U.S.A. v. Cullen, No. 06-0607 (2d Cir. 2007)

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06-0607-cr U.S.A. v. Cullen 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2006 (Argued December 5, 2006 Decided August 23, 2007) Docket No. 06-0607-cr _______________ United States of America, Appellee, v. Thomas Cullen, aka Thomas J.V. Cullen, Defendant-Appellant. _______________ Before: CARDAMONE, STRAUB, Circuit Judges, and KOELTL*, District Judge. _______________ Defendant Thomas Cullen appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (McMahon, J.) on February 2, 2006, following a jury trial. Cullen was convicted of knowingly importing exotic birds into the United States in violation of the Wild Bird Conservation Act and of filing false applications relating to the importation with the United States Fish and Wildlife Service. Affirmed. _______________ _______________ * Hon. John G. Koeltl, United States District Court for the Southern District of New York, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 _______________ PETER R. GINSBERG, Law Office of Peter R. Ginsberg, P.C., New York, New York, for Defendant-Appellant. JESSE M. FURMAN, Assistant United States Attorney, New York, New York (Michael J. Garcia, United States Attorney, Stephen J. Ritchin, John M. Hillebrecht, Assistant United States Attorneys, Southern District of New York, New York, New York, of counsel), for Appellee. _______________ 1 2 CARDAMONE, Circuit Judge: We have before us a case that is unusual in several 3 respects. In the first place, defendant was prosecuted, 4 convicted and sentenced under the Wild Bird Conservation Act of 5 1992 (Wild Bird Act or Act), 16 U.S.C. § 4901 et seq., a federal 6 statute that includes civil and criminal penalties. 7 been very few, if any, previous prosecutions for violations of 8 the Act's criminal penalties. 9 Cullen (defendant or appellant), an enigmatic and colorful There have Second, the defendant Thomas 10 figure, whose home is in Goshen, New York, is an internationally 11 known professional falconer. 12 City of New York to bring bald eagles back to Inwood Hill Park in 13 Manhattan. 14 activity involving exotic birds. 15 with illegally importing Black Sparrowhawks. 16 often characterize an odd provision of the law or an ingenious 17 argument of counsel as a "rare bird" (rara avis). 18 case we have before us as the subject matter literally a rara 19 avis in terris or a rare bird on the earth. 20 He was hired at one time by the Yet, defendant also has a history of questionable Third, defendant was charged Judicial opinions But in this The rare bird which is the subject of this litigation is the 21 Black Sparrowhawk. The Black Sparrowhawk is an African bird that 22 for the most part lives in the southeastern corner of the African 23 continent. 24 black head and black upperparts, white underparts, yellow legs, 25 and a silver-grey tail. 26 birds (mostly doves), although it has been known to devour on Its length ranges from 18 to 23 inches; it has a The Black Sparrowhawk eats mainly other 2 1 occasion small mammals and snakes. 2 unobtrusive except when it is breeding. 3 bird stays inside the cover of trees, only soaring sometimes in 4 the sky. 5 Africa 138 (6th ed. 1993). 6 It is usually silent and For the most part, this See Gordon Lindsay Maclean, Roberts' Birds of Southern Thomas Cullen appeals from a judgment of conviction entered 7 February 2, 2006 in the United States District Court for the 8 Southern District of New York (McMahon, J.) following a jury 9 trial. Defendant was convicted of knowingly importing exotic 10 birds into the United States in violation of the Wild Bird Act 11 and of making false statements relating to such importation with 12 the United States Fish and Wildlife Service (Wildlife Service) in 13 violation of 18 U.S.C. §§ 1001 and 1002. 14 conviction on the grounds that: 15 apply to captive-bred birds; (2) the Act is unconstitutionally 16 vague because it does not define the term personal pet; and (3) 17 the jury instruction given by the trial court was incorrect. 18 Because those challenges are all without merit, we affirm. 19 20 21 Cullen challenges his (1) the Wild Bird Act does not BACKGROUND A. Statutory and Regulatory Background A total of 21 nations including the United States in 1973 22 signed the Convention on International Trade in Endangered 23 Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 24 993 U.N.T.S. 243 (CITES or Convention). 25 is to regulate the trade of endangered plants and animals. 26 contains three appendices that list the species subject to its 3 The Convention's purpose It 1 regulations. 2 and more than 5,000 species of animals, including nearly 1,700 3 species of birds, are currently listed in one or another of the 4 appendices. 5 species.shtml (last visited July 13, 2007). 6 birds listed are accipiter melanoleucus, the Black Sparrowhawk, 7 and falco cherrug, the Saker falcon. 8 Species, http://www.cites.org/common/resources/2003_CITES_ 9 CheckList.pdf. 10 11 Over the years the appendices have grown steadily See Discover CITES, http://www.cites.org/eng/disc/ Among the species of See Checklist of CITES The Black Sparrowhawk has been listed since 1979 and the Saker falcon has been listed since 1975. To promote the conservation of exotic birds Congress passed 12 the Wild Bird Act, which prohibits the importation into the 13 United States of any exotic bird of a species listed in any of 14 CITES' three appendices. 15 ordinarily violates the Wild Bird Act to import Black 16 Sparrowhawks or Saker falcons into the United States. 17 may carry civil or criminal penalties. 18 Act provides, however, that the Secretary of the Interior may 19 authorize importation of a species listed in a CITES appendix if 20 (1) such importation is not detrimental to the survival of the 21 species, and (2) the bird is being imported exclusively for any 22 of four enumerated purposes. 23 purposes are scientific research; personally owned pets of a 24 person returning to the United States after being out of the 25 country for at least one year; zoological breeding or display 26 programs; and certain cooperative breeding programs. See 16 U.S.C. § 4904(c). Violations 16 U.S.C. § 4912. 16 U.S.C. § 4911. 4 Thus, it The These four Id. 1 Pursuant to these provisions, the Secretary of the Interior has 2 promulgated detailed regulations that require a party seeking to 3 import an exotic bird pursuant to one of the exceptions to submit 4 an application to the Wildlife Service demonstrating compliance 5 with the statutory and regulatory requirements. 6 §§ 15.21-.26. 7 nor assignable. 8 9 50 C.F.R. Once obtained a permit is neither transferrable 50 C.F.R. § 13.25. B. Defendant Cullen's Actions Cullen is New York's "acknowledged expert on birds of prey" 10 and an internationally known and respected falconer. 11 Kocieniewski, City Eagle Expert Has Past Littered with Illegal 12 Exotic Birds, N.Y. Times, Apr. 17, 2005, § 1, at 33. 13 he once owned the largest private collection of birds of prey 14 anywhere in this country and, at the time of his 2005 trial for 15 violation of the Wild Bird Act, Cullen owned 47 birds of prey 16 that he maintained at his home in Goshen, New York. 17 David He claimed In 1999 there was only one living Black Sparrowhawk in 18 captivity anywhere in North America. It was not owned by 19 defendant. 20 his collection of exotic birds, but he could not fit himself 21 within any of the specified exceptions to the Act's ban on their 22 importation into the United States. 23 away from the United States for more than a year, so he could not 24 come within the personally owned pet exception; he was conducting 25 no scientific research, nor was he involved in zoological 26 breeding or display programs; and he was not engaging in It seems Cullen wanted to add Black Sparrowhawks to 5 That is, he had not been 1 cooperative breeding programs under the auspices of "an 2 avicultural, conservation, or zoological organization." 3 U.S.C. § 4911. 4 Cullen to follow to add Black Sparrowhawks from outside the 5 United States to his collection of exotic birds. 6 See 16 In other words, there was no legal avenue for Joseph and Kristen Kulak were Americans living abroad in 7 England in 1999. They had each been abroad for more than a year. 8 Were the Kulaks suddenly to decide to buy exotic birds as their 9 personally owned pets, they would each qualify for the Wild Bird 10 Act's personal pet exception. It turned out that Joseph Kulak 11 worked for Cullen's wife in a large American insurance business 12 with a branch in London. 13 Sparrowhawks and no background training or experience in handling 14 them. 15 Wildlife Service applications signed by Joseph and Kristen Kulak 16 indicating the Kulaks' desire to import into the United States 17 three Black Sparrowhawks as their personally owned pets. 18 Defendant also submitted to the Wildlife Service a receipt of 19 purchase indicating the three Sparrowhawks had been sold to the 20 Kulaks. 21 Joseph Kulak's pets, while the third was Kristen Kulak's pet. 22 November 1999 the importation permits were granted. The Kulaks had no interest in Black Nonetheless, on October 27, 1999 Cullen mailed to the According to the applications, two of the birds were 23 Joseph Kulak's two pet Sparrowhawks (the third bird, 24 ostensibly Kristen Kulak's pet, died in transit) arrived in the 25 United States on January 6, 2000 from the United Kingdom. 26 paid the purchase price for the birds that amounted to 500 In 6 Cullen 1 English pounds sterling apiece. 2 were sold in England, 500 English pounds sterling was the 3 equivalent of $800.10. 4 h10/19990614/ (exchange rate of $1.6002/pound on June 10). 5 Defendant made and paid for all the travel arrangements for the 6 birds from England to the United States. 7 On June 10, 1999 when the birds See http://federalreserve.gov/releases/ Upon the birds' arrival in this country, Cullen went to the 8 airport to pick them up. 9 Inspector at JFK Airport, doubted defendant's story that he was 10 just picking up Kulak's birds on Kulak's behalf since Kulak was, 11 after all, still living in England. 12 she refused to turn the birds over to Cullen. 13 them in a facility run by the Department of Agriculture where, 14 unfortunately, another one of the birds died. 15 one living Sparrowhawk was turned over to the Wildlife Service 16 pending an investigation into whether or not the bird had been 17 legally imported into the United States. 18 Ann Marie Holmes, the Wildlife Service As a result of her doubts She quarantined Subsequently, the Meanwhile, Joseph Kulak had submitted an affidavit to the 19 Wildlife Service reaffirming that the Sparrowhawk was his 20 personal pet. 21 to Cullen with instructions that he return it to Kulak. 22 of turning the male bird over to Kulak, Cullen loaned it to Craig 23 Culver, a breeder in California who owned North America's other 24 Black Sparrowhawk, a female. 25 "breeding loan agreements" that divvied up any future offspring. 26 Neither of these agreements acknowledged that Kulak was the owner Thus, in August 2000 the Sparrowhawk was released Instead Culver and Cullen entered into two 7 1 of the male Sparrowhawk. 2 unsuccessful, and the male Sparrowhawk was returned to Cullen in 3 New York. 4 5 C. In the end, the breeding was Prior Proceedings On October 25, 2004 Cullen was charged with filing false 6 statements to the Wildlife Service relating to the Black 7 Sparrowhawks, and on January 3, 2005 a charge that he imported 8 the Black Sparrowhawks in violation of the Wild Bird Act was 9 added to the indictment. Cullen was also charged with importing 10 into the United States a number of Saker falcons in violation of 11 the Act. 12 Defendant filed a motion on February 4, 2005 to dismiss the 13 charges under the Act arguing that it only covers birds born in 14 the wild and only applies to importations for commercial 15 purposes. 16 unconstitutionally vague because it provides no definition of the 17 term "personally owned pet." 18 entitled to a bill of particulars with regard to the various 19 charges against him. 20 motions. 21 Defendant also claimed that the Wild Bird Act is Finally, Cullen declared he was The district court denied all of Cullen's Trial began in September 2005. Joseph Kulak testified for 22 the government pursuant to a non-prosecution agreement. 23 According to Kulak, Cullen had asked him if he and his wife would 24 be willing to import birds to the United States for Cullen, and 25 Kulak agreed. 26 associated with the purchase and importation of the Sparrowhawks Kulak explained that Cullen paid all costs 8 1 and that all Kulak did was forward documents relating to their 2 importation to certain persons as directed by Cullen. 3 testified that the Sparrowhawks were not his personally owned 4 pets, despite his signature on the Wildlife Service application 5 attesting that they were. 6 the application as a personal favor to Cullen and his wife. 7 Kristen Kulak testified similarly. 8 his own defense, and though he admitted he paid for, took care 9 of, and made all the arrangements for the birds, he insisted he 10 11 Kulak He concluded by stating that he signed Defendant took the stand in did this as a favor to Kulak. The jury returned a guilty verdict on both counts relating 12 to the Black Sparrowhawks, but acquitted defendant of the charge 13 relating to the importation of the Saker falcons. 14 2006 Cullen was sentenced to four months imprisonment, three 15 years supervised release, a $1,000 fine, and a special assessment 16 of $200. 17 the sentence be stayed pending appeal. 18 Cullen timely filed a notice of appeal. Judge McMahon refused to grant Cullen's request that 19 On February 1, 2006 DISCUSSION 20 21 On January 26, I Standard of Review We review de novo challenges to the meaning and 22 constitutionality of statutes and the propriety of jury 23 instructions. 24 Cir. 2006), cert. denied, 127 S. Ct. 1253 (2007). United States v. Giordano, 442 F.3d 30, 38-39 (2d 9 1 2 II Captive-Bred Birds and the Wild Bird Conservation Act The Wild Bird Act's importation ban applies to "any exotic 3 bird of a species that is listed" in an appendix to CITES. 16 4 U.S.C. § 4904(c); see also id. § 4903(2) (defining "exotic bird" 5 as "any live or dead member of the class Aves that is not 6 indigenous to the 50 States or the District of Columbia"). 7 Cullen argues that the statute's title and legislative history 8 suggest that Congress was primarily interested in conserving 9 birds in the wild when it passed the Wild Bird Act, and thus the 10 Act does not prohibit the importation of captive-bred birds such 11 as the Sparrowhawks that he imported. 12 language of the statute itself supports Cullen's assertion. 13 Quite the contrary -- the statute provides that any exotic bird 14 listed in the appendices to CITES is covered, with no limiting 15 language as to where or how an exotic bird is bred. 16 "any" means "without restriction or limitation." 17 839 F.2d 108, 110 (2d Cir. 1988). 18 provision mandating the Secretary of the Interior to exempt 19 selected captive-bred species from the Act's prohibitions on 20 importation, see 16 U.S.C. § 4905(b), conclusively demonstrates 21 that Congress aimed to have all other captive-bred species, like 22 the Black Sparrowhawk, covered under the Act. 23 exemption would be meaningless. Yet, nothing in the The word Tambe v. Bowen, Further, a Wild Bird Act Otherwise this 24 When statutory language is unambiguous, as the pertinent 25 language in this Act is, we need not look to its title or history 26 to determine its meaning. See, e.g., Conn. Nat'l Bank v. 10 1 Germain, 503 U.S. 249, 253-54 (1992); see also Collazos v. United 2 States, 368 F.3d 190, 196 (2d Cir. 2004) ("While a title may be a 3 useful tool[] . . . for the resolution of a doubt about the 4 meaning of a statute, a title . . . cannot limit the plain 5 meaning of unambiguous text."). 6 statute should not be judged by its title. 7 8 9 III Like a book by its cover, this The Personal Pet Exception Cullen also complains that the Wild Bird Act lacks a definition for the term "personally owned pet." According to 10 appellant, this term is so vague that it would be unfair to 11 punish him for his actions, since he reasonably thought his 12 actions would fit within the personal pet exception. 13 this argument in more detail. We analyze 14 As the Supreme Court teaches, even if it is unlikely that a 15 person planning to violate a law will search out its text before 16 acting, "fair warning should be given to the world in language 17 that the common world will understand, of what the law intends to 18 do if a certain line is passed." McBoyle v. United States, 283 19 U.S. 25, 27 (1931) (Holmes, J.). For the warning to be fair "the 20 line should be clear." 21 in various different legal doctrines, two of which are raised by 22 Cullen: 23 of criminal laws, which resolves ambiguities under a rule of 24 lenity, so that a statute applies only to conduct clearly 25 covered. Id. The fair warning requirement appears void for vagueness and the canon of strict construction United States v. Lanier, 520 U.S. 259, 266 (1997). 11 1 2 A. Void for Vagueness There are two distinct parts to any void for vagueness 3 analysis. The fair warning requirement noted earlier ensures 4 that a penal statute defines criminal conduct precisely enough 5 that ordinary people can comprehend what conduct is proscribed. 6 See Kolender v. Lawson, 461 U.S. 352, 357 (1983). 7 recognize in many English words there lurk uncertainties, see 8 Rose v. Locke, 423 U.S. 48, 50 (1975) (per curiam), to meet the 9 fair warning prong an ounce of common sense is worth more than an Although we 10 800-page dictionary. 11 void for vagueness doctrine requires that a statute "establish 12 minimal guidelines to govern law enforcement" so that police, 13 prosecutors and juries may not pursue their own personal 14 preferences. 15 The second, more important aspect of the Kolender, 461 U.S. at 358. Focusing on the case at hand "personal" and "pet" are words 16 that are comprehensible to an ordinary person. The common 17 meanings of these words, coupled with the Wild Bird Act's 18 explicit provisions as to who qualifies for the personal pet 19 exception, gave adequate notice to defendant that the activities 20 he was planning did not fit within the pet exception. 21 ordinary person would realize that an exception to the import ban 22 for personally owned pets of repatriating Americans would not 23 apply if a person living in the United States asked an American 24 living abroad to pretend that birds being imported belonged to 25 the person living abroad. 26 qualifies for the personal pet exception establish more than An And the Act's provisions detailing who 12 1 minimal guidelines to govern those charged with the Act's 2 enforcement. 3 4 B. Rule of Lenity The rule of lenity, which appellant presses on this appeal, 5 only comes into play when a court after looking at all aids to 6 legislative meaning can do no more than "guess as to what 7 Congress intended." 8 138 (1998). 9 a statute. 10 To invoke lenity there must be grievous ambiguity in Id. at 138-39. Such may not reasonably be said to be the case with this statute. 11 12 Muscarello v. United States, 524 U.S. 125, IV The Jury Instruction Appellant's next contention is that the trial court erred by 13 instructing the jury that the government had to prove "the bird 14 was not imported exclusively for the purpose stated in the import 15 permit." 16 as allowing importation only if the applicant relied exclusively 17 on one -- and not more than one -- of the enumerated purposes. 18 According to Cullen, the interpretation matters to his case 19 because he had made known to the Wildlife Service that he 20 intended to import the birds not only as personal pets but also 21 for breeding. 22 "[T]he Secretary may . . . authorize the importation of a bird of 23 the species if the Secretary determines that such importation is 24 not detrimental to the survival of the species and the bird is 25 being imported exclusively for any of the following purposes[.]" 26 16 U.S.C. § 4911 (emphasis added). He maintains the district judge misinterpreted the Act The relevant statutory language is as follows: 13 The statute then specifies 1 the four exceptions already noted: 2 personally owned pets of a person returning to the United States 3 after being out of the country for at least a year; zoological 4 breeding or display programs; and certain cooperative breeding 5 programs. 6 scientific research; Id. We do not need to resolve whether Cullen is correct that the 7 district judge should have instructed the jury that the 8 government was required to prove the bird was not imported for 9 one or more statutory purposes. The error, if there was one, was 10 harmless because the only exception listed in § 4911 that could 11 even arguably have applied to Cullen was the personal pet 12 exception. 13 breed the birds, but there is no generalized breeding exception 14 set out in the Act. 15 zoological breeding or display programs and for cooperative 16 breeding programs under the auspices of an avicultural, 17 conservation, or zoological organization. 18 Appellant has never claimed that he was engaged in zoological 19 breeding or display programs, nor has he averred that he manages 20 a cooperative breeding program under the auspices of an 21 avicultural, conservation, or zoological organization. 22 Consequently, whether or not one could be convicted under the 23 Wild Bird Act for importing a bird for a set of dual purposes 24 both covered by § 4911's exceptions is irrelevant in this case. 25 Judge McMahon's instruction to the jury that it inquire into 26 whether the Black Sparrowhawks were imported exclusively for the Appellant makes much of the fact that he intended to Instead, there are specific exceptions for 14 See 16 U.S.C. § 4911. 1 purpose stated in the import permit was correct or at worst 2 harmless error. 3 4 V Other Claims Cullen insists that if his stated dual purpose ran afoul of 5 the Act, then the government should have rejected his application 6 for an importation permit. 7 be that having issued the permit with full awareness of 8 defendant's plans, the government should not now be allowed to 9 turn around and later prosecute him for taking the very steps to Thus, appellant's contention seems to 10 carry out his plans that it had earlier approved. 11 is disingenuous because appellant made material 12 misrepresentations in the importation application and made false 13 statements regarding the ownership of the birds. 14 government been fully aware of defendant's plans -- had he been 15 honest from the outset -- the Wildlife Service most certainly 16 would have rejected his application for an importation permit. 17 Having made misrepresentations to the Wildlife Service every step 18 of the way, Cullen cannot now successfully argue that the 19 government knew all along that what he was doing was illegal and 20 thus should not have granted him an importation permit. 21 This argument Had the We have reviewed appellant's remaining arguments and 22 concluded that none of them has merit. 23 CONCLUSION 24 Accordingly, for the reasons stated above, the judgment of 25 the district court convicting defendant Cullen of violating the 26 Wild Bird Act by unlawfully importing exotic birds into the 15 1 United States and for filing false statements with the Wildlife 2 Service is affirmed. 16

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