Appeal by the government, pursuant to 18 U.S.C. § 3731, from an order of the United States District Court for the Eastern District of New York, George C. Pratt, Judge, dismissing four counts of an eleven-count indictment, prior to trial, on the ground that the National Stolen Property Act, 18 U.S.C. § 2314, does not apply to the interstate transportation of undersize clams harvested in violation of state and local environmental conservation laws. Affirmed.
Before Friendly, Gurfein and Meskill, Circuit Judges.
This is an appeal by the United States, pursuant to 18 U.S.C. § 3731, from a pre-trial order of the United States District Court for the Eastern District of New York, George C. Pratt, Judge, dismissing four counts of an eleven-count indictment on the ground that the National Stolen Property Act ("NSPA"), As amended, 18 U.S.C. § 2314, does not apply to interstate transportation of clams harvested in violation of state law.
The indictment in this case charges 33 individuals*fn1 with engaging in illicit interstate commerce in clams taken in violation of § 13-0325 of the Environmental Conservation Law of the State of New York. In counts one, four, seven, eight, nine, ten and eleven, it charges various defendants with substantive violations of the Lacey Act, As amended, 18 U.S.C. § 43 which makes it a misdemeanor to engage in interstate commerce in wildlife taken in violation of state law and with conspiracy to violate that Act, 18 U.S.C. § 371. These seven counts remain unaffected by the district judge's order. Counts two, three, five and six charge various defendants with substantive violations of the NSPA which makes it a felony knowingly to transport stolen goods in interstate commerce and with conspiracy to violate that Act. These four counts are based on the theory that wildlife taken in violation of state conservation laws is "stolen" within the meaning of the NSPA. The district judge rejected this theory and dismissed those counts that were based on it. We affirm.
New York's Environmental Conservation Law makes it unlawful for any person to "take, possess, sell, offer for sale or otherwise traffic in hard clams (Venus mercenaria) measuring less than one inch in thickness," § 13-0325(1), unless they are "unavoidably taken" and do not compose more than three percent of "any bushel, or other package or container of different measurement of clams taken from the catch or in the possession of the person offering the same for sale," § 13-0325(6). The purpose of this law prohibiting the trafficking in "undersize," or "seed," clams is to increase the supply of hard clams. 1943 Op.Att'y Gen. 222, 224. Each bushel, package or other container found to violate the three percent limitation constitutes a separate offense. § 13-0325(7). Under § 71-0923(1), each offense is a "violation" punishable by up to 15 days imprisonment or a $250 fine or both. In addition to this criminal sanction, § 71-0919(1)(c) permits the imposition of a civil penalty, which, under § 71-0925(7-a), may vary between $25 and $250 per bushel. The offense is not a "crime" as defined in § 10.00(6) of the Penal Law, because it is neither a "felony" nor a "misdemeanor" as defined in §§ 10.00(5) and (4), respectively. Under § 71-0903, individuals charged with counseling or aiding violations or with possession, transportation, buying or selling of clams unlawfully taken by others must be shown to have acted with guilty knowledge. For those charged with the actual taking, however, the offense appears to be one of strict liability. See generally United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978).
The defendants are clam diggers, transporters and dealers. According to the government, they engaged in a large-scale conspiracy to harvest undersize clams from the Great South Bay of Long Island and to sell them outside New York. The government expects to prove that "the (undersize) clams taken by the defendants were systematically segregated from clams over one inch thick, secretly transported and sold at a premium. . . ." Brief at 7.*fn2
There is no dispute on this appeal that the facts alleged by the government, if proved, would support a conviction based on the Lacey Act. That Act provides, in pertinent part, as follows:
delivers, carries, transports, or ships, by any means whatever, or causes to be delivered, carried, transported, or shipped for commercial or noncommercial purposes or sells or causes to be sold in interstate or foreign commerce any wildlife taken, transported, or sold in any manner in violation of any law or regulation of any State or foreign country . . . .
shall be subject to the penalties prescribed in subsections (c) and (d) of this section.
18 U.S.C. § 43(a)(2). Subsection (c) provides for a civil penalty of not more than $5,000 for each violation; subsection (d) provides for a criminal penalty of not more than $10,000 or one year imprisonment or both. Under subsections (f)(3) and (5), the phrase "wildlife taken" covers the collection of mollusks and, perforce, the harvesting of clams involved here. Guilty knowledge of state law has been held to be an essential element for purposes of subsections (c) and (d). See United States v. Jonas Brothers of Seattle, Inc., 368 F. Supp. 783 (D.Alaska 1974).
The government apparently finds the misdemeanor penalties provided for in the Lacey Act and in the second paragraph of the general conspiracy statute inadequate, for the indictment includes four felony counts based on the NSPA. These counts are based on the same conduct described in other counts of the indictment as violations of the Lacey Act. It is the government's theory that clams taken in violation of state environmental conservation laws are "stolen" within the meaning of the NSPA and that, therefore, engaging in interstate commerce in clams so taken violates not only the Lacey Act but also the NSPA. Since the appeal was argued, Judge Sifton of the District Court for the Eastern District of New York has sustained a similar claim by the government with respect to skins of wild alligators of which Louisiana had declared itself to be the owner. United States v. Klapisch, 77 Cr. 620 (June 12, 1978).
The NSPA provides, in pertinent part: "Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud . . . Shall be fined not more than $10,000 or imprisoned not more than ten years, or both." 18 U.S.C. § 2314. The meaning of the word "stolen" as used in this statute is relatively well-established. The leading case is United States v. Turley, 352 U.S. 407, 77 S. Ct. 397, 1 L. Ed. 2d 430 (1957), where the Supreme Court construed the word as it was used in the National Motor Vehicle Theft Act, As amended, 18 U.S.C. § 2312 ("NMVTA"). We regard Turley as controlling here because the word "stolen" is used in the same way in both the NSPA and the NMVTA. This is hardly surprising inasmuch as the NSPA was designed "(t)o extend the provisions of the National Motor Vehicle Theft Act to other stolen property." 48 Stat. 794. In Turley the Court defined the word to include "all felonious takings . . . with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny." 352 U.S. at 417, 77 S. Ct. at 402. The Court, in a footnote, explained that the term "felonious" was "used in the sense of having criminal intent rather than with reference to any distinction between felonies and misdemeanors." Id. at 410 n.4, 77 S. Ct. at 399. Turley had obtained possession of an automobile lawfully from its owner and had subsequently converted it to his own use. At common law, he would have been guilty not of larceny, but of embezzlement. Thus, the Court was making it clear that the definition of "stolen" was sufficiently broad to abolish the archaic distinctions between larceny by trespass, larceny by trick, embezzlement and obtaining property by false pretenses. See United States v. Benson, 548 F.2d 42, 44-46 (2d Cir.), Cert. denied, 430 U.S. 910, 97 S. Ct. 1185, 51 L. Ed. 2d 588 (1977) (construing the NSPA). Although the scope of the term is broad, it is not as elastic as the government suggests here. Even under the broad definition in Turley, stealing is still essentially an offense against another person's proprietary or possessory interests in property. See United States v. McClain, 545 F.2d 988, 1002 (5th Cir. 1977); Black's ...