"Between $10 billion and $20 billion in plants and animals were traded illegally around the world last year, with the United States leading the list of buyers, at about $3 billion." Donovan Webster, The Looting and Smuggling and Fencing and Hoarding of Impossibly Precious, Feathered and Scaly Wild Things, New York Times Magazine, Feb. 16, 1997, at 28.

I. Introduction

International wildlife traffickers today face a spectrum of prospective federal charges in the United States ranging from a century-old federal anti-trafficking law to new "white collar" offenses. But while federal prosecutors have many choices on what crimes to charge, the result is the same: the Department of Justice, including prosecutors in the Department’s Wildlife and Marine Resources Section who specialize in wildlife crime, will vigorously investigate and prosecute wildlife traffickers and flagrant wildlife offenders can expect to receive stiff sentences, including lengthy prison terms, upon conviction in U.S. courts.

The diversity of wildlife trafficking from South America and elsewhere in the world is co-extensive with the diversity of the earth’s fauna. Live animals - exotic birds (parrots and macaws), mammals, reptiles, and fish - are hidden in secret compartments, in shipping containers, under clothing or in luggage and smuggled across international borders, or are openly declared at the border, but accompanied by false paperwork to make their importation appear legal. Wildlife parts too numerous to list (or even imagine) are smuggled at one time or another for commercial or personal use: big game trophy animals; animal skins; ivory; complete tiger carcasses; bear gall bladders and bile salts; rhinoceros horns whole or ground (a reputed aphrodisiac and one of the world’s most valuable commodities); fresh sea turtle eggs; and mounted butterflies (whose species worldwide number in the tens of thousands). This trade in live animals and their parts feeds a voracious market of exotic medicine users, collectors, wildlife dealers, clothiers, leather craftsmen, and pet fanciers.

Though often overshadowed by the publicized problem of habitat loss and degradation, illegal wildlife trade deserves serious attention from federal prosecutors. First, this trade contributes directly to the loss of global bio-diversity. Poaching drives species such as the tiger, rhinoceros, Asian bear, and possibly many others closer to extinction. Second, live animals inhumanely transported in cramped or concealed compartments frequently die before reaching the market. Third, this trade spreads disease, and introduces injurious pests and exotic species that crowd out native species, permanently damaging or altering natural ecosystems. Fourth, organized crime is making an aggressive entry into the international wildlife marketplace, both as poachers and smugglers.

The export of our native U.S. wildlife is also a serious problem, and poaching of domestic wildlife has reached epidemic proportions. More than one hundred native species, including twelve listed "endangered" or "threatened" under the Endangered Species Act of 1973, are routinely killed within our national parks.

Today, traffickers face stiff federal criminal penalties from several fronts - not only from traditional fish and wildlife trafficking statutes, such as the Lacey Act Amendments of 1981 (commonly called the Lacey Act), 16 U.S.C. §§ 3371-78, but from more vigorous application of other federal criminal statutes, such as money laundering; smuggling; and tax and currency transaction violations, once reserved for drug and white collar offenders. Traffickers now confront a gauntlet of wildlife and white collar charges, with maximum penalties of twenty years imprisonment, $500,000 fines, and other sanctions, such as forfeiture (wildlife and other property), civil fines, injunctive relief, and permit or license revocation that can end the right to trade wildlife.

II. Regulation of the International Wildlife Trade

A. The Lacey Act

The Lacey Act, enacted in 1900, is the United States' oldest national wildlife protection statute. After 100 years and many revisions, the Lacey Act's now is an anti-trafficking statute protecting a broad range of wildlife. The Lacey Act broadly applies to all "wild" (i.e., not domesticated) animals, alive or dead, and to any part, product, egg, or offspring. 16 U.S.C. § 3371(a). The Act’s prohibitions have two prongs: wildlife trafficking, both domestic and international, and false labeling (lying about the contents of a wildlife shipment).

The Lacey Act attacks wildlife trafficking by making it unlawful to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife already taken (i.e., captured, killed or collected), possessed, transported, or sold in violation of state, federal, American Indian tribal, or foreign laws or regulations that are fish or wildlife-related (the so-called "underlying law" or "predicate offense"). 16 U.S.C. § 3372 (a). Together, these are referred to as the "two steps" necessary for an offense. United States v. Carpenter, 933 F.2d 748 (9^th Cir. 1991). A two-tiered penalty scheme exists, creating both misdemeanor and felony offenses, distinguished by the defendant’s knowledge of the underlying law violations. 16 U.S.C. § 3373(d)(1) and (2). For a felony, the defendant must "know" about, or be generally aware of, the illegal nature of the wildlife, but not necessarily the specific law violated. United States v. Santillan, 243 F.3d 1125 (9^th Cir. 2001); United States v. Todd, 735 F.2d 146 (5^th Cir. 1984). A misdemeanor merely requires that the defendant "in the exercise of due care" should know the facts constituting the underlying law violation. "Due care is that degree of care which a reasonably prudent person would exercise under the same or similar circumstances." 9^th Cir. Crim. Jury Instr. 9.8.3 (1997); S. Rep. 97-123, 97^th Cong., 1st Sess. 10-12 (1981); 1981 U.S.C.C.A.N. 1758-59. Felony violations, in addition to a "knowing" scienter or mens rea requirement, require either proof of that the defendant "knowingly" imported or exported wildlife, or "knowingly"engaged in conduct during the offense that involved the sale or purchase of , the offer of sale or purchase of, or the intent to sell or purchase wildlife with a market value over $350. Felony violations can result in up to five years imprisonment, a $250,000 fine ($500,000 for organizations), and forfeiture of equipment involved in the offense, while the maximum misdemeanor penalty is one year imprisonment and a $100,000 fine ($200,000 for organizations). 16 U.S.C. §§ 3373(d), 3374(b), and 18 U.S.C. § 3571. Strict liability forfeiture exists for wildlife contraband without the need first to obtain a criminal conviction. 16 U.S.C.§ 3374 (a); United States v. One Afgan Urial Ovis Blanfordii Fully Mounted Sheep, 964 F.2d 474 (5^th Cir. 1992).

Second, the Act requires of contents of shipments of fish and wildlife traveling in interstate of foreign commerce to be accurately marked and labeled on the shipping containers. Failure to mark or label a shipment properly is a civil penalty violation punishable by a fine. 16 U.S.C. §§ 3372(b) and 3373(a)(2). But making or submitting any false record, account, label for, or identification of any wildlife transported or intended to be transported in interstate or foreign commerce may be prosecuted as either a misdemeanor or felony, depending what additional specific conduct occurs, paralleling trafficking offenses. 16 U.S.C. §§ 3372(d) and 3373(d)(3). No "underlying law" or "predicate offense" is required for these false labeling offenses. United States v. McDougall, 25 F. Supp. 2^nd 85 (N.D. N.Y. 1998).

One unique feature of the Lacey Act is its ability to incorporate foreign laws as an underlying law or predicate offense to "trigger" a Lacey Act violation, best illustrated in the prosecution of Taiwanese nationals for attempting to import 500 metric tons of salmon, taken in violation of a Taiwanese law that they themselves had not violated. United States v. Lee, 937 F.2d 1388 (9^th Cir. 1991). In another case, a California defendant was charged with selling tarantulas collected in violation of Mexican law. At trial, the relevant Mexican law was admitted to serve as the underlying violation for a felony conviction. United States v. Cook, 81 F.3d 170 (Table), 1996 WL 144224 (9^th Cir. 1996). A person who imports wildlife into the United States taken, possessed, transported, or sold in violation of a foreign law or regulation of general applicability (local, provincial, or national laws all included) can be prosecuted in the United States for a Lacey Act offense built upon a violation of that foreign country’s laws. Of course, the defendant need not be the one who violated the foreign law; the wildlife itself becomes "tainted" even if someone else commits the foreign law violation, but the defendant must know or should know in the exercise of due care about its illegal nature.

The Lacey Act occupies a central place within the framework of federal wildlife laws for several additional reasons. First, the Lacey Act applies to a wider array of wildlife than any other single protection law, including the Endangered Species Act. Second, it has the stiffest potential penalties. Third, its prohibitions have a greater reach, including offenses that start out in foreign countries as violations of the laws of another country .

B. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

In 1973, in Washington, D.C., 21 countries signed a document called the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES]. Frequently called "CITES" and sometimes "the Washington Convention," this treaty became effective in 1975. It now boasts more than 140 member nations. CITES seeks to regulate the international wildlife trade (i.e., the import, export and re-export of live and dead animals, fish and plants, and their parts and derivatives), by placing species in three "Appendices," based on the degree of threatened extinction by international trade. Willem Winjestekers, The Evolution of CITES, 5th ed. (1998); CITES Art. II. CITES regulates trade between countries, imposing the greatest restrictions on species found in Appendix I, and the least on those in Appendix III. This is implemented through a program of permits or certificates issued by both member and non-member countries that must accompany lawful shipments.

The type of permit or certificate required, and the restrictions placed on the CITES shipment, depends on the particular appendix in which a species is listed: either Appendix I, II, or III. CITES, Arts. III, IV, V. Appendix I is the most restrictive and bans wildlife trade between countries for commercial purposes. Appendix II permits some commercial trade under permit for species not yet considered in danger of imminent extinction. Appendix III contains species which are of special concern only to a country where they exist, and are even less rigorously regulated. CITES Art. V.

CITES is not a self-executing treaty. It contains no internal implementation or enforcement mechanism which automatically establishes enforcement infrastructures, management authorities, or penalties within the countries acceding to the treaty. Thus, CITES can only be effective to the extent that member countries enact and enforce the specific provisions. The United States has done so through the Endangered Species Act. 16 U.S.C. §§ 1537a; 1538(c)(1).

C. Other Federal Laws Penalizing Illegal Wildlife Trafficking

1. The Endangered Species Act

The Endangered Species Act (ESA), 16 U.S.C. §§ 1531-43, enacted in 1973, is one of the country's most significant wildlife laws. ESA authorizes a listing of wildlife species, considered by the Federal Government, to be in imminent danger or threat of extinction, and requires government action to restore populations of those species. Both exotic and domestic species are listed, matching many of those listed by CITES. 50 C.F.R. § 17.11.

The ESA helps interdict wildlife traffickers, too. First, the statute, with the implementing regulations, make it illegal for any person subject to the jurisdiction of the United States to import, export, offer, or sell in interstate or foreign commerce or to receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity any endangered or threatened species. See 16 U.S.C. § 1538(a)(1) and 50 C.F.R. 17.31. Lists of endangered and threatened species appear in regulations published by the Department of the Interior. 50 C.F.R. § 17.11. The ESA also makes it unlawful to "take" (defined by 16 U.S.C. § 1532(19) as "to harass, harm, pursue, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct") any endangered or threatened species within the United States or its territorial seas or upon the high seas. 16 U.S.C. §§ 1538(a)(1)(B) and (C). The ESA also carries out our CITES obligations, designates the United States Fish and Wildlife Service to carry out its functions, and prescribes penalties for anyone caught importing, exporting, or possessing CITES-listed specimens traded in violation of the treaty. 16 U.S.C. §§ 1537a; 1538(c)(1), 1540(b)(1). See United States v. Winnie, 97 F.3d 975 (7^th Cir. 1996) (Possession of cheetah imported in violation of CITES illegal). Third, the ESA makes it unlawful to import or export wildlife at any customs port of entry other than those designated by the Department of the Interior, fail to declare wildlife to either U.S. Customs or Fish and Wildlife Service officers upon importation or exportation, or engage in business as an importer or exporter of wildlife without a license from the United States Fish and Wildlife Service. See generally 50 C.F.R. Part 14. A criminal violation of ESA only requires general intent. It can occur without the defendant knowing that the wildlife is protected, and without intending to violate the law. United States v. McKittrick, 142 F.3d 1170 (9^th Cir. 1998).

Criminal violations of the ESA have penalties ranging up to one year imprisonment and a fine of $100,000 for individuals and $200,000 for organizations. Fish and wildlife involved in violations of law are subject to forfeiture. United States v. One Handbag of Crocodilius Species, 856 F. Supp. 128 (E.D. N.Y. 1994). Equipment, vehicles, vessels, aircraft and other means of transportation, used to aid in the commission of an offense where the government obtains a criminal conviction, also are subject to forfeiture. 16 U.S.C. § 1540(b)4).

2. Customs, Smuggling and Other General Criminal Laws Used in Wildlife Trafficking Cases

Some Title 18 offenses are particularly well suited for prosecuting wildlife traffickers’ conduct. The smuggling statute, 18 U.S.C. § 545, a felony, is one charging option whenever wildlife is illegally imported into the country. Concealing contraband upon importation is one obvious smuggling violation, but the statute has a much broader reach. For example, all wildlife entering the United States must be cleared, and all persons entering the United States must accurately declare any wildlife in their possession. 50 C.F.R. § 14.61; 19 C.F.R. § 148.11. Violation of any of these requirements potentially triggers a smuggling violation.

The second paragraph of the smuggling statute,18 U.S.C. § 545, sets forth two types of smuggling offenses commonly used in wildlife cases.

a. One offense is to import knowingly or bring into the United States merchandise (i.e., wildlife) contrary to law. The crime is complete merely if the defendant knew he was importing merchandise contrary to another United States law. United States v. Davis, 597 F.2d 1237 (9^th Cir. 1979). "Contrary to law" means contrary to any U.S. law or regulation of general applicability, United States v. Mitchell, 39 F.3d 465 (4^th Cir. 1994). Even if it is only a misdemeanor or merely just an agency regulation, it still supports a felony charge under § 545. Id.; Duke v. United States, 255 F.2d 721 (9^th Cir. 1958);Steiner v. United States, 229 F.2d 745 (9^th Cir. 1956). False statements made in Customs entry documents have been considered contrary to the Customs laws which require the submission of accurate information to import merchandise, e.g., the importation was "contrary to 19 U.S.C. §§ 1481, 1484, or 1485." United States v. Cox, 696 F.2d 1294 (11^th Cir. 1983). The underlying law specifically may be a CITES violation. United States v. Ivey, 949 F.2d 759 (5^th Cir. 1991).

b. The other offense under that paragraph is knowingly to receive, conceal, buy, sell, or facilitate the transportation, concealment, or sale of merchandise, knowing the merchandise was imported or brought into the United States contrary to law. Id. This, of course, allows prosecutors to follow the stream of smuggled merchandise to find culpable downstream parties. Proof of the defendant’s knowledge of the law violated upon importation is required. United States v. Asper, 2000 WL 821714 (N.D.Ill. 2000).

In cases involving the unlawful importation of fish or wildlife where the defendant violated both a foreign law and another U.S. law or regulation upon importation, a choice exists between prosecuting a defendant under 18 U.S.C. § 545 or the Lacey Act. Generally, the smuggling statute is preferable. Where the Government charges smuggling, instead of Lacey Act, the law requires no specific proof of the applicable foreign law. See, e.g., United States v. Mitchell or United States v. One Afghan Urial Ovis Orientalis Blanfordi, supra. A smuggling charge can support a money laundering charge. The money laundering statute defines "specified unlawful activity" to include smuggling offenses under 18 U.S.C.§ 545, including those where "merchandise" (i.e., fish or wildlife) is brought into the United States "contrary to law." See United States v. Lee, supra. Consequently, the Government can charge money laundering, when appropriate, where smuggled wildlife comes into the United States. Money laundering charges arise most frequently in international trafficking cases where someone transfers, transports, or transmits funds from the United States to another country (or vice-versa), with the intent to promote wildlife smuggling. 18 U.S.C. § 1956(a)(2)(A). The maximum penalty is 20 years imprisonment and/or a $500,000 fine. Id.

3. Other Title 18 Offenses

Of course, many other Title 18 offenses can apply. Lying on any declaration form or to government inspectors would also constitute a felony "false statement" offense. 18 U.S.C. § 1001. Conspiracies not only to commit substantive offenses, but also to defraud the United States, often arise. 18 U.S.C. § 371. Where applicable, the Government may bring tax violations against the wildlife smuggler who fails to report or otherwise conceals income derived from wildlife trafficking. See 26 U.S.C. § 7201 et seq. Today, wildlife traffickers can expect to have the book thrown at them. See, e.g., United States v. Kloe et al., No. 96-131-CR-ORL-22 (M.D. Fla., Jan. 10, 1997) (defendant convicted of conspiracy, Lacey Act, Endangered Species Act, smuggling, and money laundering offenses connected with his illegal import of Malagasy reptiles, taken illegally in that country, and transported to the United States through Germany and Canada for pet sale; sentenced to 46 months imprisonment and fined $10,000); United States v. Silva, 122 F.3d 412 (7^th Cir. 1997) (defendant convicted of conspiring to smuggle exotic birds into the U.S., and failing to report taxable income, sentenced to 82 months imprisonment and fined $100,000 ; co-defendant convicted of tax charges alone and sentenced to 27 months in jail); United States v. Wegner et al., No. CR-94-278-KN (C.D. Cal. Dec 12, 1995), aff’d, 117 F.3d 1426 (Table), 1997 WL 367901 (9^th Cir. 1997) (defendant convicted of conspiracy and tax violations, after failing to report accurately illegal gains from the sale of smuggled cockatoos, sentenced to 5 years imprisonment and fined $10,000); United States v. Lee, 937 F.2d 1388 (ring leader of conspiracy to smuggle 500 metric tons of salmon into the U.S. convicted of conspiracy, Lacey Act, and money laundering charges, and sentenced to 70 months imprisonment).

III. Investigation and Prosecution of Wildlife Traffickers

Several U.S. agencies are authorized to investigate violations of federal wildlife laws, including the U.S. Fish and Wildlife Service ("USFWS"), the Park Service, the National Marine Fisheries Service, the Bureau of Land Management, the Forest Service, and the Animal and Plant Health Inspection Service. The jurisdiction of these agencies depends upon the specific statutory authority given them and is normally determined by either the type of wildlife at issue or the geographical location of the alleged violation. State wildlife officers also investigate violations of state wildlife laws, which sometimes develop into federal cases.

A. Border Interdiction

As mentioned above, except in special cases where prior authorization has been obtained from the USFWS, wildlife may only be imported into or exported from the U.S. through 29 specific ports of entry. The USFWS employs approximately 90 wildlife inspectors at these ports who work alongside U.S. Customs inspectors to ensure that smuggled wildlife is detected and that declared wildlife shipments are accurately labeled and can be cleared for entry into the U.S. Inspectors may clear shipments by merely checking documentation, or may take the further step of physically examining the contents of a shipment to ensure it conforms with the accompanying waybill, invoice and any other special permit, such as a CITES document. Inspectors have three basic options when examining a shipment: they may clear it for entry into the U.S., hold it for further investigation or refuse clearance and require that the shipment be transported out of the country by the importer. Entry is controlled for disease and health reasons, as well as conservation reasons. Inspectors must be expert at identifying all types of wildlife, down to the subspecies level. If a shipment is refused entry and a criminal violation is suspected, the matter is usually referred by the inspector to a Special Agent of the USFWS for further investigation and referral for prosecution.

B. Field Investigation

1. By U.S.F.W.S. Special Agents

The USFWS, which is the primary agency responsible for investigating wildlife smuggling offenses, employs about 230 special agents around the country who job is to investigate violations of federal wildlife laws, issue citations for minor offenses and prepare more serious cases for referral to the Department of Justice for criminal prosecution. Investigations may be overt (interviews, license checks, examination of wildlife and documents, use of checkpoints, etc.) or undercover. During undercover investigations, agents may assume false identities, establish business entities for the purpose of participating in trade, use cooperating private individuals or "informants" who are involved in illegal activity and they may record and videotape their conversations with subjects without the need for a prior court order. Some other federal agencies, such as the Bureau of Land Management, Park Service, Forest Service and National Marine Fisheries Service, also employ law enforcement agents who may investigate wildlife related crimes which occur in areas under their jurisdiction in the United States.

The USFWS operates the world's only wildlife forensics laboratory in Ashland, Oregon which frequently helps in the analysis of physical evidence collected in such investigations. The lab routinely performs test and examinations ranging from a simple post-mortem, to tool-mark identification, morphologic examination, blood/tissue identification and analysis and even DNA testing. Lab scientists frequently testify in federal criminal wildlife cases concerning the tests they have performed on case evidence.

2. Federal Grand Jury Investigations

In the United States, federal crimes may also be investigated, and many must be charged, by a "grand jury." The grand jury (as opposed to a trial, or "petit" jury) is a group of 16-23 persons selected at random from within a federal judicial district who usually meet once or twice each month at the federal courthouse to hear evidence in criminal investigations and consider indictments presented to them by federal prosecutors.

Each United States district court is empowered to summon one or more grand juries at such time as the public interest requires. It is not uncommon for large, busy federal courthouses to have two or more grand juries meeting at the same time. A grand jury generally will stay in session for a period of 18 months but may be extended for a maximum of six more months. The purpose for creating grand juries is to safeguard the rights of innocent citizens against hasty, malicious, or oppressive prosecution by the government. Absent a waiver by the defendant, the federal government cannot bring a person to trial for a felony unless a grand jury first votes to return an indictment containing the felony charge. An indictment may be found only upon the concurrence of 12 or more qualified grand jurors, regardless of the number of persons comprising the grand jury (16 to 23), who agree that probable cause exists to believe that the charges contained in the indictment are well founded. The grand jury's decision to return an indictment is the act which initiates formal criminal charges.

The grand jury has broad investigative power to determine whether a crime has been committed and who committed it. This "investigative function" is coordinated by federal prosecutors who attend grand jury sessions and assist the grand jury in determining what evidence it should seek and what charges, if any, should be brought. The scope of a grand jury investigation is limited to investigations of federal crimes: it may not investigate federal civil violations or state crimes.

The grand jury performs its investigative function by issuing subpoenas for the production of documents, issuing subpoenas requiring persons to testify in the grand jury about a matter being investigated and hearing evidence from government agents who have performed investigations. In fulfilling its investigative function, the grand jury is generally unrestricted by technical, procedural, or evidentiary rules. To assist the grand jury in carrying out its public duty, every person is obliged to appear and give testimony when subpoenaed.

Grand jury proceedings are secret; neither the grand jurors, government agents or attorneys for the government are permitted to discuss matters occurring in the grand jury, or the fact that a grand jury investigation is occurring, with anyone who has not been specifically identified on a list of those entitled to receive such information. This secrecy requirement does not, however, extend to witnesses, who are free to openly discuss fact of their appearance, the questions asked of them and their answers.

3. Prosecution Resources

Federal non-military crimes are prosecuted by attorneys employed by the U.S. Department of Justice. These lawyers are generally found in either U.S. Attorney’s Offices or within a litigating division of the main Department of Justice. Each state has at least one U.S. Attorney's Office which employs federal prosecutors empowered to prosecute any violation of federal law, including wildlife crimes. Alleged criminal violations of federal wildlife laws are referred by investigators to United States Attorneys' offices for prosecution in federal courts.

The Environment and Natural Resources Division is a litigating division of the U.S. Department of Justice. Partly because of the increasing number and complexity of federal criminal wildlife cases which arose in the 1970s, the Wildlife and Marine Resources Section was created within the Division in 1979. Prosecutors from the Wildlife Section, including the author, advise federal agents involved in wildlife investigations, frequently take the lead role in prosecuting certain complex or wide-ranging federal wildlife cases, and provide training to federal agents in areas of federal wildlife law and procedure.

Defendants in nearly all federal wildlife cases are entitled trial before a jury. The government bears the burden of proving every element of every charged crime to a jury of 12 citizens, who must vote unanimously to either convict or acquit the defendant on each charge. Defendants have the automatic right to appeal a conviction or sentence.

4. Extradition From Other Countries

International extradition is the process by which a person in one country is surrendered to another country for trial or punishment. Extradition is initiated by a request from the U.S. Department of Justice to the U.S. State Department, which presents the extradition request through diplomatic channels to the foreign government. In order to extradite an individual from a foreign country, an extradition treaty between the United States and the foreign country is usually, but not always, required. Extradition will be possible if sufficient evidence of criminal activity chargeable as a crime in both countries is shown to exist. If the offense charged in the U.S. charging document is not recognized as a crime in the country where the defendant is located, extradition will not be granted.

U.S. citizens who flee this country to avoid prosecution may be subject to extradition and may additionally have their U.S. passports revoked by the State Department, usually resulting in eventual deportation and return to the United States.

Mutual Legal Assistance Treaties (MLATs) are agreements between countries whereby parties to the agreement guarantee to provide each other assistance in certain circumstances to obtain testimony, documents, locate people, serve documents, execute search and seizures, and seize assets for forfeiture. One such MLAT in effect between some South American countries and the United States is the Inter-American Convention on Mutual Assistance in Criminal Matters.

1. Trade from South America

The Wildlife Bird Conservation Act passed by Congress during 1992 banned the importation of wild-caught birds (birds collected from the wild) into the United States and ended legal U.S. participation in the international pet trade of parrots, macaws and toucans. A collapse of the tanning industry during the last two decades ended the demand for and importation of any significant quantity of crocodilian skins. Consequently, U.S. demand for South American wildlife has shifted to other species. But international wildlife trade with the U.S. is booming and figures for 1999 show that Wildlife Inspectors processed 95, 664 declared shipments of wildlife and wildlife products worth more than $1 billion. Miami - one of the busiest ports of entry and a popular one for wildlife from South and Cental America recorded 8,005 shipments. More than 90% of these shipments contained live wildlife, making it one of the major ports of entry for live animals. Reptiles, including many venomous specimens, and invertebrates account for a large portion of this trade.

Recent U.S. seizures of wildlife from South or Central America show a vibrant trade remains: sea turtle eggs; sea turtle products; live reptiles or amphibians of every species, including caiman, dwarf caiman, frog-headed turtles, galliwasps, giant tree frogs, gibba turtles, green anacondas, Haitian boas, Haitian dwarf boas, Haitian vine boas, mata mata turtles, red-tailed boas, rhinoceros iguanas, twistneck turtles, white-lipped mud turtles, and yellow-footed tortoises from an importer who claimed he operated a “breeding farm” in Peru. Transshipments of tropical fish containing CITES-protected arapaima valued at $750,000 have been detected, along with live frogs from Paraguay, so-called Amazonian feather headdresses made from endangered macaw feathers smuggled out of Brazil, and butterflies and other insects from Peru. Even commercial fish products are unlawfully imported - “short” or undersized spiny lobster from Honduras and adulterated yellow fin tuna from Venezuela.

Wildlife smuggling usually takes several forms. One is the falsification of documents (i.e., a false identification or description of the wildlife or the use of false or forged permits or certificates to obtain entry). Wildlife inspectors at ports of entry are trained to spot false documents and questionable documents are subject to further investigation. The other is the clandestine entry of undeclared wildlife - the most difficult smuggling technique to detect. This smuggling activity is interdicted by targeted surveillance and/or sophisticated investigative techniques such as undercover investigations. Sometimes tips from baggage handlers or other “tipsters” who spot the illegal activity allow detection.

Undeclared wildlife enters the U.S. in many different ways, in part depending upon whether live animals or animal products are being imported. Illegal animals are hidden in declared shipments, sometimes in secret compartments, to avoid detection during inspection. Wildlife is also hidden in shipments declared as non-wildlife ones. Containerized cargo, international mail, overnight delivery services, private individuals and conveyances (automobiles, aircraft, and vessels) all present smuggling opportunities upon arrival in the U.S.

IV. Sentencing of Wildlife Trafficking Cases

A. General Sentencing Methodology

In the U.S. federal system, the judge who presided over the trial or guilty plea imposes sentence approximately 60 days after conviction. During this interim period, a confidential "pre-sentence report" (PSR) is prepared by the federal probation office describing the offense conduct, the defendant’s personal history and recommending to the court what sentence seems to be required by the federal Sentencing Guidelines. The defendant and the prosecution have an opportunity to correct any perceived errors in the PSR prior to sentencing. At the sentencing hearing, the judge hears the arguments of the parties, corrects any material error in the PSR, announces his/her findings, and imposes sentence.

Central to this process is the federal Sentencing Guidelines, imposing on all federal courts a framework within which the sentencing judge must make certain specific findings and calculations in order to arrive at the appropriate sentence. The Sentencing Guidelines were developed in the mid-1980s in order to ensure that similar criminal conduct resulted in similar sentences across the country, and they represent a unique approach to criminal sentencing. The Guidelines process eventually places the defendant somewhere on a grid-like "Sentencing Table," based on a dual axis calculation of "offense levels" and "criminal history category." At each spot on the table, a range of months is listed within which the court may sentence the defendant to some restriction of liberty such as probation (periodic check-in with a probation officer), home detention, community confinement, or incarceration in a federal prison. The greater the number of offense levels and criminal history category, the fewer sentencing options are available to the judge: at a certain point on the table, only incarceration can be imposed scoring at that location or higher. Similarly, the level of fine to be imposed on defendants who are able to pay a fine is determined by their location on the Sentencing Table.

B. Application of the Guidelines to Federal Wildlife Trafficking Cases

For all types of federal wildlife and wildlife-related crimes committed by an individual, Class A misdemeanors or felonies, including conspiracy to violate wildlife laws (18 U.S.C. § 371) and smuggling violations involving wildlife (18 U.S.C. § 545), three factors make the crime more serious: (1) offenses committed for a pecuniary gain or involving a commercial purpose; (2) offenses involving wildlife not quarantined as required by law or creating a significant risk of infestation or disease transmission potentially harmful to humans or wildlife; and (3) offenses where either the wildlife’s total market value (i.e., fair market retail price) exceeds $2,000 or involves a species listed as endangered or threatened by the ESA or one listed on Appendix I to CITES.

A complete description of the Sentencing Guidelines application to federal wildlife cases is too complex for presentation here, though the sentences described for cases noted in this article illustrate that wildlife traffickers in the United States often receive lengthy terms of incarceration and heavy fines, especially when long term commercial activity is at issue. According to Sentencing Commission statistics, 164 defendants were sentenced under Guideline § 2Q2.1 between November 1, 1993 and October 31, 1994, the last year for which complete records are available. In those cases, imprisonment was ordered in one third of the cases, with the average term imposed being 10.4 mos. Fines were assessed in 49% of cases. The average fine amount was $4,660 and total amount of fines imposed was $424,086. The sentencing guidelines do not yet apply to institutional defendants, such as corporations.

3. United States v. Tony Silva: A Case Study

Newsday

Copyright Newsday Inc., 1996

Thursday, December 26, 1996

From Protector to Smuggler / Advocate jailed in illegal trade of rare parrots

By Gaylord Shaw. Washington Bureau

Chicago - As midnight approached, two men parked their van on the dark suburban street and anxiously awaited the arrival of Tony Silva, one of the world's leading experts on endangered parrots.

Silva, the author of several books and scores of articles advocating protection of these rare birds, finally drove up and greeted the men, Frank Dombroski and Charles Le-Morzellec. Commercial parrot breeders from Virginia, they quickly peered into the back of Silva's car at what they considered a once-in-a-lifetime

bargain: their choice of six hyacinth macaws, a type of colorfully plumed Latin American parrot so rare in the wild that it's protected worldwide as an endangered species.

In his back seat, Silva had 12 of the estimated 2,000 to 5,000 hyacinth macaws left in the world. The men picked six of them, quickly gave Silva a brown bag stuffed with $24,000 in cash - $20, $50 and $100 bills - then left Chicago, rushing the six rare parrots to aviaries half a continent away. For the two men, it was the chance at quick profit in the shadowy market of exotic pets. For Silva, it was a stunning glimpse at his secret life: Silva was surreptitiously selling the same rare parrots whose protection he championed.

The scene that night in July, 1988, in the Chicago suburb of North Riverside was replayed this year in federal court as federal prosecutors presented evidence about a conspiracy they said made Silva a prominent player in the shadowy international trade involving creatures facing extinction. Altogether, Silva was accused of smuggling 258 hyacinth macaws - valued at a minimum of $1.4 million - into the United States. He also smuggled 299 other birds - from flamingos to cockatoos - in a world-wide operation they said bore a striking resemblance to international drug cartels: coded telephone conversations, "safe houses" near the U.S.-Mexican border, wire transfers of large sums of cash to numbered foreign bank accounts.

Silva now is in federal prison, starting the 82-month sentence he received on Nov. 18 after pleading guilty to smuggling and tax evasion charges. He also was fined $100,000 and got a stern lecture from U.S. District Judge Elaine Bucklo, who expressed in court her dismay at how the smuggling scheme killed so many hyacinth macaws, giant cobalt-blue birds, with distinctive golden eye rings, that, as adult birds, average 36 inches from beak to tail.

Silva's is the best known case generated by Operation Renegade, a broad-ranging undercover federal effort to penetrate this and other wildlife smuggling rings by using paid informants and setting up

phony businesses such as commercial aviaries and import quarantine stations. Run by the U.S. Fish and Wildlife Service's Special Operations branch, Renegade also has resulted in convictions of 36 other individuals, including Silva's mother, Gila Daoud, who received a 27-month sentence after pleading guilty to tax evasion.

Operation Renegade as a whole, and Silva's case especially, has generated a raging controversy within the world of aviculture - a loosely knit community of commercial breeders, pet dealers and private collectors of exotic birds, academic experts and zoologists, conservationists and officials of governments around the world. This community was stunned by Silva's arrest, indictment and guilty plea. Silva had become one of the most widely known members of the community. He lectured at international meetings and served on study missions alongside government and academic experts. His books included the Monograph of Endangered Parrots, which sold for $100 apiece at conventions of parrot aficionados. For four years, he was curator of Loro Parque, one of the world's premier collections of parrots and other exotic birds, at Tenerife in the Canary Islands.

A recent attempt to arrange an interview with Silva was unsuccessful. But in court testimony in June, Silva said he purchased rare birds illegally in an effort to breed them and save the species. Prosecutors dismiss this assertion. "That's just utter hogwash," said Assistant U.S. Attorney Sergio Acosta, the chief prosecutor in the case that led to Silva's imprisonment. "Silva was selling these things for profit. He was a dealer in contraband. He received a large amount of money . . . " Acosta said he especially was appalled by photographs, which the government entered as evidence before Silva's sentencing, showing a pile of dead hyacinth macaws - snapshots prosecutors said were sent to Silva's Latin American supplier in a dispute about whether he had to pay for dead birds. "Silva, himself, in his writings, said there were only 3,000 of these birds left in the world. And he has written that illegal trapping and smuggling was the main factor in the species becoming endangered. Then for him to cause the death of so many of these rare birds by his illegal acts is simply unconscionable," Acosta said.

During seven days of sentencing hearings in the months after Silva entered his guilty plea last Jan. 30, the government presented in court what they said amounted to approximately the same evidence it would have used in a trial of Silva.

By law, only hyacinth macaws bred in captivity may be sold. The birds are so rare that a breeding pair sells legally for $20,000 or more, according to industry experts. Only 10 of these captive-bred macaws were brought legally into the United States between 1986 and 1991, all of them for zoos and other public facilities, government records show.

The first tip about Silva's dealings came in 1989 from Mario Tabraue, a convicted drug trafficker who had transported marijuana by the shipload, just after he began serving a 100-year prison sentence.

Tabraue had used his drug profits to underwrite a Florida-based venture as an exotic wildlife dealer, according to the testimony. He said he had bought 35 hyacinth macaws from Silva for $3,000 apiece.

"I had never seen that many [hyacinth macaws] together in one place," testified Dr. Thomas Goldsmith, a veterinarian for Tabraue's Zoological Imports Inc.. " . . . This is . . . a prized possession

. . . I had never encountered such a large group of rare creatures before." But Goldsmith said when he examined the Tabraue macaws he found "their feathers were battered, their tails were chopped off, and they were very sick. They had severe chronic pneumonias, bacterial pneumonias, fungal pneumonias."

He said, "They started to die very quickly . . . we saved two out of the thirty-five."

After his drug conviction, Tabraue bargained with the FBI for a reduction in his sentence in return for information on wildlife smuggling. Tabraue told the FBI "Tony Silva is one of the biggest smugglers into the United States of wildlife," said Dick Marks, assistant special agent in charge of the small group of federal agents who operate as the Fish and Wildlife Service's Special Operations branch.

Other unhappy customers also figured in Silva's troubles. Among them were the two parrot breeders, Dombroski and Le-Morzellec, who paid Silva $24,000 apiece for six hyacinth macaws that night in Chicago in 1988. Testifying in December, 1993, before the grand jury that indicted Silva, they said half of the parrots died soon after they got back to Virginia. (Two others escaped; one was found dead later in Pennsylvania.)

"These particular macaws, they live between 80 and 120 years" on average, Dombroski testified.He expressed dismay at having gotten sick birds from "the most recognized parrot breeder in the country . . . the number one person." "I kind of idolized him," said Dombroski, who told the grand jury

he figured the hyacinth macaws he bought for $4,000 apiece actually were worth $10,000 apiece. "He wanted cash . . . it was to be in cash," Le-Morzellec testified.

Another parrot hobbyist's dismay upon learning of Silva's smuggling also played a prominent role in the case. Jim Mackman, then a Wisconsin medical student and amateur parrot breeder, had sought out Silva for advice on breeding and raising the birds. "He was my mentor," said Mackman. " . . . it became apparent to me that this person who I admired and who was my friend was smuggling birds, and . . . that left me in a moral dilemma . . . I finally decided . . . that I had to go to law enforcement and let them know what was going on." So Mackman approached a Wisconsin state wildlife official, who quickly contacted federal agents. Eventually, Mackman became a paid informant, collecting nearly $35,000 in federal payments and recording nearly 200 conversations involving Silva and others.

Prosecutors also got the cooperation of several people who became unindicted co-conspirators - Larry Lafeber, who ran a Chicago quarantine facility used by Silva; Horacio Cornejo, a South American

customs broker who helped arrange the shipments; and Enrique Basan, a Brazilian trapper who helped arrange the capture of the rare and endangered birds. Hector Ugalde, a Miami Beach man who said he was recruited by Silva to help smuggle the parrots through Mexico, pleaded guilty to lesser charges. A fugitive warrant still is outstanding for Gisela Caseres, a bird handler in Paraguay; there is no extradition treaty between the United States and Paraguay on wildlife crimes.

When she sentenced Silva earlier this year, U.S. District Court Judge Bucklo said: "The real victims of these crimes were the birds themselves and our children and future generations who may never have the opportunity to see any of these rare birds."

V. Conclusion

In contrast to the well-publicized problem of global wildlife habitat loss and degradation, the grave threat posed by the illegal wildlife trade to biodiversity in general and certain species in particular is not yet well understood by the public, courts, or government policy makers. The problem is clearly a global one affecting both range and consumer countries and cannot be addressed effectively by any unilateral effort, not matter how effective. In the United States a framework of laws, investigative procedures, investigative agencies, prosecutors and sentencing requirements provides all the tools necessary to interdict illegal wildlife crossing our borders, seize and properly dispose of the wildlife and charge and punish the trafficker. Although we have a long way to go before we can state with any confidence that we are interdicting even a majority of the illegal wildlife entering and leaving the country, our system appears to be a good one, lacking only the funding for additional personnel resources, increased public awareness and continued education of the federal legal system regarding why these cases are deserving of attention.

While the United States does have a framework of laws, penalties, and dedicated investigators and prosecutors in place, all the necessary tools to interdict illegal wildlife and punish wildlife traffickers, both domestic and international, the question remains: How aggressively will we (and other countries) interdict contraband wildlife and prosecute the perpetrators of wildlife crime? To say that our earth’s wildlife bounty is at stake is not hyperbole. Shipment by shipment some species move ever closer to the most dire consequence - extinction. That may be the true cost of failure.

About the Author

John T. Webb has worked in the Wildlife and Marine Resources Section since 1984 successfully prosecution tens of federal wildlife cases. Currently, he is an Assistant Chief. During 1998 he was part of a team of Wildlife Section prosecutors who received the Attorney General’s Distinguished Service Award for prosecuting wildlife traffickers. He also regularly lectures on wildlife law enforcement issues here and abroad.