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On the Starboard Hand of Every Woe is a Lesser Included Offense?

By Robyn Hagan Cain on August 22, 2012 | Last updated on March 21, 2019

The First Circuit Court of Appeals issued an opinion on Tuesday which rejected an "I-violated-regulations-but-not-statutes" defense, and clarified that ignorance of the law really isn't an excuse when a defendant clearly knew better.

And the court quoted Moby Dick throughout the opinion.

What whale of a crime could produce these judicial gems? Trafficking in sperm whale teeth and narwhal tusks, in violation of the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES).

For decades, David Place sold various antiques, artifacts, and Nantucket-related paraphernalia, including whale teeth and tusks. That, of course, violated CITES.

In 1999, Place received an email from a friend explaining that "Federal Fish and Game" (probably the U.S. Fish and Wildlife Service) had confiscated a narwhal tusk from him because he did not have "all the documentation required for it," and that "their view is that ALL interstate transport of endangered species parts is illegal. Old or not, scrimshawed or not." The email went on to explain: "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: "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 kept selling without CITES permits, and he was eventually arrested and charged under the smuggling statute and the Lacey Act.

The smuggling statute imposes criminal sanctions on anyone who receives, conceals, buys, or sells merchandise after importation, if the items were imported or brought into the United States "contrary to law." Place claimed that "law" meant other statutes, while he had only violated regulations. The First Circuit concluded that Place's smuggling conviction was substantively appropriate because there was no indicator of any legislative intent that the smuggling statute was written to exclude regulatory violations from the term "law."

Place similarly failed in his Lacey Act argument that the district court erred in denying his request for a lesser included offense instruction.

The Lacey Act creates two levels of criminality: Any person who transports, buys, or sells wildlife in knowing violation of any law, treaty, or regulation - including CITES, the ESA, and the CITES regulations - is guilty of a felony; any person who transports, buys, or sells wildlife that he should have known violated a law, treaty, or regulation is guilty of a misdemeanor.

The First Circuit, however, concluded, "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."

"In this world, shipmates, sin that pays its way can travel freely, and without a passport," but whale teeth and tusks still require papers under CITES.

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