THOMPSON, Circuit Judge.
Herman Melville, Moby Dick.
David L. Place appeals his convictions for illegally trafficking in sperm whale teeth and narwhal tusks. Specifically, a jury found that Place's whale-tooth dealings violated CITES, an international compact implemented in the United States via the Endangered Species Act (ESA) and regulations authorized by the ESA.
For decades, David Place sold various antiques, artifacts, and Nantucket-related paraphernalia from a shop on the island and, beginning in the 1990s, over the internet. An apparently lucrative element of Place's business was selling scrimshawed narwhal tusks and sperm whale teeth — that is, teeth carved with images and designs — to wealthy Nantucket tourists eager for a piece of the island's whaling history. He also sold uninscribed, or "raw," teeth to local scrimshanders — artisans who would then carve designs into the teeth. Place frequently obtained tusks and teeth — both scrimshawed and raw-over
On August 7, 1999, Place received an email from Tim Balda (apparently a friend of his) informing Place that "Federal Fish and Game" (apparently the United States Fish and Wildlife Service) had confiscated a narwhal tusk from him because he did not have "all the documentation required for it," and that "[t]heir view is that ALL interstate transport of endangered species parts is illegal. Old or not, scrimshawed or not." Balda said Fish and Game had elected not to indict him but that they could: "The fine for the narwhal tusk could have been as high as $30,000 with a 5 year jail term attached to it. Whale teeth are not much better in the punishment department." Place responded to Balda: "Thanks for the note.... I think the time has come to just do private selling ... as I don't think anyone wants to go to prison or lose their shirts for the sake of a few sales."
Place indeed pursued his "private selling" (which we will discuss only generally because the details of each individual transaction are not at issue here). He tracked down suppliers: Jake Bell, a native of Connecticut who shipped the whale teeth from Ukraine to a friend in the states whom Place had to meet in person to pick up the teeth
Over the course of these purchases and sales, Place occasionally referenced his awareness that he was breaking the law by ignoring permits required by CITES. For example, on May 17, 2001, Place sent an email to Nina Logan, who'd transacted in narwhal tusks with him: "next time we do this I would like to get whatever documents I can certifying that these were taken legally, but for now I have managed without." On May 26, 2002, he had another exchange with Logan:
Around the same time, Logan referred Place to another narwhal-tusk seller, Ryan Bartlett, who emailed Place: "You are no doubt familiar if dealing in ivory items of this nature one must have documentation — this is where the problem arose as I
The papers Place disregarded were indeed necessary for trade in sperm whale teeth. CITES, again, is a treaty that the vast majority of countries, including the United States, have entered into.
In the United States, CITES has been implemented by the ESA. 16 U.S.C. §§ 1537A, 1538(c)(1). 16 U.S.C. § 1537 authorizes the Secretary of the Interior to do all things necessary and proper to implement CITES; under this authority, Interior has promulgated regulations. See 50 C.F.R. §§ 23.1-23.92. Each of the CITES provisions mentioned above has been re-codified in these domestic regulations (as cited above). This means it is and has been abundantly clear that international trade in sperm whale teeth and narwhal tusks requires an export permit, and international trade in sperm whale teeth requires an additional import permit and cannot be for primarily commercial purposes.
Two statutes criminalize violations of CITES and its domestic counterparts. The Lacey Act creates two levels of criminality: any person who transports, buys, or sells wildlife in
Back to the facts: in February 2004, government agents intercepted a shipment of 548 sperm whale teeth (listed in shipping documents as "tooth of white whale," undoubtedly a reference to fictional sperm whale Moby Dick) from Mikhalyov to James Saunders, who essentially acted as U.S.-based distributor for Mikhalyov. As agents combed through Mikhalyov's and Saunders's records, they found that Place had purchased sperm whale teeth from both men between 2002 and 2004. Consequently, the government turned its attention to Place.
In the meantime, Mikhalyov, Saunders, and Place exchanged a flurry of emails. Saunders sent a message noting that even items that fell under CITES's "exceptions" generally required permits. After Place professed ignorance in a brief email, Saunders sent another email apologizing for the first and blaming the whale teeth's courier for the lack of documentation. Place sent an email wondering why he was not receiving permit papers if the couriers were supposed to be dealing with paperwork; he followed that by asking about another shipment of teeth due to him. Saunders asked what kinds of teeth were legal to import; Place disclaimed any knowledge. Place asked again for CITES paperwork. Mikhalyov bypassed the CITES question and said he would send more teeth to Place without involving Saunders; he said he would be careful to use small packages marked "souvinirs[sic]/carving/lapidary material or antique ornaments." Place agreed, and things appeared to settle down for a while.
Then on March 8, 2007, Special Agent Troy Audyatis from the National Oceanographic and Atmospheric Administration (NOAA) and two other officers visited Place at his home on Nantucket. They interviewed Place for three hours, resulting in a handwritten sworn statement from Place that he believed "raw teeth without documents must be 100 years old for importation. Scrimshawed teeth must be 1972 or older for import. Any native peoples (Inuit) pieces of any sort are exempt from import restrictions." This asserted (and plainly wrong; see footnote 6 above) belief is the main basis for Place's defense.
Despite his claimed lack of knowledge, Place was indicted on nine counts related to illegal trafficking in whale teeth.
After both sides had finished presenting evidence — and two days after the court-imposed deadline for submitting proposed jury instructions — Place moved for a lesser-included-offense instruction. The requested instruction would have allowed the jurors, if they could not agree that Place knowingly violated the CITES permitting requirements, to consider a misdemeanor (should-have-known) Lacey Act violation in addition to each felony charge,
The jury convicted Place on all counts but the second (the misdemeanor Lacey Act violation stemming directly from the JFK bust). The district judge sentenced him to 33 months in prison followed by 24 months' supervised release, as well as a $725 special assessment. Place now appeals his convictions on counts 3 through 9; he does not challenge his conviction on count 1.
Place first takes issue with the district court's decision not to give his requested instruction on misdemeanor Lacey Act violations. Before considering this issue on the merits, though, we must address the government's argument that Place waived the jury-instruction issue by raising it late below. Jury-instruction requests are governed by Federal Rule of Criminal Procedure 30, which says any such "request must be made at the close of the evidence or at any earlier time that the court reasonably sets." To determine whether Place complied with this rule and adequately preserved the jury-instruction issue, we must take a close look at what happened below.
At 2:54 pm on November 16, 2010 — day five of trial — the district judge told the parties "if there are to be any offerings of proposed verdict forms and/or supplemental instructions to the jury, we will need them by the close of business today." Both sides accordingly filed proposed supplemental instructions later that day; the government followed with another set of supplemental instructions the next day; and Place followed with yet another set — the ones discussing lesser-included misdemeanor Lacey Act violations
The next day the judge charged the jury without mentioning the lesser-included instruction Place had requested. At sidebar after the charge, Place's attorney listed objections to the instructions, advancing detailed arguments as to some but saying of the lesser-included issue only this: "We also object to the Court's failure to give our request for lesser included offenses." And that was that.
This exchange lends itself to a spirited debate as to whether the lesser-included instruction issue was forfeited. Place's request came two days after the judge asked for it, so it may have been untimely under Rule 30, see United States v. Upton, 559 F.3d 3, 8-9 (1st Cir.2009), and it arguably left inadequate time for the government and the judge to look over the proposed instruction before the charge conference. Moreover, on a somewhat different note, it is puzzling that Place would wait so long to spring his lesser-included offense argument on the government and the court, given that the argument closely tracks Place's entire theory of the case (that he lacked actual knowledge that his actions were illegal). All that said, there are some factors that suggest Place has preserved the issue: the judge originally gave the parties only two hours' notice of the deadline for filing supplemental instructions, and Place filed the instructions arguably at the close of evidence, which might mean the filing technically complied with Rule 30 (if we were to say the original notice of two hours was not reasonable, as the Rule requires). And the parties give us plenty of material to work through the jury-instruction argument on appeal.
In the end, though, we need neither rescue this precarious set of circumstances from the brink of forfeiture nor shove it over the edge, because the district court simply did not err in failing to give the requested instructions; therefore, whether the review is de novo (as it would be if the issue were preserved, United States v.
Counts 3, 4, 5, 6, and 7 charged felony violations of the Lacey Act. The Lacey Act, again, involves two levels of criminality: a defendant who transports, buys, or sells wildlife in
A criminal defendant is entitled to a jury instruction on a lesser included offense if (1) the lesser offense is necessarily included in the charged offense, (2) some contested fact separates the two offenses, and (3) given the evidence, a jury could rationally find the defendant guilty of the lesser offense while acquitting him of the charged offense. United States v. Boidi, 568 F.3d 24, 27 (1st Cir.2009). Here, items (1) and (2) are uncontested — (1) a charge that Place should have known his trafficking was illegal is necessarily included in the charge that Place actually knew his trafficking was illegal, and (2) Place's state of mind is contested — he is adamant that he lacked actual knowledge. The only issue is (3) whether a rational jury could have agreed with Place and found that he indeed lacked actual knowledge that his whale-tooth transactions were illegal.
Place says the jury could have believed his attested-to ignorance notwithstanding years of emails demonstrating knowledge; the government says the emails and other circumstantial evidence — receiving tipoffs from friends; disguising the contents of packages on customs forms; creatively routing those packages to evade customs; having myriad whale-tooth auctions shut down on eBay; reading the content of those eBay shutdown notices, which informed him of the broad CITES requirements — overwhelmingly prove actual knowledge. The government has the better of this argument.
Place's emails (which acknowledged that the teeth required permits to be legal and admitted buying and selling without the permits) directly prove knowledge that his transactions were illegal; his testimony at trial echoes the emails; he took steps to hide his transactions from authorities; he repeatedly suggested that these steps would help him avoid a criminal investigation or prison time; and the only contrary evidence is a set of post hoc, self-serving statements that he believed his transactions were exempt from CITES because the teeth he sold were old, scrimshawed, or Inuit in origin. His own emails, testimony, and conduct, though, belie the validity of that purported belief. No reasonable jury could have accepted his testimony and rejected the mountain of evidence that Place knew his conduct was illegal; therefore, Place was not entitled to a lesser-included Lacey Act instruction.
Place's other argument assails his convictions on Counts 8 (smuggling sperm whale teeth) and 9 (smuggling narwhal tusks); he says the smuggling statute does not criminalize violations of regulations like those implementing CITES. Specifically,
We start with a more detailed review of the smuggling statute. The statute imposes criminal sanctions on anyone who "receives, conceals, buys, [or] sells ... merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law...." 18 U.S.C. § 545. As we have said, the phrase "contrary to law" means that the smuggling statute criminalizes conduct that may be illegal under other sources of law but is not necessarily criminal according to those sources' own terms. For example, in 1999 we considered a sentencing appeal where the underlying conviction was for smuggling freon into the United States from Canada: the Clean Air Act imposed permitting requirements that the defendant had violated, and the smuggling statute rendered these violations criminal. See United States v. LeBlanc, 169 F.3d 94, 94-95 (1st Cir.1999). That case involved the smuggling statute's criminalizing a violation of a statute, and this (criminalizing statutory violations) is apparently its most common application; in this case, though, the question is whether the smuggling statute may similarly criminalize violations of the regulations like those implementing CITES.
First, Place says the word "law" has many meanings, any of which Congress could conceivably have been employing in the smuggling statute. "Law" is indeed a broad word with many meanings, including, most notably for our purposes, "[t]he aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action." Black's Law Dictionary (9th ed.2009). Then again, "law" may also be defined as narrowly as "a statute" (though in the latter case the word generally appears with an article, e.g. "Congress passed
Place argues that Congress meant only for the narrowest definition of "law" — "a statute" — to apply here; the government responds that the Congress more likely intended "law" to have its much more common, broad meaning — one that includes regulations. In fact, the government points out, the Supreme Court has said that the analogous phrase "authorized by law" plainly includes at least some regulations, see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) ("[i]t would ... take a clear showing of contrary legislative intent before the phrase `authorized by law' ... could be held to have a narrower ambit than the traditional understanding" — an understanding that "law" encompasses regulations). And, the government concludes, every circuit court to have considered the question in the context of the smuggling statute has likewise agreed that "contrary to law" similarly includes at least some regulations, see United States v. Alghazouli, 517 F.3d 1179, 1183 (9th Cir.2008); United States v. Mitchell, 39 F.3d 465, 468-70 (4th Cir.1994); Estes v. United States, 227 F. 818, 821-22 (8th Cir.1915) (interpreting an older version of the smuggling statute that even then contained the phrase "contrary to law").
Place's next argument attempts to accomplish this climb by comparing the smuggling statute with certain other statutes — most notably, 18 U.S.C. § 554 (titled "Smuggling goods from the United States"). Enacted years after § 545, § 554 includes the phrase "contrary to law or regulation," which Place insists shows that Congress does not generally intend the word "law" to include regulations. After all, the disjunctive "or" can only mean that "law" and "regulation" are two wholly
Finally, Place argues that we should apply the rule of lenity to exclude regulations from the ambit of the word "law" in the smuggling statute. The rule of lenity counsels that ambiguities in criminal statutes should be resolved in a defendant's favor. See Godin, 534 F.3d at 60-61. But, again, the most common meaning of the word "law" is quite broad, and for that reason the Supreme Court has said only "a clear showing of ... legislative intent" can overcome the "traditional understanding" that "law" encompasses regulations. Chrysler Corp., 441 U.S. at 295-96, 99 S.Ct. 1705. There is simply no indicator of any legislative intent that the smuggling statute applies as narrowly as Place would have us read it. Given the absence of any textual or contextual clues that the smuggling statute should be narrowly construed, Place's smuggling conviction is substantively appropriate.
After ruminating on the whale's possible extinction, Melville's Ishmael eventually "account[ed] the whale immortal in his species, however perishable in his individuality." The United States and most other countries, however, have made a contrary judgment and decided to use what legal tools they can to eliminate the international market for whale parts so the species may survive and flourish.
Instead, Place has presented the issue as an all-or-nothing proposition: he says simply that "[t]he district court erred by instructing the jury that regulatory violations were sufficient to establish guilt." In fact, he goes further and asks us to reject the Ninth Circuit's efforts in Alghazouli to distinguish among different types of regulations for purposes of determining which are "law," suggesting we simply declare that no regulations are "law." Absent nuanced argument on this delicate point that has split our sister circuits, we consider the argument as Place has presented it and say only that some regulations are "law," including those implementing CITES.
