Sunday, September 23, 2007

The Birds Were Exotic; The Appeal Was Not

United States v. Cullen, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ) (per curiam)

The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Wild Bird Act, 16 U.S.C. § 4904, prohibits the importation into the United States of any exotic bird of a species covered by the Convention, and violators face civil or criminal penalties.

Thomas Cullen used straw purchasers to import Black Sparrowhawks, an African raptor, into the United States. He was trying to make it look as if the importation were valid under a provision permitting persons who have lived outside the United States for more than one year to import a personally owned pet, even if it is a member of one of the listed species. Cullen was convicted both of importing the birds and of making false statements to the Wildlife Service.

Cullen’s claims on appeal were borderline frivolous. He claimed that the Convention did not apply only to captive-bred birds, even though nothing in the statute supported that argument. He also claimed that the statutory phrase “personally owned pet” was unconstitutionally vague. The Circuit correctly held that both “personal” and “pet” are words that are comprehensible to an ordinary person.


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