Trafficking in Wildlife—Leopard Sharks

A federal grand jury in San Francisco has indicted six individuals “on charges of criminally catching and selling thousands of undersized juvenile leopard sharks.”^[1] The indictment was returned on January 24, 2006 but was unsealed on Wednesday.^[2] It alleges that “the pastor of a San Leandro church, four individuals involved in the aquarium industry, and a fisherman [conspired to violate and did] violate[] the Lacey Act, which makes it a federal offense to knowingly sell or purchase fish, wildlife or plants that were captured in violation of any underlying law.”^[3] It is alleged that “approximately 465 juvenile leopard sharks were sold to companies in Miami, Chicago, Houston; Romulus, Michigan; Milford, Connecticut; the Netherlands, and the United Kingdom.”^[4]

Nearly two years ago, the investigation began in Miami, “when a pet trade distributor was caught with 19 undersized leopard sharks from California and was convicted on 2003 of one count in violation of the Lacey Act and received an 18 month sentence.”^[5]

Some of the sharks are currently being held at the Monterey Bay Aquarium as evidence.^[6]

The conspiracy charge is covered by 18 U.S.C. § 371, and the Lacey Act violations are covered by 16 U.S.C. § 3372(a)(2)(A), which states that it is unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any state. The underlying California regulation is Cal Fish & Game Code § 8388.5(a), which states that a person “shall not take, possess, sell, or purchase for commercial purposes any leopard shark less than 36 inches in total length.” Lacey Act violations can be punished by a fine of up to $20,000, imprisonment for up to 5 years, or both.

In order to secure a conviction for a violation of the Lacey Act, the government must prove each of the following elements beyond a reasonable doubt:

• First, that the defendant knew that the fish had been taken, possessed, transported, or sold in violation of or in a manner unlawful under state law;
• Second, the market value of the fish actually taken, possessed, transported, or sold exceeded $350; and
• Third, the defendant imported, exported, transported, sold, received, acquired or purchased, in interstate or foreign commerce, the fish by knowingly engaging in conduct that involved its sale or purchase, the offer to sell or purchase it, or the intent to sell or purchase it.^[7]

In October, we discussed violations of the Lacey Act in connection to Honduran lobsters.

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[1] US Attorney’s Office, Six Indicted in Scheme to Poach and Smuggle Protected California Leopard Sharks, Feb. 8, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Tom Ragan, Seized Sharks Held at Monterey Bay Aquarium as Evidence in Federal Case, Santa Cruz Sentinel, Feb. 10, 2006.
[7] See Ninth Circuit, Model Criminal Jury Instructions, 9.10, last updated Jun. 2005.