Controlling imports of ILLEGAL timber to THE UNITED

Controlling imports of ILLEGAL timber to THE UNITED STATES ROCKY PIAGGIONE SENIOR COUNSEL ENVIRONMENTAL CRIMES SECTION ENVIRONMENT AND NATURAL RESOURCES DIVISION UNITED STATES DEPARTMENT OF JUSTICE P. O. BOX 23985 L’ENFANT PLAZA STATION WASHINGTON DC 20026 -3985 ROCKY. PIAGGIONE@USDOJ. GOV

Common obstacles to effective wildlife prosecution in u. s. § Perceived low-priority status of these cases by some criminal investigators and prosecutorsrather do drug, gun, gang, fraud cases § Resistance by some prosecutors to new laws and sometimes complicated cases § Perceived low-priority status of these cases by judges § Terrorism/ wmd priority in U. S.

u. s. laws potentially violated by unlawful timber importation § Endangered species act, 16 u. s. c. 1531 et seq –enforces cites § Endangered species-1 year, $100, 000/$200, 00 § Threatened species-6 mos, $25, 000 § Ramin and mahogany § Unlawful for a U. S. Citizen to buy or sell endangered species in or between foreign countries § Unlawful for U. S. citizen to unlawfully “engage in trade” in cites listed species between or to foreign countries

u. s. laws potentially violated by unlawful timber importation-cont’d § Traditional penal statutes § Smuggling, 18 u. s. c. 545 – 20 years § False statement, 18 u. s. c. 1001 - 5 years § Conspiracy, 18 u. s. c. 371 – up to 5 years § Money laundering, 18 u. s. c. 1956(a)(2)(a)20 years; 18 U. s. c. 1957 – 10 years

Limitation Problems § What if: § Not ramin or mahogany § Do not lie about nature or origins of the wood § Or origins reasonably expressed based upon the processing of the wood?

Customs fraud issues § If wood is processed so that its been substantially changed then there’s a new country of origin § Ramin logs from indonesia become billiard cues from china § Codes used to identify products not by species but general “wood product” “furniture” “wood picture frames”

Unlawful wildlife laws the Lacey Act § Prohibits two broad types of conduct§ false labeling § Making or submitting any false record, account, label for, or identification of any fish or wildlife that has been or is intended to be transported in interstate or foreign commerce

Lacey act -trafficking § It is unlawful for any person § (2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce – § (A) any fish, or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law, or § (B) any plant taken, possessed, transported, or sold in violation of any law or regulation of any State;

Lacey Act penalties § Penalties § Both false labeling and trafficking offenses are class d felonies (5 years imprisonment) when offense involves importation or exportation or “commercial conduct” with wildlife worth more than $350 § All other offenses are class a misdemeanors § Esa has only class a or class b misdemeanor penalties (1 year imprisonment max. )

Lacey act- three elements to prove § Lacey act, 16 u. s. c. 3372 et seq 1. Foreign law violation doesn’t have to be a criminal violation 2. importation 3. knowledge of wildlife’s illegality = U. s. felony

Knowledge basic element of us criminal law § Knowing = lacey act felony § Must show the defendant knew that the fish or wildlife he is dealing with has been taken, possessed, transported or sold in violation of foreign law- though the defendant need not know the specific law or regulation or committed the violation himself.

Knowledge and the lacey act § Misdemeanor prosecution § The defendant “should have known in the exercise of due care” that the fish was taken, possessed, transported or sold in violation of foreign law

Lacey act example § U. s. v. lee et al, 937 f. 2 d 1388 (9 th Cir. 1991) § Lee paid for the importation of salmon caught in northern pacific waters ($1. 3 million worth black market price) § Evidence did not connect lee to the catching of the fish.

Lacey act case example § Foreign regulation on limit of catch permitted violated. § Court held § Foreign reg. = foreign law for L. A. § Underlying violation may carry civil penalties but still a crime under the L. a. § Defendant need not commit the violation merely know it was taken possessed, transported or sold in violation of some underlying law § Felony conviction

Lacey actproblem with timberaddition by subtraction § (f) The terms “plant” and plants” mean any wild member of the plant kingdom, whether alive or dead, including roots, seeds, and other parts thereof whether or not cultivated, germinated, or otherwise domestically grown (but excluding common food crops and cultivars), which is indigenous to any State and which is either (A) listed on an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or (B) listed pursuant to any State law that provides for the conservation of species threatened with extinction.

Lacey act § amend 16 U. S. C. § 3372(a)(2) to read as follows: § It is unlawful for any person § (2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce – § (A) any fish, or wildlife or plant taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law, or § (B) any plant taken, possessed, transported, or sold in violation of any law or regulation of any State;

Knowledge will remain key § Illegal timber importation easier to hide knowledge than with wildlife § Species of wood usually not apparent § Lack of specificity in use of Customs code § Plausible denial