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United States of America v Duke


This is a criminal case in which a tremendous effort to smuggle psittacine (parrot) birds into the United States from the Republic of Mexico was exposed. There is a quarantine against the importation of such species into the United States. The indictment was in ten counts. Three separate conspiracies were charged (Counts 1, 4, and 7). Five counts charged smuggling (2, 5, 8, 9, 10). Two counts charged certain defendants with knowingly receiving, concealing and facilitating the transportation and concealment of certain birds after illegal importation (3 and 6).
Appellants Duke, Ballard and Buono, having been convicted on certain counts by a jury, appealed their convictions. All of these appellants raise the point that the convictions under 18 U.S.C.A.§ 545, the general smuggling statute for felony, cannot stand because the Surgeon General, under authority of 42 U.S.C.A.§ 264, passed a health and safety regulation forbidding, with minor exceptions, importation of psittacine bird, as laid out in 42 C.F.R.§ 71.152(b). This regulation carries a penalty for misdemeanor.
Furthermore, it is argued that psittacine birds are not merchandise which should have been invoiced under the customs laws.
This argument does not hold, because the appellants may have committed two crimes, one a misdemeanor and the other a felony. If there is any conflict between the statute and the regulation, the former prevails.
Concerning psittacine birds not being merchandise, it is urged that the substantive counts are defective because they were insufficient to charge that appellants violated 18 U.S.C.A.§ 545, by failing to comply with 19 U.S.C.A.§§ 1461 and 1484. This latter point has no apparent connection with any count except those relating to receiving and facilitating.
The Court of Appeals held that the evidence sustained the convictions. (Provided by: UNODC SHERLOC)

Causa DM-112-412

FFGC had an orchard in the town of Les Bons (Encamp), with a house where chickens and rabbits were housed. In January 2012, FFGC found that a wild animal had made a hole under the fence and killed 7 chickens. She decided to place a trap to capture the wild animal.
Later that month, FFGc observed that an animal had been trapped, she took a hoe and hit the animal in the head killing it.
The animal in question was a badger, a protected specie.
FFGC was charged with misdemeanor hunting of protected species.
The court of first Instance, tribunal de Batlles, sentenced FFGC to 1 month of home detention by night-time and a fine of 500 € for hunting protected species.
The defendant appealed against the sentence, but the court of appeal did not find grounds to reverse it, so it was upheld to the full extent. (Provided by: UNODC SHERLOC)

AG v Yeung Sun-Shun Lee Ming-Sun Hong Kong


As a result of an earlier ruling, namely reversing the verdict of acquittal of the District Judge and recording a conviction against both respondents, it is now the task of the Court of Appeal ("the Court") to impose such sentence as is proper in the circumstances.
The trial judge found that the two respondents and another man, who gave evidence for the prosecution, conspired together to import into Hong Kong 619 ivory tusks. The two charges the respondents faced were: 1. Conspiracy to import unmanifested cargo, contrary to common law and Section 18(1)(a) of the Import and Export Ordinance, Cap. 60; and 2. conspiracy to import scheduled species without licence, contrary to common law and section 4(1) of the Animals and Plants Protection of Endangered Species Ordinance (Cap. 187).
The first respondent, an ivory carver, was expected to receive ivory of a value of about USD 500,000, it being accepted that this ivory could not have come into his possession by legitimate methods. The second respondent, although a supplier and not a user of the ivory, was involved in the illegal importation into Hong Kong, worth approximately USD 1M. The Court found that this was a serious conspiracy to import schedule species into Hong Kong.
The Court found that the nature of the offences are serious in nature and require a proper sentence on the first charge of an immediate nine months of imprisonment on each of the respondents. It is worth noting, that the maximum punishment of offences against Section 18(1)(a) of Cap. 60 has been lifted to USD 50,000 and two years imprisonment in 1984. With regard to the second charge, the offence against Section 4(1) of Cap. 187, the maximum sentence for a first offender (which both respondents are in this case) is a fine of USD 5,000. Here, the Court noted that this amount, in the view of the importance of the protection of species, seems to be a derisory maximum. The Court therefore suggested here that the Legislature should re-examine the penalty which can be imposed under that Section. A maximum fine of USD 5,000 was imposed on each of the respondents.
Finally, the Court also reasoned the following:
"It is our custom, on an application for review, to allow a discount to respondents from the sentence that we think should have been imposed by the trial judge. We shall follow that practice in this case, and accordingly reduce the sentence of nine months imprisonment on the first charge to one of six months. We do not propose to allow any discount of the fine of USD 5,000 imposed on each respondent on the second charge." (Provided by: UNODC SHERLOC)

The Peoples Procuratorate of Guangzhou City Guangdong Province v. Chen Yonglin and Chen Zupei


On November 3 1987, the People's Procuratorate of Guangzhou City, Guangdong Province instituted a public prosecution in the Intermediate People's Court of Guangzhou City against the defendants, Chen Yonglin and Chen Zupei, on charges of smuggling of giant panda pelt. On November 11 of the same year, the Intermediate People's Court of Guangzhou City legally formed a collegiate bench, and conducted an open trial. In this trial it was found that:
In December 1986, the defendants, Chen Yonglin and Chen Zupei, jointly bought a powerboat called “Baoan 54013.” On January 12 1987, Chen Yonglin went to Shenzhen to meet Chen Yaofu (at large), a smuggler from Hong Kong. Chen Yaofu wanted Chen Yonglin to smuggle a pelt of rare animal to Hong Kong. Chen Yonglin agreed. On that day, Chen Yonglin told what was required of him by Chen Yaofu to Chen Zupei, who agreed to help. At about 9 o'clock that night, Chen Yonglin and Chen Zupei went to the Shenzhen Bay Hotel to meet Chen Yaofu. After plotting, they agreed on the time and place for handing over the contraband.
At noon on January 13, Chen Yaofu put a panda pelt into a nylon bag at Shekou, Shenzhen, and gave it to Chen Yonglin and Chen Zupei. Chen Yonglin instructed Chen Zupei to hide the nylon bag in the hidden cabinet between the decks of the powerboat to evade the customs inspections. The two persons drove the boat out of the country, away from the Pearl River Estuary. When the boat reached the sea area near Dachan Island, they and the contraband were captured and seized by the Guangzhou Customs.
The aforesaid facts were ascertained by witness testimonies, as well as through evidence of the captured illicit goods. In addition to this, both defendant, Chen Yonglin and Chen Zupei, confessed to their acts. (Provided by: UNODC SHERLOC)

R v Henry Azadehdel


The appellant pleaded guilty to various offences consisting of dealing with specimens of rare orchids,which were protected by regulations made in accordance with the Convention on International Trade in Endangered Species (CITES). He had travelled extensively to obtain samples of rare orchids from the wild, with a view to selling them to dealers and collectors. Sentenced to a total of 12 months' imprisonment, with four to serve and the balance suspended, fined GBP 10,000, with a forfeiture order in respect of the specimen plants, and ordered to pay GBP 10,000 prosecution costs. The appellant was fined GBP 200, onother charges.
The three offences in counts 2, 3 and 4 of the principal indictment, involving offering for sale restricted specimens, being knowingly concerned in the harbouring, keeping or concealing of or dealing with restricted goods and selling restricted specimens, concerned the applicant dealing in rare species orchids. The orchids concerned were slipper orchids from South America. Over a period of time it is plain from the pleas and the nature of the counts that the applicant has been trading in prohibited species of orchids. He is a considerable expert in his own right. He is an amateur botanist who hasobviously become a leading authority on orchids of horticultural merit in general and slipper orchids inparticular.
The current appeal case holds that the sentence of 12 months was too long, bearing in mind that the maximum sentence for the offence was two years, and that the same offence covered dealing in the products of dead animals,such as ivory and rhino horn.
The Court has decided that the proper sentence in this case is one of six months'imprisonment, which should be treated as suspended as to the balance of that period from today,which will result in the applicant's immediate release. The fine of GBP 10,000 should be reduced to a fine of GBP 2,500, which is approximately the amount which the applicant says he is able to offer from the profits of his grocer's shop by payments of GBP 200 a month. The Court did not think it right to order installment payments, but simply to say that there should be a fine of GBP 2,500 payable in 12 months from today with a two month period of imprisonment in default. There should be no alteration of the additional small fine of GBP 200, making a total financial penalty of GBP 2,700. The order for costs of the prosecution should be remitted.
The final result therefore is that the applicant will have a sentence of six months in all (all the sentences being concurrent), so much of which is suspended as to allow his immediaterelease, fined GBP 2,700 payable in 12 months with two months in default, and no further order. (Provided by: UNODC SHERLOC)

State v Da Costa


The appellant met Mr. Muller through his business of an electrical contractor. They became to know each other for more than ten years. During this period, the appellant saw some ivory in Muller's house, which might have encouraged the appellant to offer an illegal ivory deal to Muller. In 1989, the appellant offered rhinoceros horns to Muller. Muller however did not have the money and declined the offer. Muller used to deal illegal in ivory.
He was arrested and had two previous convictions. The police came to some understanding with Muller, and he agreed to cooperate with the police in apprehending people dealing in prohibited products such as ivory. After getting in touch with the appellant and telling him that he was looking for ivory, they met a couple of times, after which Muller reported the meetings to the police.
The appellant was in touch with "Gomes", who had ivory, with the intention of selling it to Muller. The three met, including three others, and were shortly after apprehended by police who arrested everyone at the meeting, except Muller who was cooperating with police.
The appellant was sentenced to five years in prison (minus 18 months), a sentence he is now appealing. The main contention raised is the over-emphasized seriousness of the offence. The representative of the appellant argued that in doing so the learned Judge lost sight of the actual role played by the appellant in the commission of the offence, and thus failed to place sufficient weight on the appellant's personal circumstances.
The question to be answered by this Court is: "Is a sentence of imprisonment for serious offences the only appropriate sentence?" There are of course other punishments which are as effective as a sentence of imprisonment.
As such, the Court concluded that considering the personal circumstances of the particular appellant, namely having a family to care for and never having committed an offence before, the imprisonment imposed by the Court a quo was grossly inappropriate and induces a sense of shock (see S v Letsoko and Others, 1964(4) S.A. 768).
The Court decided that a form of community service would better suit the purposes of punishment in this case. Being convinced that the appellant is of good character and will not be seen in front of the Court in the future, the Court set aside the sentence. The Court ordered for the High Court to impose a sentence along these lines, according to section 297(1)(a)(i)(cc) of the Criminal Procedure Act. The appellant himself should lay the foundation for such service by providing prima facie evidence or information on the availability in that area of organisations or persons willing and able to supervise and control the appellant during his service. The case is remitted to the High Court for the imposition of a sentence by the trial Judge which is in conformity with this Court's directions. (Provided by: UNODC SHERLOC)

R v Rolf Hermann Sperr


The appellant pleaded guilty to being knowingly concerned in fraudulently evading the prohibition on the importation of a prohibited species of endangered falcon. He was stopped while entering the country with his car, which was found to contain four young birds of prey, Gyr falcons, worth between GBP 10,000 - 15,000 each.
The appellant was stopped at the customs point at Eastern Docks, Dover, in June 2010, by customs officers who searched and found the said material intended for trafficking. A seat of the car was adapted, by taking out the foam, to hide the said material. In answer to the customs officer, the appellant admitted that he thought it was illegal to import the birds. He was subsequently arrested.
He said he had obtained the materials in Germany and that he had been offered the German equivalent of GBP 600 plus expenses to bring them into the country although he had not at the time of his arrest been paid anything. He went on to say that he was instructed to deliver them to another person who would approach him in a parking place outside the customs area at Dover. He had no knowledge of the identity of that person.
The appellant was convicted on the one count and sentenced to 18 months imprisonment. He now appeals this sentence, raising the contention that there should not have been any custodial sentence at all, and if so 18 months is far too extensive for the offence committed. He also submits that in any event, his role in this particular enterprise was a very humble one.
The Court reasoned that for purposes of deterrence, custodial sentence of some length was inevitable and was properly regarded by the learned judge. The Court draws attention to the appellant's good character, the fact that this was an isolated incident, that he has lost his job in consequence of it, and that not only has he got nothing out of it but he has suffered the loss of GBP 2,000 to which was already referred above.
As such, the Court reasoned that an appropriate sentence for this offence was one of nine months instead of 18, and as such the sentence of 18 months is quashed and substituted for a sentence of nine months. (Provided by: UNODC SHERLOC)

Attorney General v Abdul Karim Winyi


This appeal concerns the fate of four chimpanzees, brought from Zaire (in today's Democratic Republic of the Congo) by the Respondent. The animals are still in custody of the Uganda authorities, having been seized at Entebbe Airport as they were about to be exported to Dubai. The Respondent was at first arrested and charged with wrongful possession of the animals contrary to Section 14, 23 and 90 of the Game (Preservation & Control) Act (Cap. 224) and was acquitted. The present proceedings concern section 16 & 17 of that Act relating to improper importation and exportation of animals.
After being acquitted, the Respondent went on to sue that Attorney General, praying for: the return of the four chimpanzees, or payment of the value of the four chimpanzees at the time of judgement, special damages in the form of reimbursement of the cost of air travel for Mr. Winyi and the chimpanzees, general damages, and exemplary damages. The Respondent was successful, however without the return of the chimpanzees.
The Attorney General of the current case, petitioned an appeal to this judgement:
The Respondent did not import the chimpanzees properly through Lia, nor on the documentation, since he had no prior written permission of the Chief Game Warden, and also because he was exporting five chimpanzees instead of four. It was not possible to estop the Attorney General since the Statute had been broken technically and with unlawful intent. The Respondent ought not to have had these animals at all.
The next question arises: whether the Respondent deserve any compensation? Consequential damages can be claimed in the case of a fall in the market price of the detained article. This must be pleaded and proved. It was not. At the most it could be the value on the customs forms. Since the Respondent wanted the value at the date of judgement the Respondent precluded himself from asking for consequential damages, namely damages based on the value at an earlier date than the date of judgement. There is no ground for exemplary damages.
The appeal is allowed and sets aside the judgement of the High Court. (Provided by: UNODC SHERLOC)

United States of America v Mitchell


A grand jury indicted Richard Mitchell ("Mitchell"), an employee of the Fish and Wildlife Service ("FWS") of the United States Department of the Interior, for violating 18 U.S.C. § 545 by smuggling the horns and hides of illegally hunted animals into the United States. Section 545 makes it a felony to knowingly import merchandise "contrary to law." Count Nine of the indictment charged Mitchell with the failure to declare the horns and hides, complete FWS Form 3-177, and satisfactorily show to the Veterinary Service the country of origin of the horns and hides ("Agriculture regulations"). The district court convicted Mitchell of a felony under Count Nine.
Mitchell appealed the conviction, arguing that (1) the "contrary to law"provision in § 545 does not encompass violations of administrative regulations,and (2) the felony conviction could not be predicated upon a regulation for whichCongress had provided a misdemeanor punishment. In response to Mitchell's first argument, the court found that the "contrary to law" provision in § 545 included,in addition to acts of Congress, substantive agency regulations. The court followed the Supreme Court's holding in Chrysler Corp. v. Brown, 441 U.S. 281(1979), that substantive agency regulations have the "full force and effect of law"if they
(1) affect individual rights and obligations,
(2) are promulgated pursuantto a congressional grant of quasi-legislative authority, and
(3) are promulgated inconformity with the Administrative Procedure Act.
The FWS regulation violated by Mitchell was enacted pursuant to the Endangered Species Act of 1973 ("ESA"). The Fourth Circuit found that Congress had authorized the FWS regulation requiring persons importing gametrophies to complete FWS Form 3-177 to determine if the animal was anendangered species. The Agriculture regulation was proclaimed through 21U.S.C. § 111. Section 111 gave the Secretary of Agriculture the authority to regulate the importation of animal products to prevent the introduction of disease. The Fourth Circuit ruled that both the FWS provision and Agriculture regulations were substantive agency regulations under the Chrysler test and were, therefore, enforceable under § 545.
The Fourth Circuit also rejected Mitchell's second argument that there isno "inherent difficulty" with Congress criminalizing the same conduct under morethan one statute, even where violation of one statute is predicated on violation ofthe other. In addition, the court stated that the existence of these regulations criminalizing the same conduct as the statutes did not repeal by implication the statutes. Because the court found no irreconcilable conflict between the statutes,it affirmed Mitchell's conviction. (Provided by: UNODC SHERLOC)

R v Canning


The appellant was convicted of one count of keeping and offering for sale a peregrine falcon and six counts of selling such birds, contrary to the Control of Trade in Endangered Species (Enforcement)Regulations 1985. An off-duty police officer guarding the nest of a breeding pair of peregrine falcons saw three men, including the appellant, approach the nest site and subsequently found that two chicks were missing. When his premises were searched a year later, a number of peregrine falcons were found. Sentenced to 18 months' imprisonment.
The question raised is not whether he ought to have been sentenced to imprisonment but whether the sentence of 18 months was or was not excessive. The maximum sentence for any of these offences was one of two years' imprisonment. There were here seven offences with which the court had to dealand the sentences of 18 months' imprisonment were imposed concurrently.
Mr Salter, appearing on behalf of the defendant, says that the offences were not at the top of the scale of possible offending; the appellant was genuinely interested in birds and knowledgeable about them; he was not simply taking birds from wild life solely for the purpose of profit or cruelty; and accordingly the sentence of 18 months'imprisonment, which allowed for the sentence not being at the top of the range, was not sufficiently scaled down.
The appellant did not plead guilty; he contested the matter all the way. In this Court's judgment the sentence of 18 months' imprisonment, which was imposed by the trial judge on each of the counts, was not manifestly excessive or wrong in principle. Accordingly, the appeal against sentence must be dismissed. (Provided by: UNODC SHERLOC)