Controlling imports of ILLEGAL timber to THE UNITED STATES

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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
• LENFANT PLAZA STATION
• WASHINGTON DC 20026-3985
• ROCKY.PIAGGIONE_at_USDOJ.GOV

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Common obstacles to effective wildlife
prosecution in u.s.

• Perceived low-priority status of these cases by
  some criminal investigators and
  prosecutors-rather 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.

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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-6mos, 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

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u.s. laws potentially violated by unlawful
timber importation-contd

• 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

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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?

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Customs fraud issues

• If wood is processed so that its been
  substantially changed then theres 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

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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

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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

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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.)

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Lacey act- three elements to prove

• Lacey act, 16 u.s.c. 3372 et seq
• 1. Foreign law violation
• doesnt have to be a criminal violation
• 2. importation
• 3. knowledge of wildlifes illegality
• U.s. felony

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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.

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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

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Lacey act example

• U.s. v. lee et al, 937 f.2d 1388 (9th 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.

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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

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Lacey act-problem with timber-addition 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.

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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

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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