
Even under the household effects exception as given, the
jury's verdicts with respect to the Grigsbys' transportation of the
endangered bear and sealskins as well as the birds is inconsistent
with the evidence. There is no evidence and clearly no proof that
this wildlife was brought into the United States for a commercial
purpose. To the contrary, the evidence revealed that the birds in
question were David Grigsby's private collection of mounted birds
and that the bear skin rugs as well as the harp seal skins were
used in Canada and the United States as rugs and for decorative
purposes in the Grigsbys' home. Indeed, Doris Grigsby designated
these items on the contract with the moving van company as
household items. Therefore, the evidence showed that the bear and
seal skins as well as the birds were possessed lawfully and do not
show any indication that these items were ever intended for sale.
Additionally, the district judge did not instruct the jury or
emphasize that section 23.13(d) specifically was applicable to the
Grigsbys because they were not United States residents when they
brought the subject wildlife into the United States as opposed to
the inapplicability of the household effects exception to United
States residents. The Grigsbys had lived in Canada for fourteen
years prior to their move to the United States. Thus, they were
not United States residents and the household effects exception
applied to them.45 Although the district judge had found this to
45
With respect to the applicability of the household effects
exception to the Grigsbys regarding their ownership of the ivory
tusks, the government acknowledges in its trial brief that
"[e]ven if a credible argument of ownership can be made, the
Grigsbys acquired the tusks in Canada, their residence since
1978." R4-76-3. Omitting this admission that the Grigsbys were
not United States residents when they returned to the United
be an important distinction in her discussions concerning the jury
charge with counsel, she did not convey this difference to the
jury. Statement of the Grigsbys' non-United States residency
status, in conjunction with their noncommercial purpose in
possessing the implicated wildlife items, would have emphasized the
applicability of the household effects exception and might have
caused the jury to find that this exception was applicable.
The elephant tusks present a more complicated analysis. The
district judge believed and instructed the jury that the household
effects exception applied to the elephant tusks as well as to the
other wildlife involved in this case. With the evidence of the
Grigsbys' acting as agents for Ashton in his sale of the tusks,
Doris Grigsby's sale of two of the tusks in Canada, and the
Grigsbys' mailing of a tusk to Enright for payment on delivery
could have caused the jury to conclude that there was a commercial
purpose in the Grigsbys' possession of the tusks. Even if this
were the case, the previously discussed sport-hunted trophies and
pre-Convention exceptions would have foreclosed the Grigsbys'
liability under the AECA, the statute implementing CITES, which the
government alleges that they violated by moving the elephant tusks
into the United States. Additionally, if the jury had been
instructed on the Grigsbys' abandonment theory, the household
States in 1992 after their substantial residence in Canada, the
government also represented to the district court in its trial
brief that the household effects exception "does not apply to
importations into this country of Appendix II species if the
country of export, in this case Canada, requires an export
permit, which it does. 50 C.F.R. § 23.13(d)(2)." Id. at 4-5.
The government fails to recognize that § 23.13(d)(2) applies only
to "[i]mportation by U.S. residents." 50 C.F.R. § 23.13(d)(2)
(emphasis added).
effects exception could have been considered applicable to the
tusks.46
Therefore, we conclude that the jury verdicts as to the
Grigsbys' unlawful importation of the specified wildlife is against
the weight of the evidence and inconsistent with the household
effects exception given in the jury instructions. According to
CITES, 50 C.F.R. § 23.13(d), and the Facts information sheet on
ivory, issued by the Fish and Wildlife Service of the United States
Department of the Interior, the Grigsbys' not having a Canadian
export permit did not violate United States law. The household
effects exception specifically provides that nonresidents of the
United States can move wildlife, such as the bear and sealskins as
well as the birds at issue in this case, if these items are their
personal, noncommercial possessions, which are moved as part of
their household effects or residential belongings.47 Because the
46
It is clear that the jury did not focus on the meaning and
application of the household effects exception, particularly
concerning the other wildlife involved in this case. Instead,
the jury apparently concentrated on the major portion of the jury
instructions devoted to the requisite export/import permits if
the household effects exception did not apply. Furthermore, if
the jury had been instructed on and believed the Grigsbys'
abandonment theory, then they could have had the option of
deciding that the earlier move of the elephant tusks into the
United States and placement in storage for subsequent retrieval
and moving with the rest of their household effects was because
of the Grigsbys' fear of personal violence from Zanotti.
47
The discussion among the court, counsel, and Agent Decker
of the Fish & Wildlife Service makes clear that the export permit
is a requirement of Canada, and that the household effects
exception encompasses at least the bear and sealskins as well as
the birds at issue in this case:
THE COURT: You didn't answer the question I'm asking,
though. I'm look[ing] still at this CFR exception in
23.13(d) and asking you why that exception doesn't
apply to the permit requirements, the import permit
requirement for the tusks, and the export permit
requirement for the bearskins?
MR. FARRELL [AUSA]: First of all, because in
23.13(d)(2) it talks about Appendix 2, and if that
country, meaning the country from which the animals
were taken, requires a permit, and Canada requires a
permit for export.
THE COURT: Yes, but there again, you are stuck with
the words by U.S. residents. I see what you are
saying.
MS. BECKER [Doris Grigsby's counsel]: Your Honor, my
argument is I think (d)(1) talks about CITES permits.
I don't have it in front of me, but the tusks based on
the government's argument is it is a CITES 1. So,
therefore, it would apply as well, the exception would
apply as well.
THE COURT: It seems to me—I guess not all of these
regulations are here before me, but looking back to the
beginning of that section, Part 23, it is captioned
Endangered Species Convention. I think from what I
have heard you all say so far that this exception does
apply to the three contrary to law provisions that we
have discussed so far.
....
AGENT DECKER: In regard to the other wildlife in this
case, the polar bears, the bears, and the seals, those
are items—the black bears and the polar bears, those
are the items that are Appendix 2 wildlife.
THE COURT: Yes.
AGENT DECKER: In that case, then, you go to Number 2
under 23.12 where it gives you the requirements for an
Appendix 2 species, and those species only require an
export permit from Canada.
THE COURT: Right.
AGENT DECKER: Then if you go on to the part that
causes all this confusion, the part in 23.13, we have
first covered the prohibitions, then we covered the
requirements, and then the law provides an exception in
23.13.
Now, that exception is over in paragraph (d) which
says that there is an exception for household effects.
household effects exception clearly covers the endangered bear and
sealskins as well as the birds at issue in this case, the jury
erroneously convicted the Grigsbys of unlawfully importing the
wildlife other than the ivory tusks. Additionally, it is possible
that the jury, if properly instructed concerning the Grigsbys'
abandonment argument, would have determined that the elephant tusks
also were included in the household effects exception.
E. Denial of Motions for Judgments of Acquittal
Both David and Doris Grigsby moved for judgments of acquittal
pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure.48
The district judge denied these motions because she decided that
there was sufficient evidence to sustain the verdicts. In deciding
a Rule 29 motion for judgment of acquittal, a district court must
"determine whether, viewing all the evidence in the light most
However, in (d)(2) it says provided this exception
shall not apply to Number 2 importations by U.S.
residents of wildlife or plants listed in Appendix 2
that were taken from the wild in a foreign country if
that country requires export permits, and there is
testimony that Canada requires export permits.
The notion that foreign people, foreigners,
anybody other [than] United States residents, the door
would just be wide open. It would simply defeat the
law, and there is another part. If you turn back to
23.13(a), that says exceptions, and the last sentence
in paragraph (a) says exceptions in one part cannot be
invoked to allow activities prohibited by another part.
THE COURT: That's the whole purpose of an exception,
though. That doesn't make any sense.
R15-1070-71, 1074-75 (emphasis added).
48
Alternatively, David and Doris Grigsby moved for a new
trial. Because we have determined that their respective motions
for judgments of acquittal should have been granted, we need not
address their motions for new trial.
favorable to the Government and drawing all reasonable inferences
and credibility choices in favor of the jury's verdict, a
reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt." United States v. O'Keefe, 825
F.2d 314, 319 (11th Cir.1987) (citation omitted); see Jackson v.
Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560(1979) (holding that no defendant can be convicted criminally
unless the government proves beyond a reasonable doubt every
element of the offense). "The district court's decision on
sufficiency of the evidence [in determining a motion for judgment
of acquittal] is entitled to no deference by this court," United
States v. Taylor, 972 F.2d 1247, 1250 (11th Cir.1992); our review
of the denial of a defendant's motion for acquittal is de novo,
United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833(1995).
Considering the evidence in this case most favorably to the
government and in view of the household baggage/personal effects
exception given to the jury by the district judge, we find it
unreasonable for the jury to have determined that moving into the
United States the wildlife, other than the ivory tusks, with the
Grigsbys' household goods was unlawful because it was part of their
home furnishings. There is no evidence in the record that this
wildlife was other than decoration for the Grigsbys' home, such as
the bearskin rugs, or part of David Grigsby's mounted bird
collection, which plainly fits within the household
baggage/personal effects exception. The district judge might have
clarified the application of this exception if she had instructed
the jury that the household effects exception applied to United
States citizens moving their residences to the United States, like
the Grigsbys, and not to United States residents.
With respect to the ivory tusks, even if the jury did not
believe the Grigsbys' abandonment theory whereby they represented
that the tusks had become part of their household belongings
because Enright had failed to obtain them and had not paid storage
for four years, two other exceptions precluded the importation of
the tusks from being unlawful. The district court failed to
instruct the jury on the sport-hunted trophies exception as well as
the pre-Convention exception, both of which clearly applied to the
tusks, as we have analyzed herein. Cf. United States v. Johnson,
542 F.2d 230, 232-33 (5th Cir.1976) (determining that the
defendant's legal theory excusing his criminal conduct was
insufficient as a matter of law, thus, the district court committed
no reversible error in failing to instruct the jury on the theory
or in not granting the motion for judgment of acquittal). This
constitutes a legal error on the part of the district court because
the Grigsbys should not have been convicted criminally for unlawful
transportation of the ivory tusks into the United States when these
exemptions preclude a finding of wrongdoing by the Grigsbys with
respect to the particular tusks at issue because they were
sport-hunted trophies as well as harvested prior to the effective
date of CITES, which the Endangered Species Act of 1973 and its
amendment, the AECA, implement.
On these facts, there could be no violation of the felony
importation statute because the importation was not "contrary to
law." 18 U.S.C. § 545. Since the Grigsbys' conduct in this case
did not constitute criminal violation of the subject statutes, they
should not have been convicted for conspiracy to violate these
statutes under the specific intent, federal conspiracy statute, 18
U.S.C. § 371, in Count I.49 Because the jury convicted the Grigsbys
contrary to the evidence regarding the household effects exception
concerning the wildlife other than the ivory tusks, and the
district judge did not recognize that the sport-hunted trophies and
pre-Convention exceptions covered the ivory tusks as a matter of
law and failed to so instruct the jury, the Grigsbys' convictions
must be reversed and their respective motions for judgments of
acquittal granted. See Taylor, 972 F.2d at 1250 (holding that the
district court erred as a matter of law in its ruling on the
defendant's motion for judgment of acquittal).
III. CONCLUSION
Given the particular facts in this case, the Grigsbys'
49
Indeed, the district judge's instruction on the conspiracy
count could have be instrumental in the jury's convicting the
Grigsbys:
In this case, it is not necessary for the
government to prove that the defendant under
consideration willfully conspired to commit all three
of the charged substantive offenses. It would be
enough if the government proves beyond a reasonable
doubt that the defendant conspired with someone to
commit one of those offenses, but in that event, in
order to return a verdict of guilty, the jury must
unanimously agree upon which of the three offenses the
defendant willfully conspired to commit. If the jury
cannot agree in that manner, you would have to find the
defendant not guilty.
R15-1102 (emphasis added). Doris Grigsby's counsel objected
to this instruction. Id. at 1103.
criminal convictions for violating the AECA, the Endangered Species
Act of 1973, and the Migratory Bird Treaty Act are untenable. The
jury was misinstructed on the AECA with erroneous or incomplete
instructions, as we have explained herein. The jury's verdicts
with respect to the other wildlife conservation statutes are
contrary to the jury instructions and evidence. Accordingly, the
convictions of David and Doris Grigsby are REVERSED, and the case
is REMANDED to the district court with instructions to GRANT their
respective motions for judgments of acquittal as a matter of law.