United States v. Place

United States Court of Appeals
For the First Circuit

No. 11-1246

UNITED STATES,

Appellee,

v.

DAVID L. PLACE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.

J. Martin Richey, Federal Defender Office, for appellant.
Robert G. Dreher, Acting Assistant Attorney General,
Environment & Natural Res. Division, with whom Gary Donner, James
B. Nelson, and Allen M. Brabender, Attorneys, U.S. Dep't of
Justice, Environment & Natural Res. Division, were on brief, for
appellee.

August 21, 2012
THOMPSON, Circuit Judge.

But still another inquiry remains . . . whether Leviathan
can long endure so wide a chase, and so remorseless a
havoc; whether he must not at last be exterminated from
the waters, and the last whale, like the last man, smoke
his last pipe, and then himself evaporate in the final
puff.

Herman Melville, Moby Dick.

David L. Place appeals his convictions for illegally

trafficking in sperm whale teeth and narwhal tusks. Specifically,

a jury found that Place's whale-tooth dealings violated CITES, an

international compact implemented in the United States via the

Endangered Species Act (ESA) and regulations authorized by the

ESA.1 But Place says the district judge should have instructed the

jury on certain lesser-included offenses because he did not

actually know his transactions were illegal, even if he should have

known. He also says his smuggling convictions are legally wrong

because his conduct violated only regulations, not statutes. We

disagree with both lines of argument and therefore affirm.

I. Facts and Background

A. Trafficking in Whale Teeth

For decades, David Place sold various antiques, artifacts, and

Nantucket-related paraphernalia from a shop on the island and,

1
CITES stands for the Convention on International Trade in
Endangered Species of Wild Flora and Fauna, March 3, 1973, 27
U.S.T. 1087; relevant implementing provisions of the ESA may be
found at 16 U.S.C. §§ 1537A, 1538(c)(1); and the Department of
Interior regulations further implementing CITES may be found at 50
C.F.R. §§ 23.1-23.92.

-2-
beginning in the 1990s, over the internet. An apparently lucrative

element of Place's business was selling scrimshawed narwhal tusks

and sperm whale teeth – that is, teeth carved with images and

designs – to wealthy Nantucket tourists eager for a piece of the

island's whaling history. He also sold uninscribed, or "raw,"

teeth to local scrimshanders – artisans who would then carve

designs into the teeth. Place frequently obtained tusks and teeth

– both scrimshawed and raw – over the internet and turned them

around for a healthy profit.

On August 7, 1999, Place received an email from Tim Balda

(apparently a friend of his) informing Place that "Federal Fish and

Game" (apparently the United States Fish and Wildlife Service) had

confiscated a narwhal tusk from him because he did not have "all

the documentation required for it," and that "[t]heir view is that

ALL interstate transport of endangered species parts is illegal.

Old or not, scrimshawed or not." Balda said Fish and Game had

elected not to indict him but that they could: "The fine for the

narwhal tusk could have been as high as $30,000 with a 5 year jail

term attached to it. Whale teeth are not much better in the

punishment department." Place responded to Balda: "Thanks for the

note . . . . I think the time has come to just do private selling

. . . as I don't think anyone wants to go to prison or lose their

shirts for the sake of a few sales."

-3-
 Place indeed pursued his "private selling" (which we will

discuss only generally because the details of each individual

transaction are not at issue here). He tracked down suppliers:

Jake Bell, a native of Connecticut who shipped the whale teeth from

Ukraine to a friend in the states whom Place had to meet in person

to pick up the teeth2 ; Greg Logan, a retired Canadian Mounty who

would bring narwhal tusks across the border when visiting his

summer home in Maine; and Andrei "Andy" Mikhalyov, a Ukraine-based

dealer who acquired teeth from local private collections and sold

them to various overseas customers. Place also found buyers:

Nantucket scrimshanders and tourists; an internet customer named

Bill Feeney, who bought 39 pounds of sperm whale teeth; and various

auction-winners on eBay, where he listed his wares surreptitiously

(in Place's words, "[n]ever actually state what they are" but

instead say "they are a nice ivory color" and "a whale of a

deal").3

Over the course of these purchases and sales, Place

occasionally referenced his awareness that he was breaking the law

2
Receipts for the purchase of teeth from Bell listed the
purchased items as "paintings," not teeth.
3
Place regularly had whale-tooth auctions shut down by eBay
on the ground of illegality; his obfuscatory efforts were a
response to these shutdowns. It is also worth noting that the
shutdown notice from eBay included the following admonishment: "The
export/import of marine mammals typically requires CITES as well as
other state and/or federal permits. Users should contact the U.S.
Fish & Wildlife Service and/or National Marine Fisheries Service
before importing or exporting marine mammal products."

-4-
by ignoring permits required by CITES. For example, on May 17,

2001, Place sent an email to Nina Logan, who'd transacted in

narwhal tusks with him: "next time we do this I would like to get

whatever documents I can certifying that these were taken legally,

but for now I have managed without." On May 26, 2002, he had

another exchange with Logan:

Place: ". . . everytime I mention the tusks to anyone
they want to know if they have papers."

Logan: ". . . your customers are very correct in
requesting supporting documentation . . . ."

Place: "I can still sell them without papers to other
customers, but it would be wonderful if everything were
above board with papers, if you know what I mean!"

Around the same time, Logan referred Place to another narwhal-tusk

seller, Ryan Bartlett, who emailed Place: "You are no doubt

familiar if dealing in ivory items of this nature one must have

documentation – this is where the problem arose as I am unable to

provide any formal documentation . . . . I truly do not wish to

create a situation where someone becomes the focus of an

investigation or worse." To that, Place replied: "I have a

customer who could care less about papers and other customers who

require them. . . . I still wish to go ahead with this." And

so he did.

-5-
 B. CITES, the Lacey Act, and the Smuggling Statute

The papers Place disregarded were indeed necessary for trade

in sperm whale teeth. CITES, again, is a treaty that the vast

majority of countries, including the United States, have entered

into.4 CITES places different levels of protection on different

species, divided into three Appendices: Appendix I provides the

highest level of protection for the most critically endangered

species, including sperm whales; Appendix II is the intermediate

level and includes narwhals. CITES art. II(1); 50 C.F.R. § 23.4(a)

(2007) (Appendix I); CITES art. II(2); 50 C.F.R. § 23.4(b) (2007)

(Appendix II). Appendix III is not at issue here. Among other

restrictions, an export permit is required for international trade

in specimens of species from either Appendix I or II, CITES arts.

III(2), IV(2); 50 C.F.R. §§ 23.12(a)(1), 23.12(a)(2), 23.15

(2004),5 and an import permit is additionally required for trade in

Appendix I species, CITES art. III(3); 50 C.F.R. § 23.12(a)(1)

(2004). Further, CITES places an absolute ban on international

trade in Appendix I species for "primarily commercial purposes."

CITES art. III(3)(c); 50 C.F.R. § 23.15(d)(7) (2004).

In the United States, CITES has been implemented by the ESA.

4
For a list of member countries, see CITES Member countries,
http://www.cites.org/eng/disc/parties/index.php (last visited July
26, 2012).
5
The CITES regulations were rewritten in 2007; Place's
conduct was governed by the pre-2007 regulations.

-6-
16 U.S.C. §§ 1537A, 1538(c)(1). 16 U.S.C. § 1537 authorizes the

Secretary of the Interior to do all things necessary and proper to

implement CITES; under this authority, Interior has promulgated

regulations. See 50 C.F.R. §§ 23.1-23.92. Each of the CITES

provisions mentioned above has been re-codified in these domestic

regulations (as cited above). This means it is and has been

abundantly clear that international trade in sperm whale teeth and

narwhal tusks requires an export permit, and international trade in

sperm whale teeth requires an additional import permit and cannot

be for primarily commercial purposes.6

Two statutes criminalize violations of CITES and its domestic

counterparts. The Lacey Act creates two levels of criminality: any

person who transports, buys, or sells wildlife in knowing violation

of any law, treaty, or regulation – including CITES, the ESA, and

the CITES regulations – is guilty of a felony; any person who

transports, buys, or sells wildlife that he should have known

6
Place's overarching theory of the case is that he did not
know his conduct was illegal but instead believed that old,
scrimshawed, and Inuit-origin whale teeth were exempt from
regulation. On appeal, his counsel explains this belief further
(while conceding that it is "mistaken"): under the heading
"Exceptions," 16 U.S.C. § 1539(f) allows the Secretary of the
Interior to issue trade permits for raw and scrimshawed teeth taken
before 1973; § 1539(e) allows subsistence whaling by Alaskan
natives. Neither of these provisions even arguably applies to
Place, who is not a native Alaskan (or at least nothing in the
record suggests he is) and who never sought a permit from the
Secretary of the Interior; instead, the very fact that Place was
aware of these completely inapplicable statutory "Exceptions" cuts
in favor of the jury's determination that he knew what he was doing
was illegal.

-7-
violated a law, treaty, or regulation is guilty of a misdemeanor.

16 U.S.C. § 3373(d)(1)-(2). The smuggling statute (titled

"Smuggling goods into the United States") imposes criminal

sanctions on anyone who "receives, conceals, buys, [or] sells . . .

merchandise after importation, knowing the same to have been

imported or brought into the United States contrary to law . . . ."

18 U.S.C. § 545.

C. Customs Bust at JFK Airport & Investigation

Back to the facts: in February 2004, government agents

intercepted a shipment of 548 sperm whale teeth (listed in shipping

documents as "tooth of white whale," undoubtedly a reference to

fictional sperm whale Moby Dick) from Mikhalyov to James Saunders,

who essentially acted as U.S.-based distributor for Mikhalyov. As

agents combed through Mikhalyov's and Saunders's records, they

found that Place had purchased sperm whale teeth from both men

between 2002 and 2004. Consequently, the government turned its

attention to Place.

In the meantime, Mikhalyov, Saunders, and Place exchanged a

flurry of emails. Saunders sent a message noting that even items

that fell under CITES's "exceptions" generally required permits.

After Place professed ignorance in a brief email, Saunders sent

another email apologizing for the first and blaming the whale

teeth's courier for the lack of documentation. Place sent an email

wondering why he was not receiving permit papers if the couriers

-8-
were supposed to be dealing with paperwork; he followed that by

asking about another shipment of teeth due to him. Saunders asked

what kinds of teeth were legal to import; Place disclaimed any

knowledge. Place asked again for CITES paperwork. Mikhalyov

bypassed the CITES question and said he would send more teeth to

Place without involving Saunders; he said he would be careful to

use small packages marked "souvinirs[sic]/carving/lapidary material

or antique ornaments." Place agreed, and things appeared to settle

down for a while.

Then on March 8, 2007, Special Agent Troy Audyatis from the

National Oceanographic and Atmospheric Administration (NOAA) and

two other officers visited Place at his home on Nantucket. They

interviewed Place for three hours, resulting in a handwritten sworn

statement from Place that he believed "raw teeth without documents

must be 100 years old for importation. Scrimshawed teeth must be

1972 or older for import. Any native peoples (Inuit) pieces of any

sort are exempt from import restrictions." This asserted (and

plainly wrong; see footnote 6 above) belief is the main basis for

Place's defense.

D. Charges, Trial, Conviction, and Appeal

Despite his claimed lack of knowledge, Place was indicted on

nine counts related to illegal trafficking in whale teeth.7 He

7
For reference, the counts are as follows:

1. Misdemeanor conspiracy with Mikhalyov to commit

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remained adamant that he did not know this trafficking was illegal,

took his case to trial, and testified at length. At trial, he

repeated his belief that old, scrimshawed, and native teeth were

exempt from regulation. But he also testified, e.g., that in his

dealings with Mikhalyov, Mikhalyov was supposed to "handle all the

documentation"; that to be legal his purchases needed "paperwork";

and that Mikhalyov "never did" provide that paperwork. He further

testified that he told Bell he "just want[ed] to make sure

everything [wa]s legal," to which Bell responded "Oh, yes. I've

got all the documentation"; however, he never received paperwork

from Bell either. And he testified that he "probably" told Logan

not to mark any narwhal-tusk packages as "narwhal" out of concern

that the packages would "get held up" at Customs. Finally, Place

testified that he had read a notice from eBay shutting down one of

his auctions and informing him that "export/import of marine

mammals typically requires CITES as well as other state and/or

Lacey Act violations, 2001-2004.
2. Misdemeanor Lacey Act violation based on the spring
2004 shipment seized at JFK Airport.
3. Felony Lacey Act violation based on the sale of 39
pounds of teeth to Bill Feeney in spring 2004.
4. Felony Lacey Act violation based on the purchase of
whale teeth from England via eBay in spring 2004.
5. Felony Lacey Act violation based on the purchase of
whale teeth from England via eBay in fall 2004.
6. Felony conspiracy with Jake Bell to violate the
Lacey Act and the smuggling statute, 2004-2007.
7. Felony Lacey Act violation based on a fall 2004
purchase from Bell.
8. Smuggling whale teeth from Bell, 2005-2006.
9. Smuggling narwhal tusks from Logan, 2005-2006.

-10-
federal permits," which prompted him to call eBay for

clarification.

After both sides had finished presenting evidence – and two

days after the court-imposed deadline for submitting proposed jury

instructions – Place moved for a lesser-included-offense

instruction. The requested instruction would have allowed the

jurors, if they could not agree that Place knowingly violated the

CITES permitting requirements, to consider a misdemeanor (should-

have-known) Lacey Act violation in addition to each felony charge,8

but the district judge took the matter under advisement and

eventually charged the jury without mentioning the lesser included

offenses.

The jury convicted Place on all counts but the second (the

misdemeanor Lacey Act violation stemming directly from the JFK

bust). The district judge sentenced him to 33 months in prison

followed by 24 months' supervised release, as well as a $725

special assessment. Place now appeals his convictions on counts 3

through 9; he does not challenge his conviction on count 1.

II. Analysis

A. Requested Jury Instruction

Place first takes issue with the district court's decision not

to give his requested instruction on misdemeanor Lacey Act

violations. Before considering this issue on the merits, though,

8
The felony Lacey Act counts were 3, 4, 5, 6, and 7.

-11-
we must address the government's argument that Place waived the

jury-instruction issue by raising it late below. Jury-instruction

requests are governed by Federal Rule of Criminal Procedure 30,

which says any such "request must be made at the close of the

evidence or at any earlier time that the court reasonably sets."

To determine whether Place complied with this rule and adequately

preserved the jury-instruction issue, we must take a close look at

what happened below.

At 2:54 pm on November 16, 2010 – day five of trial – the

district judge told the parties "if there are to be any offerings

of proposed verdict forms and/or supplemental instructions to the

jury, we will need them by the close of business today." Both

sides accordingly filed proposed supplemental instructions later

that day; the government followed with another set of supplemental

instructions the next day; and Place followed with yet another set

– the ones discussing lesser-included misdemeanor Lacey Act

violations9 – the following day at lunch, just after the close of

evidence and before the charge conference.

9
Specifically, Place's proposed supplemental instructions would
have charged the jury as follows: "[I]f, after reasonable efforts, you
are unable to reach a verdict, you should go on and consider whether the
government has proved beyond a reasonable doubt that Mr. Place is guilty
of the lesser offense of a misdemeanor-level violation of the Lacey Act."
The instructions went on to explain that "[i]nstead of proving beyond a
reasonable doubt that David knew that the wildlife was possessed, sold,
or transported" illegally, "for a misdemeanor-level violation the
government must prove beyond a reasonable doubt that David Place, in the
exercise of due care, should have known that the wildlife in question was
possessed, sold, or transported" illegally.

-12-
 At the charge conference, the various proposed instructions

were minutely dissected and discussed in great detail; the lesser-

included request came up at the end. The judge said, "It's a

little late, Ms. Fried [Place's attorney], to be submitting things

that I've been inviting for the whole trial. But go ahead. I'll

allow you to orally argue this." Place's attorney repeated the

substance of the request: "We're asking for lessers to be given on

the felonies – the felony Lacey Acts. We're asking for misdemeanor

lesser included which have this different standard of knowledge."

The government pointed out that "[i]n the defendant's own pleading,

it states that lesser includeds can be given if the jury has been

unable to reach a verdict on the greater charge after reasonable

efforts," and asked that the court "wait on" the issue (suggesting

that the court only provide the instruction if the jury ended up

hung on the felony Lacey Act counts). The government then added

that "there has been ample evidence submitted of the defendant's

knowledge." Just before breaking, Place's attorney repeated, "It's

just that – I guess it's our position that we're entitled to any

lessers that are included within a greater offense because,

obviously, if the government's position is that the evidence

supports the greater offense, it also supports the lesser." "All

right," the judge said, "I'll take that matter under advisement."

The next day the judge charged the jury without mentioning the

lesser-included instruction Place had requested. At sidebar after

-13-
the charge, Place's attorney listed objections to the instructions,

advancing detailed arguments as to some but saying of the lesser-

included issue only this: "We also object to the Court's failure to

give our request for lesser included offenses." And that was that.

This exchange lends itself to a spirited debate as to whether

the lesser-included instruction issue was forfeited. Place's

request came two days after the judge asked for it, so it may have

been untimely under Rule 30, see United States v. Upton, 559 F.3d

3, 8-9 (1st Cir. 2009), and it arguably left inadequate time for

the government and the judge to look over the proposed instruction

before the charge conference. Moreover, on a somewhat different

note, it is puzzling that Place would wait so long to spring his

lesser-included offense argument on the government and the court,

given that the argument closely tracks Place's entire theory of the

case (that he lacked actual knowledge that his actions were

illegal). All that said, there are some factors that suggest Place

has preserved the issue: the judge originally gave the parties only

two hours' notice of the deadline for filing supplemental

instructions, and Place filed the instructions arguably at the

close of evidence, which might mean the filing technically complied

with Rule 30 (if we were to say the original notice of two hours

was not reasonable, as the Rule requires). And the parties give us

plenty of material to work through the jury-instruction argument on

appeal.

-14-
 In the end, though, we need neither rescue this precarious set

of circumstances from the brink of forfeiture nor shove it over the

edge, because the district court simply did not err in failing to

give the requested instructions; therefore, whether the review is

de novo (as it would be if the issue were preserved, United States

v. Flores, 968 F.2d 1366, 1367-68 (1st Cir. 1992)) or plain error

(as it would be if the issue were forfeited, Upton, 559 F.3d at 9),

the result is the same. Our analysis follows.

Counts 3, 4, 5, 6, and 7 charged felony violations of the

Lacey Act. The Lacey Act, again, involves two levels of

criminality: a defendant who transports, buys, or sells wildlife in

knowing violation of any statute or treaty is guilty of a felony;

a defendant who transports, buys, or sells wildlife that he should

have known violated a statute or treaty is guilty of a misdemeanor.

16 U.S.C. § 3373(d)(1)-(2). Place argues that a jury reasonably

could have found him guilty only of misdemeanor Lacey Act

violations, and that he was therefore entitled to a jury

instruction on these lesser included charges. The government

responds that evidence of Place's actual knowledge of criminality

was overwhelming, and therefore that the district court was right

to instruct the jury only on the felony violations.

A criminal defendant is entitled to a jury instruction on a

lesser included offense if (1) the lesser offense is necessarily

included in the charged offense, (2) some contested fact separates

-15-
the two offenses, and (3) given the evidence, a jury could

rationally find the defendant guilty of the lesser offense while

acquitting him of the charged offense. United States v. Boidi, 568

F.3d 24, 27 (1st Cir. 2009). Here, items (1) and (2) are

uncontested – (1) a charge that Place should have known his

trafficking was illegal is necessarily included in the charge that

Place actually knew his trafficking was illegal, and (2) Place's

state of mind is contested – he is adamant that he lacked actual

knowledge. The only issue is (3) whether a rational jury could

have agreed with Place and found that he indeed lacked actual

knowledge that his whale-tooth transactions were illegal.

Place says the jury could have believed his attested-to

ignorance notwithstanding years of emails demonstrating knowledge;

the government says the emails and other circumstantial evidence –

receiving tipoffs from friends; disguising the contents of packages

on customs forms; creatively routing those packages to evade

customs; having myriad whale-tooth auctions shut down on eBay;

reading the content of those eBay shutdown notices, which informed

him of the broad CITES requirements – overwhelmingly prove actual

knowledge. The government has the better of this argument.

Place's emails (which acknowledged that the teeth required

permits to be legal and admitted buying and selling without the

permits) directly prove knowledge that his transactions were

illegal; his testimony at trial echoes the emails; he took steps to

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hide his transactions from authorities; he repeatedly suggested

that these steps would help him avoid a criminal investigation or

prison time; and the only contrary evidence is a set of post hoc,

self-serving statements that he believed his transactions were

exempt from CITES because the teeth he sold were old, scrimshawed,

or Inuit in origin. His own emails, testimony, and conduct,

though, belie the validity of that purported belief. No reasonable

jury could have accepted his testimony and rejected the mountain of

evidence that Place knew his conduct was illegal; therefore, Place

was not entitled to a lesser-included Lacey Act instruction.

B. Smuggling Conviction

Place's other argument assails his convictions on Counts 8

(smuggling sperm whale teeth) and 9 (smuggling narwhal tusks); he

says the smuggling statute does not criminalize violations of

regulations like those implementing CITES. Specifically, he says

the smuggling statute, which does criminalize violations of some

non-criminal laws, is ambiguous; that a comparison to other laws

shows Congress knows how to penalize regulatory violations when it

wants to, but it did not do so here; and that in any event, the

rule of lenity counsels that we should resolve the statute's

ambiguity in his favor. The government makes various counter-

arguments; we will address each of Place's and the government's

arguments in turn. This smuggling-statute issue is one of

statutory interpretation that we review de novo. United States v.

-17-
Godin, 534 F.3d 51, 56 (1st Cir. 2008).

We start with a more detailed review of the smuggling statute.

The statute imposes criminal sanctions on anyone who "receives,

conceals, buys, [or] sells . . . merchandise after importation,

knowing the same to have been imported or brought into the United

States contrary to law . . . ." 18 U.S.C. § 545. As we have said,

the phrase "contrary to law" means that the smuggling statute

criminalizes conduct that may be illegal under other sources of law

but is not necessarily criminal according to those sources' own

terms. For example, in 1999 we considered a sentencing appeal

where the underlying conviction was for smuggling freon into the

United States from Canada: the Clean Air Act imposed permitting

requirements that the defendant had violated, and the smuggling

statute rendered these violations criminal. See United States v.

LeBlanc, 169 F.3d 94, 94-95 (1st Cir. 1999). That case involved

the smuggling statute's criminalizing a violation of a statute, and

this (criminalizing statutory violations) is apparently its most

common application; in this case, though, the question is whether

the smuggling statute may similarly criminalize violations of the

regulations like those implementing CITES.10 This question hinges

10
A refresher: CITES is directly, but only broadly,
implemented in the United States by the ESA, 16 U.S.C. §§ 1537A,
1538(c)(1); the ESA also authorizes the Secretary of the Interior
to promulgate CITES-based regulations, id. § 1537; Interior has in
fact issued regulations that mirror the language of CITES, 50
C.F.R. §§ 23.1-23.92; and these regulations impose, e.g.,
permitting requirements, id. §§ 23.12(a), 23.15 (2004), and a ban

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on whether Congress intended that the statutory word "law" be

limited to statutory law or whether Congress meant for the word to

include regulatory law as well.

First, Place says the word "law" has many meanings, any of

which Congress could conceivably have been employing in the

smuggling statute. "Law" is indeed a broad word with many

meanings, including, most notably for our purposes, "[t]he

aggregate of legislation, judicial precedents, and accepted legal

principles; the body of authoritative grounds of judicial and

administrative action." Black's Law Dictionary (9th ed. 2009).

Then again, "law" may also be defined as narrowly as "a statute"

(though in the latter case the word generally appears with an

article, e.g. "Congress passed a law").11 Id. Given these

on international trade in Appendix I species for "primarily
commercial purposes," id. § 23.15(d)(7). CITES's domestic
structure means that its specific requirements are generally
contained in its regulations, not in the ESA. And Place was
convicted of smuggling whale teeth into the United States without
the documentation required by these regulations.
11
Here is Black's Law Dictionary's full definition of "law":

1. The regime that orders human activities and relations
through systematic application of the force of
politically organized society, or through social
pressure, backed by force, in such a society; the legal
system . 2. The aggregate of
legislation, judicial precedents, and accepted legal
principles; the body of authoritative grounds of judicial
and administrative action; esp., the body of rules,
standards, and principles that the courts of a particular
jurisdiction apply in deciding controversies brought
before them . 3. The set of rules or
principles dealing with a specific area of a legal system

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differing definitions, we must try to discern what Congress

actually meant when it used the word "law" in the smuggling

statute.

Place argues that Congress meant only for the narrowest

definition of "law" – "a statute" – to apply here; the government

responds that the Congress more likely intended "law" to have its

much more common, broad meaning – one that includes regulations.

In fact, the government points out, the Supreme Court has said that

the analogous phrase "authorized by law" plainly includes at least

some regulations, see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96

(1979) ("[i]t would . . . take a clear showing of contrary

legislative intent before the phrase 'authorized by law' . . .

could be held to have a narrower ambit than the traditional

understanding" – an understanding that "law" encompasses

regulations). And, the government concludes, every circuit court

to have considered the question in the context of the smuggling

statute has likewise agreed that "contrary to law" similarly

includes at least some regulations, see United States v.

Alghazouli, 517 F.3d 1179, 1183 (9th Cir. 2008); United States v.

Mitchell, 39 F.3d 465, 468-70 (4th Cir. 1994); Estes v. United

. 4. The judicial and administrative
process; legal action and proceedings . 5. A statute . — Abbr. L. 6.
common law . 7. The legal profession
.

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States, 227 F. 818, 821-22 (8th Cir. 1915) (interpreting an older

version of the smuggling statute that even then contained the

phrase "contrary to law").12 The government puts on a persuasive

case: the word "law" is much more commonly understood to include

regulations, so Place has a steep climb before he can show that

Congress intended a narrower reading.

Place's next argument attempts to accomplish this climb by

comparing the smuggling statute with certain other statutes – most

notably, 18 U.S.C. § 554 (titled "Smuggling goods from the United

States"). Enacted years after § 545, § 554 includes the phrase

"contrary to law or regulation," which Place insists shows that

12
Place does not raise the question whether the word "law" may
include some regulations but exclude others. Nor does he raise the
issue of which regulations the word "law" might include, an issue
on which other circuits have taken potentially conflicting stances.
Compare Alghazouli, 517 F.3d at 1187 (holding that "[t]he term
includes a regulation only if there is a statute (a 'law') that
specifies that violation of that regulation is a crime"), with
Mitchell, 39 F.3d at 469 (holding that the term includes
"regulations having the force and effect of law," with no
discussion of whether violation of these regulations need
independently amount to a criminal offense). And, finally, Place
does not argue that if the word "law" indeed does include at least
some regulations, it nevertheless excludes the CITES implementing
regulations.
Instead, Place has presented the issue as an all-or-nothing
proposition: he says simply that "[t]he district court erred by
instructing the jury that regulatory violations were sufficient to
establish guilt." In fact, he goes further and asks us to reject
the Ninth Circuit's efforts in Alghazouli to distinguish among
different types of regulations for purposes of determining which
are "law," suggesting we simply declare that no regulations are
"law." Absent nuanced argument on this delicate point that has
split our sister circuits, we consider the argument as Place has
presented it and say only that some regulations are "law,"
including those implementing CITES.

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Congress does not generally intend the word "law" to include

regulations. After all, the disjunctive "or" can only mean that

"law" and "regulation" are two wholly different concepts – or so

Place argues. But "the views of a subsequent Congress form a

hazardous basis for inferring the intent of an earlier one,"

Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,

117-18 (1980) (quoting United States v. Price, 361 U.S. 304, 313

(1960)), and section 554 was enacted well over a hundred years

after the original version of the smuggling statute (from which the

phrase "contrary to law" has been passed along through several

generations). See Mitchell, 39 F.3d at 469 (tracing the smuggling

statute's history). The addition of the words "or regulation" to

the phrase "contrary to law" in later statutes perhaps reflects no

more than Congress's attempt to head off the type of argument made

here; it certainly does not suggest that "contrary to law" should

exclude regulations. If anything, in fact, subsequent legislative

history tells us the opposite: we presume Congress is aware of

judicial interpretations of existing statutes when it passes new

laws, Lorillard v. Pons, 434 U.S. 575, 580 (1978), and in

reenacting the smuggling statute multiple times Congress has never

sought to exclude regulations despite almost a century of circuit-

court precedent holding that the word "law" in the statute includes

regulations.

Finally, Place argues that we should apply the rule of lenity

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to exclude regulations from the ambit of the word "law" in the

smuggling statute. The rule of lenity counsels that ambiguities in

criminal statutes should be resolved in a defendant's favor. See

Godin, 534 F.3d at 60-61. But, again, the most common meaning of

the word "law" is quite broad, and for that reason the Supreme

Court has said only "a clear showing of . . . legislative intent"

can overcome the "traditional understanding" that "law" encompasses

regulations. Chrysler Corp., 441 U.S. at 295-96. There is simply

no indicator of any legislative intent that the smuggling statute

applies as narrowly as Place would have us read it. Given the

absence of any textual or contextual clues that the smuggling

statute should be narrowly construed, Place's smuggling conviction

is substantively appropriate.13

III. Wrapping up

After ruminating on the whale's possible extinction,

Melville's Ishmael eventually "account[ed] the whale immortal in

his species, however perishable in his individuality." The United

States and most other countries, however, have made a contrary

judgment and decided to use what legal tools they can to eliminate

the international market for whale parts so the species may survive

13
Because we hold that Place's CITES-noncompliant imports were
"contrary to law," we need not consider the government's argument
(raised only briefly in a footnote) that the same conduct was also
"contrary to" the ESA, which is plainly "law."

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and flourish.14 Place was charged, fairly tried, and properly

convicted for knowingly flouting these laws and the regulations

implementing them. Rejecting his arguments on appeal for the

reasons set forth above, we now affirm these convictions in full.

14
For example, the preamble to CITES says "that international
co-operation is essential for the protection of certain species of
wild fauna and flora against over-exploitation through
international trade"; CITES art. II says that Appendix I species
like the sperm whale "must be subject to particularly strict
regulation in order not to endanger further their survival"; and,
moving on from the treaty, 16 U.S.C. § 917 includes congressional
findings that "whales have been overexploited by man for many
years, severely reducing several species and endangering others"
and that "the conservation and protection of certain species of
whales, including the . . . sperm . . . whale, are of particular
interest to citizens of the United States."

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