06-0607-cr U.S.A. v. Cullen

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3

_______________ 4 5 August Term, 2006 6 7 (Argued December 5, 2006 Decided August 23, 2007) 8 9 Docket No. 06-0607-cr 10 11

_______________ 12 13 United States of America, 14 15 Appellee, 16 17 v. 18 19 Thomas Cullen, aka Thomas J.V. Cullen, 20 21 Defendant-Appellant

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_______________ 24 25 Before: 26 CARDAMONE, STRAUB, Circuit Judges, 27 and KOELTL*, District Judge

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_______________ 30 31 Defendant Thomas Cullen appeals from a judgment of 32 conviction entered in the United States District Court for the 33 Southern District of New York (McMahon, J.) on February 2, 2006, 34 following a jury trial. Cullen was convicted of knowingly 35 importing exotic birds into the United States in violation of the 36 Wild Bird Conservation Act and of filing false applications 37 relating to the importation with the United States Fish and 38 Wildlife Service. 39 40 Affirmed. 41 42

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_______________ 47 48 * Hon. John G. Koeltl, United States District Court for the 49 Southern District of New York, sitting by designation. 50_______________

1 2 PETER R. GINSBERG, Law Office of Peter R. Ginsberg, P.C., New 3 York, New York, for Defendant-Appellant

. 4 5 JESSE M. FURMAN, Assistant United States Attorney, New York, New 6 York (Michael J. Garcia, United States Attorney, Stephen J. 7 Ritchin, John M. Hillebrecht, Assistant United States 8 Attorneys, Southern District of New York, New York, New 9 York, of counsel), for Appellee

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CARDAMONE, Circuit Judge : 1 We have before us a case that is unusual in several 2 respects. In the first place, defendant was prosecuted, 3 convicted and sentenced under the Wild Bird Conservation Act of 4 1992 (Wild Bird Act or Act), 16 U.S.C. § 4901 et seq., a federal 5 statute that includes civil and criminal penalties. There have 6 been very few, if any, previous prosecutions for violations of 7 the Act's criminal penalties. Second, the defendant Thomas 8 Cullen (defendant or appellant), an enigmatic and colorful 9 figure, whose home is in Goshen, New York, is an internationally 10 known professional falconer. He was hired at one time by the 11 City of New York to bring bald eagles back to Inwood Hill Park in 12 Manhattan. Yet, defendant also has a history of questionable 13 activity involving exotic birds. Third, defendant was charged 14 with illegally importing Black Sparrowhawks. Judicial opinions 15 often characterize an odd provision of the law or an ingenious 16 argument of counsel as a "rare bird" (rara avis). But in this 17 case we have before us as the subject matter literally a rara 18 avis in terrisor a rare bird on the earth. 19 The rare bird which is the subject of this litigation is the 20 Black Sparrowhawk. The Black Sparrowhawk is an African bird that 21 for the most part lives in the southeastern corner of the African 22 continent. Its length ranges from 18 to 23 inches; it has a 23 black head and black upperparts, white underparts, yellow legs, 24 and a silver-grey tail. The Black Sparrowhawk eats mainly other 25 birds (mostly doves), although it has been known to devour on 263

occasion small mammals and snakes. It is usually silent and 1 unobtrusive except when it is breeding. For the most part, this 2 bird stays inside the cover of trees, only soaring sometimes in 3 the sky. SeeGordon Lindsay Maclean, Roberts' Birds of Southern 4 Africa138 (6th ed. 1993). 5 Thomas Cullen appeals from a judgment of conviction entered 6 February 2, 2006 in the United States District Court for the 7 Southern District of New York (McMahon, J.) following a jury 8 trial. Defendant was convicted of knowingly importing exotic 9 birds into the United States in violation of the Wild Bird Act 10 and of making false statements relating to such importation with 11 the United States Fish and Wildlife Service (Wildlife Service) in 12 violation of 18 U.S.C. §§ 1001 and 1002. Cullen challenges his 13 conviction on the grounds that: (1) the Wild Bird Act does not 14 apply to captive-bred birds; (2) the Act is unconstitutionally 15 vague because it does not define the term personal pet; and (3) 16 the jury instruction given by the trial court was incorrect. 17 Because those challenges are all without merit, we affirm. 18
BACKGROUND 19
A. Statutory and Regulatory Background 20 A total of 21 nations including the United States in 1973 21 signed the Convention on International Trade in Endangered 22 Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 23 993 U.N.T.S. 243 (CITES or Convention). The Convention's purpose 24 is to regulate the trade of endangered plants and animals. It 25 contains three appendices that list the species subject to its 264

regulations. Over the years the appendices have grown steadily 1 and more than 5,000 species of animals, including nearly 1,700 2 species of birds, are currently listed in one or another of the 3 appendices. SeeDiscover CITES, http://www.cites.org/eng/disc/ 4 species.shtml (last visited July 13, 2007). Among the species of 5 birds listed are accipiter melanoleucus, the Black Sparrowhawk, 6
and falco cherrug, the Saker falcon. SeeChecklist of CITES 7 Species, http://www.cites.org/common/resources/2003_CITES_ 8 CheckList.pdf. The Black Sparrowhawk has been listed since 1979 9 and the Saker falcon has been listed since 1975. 10 To promote the conservation of exotic birds Congress passed 11 the Wild Bird Act, which prohibits the importation into the 12 United States of any exotic bird of a species listed in any of 13 CITES' three appendices. See16 U.S.C. § 4904(c). Thus, it 14 ordinarily violates the Wild Bird Act to import Black 15 Sparrowhawks or Saker falcons into the United States. Violations 16 may carry civil or criminal penalties. 16 U.S.C. § 4912. The 17 Act provides, however, that the Secretary of the Interior may 18 authorize importation of a species listed in a CITES appendix if 19 (1) such importation is not detrimental to the survival of the 20 species, and (2) the bird is being imported exclusivelyfor any 21 of four enumerated purposes. 16 U.S.C. § 4911. These four 22 purposes are scientific research; personally owned pets of a 23 person returning to the United States after being out of the 24 country for at least one year; zoological breeding or display 25 programs; and certain cooperative breeding programs. Id

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Pursuant to these provisions, the Secretary of the Interior has 1 promulgated detailed regulations that require a party seeking to 2 import an exotic bird pursuant to one of the exceptions to submit 3 an application to the Wildlife Service demonstrating compliance 4 with the statutory and regulatory requirements. 50 C.F.R. 5 §§ 15.21-.26. Once obtained a permit is neither transferrable 6 nor assignable. 50 C.F.R. § 13.25. 7
B. Defendant Cullen's Actions 8 Cullen is New York's "acknowledged expert on birds of prey" 9 and an internationally known and respected falconer. David 10 Kocieniewski, City Eagle Expert Has Past Littered with Illegal 11 Exotic Birds, N.Y. Times, Apr. 17, 2005, § 1, at 33. He claimed 12 he once owned the largest private collection of birds of prey 13 anywhere in this country and, at the time of his 2005 trial for 14 violation of the Wild Bird Act, Cullen owned 47 birds of prey 15 that he maintained at his home in Goshen, New York. 16 In 1999 there was only one living Black Sparrowhawk in 17 captivity anywhere in North America. It was not owned by 18 defendant. It seems Cullen wanted to add Black Sparrowhawks to 19 his collection of exotic birds, but he could not fit himself 20 within any of the specified exceptions to the Act's ban on their 21 importation into the United States. That is, he had not been 22 away from the United States for more than a year, so he could not 23 come within the personally owned pet exception; he was conducting 24 no scientific research, nor was he involved in zoological 25 breeding or display programs; and he was not engaging in 266

cooperative breeding programs under the auspices of "an 1 avicultural, conservation, or zoological organization." See16 2 U.S.C. § 4911. In other words, there was no legal avenue for 3 Cullen to follow to add Black Sparrowhawks from outside the 4 United States to his collection of exotic birds. 5 Joseph and Kristen Kulak were Americans living abroad in 6 England in 1999. They had each been abroad for more than a year. 7 Were the Kulaks suddenly to decide to buy exotic birds as their 8 personally owned pets, they would each qualify for the Wild Bird 9 Act's personal pet exception. It turned out that Joseph Kulak 10 worked for Cullen's wife in a large American insurance business 11 with a branch in London. The Kulaks had no interest in Black 12 Sparrowhawks and no background training or experience in handling 13 them. Nonetheless, on October 27, 1999 Cullen mailed to the 14 Wildlife Service applications signed by Joseph and Kristen Kulak 15 indicating the Kulaks' desire to import into the United States 16 three Black Sparrowhawks as their personally owned pets. 17 Defendant also submitted to the Wildlife Service a receipt of 18 purchase indicating the three Sparrowhawks had been sold to the 19 Kulaks. According to the applications, two of the birds were 20 Joseph Kulak's pets, while the third was Kristen Kulak's pet. In 21 November 1999 the importation permits were granted. 22 Joseph Kulak's two pet Sparrowhawks (the third bird, 23 ostensibly Kristen Kulak's pet, died in transit) arrived in the 24 United States on January 6, 2000 from the United Kingdom. Cullen 25 paid the purchase price for the birds that amounted to 500 267

English pounds sterling apiece. On June 10, 1999 when the birds 1 were sold in England, 500 English pounds sterling was the 2 equivalent of $800.10. Seehttp://federalreserve.gov/releases/ 3 h10/19990614/ (exchange rate of $1.6002/pound on June 10). 4 Defendant made and paid for all the travel arrangements for the 5 birds from England to the United States. 6 Upon the birds' arrival in this country, Cullen went to the 7 airport to pick them up. Ann Marie Holmes, the Wildlife Service 8 Inspector at JFK Airport, doubted defendant's story that he was 9 just picking up Kulak's birds on Kulak's behalf since Kulak was, 10 after all, still living in England. As a result of her doubts 11 she refused to turn the birds over to Cullen. She quarantined 12 them in a facility run by the Department of Agriculture where, 13 unfortunately, another one of the birds died. Subsequently, the 14 one living Sparrowhawk was turned over to the Wildlife Service 15 pending an investigation into whether or not the bird had been 16 legally imported into the United States. 17 Meanwhile, Joseph Kulak had submitted an affidavit to the 18 Wildlife Service reaffirming that the Sparrowhawk was his 19 personal pet. Thus, in August 2000 the Sparrowhawk was released 20 to Cullen with instructions that he return it to Kulak. Instead 21 of turning the male bird over to Kulak, Cullen loaned it to Craig 22 Culver, a breeder in California who owned North America's other 23 Black Sparrowhawk, a female. Culver and Cullen entered into two 24 "breeding loan agreements" that divvied up any future offspring. 25 Neither of these agreements acknowledged that Kulak was the owner 268

of the male Sparrowhawk. In the end, the breeding was 1 unsuccessful, and the male Sparrowhawk was returned to Cullen in 2
New York. 3
C. Prior Proceedings 4 On October 25, 2004 Cullen was charged with filing false 5 statements to the Wildlife Service relating to the Black 6 Sparrowhawks, and on January 3, 2005 a charge that he imported 7 the Black Sparrowhawks in violation of the Wild Bird Act was 8 added to the indictment. Cullen was also charged with importing 9 into the United States a number of Saker falcons in violation of 10
the Act. 11 Defendant filed a motion on February 4, 2005 to dismiss the 12 charges under the Act arguing that it only covers birds born in 13 the wild and only applies to importations for commercial 14 purposes. Defendant also claimed that the Wild Bird Act is 15 unconstitutionally vague because it provides no definition of the 16 term "personally owned pet." Finally, Cullen declared he was 17 entitled to a bill of particulars with regard to the various 18 charges against him. The district court denied all of Cullen's 19 motions. 20 Trial began in September 2005. Joseph Kulak testified for 21 the government pursuant to a non-prosecution agreement. 22 According to Kulak, Cullen had asked him if he and his wife would 23 be willing to import birds to the United States for Cullen, and 24 Kulak agreed. Kulak explained that Cullen paid all costs 25 associated with the purchase and importation of the Sparrowhawks 269

and that all Kulak did was forward documents relating to their 1 importation to certain persons as directed by Cullen. Kulak 2 testified that the Sparrowhawks were not his personally owned 3 pets, despite his signature on the Wildlife Service application 4 attesting that they were. He concluded by stating that he signed 5 the application as a personal favor to Cullen and his wife. 6 Kristen Kulak testified similarly. Defendant took the stand in 7 his own defense, and though he admitted he paid for, took care 8 of, and made all the arrangements for the birds, he insisted he 9 did this as a favor to Kulak. 10 The jury returned a guilty verdict on both counts relating 11 to the Black Sparrowhawks, but acquitted defendant of the charge 12 relating to the importation of the Saker falcons. On January 26, 13 2006 Cullen was sentenced to four months imprisonment, three 14 years supervised release, a $1,000 fine, and a special assessment 15 of $200. Judge McMahon refused to grant Cullen's request that 16 the sentence be stayed pending appeal. On February 1, 2006 17 Cullen timely filed a notice of appeal. 18
DISCUSSION 19 I Standard of Review 20 We review de novochallenges to the meaning and 21 constitutionality of statutes and the propriety of jury 22 instructions. United States v. Giordano, 442 F.3d 30, 38-39 (2d 23 Cir. 2006), cert. denied, 127 S. Ct. 1253 (2007). 2410 II Captive-Bred Birds and the Wild Bird Conservation Act 1 The Wild Bird Act's importation ban applies to "any exotic 2 bird of a species that is listed" in an appendix to CITES. 16 3 U.S.C. § 4904(c); see also id. § 4903(2) (defining "exotic bird" 4 as "any live or dead member of the class Aves that is not 5 indigenous to the 50 States or the District of Columbia"). 6 Cullen argues that the statute's title and legislative history 7 suggest that Congress was primarily interested in conserving 8 birds in the wild when it passed the Wild Bird Act, and thus the 9 Act does not prohibit the importation of captive-bred birds such 10 as the Sparrowhawks that he imported. Yet, nothing in the 11 language of the statute itself supports Cullen's assertion. 12 Quite the contrary -- the statute provides that anyexotic bird 13 listed in the appendices to CITES is covered, with no limiting 14 language as to where or how an exotic bird is bred. The word 15 "any" means "without restriction or limitation." Tambe v. Bowen, 16 839 F.2d 108, 110 (2d Cir. 1988). Further, a Wild Bird Act 17 provision mandating the Secretary of the Interior to exempt 18 selected captive-bred species from the Act's prohibitions on 19 importation, see16 U.S.C. § 4905(b), conclusively demonstrates 20 that Congress aimed to have all other captive-bred species, like 21 the Black Sparrowhawk, covered under the Act. Otherwise this 22 exemption would be meaningless. 23 When statutory language is unambiguous, as the pertinent 24 language in this Act is, we need not look to its title or history 25 to determine its meaning. See, e.g. , Conn. Nat'l Bank v. 2611

Germain, 503 U.S. 249, 253-54 (1992); see also Collazos v. United 1
States, 368 F.3d 190, 196 (2d Cir. 2004) ("While a title may be a 2 useful tool[] . . . for the resolution of a doubt about the 3 meaning of a statute, a title . . . cannot limit the plain 4 meaning of unambiguous text."). Like a book by its cover, this 5 statute should not be judged by its title. 6 III The Personal Pet Exception 7 Cullen also complains that the Wild Bird Act lacks a 8 definition for the term "personally owned pet." According to 9 appellant, this term is so vague that it would be unfair to 10 punish him for his actions, since he reasonably thought his 11 actions would fit within the personal pet exception. We analyze 12 this argument in more detail. 13 As the Supreme Court teaches, even if it is unlikely that a 14 person planning to violate a law will search out its text before 15 acting, "fair warning should be given to the world in language 16 that the common world will understand, of what the law intends to 17 do if a certain line is passed." McBoyle v. United States, 283 18 U.S. 25, 27 (1931) (Holmes, J.). For the warning to be fair "the 19 line should be clear." Id. The fair warning requirement appears 20 in various different legal doctrines, two of which are raised by 21 Cullen: void for vagueness and the canon of strict construction 22 of criminal laws, which resolves ambiguities under a rule of 23 lenity, so that a statute applies only to conduct clearly 24
covered. United States v. Lanier, 520 U.S. 259, 266 (1997). 2512 A. Void for Vagueness 1 There are two distinct parts to any void for vagueness 2 analysis. The fair warning requirement noted earlier ensures 3 that a penal statute defines criminal conduct precisely enough 4 that ordinary people can comprehend what conduct is proscribed. 5
See Kolender v. Lawson, 461 U.S. 352, 357 (1983). Although we 6 recognize in many English words there lurk uncertainties, see 7
Rose v. Locke, 423 U.S. 48, 50 (1975) (per curiam), to meet the 8 fair warning prong an ounce of common sense is worth more than an 9 800-page dictionary. The second, more important aspect of the 10 void for vagueness doctrine requires that a statute "establish 11 minimal guidelines to govern law enforcement" so that police, 12 prosecutors and juries may not pursue their own personal 13 preferences. Kolender, 461 U.S. at 358. 14 Focusing on the case at hand "personal" and "pet" are words 15 that are comprehensible to an ordinary person. The common 16 meanings of these words, coupled with the Wild Bird Act's 17 explicit provisions as to who qualifies for the personal pet 18 exception, gave adequate notice to defendant that the activities 19 he was planning did not fit within the pet exception. An 20 ordinary person would realize that an exception to the import ban 21 for personally owned pets of repatriating Americans would not 22 apply if a person living in the United States asked an American 23 living abroad to pretend that birds being imported belonged to 24 the person living abroad. And the Act's provisions detailing who 25 qualifies for the personal pet exception establish more than 2613

minimal guidelines to govern those charged with the Act's 1
enforcement. 2
B. Rule of Lenity 3 The rule of lenity, which appellant presses on this appeal, 4 only comes into play when a court after looking at all aids to 5 legislative meaning can do no more than "guess as to what 6 Congress intended." Muscarello v. United States, 524 U.S. 125, 7 138 (1998). To invoke lenity there must be grievous ambiguity in 8
a statute. Id. at 138-39. Such may not reasonably be said to be 9 the case with this statute. 10 IV The Jury Instruction 11 Appellant's next contention is that the trial court erred by 12 instructing the jury that the government had to prove "the bird 13 was not imported exclusively for the purpose stated in the import 14 permit." He maintains the district judge misinterpreted the Act 15 as allowing importation only if the applicant relied exclusively 16 on one -- and not more than one -- of the enumerated purposes. 17 According to Cullen, the interpretation matters to his case 18 because he had made known to the Wildlife Service that he 19 intended to import the birds not only as personal pets but also 20 for breeding. The relevant statutory language is as follows: 21 "[T]he Secretary may . . . authorize the importation of a bird of 22 the species if the Secretary determines that such importation is 23 not detrimental to the survival of the species and the bird is 24 being imported exclusively for any of the following purposes [.]" 25 16 U.S.C. § 4911 (emphasis added). The statute then specifies 2614

the four exceptions already noted: scientific research; 1 personally owned pets of a person returning to the United States 2 after being out of the country for at least a year; zoological 3 breeding or display programs; and certain cooperative breeding 4
programs. Id

. 5 We do not need to resolve whether Cullen is correct that the 6 district judge should have instructed the jury that the 7 government was required to prove the bird was not imported for 8 one or more statutory purposes. The error, if there was one, was 9 harmless because the only exception listed in § 4911 that could 10 even arguably have applied to Cullen was the personal pet 11 exception. Appellant makes much of the fact that he intended to 12 breed the birds, but there is no generalized breeding exception 13 set out in the Act. Instead, there are specific exceptions for 14 zoological breeding or display programs and for cooperative 15 breeding programs under the auspices of an avicultural, 16 conservation, or zoological organization. See16 U.S.C. § 4911. 17 Appellant has never claimed that he was engaged in zoological 18 breeding or display programs, nor has he averred that he manages 19 a cooperative breeding program under the auspices of an 20 avicultural, conservation, or zoological organization. 21 Consequently, whether or not one could be convicted under the 22 Wild Bird Act for importing a bird for a set of dual purposes 23 both covered by § 4911's exceptions is irrelevant in this case. 24 Judge McMahon's instruction to the jury that it inquire into 25 whether the Black Sparrowhawks were imported exclusively for the 2615

purpose stated in the import permit was correct or at worst 1
harmless error. 2 V Other Claims 3 Cullen insists that if his stated dual purpose ran afoul of 4 the Act, then the government should have rejected his application 5 for an importation permit. Thus, appellant's contention seems to 6 be that having issued the permit with full awareness of 7 defendant's plans, the government should not now be allowed to 8 turn around and later prosecute him for taking the very steps to 9 carry out his plans that it had earlier approved. This argument 10 is disingenuous because appellant made material 11 misrepresentations in the importation application and made false 12 statements regarding the ownership of the birds. Had the 13 government been fully aware of defendant's plans -- had he been 14 honest from the outset -- the Wildlife Service most certainly 15 would have rejected his application for an importation permit. 16 Having made misrepresentations to the Wildlife Service every step 17 of the way, Cullen cannot now successfully argue that the 18 government knew all along that what he was doing was illegal and 19 thus should not have granted him an importation permit. 20 We have reviewed appellant's remaining arguments and 21 concluded that none of them has merit. 22
CONCLUSION 23 Accordingly, for the reasons stated above, the judgment of 24 the district court convicting defendant Cullen of violating the 25 Wild Bird Act by unlawfully importing exotic birds into the 2616

United States and for filing false statements with the Wildlife 1 Service is affirmed. 2