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No. 05-315

In the Supreme Court of the United States

DEEP SEA FISHERIES, INC. AND DEEP SEA HARVESTER, INC., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

KELLY A. JOHNSON
Acting Assistant Attorney
General

TODD S. AAGAARD
ALLEN M. BRABENDER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether crab taken, possessed, transported, or sold in violation of foreign law, and subsequently imported into the United States in violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq., constitutes "contraband or other property that it is illegal to possess" under the Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. 981 et seq., such that petitioners cannot assert an innocent owner defense to the government's forfeiture action.

In the Supreme Court of the United States

No. 05-315

DEEP SEA FISHERIES, INC. AND DEEP SEA HARVESTER, INC., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-12) is reported at 410 F.3d 1131. The opinion of the district court (Pet. App. 15-21) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 9, 2005. The petition for a writ of certiorari was filed on September 7, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

The United States filed an action seeking forfeiture, under the Lacey Act Amendments of 1981, 16 U.S.C. 3374(a)(1), of frozen blue king crab that was taken, possessed, transported, and sold in violation of the fishing and resource protection laws of the Russian Federation. Pet. App. 51-59. Petitioners filed a statement of interest claiming a property interest in the seized crab, based on a perfected security interest in the catch of the fishing vessels that had illegally harvested the crab. Id. at 16, 65. They raised an affirmative defense, under the "in nocent owner" provision of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 U.S.C. 983(d), that they "did not know that the defendant crab was caught and/or transported in violation of Russian fishing laws." Pet. App. 65. The district court rejected that defense, id. at 15-21, and the court of appeals, on interlocutory appeal under 28 U.S.C. 1292(b), affirmed. Pet. App. 1- 12.

1. The Lacey Act of 1900, ch. 553, 31 Stat. 187, and the Black Bass Act of 1926, ch. 346, 44 Stat. 576, were enacted to curb trafficking in fish and wildlife illegally taken from their state or country of origin. See United States v. McNab, 331 F.3d 1228, 1238 (11th Cir. 2003), cert. denied, 540 U.S. 1177 (2004). By 1981, Congress recognized that those statutes were inadequate to con trol the growing and highly profitable trade in illegal fish and wildlife. See S. Rep. No. 123, 97th Cong., 1st Sess. 1-2 (1981). In response to those insufficiencies, Congress passed the Lacey Act Amendments of 1981. See Pub. L. No. 97-79, 95 Stat. 1073.1

The Lacey Act, as amended, makes it unlawful "to import, export, transport, sell, receive, acquire, or pur chase in interstate or foreign commerce * * * any fish or wildlife taken, possessed, transported, or sold in viola tion of any law or regulation of any State or in violation of any foreign law." 16 U.S.C. 3372(a)(2)(A). A person who knowingly violates that section is subject to crimi nal prosecution. 16 U.S.C. 3373(d).

In addition to criminal penalties, the Lacey Act pro vides for civil penalties, 16 U.S.C. 3373(a), and forfei tures, 16 U.S.C. 3374, to assist in the efforts to combat trade in illegal fish or wildlife. One of the Lacey Act's most effective features, added as part of the 1981 amendments, is the strict liability forfeiture provision of 16 U.S.C. 3374(a)(1). That subsection provides in rele vant part:

All fish or wildlife or plants imported, exported, transported, sold, received, acquired, or purchased contrary to the provisions of section 3372 of this title * * * shall be subject to forfeiture to the United States notwithstanding any culpability re quirements for civil penalty assessment or criminal prosecution included in section 3373 of this title.

16 U.S.C. 3374(a)(1). The government sought forfeiture in this case under that provision.

2. The government's action, like all civil forfeiture actions commenced on or after August 23, 2000, is sub ject to the provisions of CAFRA. See United States v. One Parcel of Real Prop. with Bldgs., Appurtenances and Improvements Known as 45 Claremont St., Located in the City of Central Falls, R.I., 395 F.3d 1, 3 n.2 (1st Cir. 2004). Among other things, CAFRA provides that "[a]n innocent owner's interest in property shall not be forfeited under any civil forfeiture statute." 18 U.S.C. 983(d)(1). CAFRA further provides that "no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to pos sess." 18 U.S.C. 983(d)(4).

3. Petitioners invoked CAFRA's "innocent owner" provisions as an affirmative defense to the forfeiture action. The United States responded that those provi sions were inapplicable here because the seized crab was subject to forfeiture under the Lacey Act as "contra band or other property that it is illegal to possess." The government pointed out that, under the strict liability forfeiture provisions of the Lacey Act, 16 U.S.C. 3374(a) (as illuminated by the legislative history and case law interpreting that Act), fish or wildlife taken, possessed, transported, or sold in violation of foreign law and im ported, transported, sold, received or acquired in inter state or foreign commerce, is treated as contraband. Therefore, if the United States could prove at trial that the seized crab was taken, transported, possessed, or sold in violation of Russian law, it would be contraband under the Lacey Act, preventing the assertion of an in nocent owner defense under CAFRA.

4. The district court granted partial summary judg ment in favor of the United States. Pet. App. 15. The district court found that the seized crab was contraband, thereby precluding petitioners from asserting CAFRA's innocent owner defense upon proof of the alleged viola tions. Id. at 21. The court rejected petitioners' argu ment that "contraband" includes only property that is inherently illegal to possess, reasoning that the "the term 'contraband', as used in CAFRA, includes both goods that are inherently illegal to possess and other wise legal goods that have been imported or exported illegally." Id. at 18. It relied on the common meaning of the term "contraband," as defined in dictionaries and used in prior court cases, as well as the legislative histo ries of both CAFRA and the Lacey Act. Ibid. The dis trict court rejected petitioners' motion for reconsidera tion, but certified its order for interlocutory appeal pur suant to 28 U.S.C. 1292(b). Pet. App. 25.

5. The court of appeals accepted the appeal, Pet. App. 26, and affirmed the district court's order, id. at 12. The court of appeals did not reach the basis on which the district court had resolved the case, but instead relied on the alternate ground that, regardless of whether the seized crab is "contraband," it constitutes "other prop erty that it is illegal to possess." Id. at 9. The court relied on the canon of statutory interpretation that a court shall "interpret the statutory phrase as a whole, giving effect to each word and not interpreting the pro vision so as to make other provisions meaningless or su perfluous." Id. at 8. The court concluded that petition ers' proposed construction, which gave the term "con traband" and the phrase "other property it is illegal to possess" identical meanings, contravened that well-ac cepted principle. Ibid.

The court of appeals explained that Congress's use of the disjunctive term "or" to separate the phrases, and its use of the term "other" to modify the term "prop erty," signified that items besides contraband would be exempted from the innocent owner defense. Pet. App. 8. Because the Lacey Act made it "unlawful for a person to 'import, . . . sell, receive [or] acquire . . . any fish or wildlife taken, possessed, transported, or sold in viola tion of . . . any foreign law,'" the court concluded that the government could establish the crab was "property that it is illegal to possess." Id. at 10.

ARGUMENT

Petitioners challenge the court of appeals' conclusion that they cannot assert an innocent owner defense to the government's forfeiture action. The interlocutory pos ture of this case is a sufficient basis, by itself, to deny the petition for a writ of certiorari. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia, J., concurring). In any event, fish or wild life illegally imported into the United States in violation of the Lacey Act constitutes contraband or, at the very least, "other property it is illegal to possess." CAFRA's innocent owner defense does not apply to forfeitures of such items. In the absence of a conflict, the court of ap peals' correct decision does not warrant further review.

1. This Court's review of the court of appeals' inter locutory decision would be premature at this time. The court of appeals merely affirmed the district court's de cision to strike petitioners' innocent owner defense. Pet. App. 12. The case will be remanded to the district court where the outstanding issues, such as the illegal charac ter of the seized crab, will be adjudicated at trial. The court of appeals' decision will have a practical effect on the disposition of this case only if the district court ulti mately enters a judgment of forfeiture, and the court of appeals affirms that judgment. Petitioners may seek review of the final judgment at that time. See Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 508 n.1 (2001) (per curiam). Deferring review until final judgment will promote judicial efficiency by ensuring that all of petitioners' claims will be consolidated and presented in a single petition to this Court. See Robert L. Stern et al., Supreme Court Practice § 4.18, at 258- 259 n.59 (8th ed. 2002). In the context of this case, no countervailing factor counsels in favor of immediate re view.

2. In any event, petitioners' arguments also fail on the merits. Petitioners contend (Pet. 14) they have a legitimate ownership interest in the seized crab because the exception from the innocent owner defense applies only to contraband per se or, in other words, property it is inherently unlawful to possess. That argument is mis taken.

Petitioners are incorrect in their assertion that "there is nothing remotely illegal about simply possess ing king crab that, at some earlier point (perhaps sev eral links prior in the distribution chain), may have been involved in a violation of a foreign fishing regulation, unless one has knowledge of the violation" (Pet. 7-8). The Lacey Act, by its unambiguous terms, makes it "un lawful for any person * * * to import, export, transport, sell, receive, acquire, or purchase in interstate or for eign commerce * * * any fish or wildlife taken, pos sessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law." 16 U.S.C. 3372(a)(2)(A). That Act therefore makes illegally imported crab an item unlawful to pos sess. See S. Rep. No. 123, 97th Cong., 1st Sess. 13 (1981) (comparing fish and wildlife subject to forfeiture under the Lacey Act to heroin).

Petitioners' argument also fails on its faulty premise that something must be criminal to be unlawful. See Pet. 11-12.2 While it is true that petitioners cannot be criminally prosecuted in the absence of knowledge of the product's improper origin, see 16 U.S.C. 3373(d), posses sion of the product is prohibited by the Lacey Act re gardless of knowledge, see 16 U.S.C. 3372(a)(2)(A).3 The Lacey Act designates a number of prohibited acts. See 16 U.S.C. 3372. The most relevant acts here are the un lawful importation, transportation, receipt, acquisition, or purchase of fish or wildlife illegally taken, possessed, transported, or sold in violation of foreign law. 16 U.S.C. 3372(a)(2)(A). Congress chose a variety of means to enforce the prohibition against such acts: criminal penalties, 16 U.S.C. 3373(d); civil penalties, 16 U.S.C. 3373(a); and forfeiture, 16 U.S.C. 3374. Each enforce ment provision has its own requirements. The fact that the criminal penalties have a knowledge element does not mean that Section 3372(a)(2)(A)'s prohibition or Section 3374's forfeiture provisions require knowledge.

3. Even if fish or wildlife imported and acquired in violation of the Lacey Act were not illegal to possess, such items are subject to forfeiture without regard to CAFRA's innocent owner defense because they are con traband. As the district court found, "[i]n common us age, the word 'contraband' is used to mean illegally im ported goods irrespective of whether the goods are in herently illegal." Pet. App. 18.

The term "contraband" as used in CAFRA must be given its common meaning because Congress did not define it within the statute. See Perrin v. United States, 444 U.S. 37, 42 (1979) (stating that "unless otherwise defined, words will be interpreted as taking their ordi nary, contemporary, common meaning" at the time Con gress enacted the statute). This Court often turns to dictionary definitions for guidance in determining the common usage or ordinary meaning of a term. See, e.g., Smith v. United States, 508 U.S. 223, 228-229 (1994). Here, the dictionary definitions make clear that the term contraband as used in CAFRA encompasses ille gally imported goods such as the seized crab. See Web ster's Third New International Dictionary 494 (1993) (defining contraband as "[i]llegal or prohibited traffic" or "[g]oods or merchandise the importation, exportation, or sometimes possession of which is forbidden"); Black's Law Dictionary 341 (8th ed. 2004) (defining "contraband" as "illegal or prohibited trade; smuggling" or "goods that are unlawful to import, export, or pos sess"); The Random House Dictionary of the English Language 441 (2d ed. 1987) (defining contraband as "anything prohibited by law from being imported or ex ported," "goods imported or exported illegally," or "ille gal or prohibited trade; smuggling"). Those familiar dictionary definitions leave no doubt that contraband, as used in CAFRA, encompasses illegally imported goods.

The courts have consistently understood and treated illegally imported goods as contraband. See, e.g., United States v. Pierce, 224 F.3d 158, 166-167 (2d Cir. 2000) (defining illegally imported cigarettes and liquor as contraband); United States v. Reveles, 190 F.3d 678, 688 n.16 (5th Cir. 1999) ("The shipments, however, easily could have involved other contraband goods such as illegally-imported ceramics."); United States v. Molt, 599 F.2d 1217, 1219 n.1 (3d Cir. 1979) (referring to un lawfully taken and imported foreign wildlife as contra band article); United States v. Approximately 600 Sacks of Green Coffee Beans Seized from Café Rico, Inc., 381 F. Supp. 2d 57, 62 (D.P.R. 2005) ("Because the beans in this case are not from Puerto Rico and have not been properly imported into the country, they are contra band."); United States v. An Antique Platter of Gold, 991 F. Supp. 222, 233 (S.D.N.Y. 1997) ("Goods such as the [antique gold platter] imported in violation of cus toms laws are contraband."), aff'd, 184 F.3d 131 (2nd Cir. 1999), cert. denied, 528 U.S. 1136 (2000); United States v. Proceeds from the Sale of Approximately 15,538 Panulirus Argus Lobster Tails, 834 F. Supp. 385, 391 (S.D. Fla. 1993) (finding lobster tails harvested in violation of foreign law to be contraband). Congress presumably was aware of the courts' longstanding un derstanding and use of the term "contraband" when it enacted CAFRA, see Callanan v. United States, 364 U.S. 587, 594 (1961), and Congress presumably intended the term to have the meaning generally accepted in the legal community at the time of enactment, see Director, Office of Workers' Comp. Programs, Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 275 (1994).4

4. Petitioners contend (Pet. 21-24) that the district court's construction of the term "contraband" will result in inconsistent treatment of goods seized in foreign, as opposed to domestic, commerce. They argue that, under the district court's definition of contraband, fish and wildlife illegally taken in Alaska, for example, could not be contraband because it was never imported into the United States. As the district court noted in its order denying reconsideration (Pet. App. 24), petitioners' ar gument rests on a misunderstanding of that court's rul ing. Nothing in the district court's order suggested that the term "contraband" cannot include fish or wildlife taken in violation of state law. The district court simply stated that contraband includes illegally imported goods; it did not say that the definition was limited to these goods. Moreover, even if the term "contraband," as used by the district court, did not encompass fish and wildlife taken in violation of state law, the exception from the innocent owner defense would nevertheless apply to fish or wildlife taken in violation of state law because the fish or wildlife constitutes "other property it is illegal to possess."

5. Petitioners assert (Pet. 12-13) that the court of appeals overlooked pre-CAFRA case law decided under Federal Rule of Criminal Procedure 41(e) (now codified as Fed. R. Crim. P. 41(g)), which petitioners construe as distinguishing between contraband and property that cannot be legally possessed by the defendant. That as sertion is without merit. The decisions that petitioners cite (Pet. 13) discuss the distinction between contraband per se and derivative contraband, addressing the due process requirement for a hearing before forfeiture of the latter but not the former. See United States v. Felici, 208 F.3d 667, 670 (8th Cir. 2000), cert. denied, 531 U.S. 1201 (2001); United States v. Farrell, 606 F.2d 1341, 1344 (D.C. Cir. 1979); Gilbert v. United States, 291 F.2d 586, 595-596 (9th Cir. 1961), vacated on other grounds, 370 U.S. 650 (1962). There is no question about the adequacy of the process petitioners received. The decisions petitioners cite are neither controlling nor helpful in determining the issue in this case.

6. Petitioners speculate (Pet. 6) that the court of ap peals' decision places the seafood industry in a less ad vantageous position in relation to forfeiture than any other industry. This disadvantage, petitioners suggest (Pet. 24-26), will lead to higher prices for consumers. Petitioners' fears of an industry-wide behavioral shift and consumer price increases are unfounded. The court's decision, which merely applied the plain terms of a 24-year-old congressional enactment, did not impose new obligations on the seafood industry. The court of appeals' decision, which does not conflict with any deci sion of another court of appeals, is therefore unlikely to have any adverse effect on industry behavior or con sumer prices.

CONCLUSION

The petition for a writ of certiorari should be de nied.

Respectfully submitted.

 

 

 

PAUL D. CLEMENT
Solicitor General

KELLY A. JOHNSON
Acting Assistant Attorney
General

TODD S. AAGAARD
ALLEN M. BRABENDER
Attorneys

NOVEMBER 2005

1 In addition to strengthening the statutes' enforcement mechanisms, the Lacey Act Amendments of 1981 combined the Lacey Act of 1900 and Black Bass Act of 1926 into one cohesive statute. McNab, 331 F.3d at 1238 n.19.

2 The fact that the district court arranged for the sale of the crab to a third party purchaser also does not, as petitioners contend (Pet. 12), establish the seized crab could be legally possessed. Rather, this sale reflects the district court's concern for a valuable perishable commodity whose character as contraband was cured through judicial action. There is nothing remarkable or unique about the judicial sale of such merchandise.

3 In this regard, the seized crab is similar to cigarettes not bearing appropriate tax stamps. It is not necessarily criminal to possess unstamped cigarettes, but a police officer is nonetheless authorized to seize them as contraband. See, e.g., N.Y. Tax Law § 1846 (McKinney 2004) (authorizing the seizure of cigarettes not bearing the appropriate tax stamps); Wash. Rev. Code § 82.24.130(1)(a) (2005) (same).

4 Because common usage demonstrates that the term "contraband" unambiguously applies to illegally imported goods, the Court need not delve into the legislative history. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) ("Our inquiry must cease if the statutory language is unambiguous and 'the statutory scheme is coherent and consistent.'") (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).