United States v. Molt

No. 79-2409 (3d Cir. July 17, 1980)

The court reverses appellant's conviction for importation of an endangered species of tortoise, ruling that § 9 of the Endangered Species Act is unconstitutionally vague. Section 9(b)(1) of the Act excepts endangered species held in captivity on December 28, 1973 from the general prohibition against importation. The second clause of the subsection provides that "this subsection" shall not apply to animals held in the course of a commercial activity. One possible interpretation of these two provisions is that § 9 does not prohibit the importation of endangered wildlife held for a commercial purpose on December 28, 1973. Another possible reading is that the exception for wildlife held on the date of enactment is inapplicable to those held for commercial purposes. Without resolving this conflict, the court concludes that the provision does not provide prospective violators with fair notice as to what conduct it prohibits, and thus it must be struck down.

Counsel for Appellant
Gilbert B. Abramson
Silverman & Abramson
1260 Locust St., Philadelphia PA 19106
(215) 546-4840

Counsel for Appellee
Angus MacBeth, Dirk D. Snel, David C. Shilton
Lands and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Peter F. Vaira, U.S. Attorney; thomas E. Mellon Jr., Ass't U.S. Attorney
3310 U.S. Cthse., 601 Market St., Philadelphia PA 19106
(215) 592-2556

Before Seitz & Gibbons, JJ.

[10 ELR 20777]

Per curiam.

Opinion

Henry A. Molt Jr. appeals a judgment of sentence entered by the United States District Court for the Eastern District of Pennsylvania following his conviction by a jury of importing into the United States and receiving and selling in interstate and foreign commerce an endangered species, i.e., radiated tortoises, in violation of 16 U.S.C. §§ 1538(a)(1)(A), (E), (F) (1976). We reverse.

On August 4, 1977, a federal grand jury returned a one-count indictment charging Molt, Rudolf A. Komarek, and Walter Zinniker with conspiring under 18 U.S.C. § 371 (1976) to violate 16 U.S.C. § 1538(a)(1)(F) (1976) and 18 U.S.C. § 545 (1976) by selling in interstate and foreign commerce radiated tortoises and by receiving, concealing, and transporting the tortoises after their illegal importation. The August 4 indictment was dismissed and a superceding indictment filed on April 18, 1979, adding 16 U.S.C. §§ 1538(a)(1)(A), (E) (1976) as conspiracy offenses (count 1) and charging Moltwith substantive § 545 (count 2) and §§ 1538(a)(1)(A), (E), (F) (counts 3, 4, and 5) violations. Komarek pled guilty and testified on behalf of the Government at trial.

Molt filed various pretrial motions. Included among these were a motion to dismiss the superceding indictment for failing to comply with the time provisions of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1976), and a motion to suppress Komarek's testimony as the fruit of an illegal search and seizure. The district court granted Molt's motion to dismiss with prejudice the conspiracy count, but denied the motions in all other respects.

Molt received a jury trial. At the close of the Government's case Molt moved for a judgment of acquittal on the remaining counts of the superceding indictment. The district court granted the motion with respect to count 2, but denied it with respect to counts 3, 4, and 5. The jury returned guilty verdicts on those counts. The district court then entered the judgment of conviction and order of sentence from which Molt appeals.

The facts are straightforward and uncontested. Molt owns and operates the Philadelphia Reptile Exchange in Willow Grove, Pennsylvania.The Philadelphia Reptile Exchange is principally engaged in the business of importing, exporting, buying, selling, and trading reptiles and other animals. Between November, 1973, and June, 1974, Molt and Komarek engaged in frequent discussions relating to methods of importing radiated tortoises. Komarek had previously met with Zinniker, a restauranteur and reptile dealer located in Basil, Switzerland, to discuss the shipment of radiated tortoises to the United States. In May, 1974, Komarek received a letter from Zinniker indicating the availability of tortoises for delivery. Komarek, after discussions with Molt, [10 ELR 20778] arranged to have the tortoises shipped in a false bottom container. The tortoises arrived in the United States on June 20, 1974, at Kennedy Airport, where they were picked up by Komarek through the use of false customs documents. The Tortoises were subsequently transferred to Molt, who unsuccessfully attempted to sell them to private collectors and zoo operators on three separate occasions.

II.

Since we conclude that § 1538 failed to give Molt fair notice of what conduct was, and was not, permissible, we reverse. Subsections 1538(a)(1)(A), (E), and (F) provide:

(a)(1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to —

(A) import any such species into, or export any such species from the United States;

(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign commerce any such species . . . .

Subsection 1538(b)(1) provides:

(b)(1) The provisions of this section shall not apply to any fish or wildlife held in captivity or in a controlled environment on December 28, 1973, if the purposes of such holding are not contrary to the purposes of this chapter; except that this subsection shall not apply in the case of any fish or wildlife held in the course of a commercial activity. With respect to any act prohibited by this sectionwhich occurs after a period of 180 days from December 28, 1973, there shall be a rebuttable presumption that the fish or wildlife involved in such act was not held in captivity or in a controlled environment on December 28, 1973.

Molt and the Government argue at great length about the proper allocation of subsection 1538(b)(1)'s burden of proof. Molt argues that subsection 1538(b)(1) constitutes an element of the Government's case in chief. He contends that the Government bears the burden of proving subsection 1538(b)(1)'s inapplicability. He asserts that the Government failed to produce any evidence on that score at trial and, therefore, failed to discharge its burden of proof. The Government counters by arguing that subsection 1538(b)(1) does not constitute an element of its case in chief, but an affirmative defense. It contends that Molt bears the burden of proving subsection 1538(b)(1)'s applicability. It asserts that Molt produced no evidence probative of the subsection's applicability at trial and, therefore, failed to sustain his burden of proof. We deem subsection 1538(b)(1)'s characterization for burden of proof purposes irrelevant to the disposition of this case, because whether subsection 1538(b)(1) is characterized as an element of the Government's case in chief, or as an affirmative defense, § 1538, read as a whole, failed to provide Molt with fair notice of the conduct it prohibits.

For a valid conviction the statute under which a defendant is prosecuted must have provided him with fair notice that his contemplated conduct was prohibited. Dunn v. United States, 442 U.S. 100, 112 (1979); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Papachristoy v. City of Jacksonville, 405 U.S. 156, 162 (1970): Boise v. City of Columbia, 378 U.S. 347, 350-52 (1964); United States v. Harriss, 347 U.S. 612, 617 (1954). Fair notice is required to prevent people from being held criminally responsible for conduct which they could not reasonably have understood to be criminal. United States v. National Dairy Products Corp., 372 U.S. 29, 32-33 (1963); Boise v. City of Columbia, 378 U.S. at 351; United States v. Harriss, 347 U.S. at 617. The test for determining whether fair notice has been given is: whether a person of ordinary intelligence, upon reading the statute, had a reasonable opportunity to know what conduct was proscribed. Grayned v. City of Rockford, 408 U.S. at 108. Even assuming subsection 1538(b)(1) is an affirmative defense, it still is relevant to a person's decisionmaking process prior to engaging in certain conduct. This is so because if an affirmative defense is available, the person may engage in the conduct because he knows the defense will protect him from criminal liability. Therefore, we conclude that the fair notice requirement applies to affirmative defenses as well as to the substantive elements of a crime and applies to subsection 1538(b)(1) regardless of its characterization.

Section 1538, as applied to the facts of this case, failed to provide Molt with fair notice. While subsection 1538(a)(1) is clear in its commands, subsection 1538(b)(1) introduces a fatal ambiguity. That subsection provides an exemption from the subsection 1538(a)(1) prohibition for wildlife held in captivity on December 28, 1973. The trial court charged that the Government had to prove the whereabouts of the tortoises on that date. There is no record evidence of such whereabouts. However, the Government on appeal, relying on the clause in subsection 1538(b)(1), reading "except that this subsection shall not apply in the case of any fish or wildlife held in the course of a commercial activity," argues that even assuming captivity on December 28, 1973, Molt cannot benefit from the exemption because his post-1973 possession was commercial. It reasons that the second clause so modifies the first that a commercial possession at any time is proscribed. Thus even if Molt purchased from a non-commercial source wildlife held in captivity on December 28, 1973, he had fair warning that he violated subsection 1538(a)(1). The difficulty with the Government's reading is that the syntax of the first sentence in subsection 1538(b)(1) does not support it. The subject of the sentence is "wildlife held in captivity . . . on December 28, 1973." The commercial activity exception following the semicolon appears to modify that subject.¹ A fair reading, though certainly not the only possible reading, is that the exemption is for wildlife held in commercial activity on December 28, 1973. Molt and the Government devote substantial portions of their briefs to the meaning of this ambiguous sentence. They rely upon canons of statutory construction and subsection 1538(b)(1)'s legislative history. These sources cannot remedy subsection 1538(b)(1)'s fatal ambiguity. Molt's conviction must be reversed.

Judgment

This cause came on to be heard on the record from the United States District Court for the Eastern District of Pennsylvania and was argued by counsel on May 19, 1980.

On consideration whereof, it is now here ordered and adjudged by this Court that the judgment of the said District Court, filed September 24, 1979, be, and the same is hereby reversed.

1. The general rule governing the use of semicolons is that they are to be used: 1) between two main clauses not joined by and, but, or, nor, or for; and 2) between coordinate elements containing commas. In any case, they are only to be used between parts of equal rank. HODGES & WHITTIER, HARBRACE COLLEGE HANDBOOK 134-41 (6th ed. 1967); see STRUNK & WHITE, ELEMENTS OF STYLE 5-7 (3d ed. 1979). Both the clause preceding, and the clause following, the semicolon are independent clauses. HODGES & WHITTIER, HARBRACE COLLEGE HANDBOOK at 22-25. Therefore, they could have been separated into two sentences. By joining them in one sentence separated by a semicolon, the drafters betrayed a belief that the two thoughts expressed by the clauses were closely related. This observation argues in favor of construing the "held in the course of a commercial activity" language as modifying December 28, 1973. Had the drafters intended that language to apply to any date, they would have been better advised to divide the clauses into separate sentences to emphasize the separateness of thought. See STRUNK & WHITE, THE ELEMENTS OF STYLE at 5-7.

[10 ELR 20778]

Rosenn, J., dissenting:

I respectifully dissent. Although subsection (b)(1) of the statute is not artistically drafted, I am unable to agree that the statute does not give fair notice of what conduct was and was not permissible. Furthermore, Molt has never claimed that his conduct was within the scope of the statutory exception or was in any way influenced by its ambiguity.

I see no merit to any of the issues raised by the defendant on appeal. I would, therefore, affirm the judgment of the district court for the reasons set forth by Judge Newcomer in his memorandum opinion of September 24, 1979 denying defendant's motion for a judgment of acquittal.