The Lacey and Black Bass Acts make it illegal to import or otherwise trade in wildlife taken, transported, or sold in violation of State or foreign laws.

Senator CHAFEE. Mr. Moorman, we have a time problem here. I would ask you to summarize your testimony if you would. Just move through it a little swifter, because we have five witnesses on this panel and two after you. So, if you could move a little quicker, I would appreciate it. Go ahead.

Mr. MOORMAN. Since the State and foreign laws regulate trade, the Lacey and Black Bass Acts are in many ways our most important wildlife protection laws. And they are the laws most frequently violated by traffickers in wildlife.

The current Lacey Act includes civil liability penalities for knowing violations and for violations involving a lack of due care. It also includes a criminal penalty for knowing and willful violations, which most courts have interpreted as a specific intent violation. By "specific intent" I mean that the defendant must have had specific knowledge that he violated the Lacey Act itself, as well as the foreign law picked up by the Lacey Act.

Senator CHAFEE. Is that a standard that is much stiffer than many of the criminal acts you enforce?

Mr. MOORMAN. Absolutely. It's very unusual that you have such a thing.

The amendments add to this structure a strict liability forfeiture provision and a strict liability civil penalty. The amendments also increase both the civil penalty applicable when a person fails to exercise due care, and the criminal penalty when a person commits a knowing violation of the act. As a consequence of the amendments, the Lacey Act penalty scheme would be very similar to that presently in effect under the Endangered Species Act.

With strict liability, under the current act, a violater does not have to forfeit his illegal shipment unless the Government can prove he knowingly violated the Lacey Act or failed to exercise due care. The proposed strict liability forfeiture section of the amendments would allow us to protect various species from harmful illegal trade by withdrawing illegal shipments from the marketplace even when the violation itself is inadvertent. Under the proposed strict liability civil penalty section a judge would be able to impose a fine of up to $500 upon a technical violator. The proposed penalty provision's flexibility and the low limit of the fine adequately protect citizens who unwittingly violate the law. At the same time these sections of the law provide the incentive to know the law.

Speaking of due care penalties: In addition to including a strict liability civil penalty, the amendments increase the due care civil penalty for failure to exercise due care in importing, exporting, transporting, acquiring, or otherwise handling wildlife in violation of the act. The penalty would be increased from $5,000 to $10,000 per violation, but would make no other change in the current act's due care provision.

Senator CHAFEE. What do you think about increasing that civil penalty from $500 on the strict liability?

Mr. MOORMAN. I think that's unnecessary. That's a new provision in the act which is designed to pick up

Senator CHAFEE. The tourist that is coming through with something Mr. MOORMAN. Well, it will be exercised with discretion, of course. and the "unaware," if you will, tourist, will probably only suffer forfeiture-no fine at all. But I think we ought to have some practice with strict liability penalty for a while before we decide to increase it further. After all, we will increase the criminal penalty to $20,000, due care civil penalty to $10,000, plus we are proposing a strict liability forfeiture provision, and I think that it is perfectly all right to ride with $500 on strict liability penalty for a while to see how that works!

out.

Actually, I don't think that will be nearly as important as the forfeiture provision, which is also strict liability.

Turning to the criminal provisions, the proposed amendments increase the status of criminal violations of the Lacey Act from that of a misdemeanor to that of a felony, which it does by increasing the possible sentence to 5 years and the penalty to $20,000. This revision is necessitated by the fact that violations of the Lacey Act are now being committed by large scale commercial dealers involved in significant criminality that would normally be considered felonies in other contexts.

The amendments also bring the culpability standard into line with most other criminal laws by changing what was in effect a double specific intent standard to a single specific intent standard. In other words, it will no longer be necessary for the Government to prove that a person knew of the existence of the Lacey Act itself, as well. as the foreign or State law that was violated. Under the amendments, the Government will have to prove only that the person knew his activities were illegal under foreign or State law. Specifically, the Government will still be required to prove that: (1) The wildlife was taken in country A; (2) country A forbids the taking of wildlife; (3) the defendant knew country A forbids the taking of the wildlife; and (4) the defendant nevertheless imported the wildlife into the United States.

Senator CHAFEE. Pretty tough standard right there.

Mr. MOORMAN. I think it's pretty tough. It's for criminal sanction. I think that it is actually less tough than what we now face, but it's adequate to protect defendants.

Senator CHAFEE. What about the situation that the prior witness told about where some came out of Singapore, and yet the animal originated in Thailand, and Thailand forbids the export of such an animal whereas Singapore didn't.

Mr. MOORMAN. I believe that would be caught by the Lacey Act as illegal, because the act refers to the country of origin, natal origin. By "natal," I assume it means the place where it was born.

Senator CHAFEE. What about the argument that the pet industry raised in the House that we're delegating legislative power to a foreign state?

Mr. MOORMAN. Well, we're not actually doing that. What we're doing is, in a sense, assimilating their legal provisions into our criminal code and this is a procedure that we have used often. They claim it's unconstitutional delegation, but they have no leg to stand on in that regard. The court decisions have upheld the Lacey Act.

Mr. MELLON. Mr. Chairman, there is a recent opinion from the U.S. Court of Appeals, Third Circuit, directly addressing that issue. The Court of Appeals of the Third Circuit has found that the unconstitutional delegation argument is "patently frivolous."

Senator CHAFEE. All right, Mr. Moorman, anything else?

Mr. MOORMAN. The rest of my testimony can be entered into the record, Senator.

Senator CHAFEE. Mr. Moorman, in my opening comments I pointed out that there were 584 convictions in 1977. The fines totaled over $31,000, an average of $54 a person, and jail sentences amounted to 2,000 days. All the rest got away. Even with the tools we have at hand, when we do get convictions the sentences are always suspended even in the light of these horrendous examples that have been cited here in this testimony.

Mr. MOORMAN. I think that as far as the court prosecutions of these cases are concerned, with a few minor examples, I have to say that I think we have not adequately enforced this act and that was one of the reasons why we have established the new wildlife section in my division.

Senator CHAFEE. But setting that aside, we're talking about the convictions you get.

Mr. MOORMAN. Judges have a tendency to give the same degree of importance to the violations that society in general does. A violation of the Lacey Act is presently a misdemeanor. Until very recently, the Justice Department did not make this a particularly high priority. There were a lot of signals out there to the courts that this was a fairly low-level priority matter. I think that judges will very quickly understand that this is considered more serious business now, especially with these amendments.

For example, I think these amendments will be a signal to the courts from the Congress that this is to be taken seriously. So, I think the fact that these amendments are passed will be noted by the courts, and they will realize that the priority that they have been giving to this, just as the Justice Department has, has been too low. I think it will have an effect on enforcement.

Senator CHAFEE. You're saying that if we up the penalties and make it easier to get the prosecutions, make it a criminal offense, that would show the courts that we are more serious about this whole business?

Mr. MOORMAN. Absolutely. And the fact also that the Attorney General in Washington has organized a specialized, centralized unit giving support to the U.S. attorneys, and a whole number of things like this, will all come together indicating to the courts that this is a high priority business.

Senator CHAFEE. All right. Fine.

Mr. Mellon.

Mr. MELLON. Senator, with regard to your last question, and answer by Mr. Moorman: As a practical matter, the 97 U.S. attorneys' offices in the United States have very limited resources and, as a practical matter, they expend those resources on areas which will have a maximum effect in the local jurisdiction. Most local jurisdictions, like the Eastern District of Pennsylvania, don't think of international wildlife trading as being a very serious matter. So, your first concern with regard to the enforcement of the Lacey Act heretofore is that there

is not a high level of sensitivity. I think the President's directive August 2, 1979, might change that; both in the community at larg and second, and most importantly, in our law enforcement communit Senator CHAFEE. In one of the statements I read there was referen made to somebody who had been trafficking, got a conviction; he w let off on probation. He was arrested again before his probation peric was up, got another conviction, and I think that time he got 6 month in jail. Was that your statement?

Mr. MELLON. I believe that was Mr. Greenwalt's testimony. B the facts of that sort are rather common in this area, because as had just mentioned, there's little or no sensitivity on the part of th law enforcement and judicial community as to the very serious nature of this crime.

In addition to the sensitivity question, there is, as Mr. Moorma just said, a very serious problem of limited resources in the US attorneys' offices. Frankly, we don't prosecute and we don't give much attention to misdemeanors if Congress doesn't mandate some thing to be the level of a felony.

Senator CHAFEE. Why should we bother if Congress doesn't mandate it? Why should you bother?

Mr. MELLON. That's essentially and sadly correct.

And lastly, with the amendment now before the Senate, if we choose to bother ourselves, and basically we don't, if but we choose to the burden of proof here, which is a double specific intent standard, would be very, very difficult to prove.

Senator CHAFEE. What do you think of the changes in the burden of proof from having to knowingly violate, having known of the Lacey Act-that's been removed now.

Mr. MELLON. Being familiar with the Lacey Act as I am, and being familiar with the proposed changes as I am, I can assure the Senate that it would facilitate more vigorous prosecutions in this area. I can at the same time say the way the act is now drafted, vigorous prosecutions are very, very difficult, almost impossible.

Senate CHAFEE. All right. Go ahead with your testimony. Have you submitted something. You've got some slides.

Mr. MELLON. I believe the Customs services' presentation will entail the slides. I will, however, give a little color and background. Senator CHAFEE. Well, you're next up. Have you finished?

Mr. MELLON. Yes. I have finished. I adopt wholeheartedly the testimony of Mr. Moorman.

Senator CHAFEE. All right. Who's next?

Mr. Bavin.

STATEMENT OF CLARK R. BAVIN

Mr. BAVIN. Thank you. I have been involved in the wildlife law enforcement business for 15 years. I started out with the U.S. Fish and Wildlife Service as a field officer and for the past 7 years, have been chief of the Division of Law Enforcement during that period of time. I have witnessed first hand both in the field and in the headquarters office the frustration experienced by our officers in attempts to enforce the Lacey and Black Bass Acts. Mr. Greenwalt has presented the official testimony of the Fish and Wildlife Service and

Department of the Interior and I'm here to answer any questions. that you might have, specific questions in the enforcement area. Senator CHAFEE. Go ahead.

Mr. BAVIN. I would say I might address the issue raised by Mr. Heymann regarding the demanding of the production of the foreign documents. If you would look at page 9, line 5 of the bill, we believe this issue is now properly covered in the amendment that we're proposing.

Senator CHAFEE. All right. Mr. Heymann raised three points in his testimony. One was the strict raising of the $500 to $1,000 fine. That was just covered by Mr. Moorman. He thought we're getting into new territory here, so just stick with the $1,000. Do you agree on that, stick to the $500?

Mr. BAVIN. Yes, I do, sir. That's the same penalty level.

Senator CHAFEE. OK. The documentation question you have just answered. Is the Lacey Act under the inhumane section? It talks about substantial ratio. What do you think of that? Mr. Heymann thought that was too stiff.

Mr. BAVIN. Senator, that's in section 42 of the Lacey Act which has its own penalty provisions. We're not suggesting in our proposed amendment to change that section of the bill at all, and I'm really not prepared to address that particular question raised in terms of those standards.

Senator CHAFEE. Have you in you experience, ever dealt with, and I would like to ask this of Mr. Mellon too, have you attempted to prosecute under this section?

Mr. MELLON. Section 42?

Senator CHAFEE. The section dealing with the inhumane aspects. Mr. MELLON. No, Senator, we have not. We have found that using section 43, the sale, transportation and receipt of protected or endangered wildlife to be a much more effective section, the injurious section. We've had no experience with any in Philadelphia, and frankly, I'm not familiar with any cases that have been made recently. Senator CHAFEE. It would seem to me that there would be a high incentive on the part of the people who are doing this illegally to take care of the product so they would have more when they got there, but it doesn't seem to be true. It certainly wasn't true in slave trade either.

Mr. MELLON. Senator, that's not entirely correct. The mortality rate here is somewhere between 75 and 90 percent.

Senator CHAFEE. Mortality?

Mr. MELLON. Mortality; from the country of origin to the wholesale dealer. However, generally, what you pick up on, what you investigate, what you prosecute are those specimens that they have in their shops where they sell to undercover agents, where they sell to zoos. And generally, those specimens are in great shape; and again, the specimens that have died, the attrition simply cannot be determined with sufficient accuracy given the burden of proof to be brought to a criminal trial. You may have knowledge of it, but you can't prosecute them under section 42.

Senator CHAFEE. All right. Now, what about extending this law to plants? Ms. Duplaix suggested that. I thought that was getting into a big new area. What do you think of that, Mr. Moorman?