United States 2nd Circuit Court of Appeals Reports

U.S. v. BRONX REPTILES, 217 F.3d 82 (2nd Cir. 2000) UNITED
STATES OF AMERICA, Appellee, v. BRONX REPTILES, INC.,
Defendant-Appellant. No. 98-1686. United States Court of
Appeals, Second Circuit. August Term, 1998. Submitted: May
7, 1999. Decided: June 30, 2000.

The defendant, Bronx Reptiles, Inc., appeals from a final
order of the United States District Court for the Eastern
District of New York (Sterling Johnson, Jr., Judge)
affirming a judgment of Magistrate Judge Cheryl L. Pollak
convicting the defendant of violating that portion of the
Lacey Act, as amended, that makes it a misdemeanor
“knowingly to cause or permit any wild animal . . . to be
transported to the United States . . . under inhumane or
unhealthful conditions.” 18 U.S.C. § 42(c). We hold
that the government’s burden under § 42(c) is to
prove not only that the defendant knowingly caused or
permitted the transportation to the United States of a wild
animal, but also that the defendant knew the conditions
under which the animal was transported were “inhumane or
unhealthful.”

Reversed. Page 83

IRVING HEISLER, New York, NY, for Defendant-Appellant.

STANLEY N. ALPERT, Assistant United States Attorney,
Eastern District of New York (Zachary W. Carter, United
States Attorney, Eastern District of New York, and Emily
Berger, Assistant United States Attorney, Eastern District
of New York, of counsel), for Appellee.

Before: OAKES, CABRANES, and SACK, Circuit Judges.

SACK, Circuit Judge

We return in this appeal to a vexatious problem. When a
criminal statute renders unlawful an act “knowingly”
undertaken by the defendant, what must the extent of the
defendant’s knowledge be to permit conviction?

The defendant, Bronx Reptiles, Inc., was convicted
following a bench trial in the United States District Court
for the Eastern District of New York (Cheryl L. Pollak,
Magistrate Judge) of violating that portion of the Lacey
Act, codified as amended at 18 U.S.C. § 42(c), that
makes it a misdemeanor “for any person, including any
importer, knowingly to cause or permit any wild animal or
bird to be transported to the United States, or any
Territory or district thereof, under inhumane or
unhealthful conditions or in violation of such
requirements” as the Secretary of the Interior may
prescribe. See United States v. Bronx Reptiles, Inc., 949
F. Supp. 1004 (E.D.N.Y. 1996). The district court (Sterling
Johnson, Jr., Judge) affirmed. See United States v. Bronx
Reptiles, Inc., 26 F. Supp.2d 481 (E.D.N.Y. 1998). The
defendant argues on appeal that under § 42(c), the
government was required to prove not only that the
defendant knowingly caused the transportation to the United
States of a wild animal or bird, but also that the
defendant knew the conditions under which the animal or
bird was transported were “inhumane or unhealthful.” We
agree. Because the magistrate judge concluded that there
was no evidence to support such a finding, see Bronx
Reptiles, 949 F. Supp. at 1012 n. 14, we reverse.

BACKGROUND

On May 9, 1995, Leo Yen, an inspector for the United
States Fish and Wildlife Page 84 Service, went to the
United Airlines cargo facility at John F. Kennedy
International Airport to inspect a shipment that had just
arrived from the Solomon Islands. It was bound for the
defendant, Bronx Reptiles, Inc., a large commercial
importer and wholesale distributor of animals. Yen met one
of the defendant’s employees who handed Yen the
import-entry paperwork for the shipment.

The shipment consisted of two identical wooden boxes, each
approximately two and one-half to three feet wide and four
to five feet long. One of the boxes had airline tape around
it but its lid was nonetheless ajar. Opening that box, Yen
found that about three-quarters of the box contained
skinks,[fn1] all of which appeared to be in good condition.
But crushed together in a compartment at the end of the box
were several dozen frogs. At first the frogs appeared to be
dead, but on closer examination, Yen saw that a few of them
were still moving. The second box contained only skinks,
all of which appeared undamaged.

Yen released the shipment to the defendant so that it could
tend to the skinks and the surviving frogs, but he refused
to sign off on the importation. On a Report of Refused
Clearance, Yen wrote: “no damp materials, [a] shallow
container, no separate bags, no water tray w/sponge.” Yen
instructed the defendant through its employee to separate
the dead frogs from the live frogs and to return the dead
ones to Yen. The next day he received a package from the
defendant containing all the frogs that had been shipped;
all had died.

On May 9, 1995, the Fish and Wildlife Service issued a
Violation Notice to the defendant charging it with
violation of 18 U.S.C. § 42(c). On April 17, 1996,
the case was tried, on consent of the parties pursuant to
18 U.S.C. § 3401(b), before Magistrate Judge Pollak
in the Eastern District of New York. The government called
three witnesses: Yen, Peter Brazaitis, and Saverio LiBrandi.

Brazaitis, a curator of animals at the Central Park Zoo and
a herpetologist, was qualified as an expert in the care,
management, and transport of live reptiles and amphibians.
He testified that if a frog becomes dehydrated, its
respiratory functions are impaired, causing stress to the
animal and resulting in the rapid production of mucous,
urine, and toxins, which ultimately kills the animal. In
order to protect frogs against dehydration, they should be
shipped with a reservoir of water available to them. They
also should be packed in relatively small compartments in
order to prevent them from leaping about and injuring
themselves. And a relatively small number of frogs should
be placed in each compartment to protect against the spread
of noxious bacteria from a single frog to the entire
population. Brazaitis opined that based on his examination
of the shipment in this case, the method and conditions of
shipment were improper, both because there was no water
vessel or moist towel in the crate and because the frogs
were not packed in small groups in separate containers.

Brazaitis further testified that in his experience as an
importer of wild animals, it was customary for the importer
to ensure the health and well-being of the animals for
which the importer has placed an order. He testified that
there are standards promulgated by the International Air
Transport Association (“IATA”) that specify the size of the
box, environmental conditions, and other requirements
necessary to ensure the health of animals being shipped.
When he was responsible for such importation, he said, he
personally reviewed the qualifications of the shipper,
sought out references, and called the shipper to make sure
it was aware of shipping requirements, including IATA
standards. He admitted during cross-examination, however,
that he did not necessarily visit the foreign countries
from which he purchased Page 85 animals, and that he
relied on the shipper to package the animals
properly.Brazaitis also testified that had the frogs been
shipped to the defendant properly packaged, the costs of
shipping would have been higher.

LiBrandi, a special agent for the Division of Law
Enforcement of the Fish and Wildlife Service, testified
that the defendant was responsible for about two shipments
of live animals into the United States a week. He testified
that the Fish and Wildlife Service had assessed civil
penalties against the defendant on at least three previous
occasions. The first involved two importations of live
reptiles from Colombia in March 1993, in which some of the
reptiles arrived dead as a result of improper ventilation
and labeling. In the course of his investigation of the
incident, LiBrandi spoke to a representative of the
defendant, one Bruce Edelman, who told LiBrandi that he
(Edelman) was aware of the IATA guidelines for shipping
animals and thought that as an importer he was liable for
the conditions under which wildlife enters the United
States. The defendant was also assessed a penalty by the
Fish and Wildlife Service in March 1994 when several dead
animals were discovered in a shipment of small mammals and
reptiles from Egypt. An investigation of the incident
revealed that the company had failed to follow applicable
IATA guidelines and that the packaging of the animals had
been improper. And in March 1995, the Fish and Wildlife
Service cited the defendant for a violation involving the
importation of chameleons, skinks, geckos, other lizards,
and frogs.

The defendant presented no witnesses at trial.

In an opinion and order dated December 17, 1996, the
magistrate judge found the defendant guilty of violating 18
U.S.C. § 42(c). See Bronx Reptiles, 949 F. Supp. at
1014. First, she concluded that the government had
established beyond a reasonable doubt both that the
defendant had caused the transportation to the United
States of the frogs and that the conditions under which the
frogs were transported were inhumane and unhealthful. See
id. at 1009. Second, she rejected the defendant’s argument
that because frogs are reptiles, they are not covered by
the statute; the magistrate judge found that frogs, in
fact, are amphibians, but that in any event both amphibians
and reptiles fall within the ambit of the statutory
proscription. See id. at 1010. Third, the magistrate judge
determined that in order to be held liable under §
42(c), an importer need only have knowingly caused the
transportation to the United States of the wild animal or
bird, and need not have done so knowing that the conditions
of transportation were inhumane or unhealthful. See id. at
1011-13. She noted in a footnote that the government had
failed to prove that the defendant knew, or consciously
avoided knowing, of the unhealthful or inhumane conditions
under which the frogs were transported to the United
States. See id. at 1012 n. 14. Because the magistrate judge
concluded that the defendant “knowingly” caused the frogs to
be transported to the United States, however, she convicted
the defendant under the statute. See id. at 1013-14. She
sentenced the defendant to pay a fine of $10,000, the
maximum under the statute, and a $50 special assessment.
She also sentenced the defendant to a five-year period of
probation.

Pursuant to 18 U.S.C. § 3402, the defendant appealed
the judgment of conviction to the district court. In a
brief order, the district court affirmed. See Bronx
Reptiles, 26 F. Supp.2d 481.

This appeal followed.