FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

DEEP SEA FISHERIES INC; DEEP SEA

HARVESTER, INC.,

Claimants-Appellants,

and

No. 03-36006 JOHN R. BOGGS, President Deep

Sea Fisheries Inc.; GLOBAL D.C. No. FISHING 

INC, a Washington Corporation; CV-02-02167-JCC

KAMCHATCOMAGROPROMBANK, a OPINION

Russian chartered bank,

Claimants,

v.

144,774 POUNDS OF BLUE KING

CRAB, more or less,

Defendant. 

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Chief Judge, Presiding

Argued and Submitted

May 2, 2005—Seattle, Washington

Filed June 9, 2005

Before: J. Clifford Wallace, Barry G. Silverman, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Silverman

6771
COUNSEL

John M. Colvin, Chicoine & Hallett, P.S., Seattle, Washington, for the claimants-appellants. 

UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB 6773
John McKay, Peter O. Mueller, and Richard E. Cohen, United

States Attorney’s Office, Seattle, Washington, for the

plaintiff-appellee.

OPINION

SILVERMAN, Circuit Judge: 

King crab taken in violation of Russian fishing regulations

is subject to forfeiture under the Lacey Act, 16 U.S.C.

§ 3374(a), on a strict liability basis. The question before us is

whether an importer of such crab may assert an “innocent

owner defense” in forfeiture proceedings. Under the Civil

Asset Forfeiture Reform Act, 18 U.S.C. § 983, the innocent

owner defense cannot be asserted when the property to be forfeited is “contraband or other property that it is illegal to possess.” 

We hold today that if the crab at issue here was imported,

received, or acquired in violation of the Lacey Act, 16 U.S.C.

§ 3372(a), it constitutes “property that it is illegal to possess”

for the purposes of 18 U.S.C. § 983(d)(4). 

I. BACKGROUND

This interlocutory appeal arises out of a claim to king crab

made by appellants Deep Sea Fisheries and Deep Sea Harvester (collectively, “Deep Sea”). The king crab at issue was

caught within the Russian Exclusive Economic Zone (“EEZ”)

by two Russian vessels, the F/V Deep Sea Harvester and the

F/V Lucky Star. The crab was transferred to the M/V Vlada,

a Russian transport ship, which transported the crab out of the

EEZ to Vancouver, B.C. Deep Sea imported the crab into the

United States at Blaine, Washington, where it was detained by

United States Customs officials. 

6774 UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB
The United States brought this action for forfeiture of the

defendant 144,774 pounds of cooked, frozen blue king crab

for violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A).

The government alleged that the crab had been taken, possessed, transported, and sold in violation of the fishing and

resource protection laws of the Russian Federation. The

United States asserted that the M/V Vlada had failed to maintain its vessel monitoring system, which provides information

about the location of the vessel and the amount of catch on

board, in continuous operation during the time the vessel was

in use, as required by Russian law. The M/V Vlada had

reported that it was going to Dutch Harbor, Alaska, for major

repairs and turned off its monitoring equipment, but subsequent inquiry by United States authorities determined that the

M/V Vlada had not undergone repairs at Dutch Harbor and

had instead left that port after three days and was crabbing off

the books. Russian authorities reported that if the M/V Vlada

had taken on the crab in the EEZ, the vessel had violated Russian law because it had not reported the loading or transport

of the crab. 

Deep Sea filed a statement in response to the forfeiture

action claiming an interest in the crab based upon a security

interest in the catch of the Russian fishing vessels. Deep Sea

also filed an answer to the complaint claiming a lack of

knowledge that the crab was caught or transported in violation

of Russian fishing laws and raising innocent ownership as an

affirmative defense under 18 U.S.C. § 983. 

The district court ordered Deep Sea to show cause why the

court should not order summary judgment precluding Deep

Sea from raising the innocent owner defense based on the

government’s argument that the such a defense could not be

raised with respect to the crab because the crab was, in the

words of 18 U.S.C. § 983(d)(4), “contraband or other property

that it is illegal to possess.” Deep Sea responded that because

the crab was not inherently illegal to possess, it was not contraband for the purposes of the innocent owner defense. 

UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB 6775
The district court granted partial summary judgment in

favor of the United States, holding that the crab was contraband and striking Deep Sea’s innocent owner defense. The

district court reasoned that “contraband” as used in CAFRA

“includes both goods that are inherently illegal to possess and

otherwise legal goods that have been imported or exported

illegally.” Deep Sea filed a motion seeking reconsideration of

the order, arguing that the district court’s construction of the

term “contraband” to include illegally imported goods would

result in disparate treatment between fish caught in violation

of domestic law and fish caught in violation of international

law. The district court denied the motion for reconsideration,

but certified an interlocutory appeal of its ruling striking the

innocent owner defense pursuant to 28 U.S.C. § 1292(b). We

permitted an interlocutory appeal to be taken. 

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to consider an order certified for interlocutory appeal under 28 U.S.C. § 1292(b). Rivera v. Nibco,

Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). We review de novo

the district court’s construction of a statute. United States v.

Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).

III. DISCUSSION

A. The Statutory Language

We must decide whether fish, wildlife, or plants taken, possessed, transported, or sold in violation of foreign law and

subject to forfeiture under the Lacey Act constitute “contraband or other property that it is illegal to possess” under 18

U.S.C. § 983(d)(4), thus precluding the assertion of an innocent owner defense in an action to forfeit the items. 

1. The Lacey Act

[1] The Lacey Act provides that it is unlawful for any person — 

6776 UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB
(1) to import, export, transport, sell, receive,

acquire, or purchase any fish or wildlife or plant

taken, possessed, transported, or sold in violation of

any law, treaty, or regulation of the United States or

in violation of any Indian tribal law; 

(2) to import, export, transport, sell, receive,

acquire, or purchase in interstate or foreign commerce — 

(A) any fish or wildlife taken, possessed,

transported, or sold in violation of any law

or regulation of any State or in violation of

any foreign law; 

(B) any plant taken, possessed, transported, or sold in violation of any law or

regulation of any State; or 

(C) any prohibited wildlife species (subject to subsection (e) of this section) . . . .

16 U.S.C. § 3372(a). 

[2] Separate provisions of the Lacey Act provide civil and

criminal penalties for Lacey Act violations. 16 U.S.C. § 3373.

The Lacey Act also has a strict liability forfeiture provision:

All fish or wildlife or plants imported, exported,

transported, sold, received, acquired, or purchased

contrary to the provisions of section 3372 of this title

(other than section 3372(b) of this title), or any regulation issued pursuant thereto, shall be subject to forfeiture to the United States notwithstanding any

culpability requirements for civil penalty assessment

or criminal prosecution included in section 3373 of

this title. 

UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB 6777
16 U.S.C. § 3374(a)(1). 

2. The Civil Asset Forfeiture Reform Act

[3] Enacted in 2000, the Civil Asset Forfeiture Reform Act

(“CAFRA”) sets forth the procedures used in all civil forfeitures under federal law unless the particular forfeiture statute

is specifically exempted in 18 U.S.C. § 983(i)(2). Section

983(d) provides the following innocent owner defense to a

civil forfeiture:

(1) An innocent owner’s interest in property shall

not be forfeited under any civil forfeiture statute.

The claimant shall have the burden of proving that

the claimant is an innocent owner by a preponderance of the evidence. 

* * *

(3)(A) With respect to a property interest acquired

after the conduct giving rise to the forfeiture has

taken place, the term “innocent owner” means a person who, at the time that person acquired the interest

in the property — 

(i) was a bona fide purchaser or seller for

value (including a purchaser or seller of

goods or services for value); and 

(ii) did not know and was reasonably

without cause to believe that the property

was subject to forfeiture. 

* * *

(4) Notwithstanding any provision of this subsection, no person may assert an ownership interest

6778 UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB
under this subsection in contraband or other property

that it is illegal to possess. 

[4] In construing a federal statute, we first look at the plain

meaning of the language in question. United States v. 594,464

Pounds of Salmon, 871 F.2d 824, 825 (9th Cir. 1989). “It is

a maxim of statutory construction that unless otherwise

defined, words should be given their ordinary, common meaning.” Foxgord v. Hischemoeller, 820 F.2d 1030, 1032 (9th

Cir. 1987). Here, the plain meaning of “contraband” is not

defined in the statute, nor is it immediately apparent. Black’s

Law Dictionary defines contraband as, “1. Illegal or prohibited trade; smuggling. 2. Goods that are unlawful to import,

export, or possess.” BLACK’S LAW DICTIONARY (8th ed. 2004).

The district court relied on the dictionary definition of “contraband” for the conclusion that “contraband” is commonly

used to denote illegally imported goods. However, we do not

need to reach the question of what “contraband” means if we

can determine the meaning of “other property that it is illegal

to possess” from the plain wording of the statute. 

Deep Sea argues that it is entitled to raise the innocent

owner defense because Congress intended “contraband” to

mean “contraband per se,” or items that are inherently illegal

to possess. Deep Sea argues that the “or other” indicates that

“contraband” is one type of a larger category of property “that

it is illegal to possess.” Deep Sea asserts that “property that

it is illegal to possess” means property whose possession is

inherently illegal, and that because there is nothing inherently

illegal about the possession of king crab, it should be permitted to raise an innocent owner defense. 

[5] It is an accepted canon of statutory interpretation that

we must interpret the statutory phrase as a whole, giving

effect to each word and not interpreting the provision so as to

make other provisions meaningless or superfluous. Boise Cascade Corp. v. United States EPA, 942 F.2d 1427, 1432 (9th

Cir. 1991); see also United States v. Menasche, 348 U.S. 528,

UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB 6779
538-39 (1955). As the government argues, the fact that “contraband” and “other property that it is illegal to possess” are

separated by an “or” signifies that Congress intended them to

mean two separate things. See Prince v. Jacoby, 303 F.3d

1074, 1080 (9th Cir. 2002). Congress’s use of “other” following the “or” also connotes that items besides “contraband”

were contemplated to be exempted from the innocent owner

defense. Deep Sea’s proposed construction, that “property

that it is illegal to possess” has an identical definition to “contraband,” which it defines as contraband per se, contravenes

our duty to give independent meaning to both phrases in the

statute. 

We believe that the phrase “other property that it is illegal

to possess” includes property that becomes illegal to possess

because of extrinsic circumstances. Such a determination

resolves the controversy before us. We do not need to ascertain whether Congress intended “contraband” to refer only to

“contraband per se” because we conclude that, if the government establishes that the crab at issue here is taken, possessed,

transported, or sold in violation of Russian law, it is “other

property that it is illegal to possess.” 

Deep Sea also argues that it is ambiguous whether the crab

here is in fact actually illegal to possess. Deep Sea asserts that

the possession of crab is not in itself illegal. Rather, the crab

at issue is merely tainted by the associated violations of Russian law and the importation of the property into the U.S.,

thereby rendering acquisition of the crab illegal under the

Lacey Act. Accordingly, Deep Sea argues that the crab is not

“property that it is illegal to possess.” 

We disagree. We do not find dispositive the fact that the

government must prove that the crab here is the product of

violations of Russian law in a forfeiture proceeding before it

is determined to be “illegal to possess.” 

Even in the most obvious cases of property that it is illegal

to possess, the government must prove certain elements

6780 UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB
before possession is deemed unlawful. For example, Deep Sea

concedes that certain types of pornography are “generally

understood by the public to be illegal to possess.” We assume

that Deep Sea includes child pornography within this category. However, 18 U.S.C. § 2252 makes possession of child

pornography unlawful only if the depiction is of an actual

minor, and the pornography was transported or shipped in

interstate or foreign commerce. Id. § 2252(a)(1); cf. Ashcroft

v. Free Speech Coalition, 535 U.S. 234, 258 (2002) (holding

that ban on virtual child pornography was unconstitutionally

overbroad because it proscribed speech that was neither child

pornography nor obscene). 

[6] Although we decline to specifically determine which

items are contraband and which items are illegal to possess

because of extrinsic circumstances, it is sufficient to determine that “property that it is illegal to possess” includes items

that may be legally possessed in some circumstances but that

become illegal to possess in others. For example, liquor or

cigarettes that generally may be legally possessed by consumers may become illegal to possess if they fail to bear the

appropriate tax stamps. See, e.g., United States v. Baker, 63

F.3d 1478, 1487 (9th Cir. 1995) (“[u]nder Washington law,

mere possession of unstamped cigarettes, even by an Indian,

is prohibited if the cigarettes are not preapproved for tax

exemption”). 

Under the Lacey Act, it is unlawful for a person to “import,

. . . sell, receive [or] acquire . . . any fish or wildlife taken,

possessed, transported, or sold in violation of . . . any foreign

law.” 16 U.S.C. § 3372(a)(2)(A). As a result, it is clear that

if the government can establish that the crab was received in

violation of § 3372(a)(2)(A), the crab is “property that it is

illegal to possess.” 

[7] Finally, because we hold that the crab in question here

fits within the rubric of “other property that it is illegal to possess,” we need not decide whether “contraband” is limited to

UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB 6781
“contraband per se,” or whether it also includes illegally

imported goods as determined by the district court. We conclude that in wording the CAFRA innocent owner exception

the way it did — especially with its use of “or other” — Congress intended to preclude the assertion of an innocent owner

defense in both items that are inherently illegal to possess and

property that is otherwise illegal to possess because of extrinsic circumstances. Our conclusion is bolstered by a similar

formulation found elsewhere in the statute. See 18 U.S.C.

§ 983(a)(1)(F) (“[t]he Government shall not be required to

return contraband or other property that the person from

whom the property was seized may not legally possess”); see

also Boise Cascade Corp., 942 F.2d at 1432 (interpreting

court should assume that words used more than once in the

same statute have the same meaning). Because the meaning

of “other property that it is illegal to possess” is clear from the

wording of the statute, we need not resort to the legislative

history of CAFRA to ascertain congressional intent. See Whitfield v. United States, 125 S. Ct. 687, 692 (2005). 

IV. CONCLUSION

[8] We hold that Deep Sea may not raise an innocent owner

defense here because, if the government can establish that the

crab was taken, possessed, transported, or sold in a way that

rendered it illegal under Russian law, the crab is “property

that it is illegal to possess” for the purposes of 18 U.S.C.

§ 983(d)(4). It is illegal to posses not because crab is inherently unlawful, but because this particular shipment of crab

allegedly was received and acquired in a way that rendered it

illegal under the Lacey Act, 16 U.S.C. § 3372(a). 

Although the language of CAFRA, 18 U.S.C. § 983(d)(4),

is ambiguous with regard to the definition of contraband, we

need not resolve this issue because if the crab at issue here

was imported, received, or acquired in violation of the Lacey

Act, 16 U.S.C. § 3372(a), it constitutes “property that it is illegal to possess” for purposes of section 18 U.S.C. § 983(d)(4).

6782 UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB
The district court’s order striking Deep Sea’s innocent owner

defense is AFFIRMED. 

UNITED STATES v. 144,774 POUNDS OF BLUE KING CRAB 6783