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



 1                           UNITED STATES COURT OF APPEALS
 2                               FOR THE SECOND CIRCUIT
 3
 4                                  _______________
 5
 6                                 August Term, 2006
 7
 8     (Argued December 5, 2006                    Decided August 23, 2007)
 9
10                               Docket No. 06-0607-cr
11
12                                  _______________
13
14                             United States of America,
15
16                                                    Appellee,
17
18                                         v.
19
20                      Thomas Cullen, aka Thomas J.V. Cullen,
21
22                                                    Defendant-Appellant.
23
24                                  _______________
25
26   Before:
27                         CARDAMONE, STRAUB, Circuit Judges,
28                            and KOELTL*, District Judge.
29
30                                  _______________
31
32        Defendant Thomas Cullen appeals from a judgment of
33   conviction entered in the United States District Court for the
34   Southern District of New York (McMahon, J.) on February 2, 2006,
35   following a jury trial. Cullen was convicted of knowingly
36   importing exotic birds into the United States in violation of the
37   Wild Bird Conservation Act and of filing false applications
38   relating to the importation with the United States Fish and
39   Wildlife Service.
40
41             Affirmed.
42
43                                  _______________
44
45
46
47   _______________
48
49   *         Hon. John G. Koeltl, United States District Court for the
50             Southern District of New York, sitting by designation.
 1                            _______________
 2
 3   PETER R. GINSBERG, Law Office of Peter R. Ginsberg, P.C., New
 4        York, New York, for Defendant-Appellant.
 5
 6   JESSE M. FURMAN, Assistant United States Attorney, New York, New
 7        York (Michael J. Garcia, United States Attorney, Stephen J.
 8        Ritchin, John M. Hillebrecht, Assistant United States
 9        Attorneys, Southern District of New York, New York, New
10        York, of counsel), for Appellee.
11
12                            _______________
1    CARDAMONE, Circuit Judge:

2         We have before us a case that is unusual in several

3    respects.    In the first place, defendant was prosecuted,

4    convicted and sentenced under the Wild Bird Conservation Act of

5    1992 (Wild Bird Act or Act), 16 U.S.C. § 4901 et seq., a federal

6    statute that includes civil and criminal penalties.      There have

7    been very few, if any, previous prosecutions for violations of

8    the Act's criminal penalties.    Second, the defendant Thomas

9    Cullen (defendant or appellant), an enigmatic and colorful

10   figure, whose home is in Goshen, New York, is an internationally

11   known professional falconer.    He was hired at one time by the

12   City of New York to bring bald eagles back to Inwood Hill Park in

13   Manhattan.   Yet, defendant also has a history of questionable

14   activity involving exotic birds.       Third, defendant was charged

15   with illegally importing Black Sparrowhawks.      Judicial opinions

16   often characterize an odd provision of the law or an ingenious

17   argument of counsel as a "rare bird" (rara avis).       But in this

18   case we have before us as the subject matter literally a rara

19   avis in terris or a rare bird on the earth.

20        The rare bird which is the subject of this litigation is the

21   Black Sparrowhawk.   The Black Sparrowhawk is an African bird that

22   for the most part lives in the southeastern corner of the African

23   continent.   Its length ranges from 18 to 23 inches; it has a

24   black head and black upperparts, white underparts, yellow legs,

25   and a silver-grey tail.    The Black Sparrowhawk eats mainly other

26   birds (mostly doves), although it has been known to devour on

                                        2
1    occasion small mammals and snakes.    It is usually silent and

2    unobtrusive except when it is breeding.    For the most part, this

3    bird stays inside the cover of trees, only soaring sometimes in

4    the sky.   See Gordon Lindsay Maclean, Roberts' Birds of Southern

5    Africa 138 (6th ed. 1993).

6         Thomas Cullen appeals from a judgment of conviction entered

7    February 2, 2006 in the United States District Court for the

8    Southern District of New York (McMahon, J.) following a jury

9    trial.   Defendant was convicted of knowingly importing exotic

10   birds into the United States in violation of the Wild Bird Act

11   and of making false statements relating to such importation with

12   the United States Fish and Wildlife Service (Wildlife Service) in

13   violation of 18 U.S.C. §§ 1001 and 1002.   Cullen challenges his

14   conviction on the grounds that:   (1) the Wild Bird Act does not

15   apply to captive-bred birds; (2) the Act is unconstitutionally

16   vague because it does not define the term personal pet; and (3)

17   the jury instruction given by the trial court was incorrect.

18   Because those challenges are all without merit, we affirm.

19                                BACKGROUND

20                 A.   Statutory and Regulatory Background

21        A total of 21 nations including the United States in 1973

22   signed the Convention on International Trade in Endangered

23   Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087,

24   993 U.N.T.S. 243 (CITES or Convention).    The Convention's purpose

25   is to regulate the trade of endangered plants and animals.    It

26   contains three appendices that list the species subject to its

                                       3
1    regulations.   Over the years the appendices have grown steadily

2    and more than 5,000 species of animals, including nearly 1,700

3    species of birds, are currently listed in one or another of the

4    appendices.    See Discover CITES, http://www.cites.org/eng/disc/

5    species.shtml (last visited July 13, 2007).    Among the species of

6    birds listed are accipiter melanoleucus, the Black Sparrowhawk,

7    and falco cherrug, the Saker falcon.     See Checklist of CITES

8    Species, http://www.cites.org/common/resources/2003_CITES_

9    CheckList.pdf.   The Black Sparrowhawk has been listed since 1979

10   and the Saker falcon has been listed since 1975.

11        To promote the conservation of exotic birds Congress passed

12   the Wild Bird Act, which prohibits the importation into the

13   United States of any exotic bird of a species listed in any of

14   CITES' three appendices.    See 16 U.S.C. § 4904(c).   Thus, it

15   ordinarily violates the Wild Bird Act to import Black

16   Sparrowhawks or Saker falcons into the United States.    Violations

17   may carry civil or criminal penalties.    16 U.S.C. § 4912.    The

18   Act provides, however, that the Secretary of the Interior may

19   authorize importation of a species listed in a CITES appendix if

20   (1) such importation is not detrimental to the survival of the

21   species, and (2) the bird is being imported exclusively for any

22   of four enumerated purposes.   16 U.S.C. § 4911.   These four

23   purposes are scientific research; personally owned pets of a

24   person returning to the United States after being out of the

25   country for at least one year; zoological breeding or display

26   programs; and certain cooperative breeding programs.     Id.

                                       4
1    Pursuant to these provisions, the Secretary of the Interior has

2    promulgated detailed regulations that require a party seeking to

3    import an exotic bird pursuant to one of the exceptions to submit

4    an application to the Wildlife Service demonstrating compliance

5    with the statutory and regulatory requirements.     50 C.F.R.

6    §§ 15.21-.26.   Once obtained a permit is neither transferrable

7    nor assignable.   50 C.F.R. § 13.25.

8                      B.   Defendant Cullen's Actions

9         Cullen is New York's "acknowledged expert on birds of prey"

10   and an internationally known and respected falconer.     David

11   Kocieniewski, City Eagle Expert Has Past Littered with Illegal

12   Exotic Birds, N.Y. Times, Apr. 17, 2005, § 1, at 33.     He claimed

13   he once owned the largest private collection of birds of prey

14   anywhere in this country and, at the time of his 2005 trial for

15   violation of the Wild Bird Act, Cullen owned 47 birds of prey

16   that he maintained at his home in Goshen, New York.

17        In 1999 there was only one living Black Sparrowhawk in

18   captivity anywhere in North America.   It was not owned by

19   defendant.   It seems Cullen wanted to add Black Sparrowhawks to

20   his collection of exotic birds, but he could not fit himself

21   within any of the specified exceptions to the Act's ban on their

22   importation into the United States.    That is, he had not been

23   away from the United States for more than a year, so he could not

24   come within the personally owned pet exception; he was conducting

25   no scientific research, nor was he involved in zoological

26   breeding or display programs; and he was not engaging in

                                      5
1    cooperative breeding programs under the auspices of "an

2    avicultural, conservation, or zoological organization."        See 16

3    U.S.C. § 4911.    In other words, there was no legal avenue for

4    Cullen to follow to add Black Sparrowhawks from outside the

5    United States to his collection of exotic birds.

6            Joseph and Kristen Kulak were Americans living abroad in

7    England in 1999.    They had each been abroad for more than a year.

8    Were the Kulaks suddenly to decide to buy exotic birds as their

9    personally owned pets, they would each qualify for the Wild Bird

10   Act's personal pet exception.     It turned out that Joseph Kulak

11   worked for Cullen's wife in a large American insurance business

12   with a branch in London.     The Kulaks had no interest in Black

13   Sparrowhawks and no background training or experience in handling

14   them.    Nonetheless, on October 27, 1999 Cullen mailed to the

15   Wildlife Service applications signed by Joseph and Kristen Kulak

16   indicating the Kulaks' desire to import into the United States

17   three Black Sparrowhawks as their personally owned pets.

18   Defendant also submitted to the Wildlife Service a receipt of

19   purchase indicating the three Sparrowhawks had been sold to the

20   Kulaks.    According to the applications, two of the birds were

21   Joseph Kulak's pets, while the third was Kristen Kulak's pet.       In

22   November 1999 the importation permits were granted.

23           Joseph Kulak's two pet Sparrowhawks (the third bird,

24   ostensibly Kristen Kulak's pet, died in transit) arrived in the

25   United States on January 6, 2000 from the United Kingdom.       Cullen

26   paid the purchase price for the birds that amounted to 500

                                        6
1    English pounds sterling apiece.    On June 10, 1999 when the birds

2    were sold in England, 500 English pounds sterling was the

3    equivalent of $800.10.     See http://federalreserve.gov/releases/

4    h10/19990614/ (exchange rate of $1.6002/pound on June 10).

5    Defendant made and paid for all the travel arrangements for the

6    birds from England to the United States.

7         Upon the birds' arrival in this country, Cullen went to the

8    airport to pick them up.    Ann Marie Holmes, the Wildlife Service

9    Inspector at JFK Airport, doubted defendant's story that he was

10   just picking up Kulak's birds on Kulak's behalf since Kulak was,

11   after all, still living in England.    As a result of her doubts

12   she refused to turn the birds over to Cullen.    She quarantined

13   them in a facility run by the Department of Agriculture where,

14   unfortunately, another one of the birds died.    Subsequently, the

15   one living Sparrowhawk was turned over to the Wildlife Service

16   pending an investigation into whether or not the bird had been

17   legally imported into the United States.

18        Meanwhile, Joseph Kulak had submitted an affidavit to the

19   Wildlife Service reaffirming that the Sparrowhawk was his

20   personal pet.   Thus, in August 2000 the Sparrowhawk was released

21   to Cullen with instructions that he return it to Kulak.    Instead

22   of turning the male bird over to Kulak, Cullen loaned it to Craig

23   Culver, a breeder in California who owned North America's other

24   Black Sparrowhawk, a female.    Culver and Cullen entered into two

25   "breeding loan agreements" that divvied up any future offspring.

26   Neither of these agreements acknowledged that Kulak was the owner

                                        7
1    of the male Sparrowhawk.    In the end, the breeding was

2    unsuccessful, and the male Sparrowhawk was returned to Cullen in

3    New York.

4                           C.   Prior Proceedings

5         On October 25, 2004 Cullen was charged with filing false

6    statements to the Wildlife Service relating to the Black

7    Sparrowhawks, and on January 3, 2005 a charge that he imported

8    the Black Sparrowhawks in violation of the Wild Bird Act was

9    added to the indictment.    Cullen was also charged with importing

10   into the United States a number of Saker falcons in violation of

11   the Act.

12        Defendant filed a motion on February 4, 2005 to dismiss the

13   charges under the Act arguing that it only covers birds born in

14   the wild and only applies to importations for commercial

15   purposes.   Defendant also claimed that the Wild Bird Act is

16   unconstitutionally vague because it provides no definition of the

17   term "personally owned pet."    Finally, Cullen declared he was

18   entitled to a bill of particulars with regard to the various

19   charges against him.   The district court denied all of Cullen's

20   motions.

21        Trial began in September 2005.    Joseph Kulak testified for

22   the government pursuant to a non-prosecution agreement.

23   According to Kulak, Cullen had asked him if he and his wife would

24   be willing to import birds to the United States for Cullen, and

25   Kulak agreed.   Kulak explained that Cullen paid all costs

26   associated with the purchase and importation of the Sparrowhawks

                                       8
1    and that all Kulak did was forward documents relating to their

2    importation to certain persons as directed by Cullen.    Kulak

3    testified that the Sparrowhawks were not his personally owned

4    pets, despite his signature on the Wildlife Service application

5    attesting that they were.    He concluded by stating that he signed

6    the application as a personal favor to Cullen and his wife.

7    Kristen Kulak testified similarly.     Defendant took the stand in

8    his own defense, and though he admitted he paid for, took care

9    of, and made all the arrangements for the birds, he insisted he

10   did this as a favor to Kulak.

11        The jury returned a guilty verdict on both counts relating

12   to the Black Sparrowhawks, but acquitted defendant of the charge

13   relating to the importation of the Saker falcons.    On January 26,

14   2006 Cullen was sentenced to four months imprisonment, three

15   years supervised release, a $1,000 fine, and a special assessment

16   of $200.   Judge McMahon refused to grant Cullen's request that

17   the sentence be stayed pending appeal.     On February 1, 2006

18   Cullen timely filed a notice of appeal.

19                                 DISCUSSION

20                          I    Standard of Review

21        We review de novo challenges to the meaning and

22   constitutionality of statutes and the propriety of jury

23   instructions.   United States v. Giordano, 442 F.3d 30, 38-39 (2d

24   Cir. 2006), cert. denied, 127 S. Ct. 1253 (2007).




                                        9
1        II   Captive-Bred Birds and the Wild Bird Conservation Act

2         The Wild Bird Act's importation ban applies to "any exotic

3    bird of a species that is listed" in an appendix to CITES.        16

4    U.S.C. § 4904(c); see also id. § 4903(2) (defining "exotic bird"

5    as "any live or dead member of the class Aves that is not

6    indigenous to the 50 States or the District of Columbia").

7    Cullen argues that the statute's title and legislative history

8    suggest that Congress was primarily interested in conserving

9    birds in the wild when it passed the Wild Bird Act, and thus the

10   Act does not prohibit the importation of captive-bred birds such

11   as the Sparrowhawks that he imported.     Yet, nothing in the

12   language of the statute itself supports Cullen's assertion.

13   Quite the contrary -- the statute provides that any exotic bird

14   listed in the appendices to CITES is covered, with no limiting

15   language as to where or how an exotic bird is bred.     The word

16   "any" means "without restriction or limitation."      Tambe v. Bowen,

17   839 F.2d 108, 110 (2d Cir. 1988).      Further, a Wild Bird Act

18   provision mandating the Secretary of the Interior to exempt

19   selected captive-bred species from the Act's prohibitions on

20   importation, see 16 U.S.C. § 4905(b), conclusively demonstrates

21   that Congress aimed to have all other captive-bred species, like

22   the Black Sparrowhawk, covered under the Act.     Otherwise this

23   exemption would be meaningless.

24        When statutory language is unambiguous, as the pertinent

25   language in this Act is, we need not look to its title or history

26   to determine its meaning.   See, e.g., Conn. Nat'l Bank v.

                                       10
1    Germain, 503 U.S. 249, 253-54 (1992); see also Collazos v. United

2    States, 368 F.3d 190, 196 (2d Cir. 2004) ("While a title may be a

3    useful tool[] . . . for the resolution of a doubt about the

4    meaning of a statute, a title . . . cannot limit the plain

5    meaning of unambiguous text.").     Like a book by its cover, this

6    statute should not be judged by its title.

7                       III   The Personal Pet Exception

8         Cullen also complains that the Wild Bird Act lacks a

9    definition for the term "personally owned pet."       According to

10   appellant, this term is so vague that it would be unfair to

11   punish him for his actions, since he reasonably thought his

12   actions would fit within the personal pet exception.       We analyze

13   this argument in more detail.

14        As the Supreme Court teaches, even if it is unlikely that a

15   person planning to violate a law will search out its text before

16   acting, "fair warning should be given to the world in language

17   that the common world will understand, of what the law intends to

18   do if a certain line is passed."        McBoyle v. United States, 283

19   U.S. 25, 27 (1931) (Holmes, J.).        For the warning to be fair "the

20   line should be clear."     Id.   The fair warning requirement appears

21   in various different legal doctrines, two of which are raised by

22   Cullen:    void for vagueness and the canon of strict construction

23   of criminal laws, which resolves ambiguities under a rule of

24   lenity, so that a statute applies only to conduct clearly

25   covered.    United States v. Lanier, 520 U.S. 259, 266 (1997).



                                        11
1                           A.   Void for Vagueness

2         There are two distinct parts to any void for vagueness

3    analysis.   The fair warning requirement noted earlier ensures

4    that a penal statute defines criminal conduct precisely enough

5    that ordinary people can comprehend what conduct is proscribed.

6    See Kolender v. Lawson, 461 U.S. 352, 357 (1983).   Although we

7    recognize in many English words there lurk uncertainties, see

8    Rose v. Locke, 423 U.S. 48, 50 (1975) (per curiam), to meet the

9    fair warning prong an ounce of common sense is worth more than an

10   800-page dictionary.   The second, more important aspect of the

11   void for vagueness doctrine requires that a statute "establish

12   minimal guidelines to govern law enforcement" so that police,

13   prosecutors and juries may not pursue their own personal

14   preferences.   Kolender, 461 U.S. at 358.

15        Focusing on the case at hand "personal" and "pet" are words

16   that are comprehensible to an ordinary person.   The common

17   meanings of these words, coupled with the Wild Bird Act's

18   explicit provisions as to who qualifies for the personal pet

19   exception, gave adequate notice to defendant that the activities

20   he was planning did not fit within the pet exception.   An

21   ordinary person would realize that an exception to the import ban

22   for personally owned pets of repatriating Americans would not

23   apply if a person living in the United States asked an American

24   living abroad to pretend that birds being imported belonged to

25   the person living abroad.    And the Act's provisions detailing who

26   qualifies for the personal pet exception establish more than

                                       12
1    minimal guidelines to govern those charged with the Act's

2    enforcement.

3                                B.   Rule of Lenity

4         The rule of lenity, which appellant presses on this appeal,

5    only comes into play when a court after looking at all aids to

6    legislative meaning can do no more than "guess as to what

7    Congress intended."     Muscarello v. United States, 524 U.S. 125,

8    138 (1998).    To invoke lenity there must be grievous ambiguity in

9    a statute.     Id. at 138-39.    Such may not reasonably be said to be

10   the case with this statute.

11                          IV    The Jury Instruction

12        Appellant's next contention is that the trial court erred by

13   instructing the jury that the government had to prove "the bird

14   was not imported exclusively for the purpose stated in the import

15   permit."   He maintains the district judge misinterpreted the Act

16   as allowing importation only if the applicant relied exclusively

17   on one -- and not more than one -- of the enumerated purposes.

18   According to Cullen, the interpretation matters to his case

19   because he had made known to the Wildlife Service that he

20   intended to import the birds not only as personal pets but also

21   for breeding.    The relevant statutory language is as follows:

22   "[T]he Secretary may . . . authorize the importation of a bird of

23   the species if the Secretary determines that such importation is

24   not detrimental to the survival of the species and the bird is

25   being imported exclusively for any of the following purposes[.]"

26   16 U.S.C. § 4911 (emphasis added).        The statute then specifies

                                          13
1    the four exceptions already noted:     scientific research;

2    personally owned pets of a person returning to the United States

3    after being out of the country for at least a year; zoological

4    breeding or display programs; and certain cooperative breeding

5    programs.    Id.

6         We do not need to resolve whether Cullen is correct that the

7    district judge should have instructed the jury that the

8    government was required to prove the bird was not imported for

9    one or more statutory purposes.    The error, if there was one, was

10   harmless because the only exception listed in § 4911 that could

11   even arguably have applied to Cullen was the personal pet

12   exception.   Appellant makes much of the fact that he intended to

13   breed the birds, but there is no generalized breeding exception

14   set out in the Act.   Instead, there are specific exceptions for

15   zoological breeding or display programs and for cooperative

16   breeding programs under the auspices of an avicultural,

17   conservation, or zoological organization.     See 16 U.S.C. § 4911.

18   Appellant has never claimed that he was engaged in zoological

19   breeding or display programs, nor has he averred that he manages

20   a cooperative breeding program under the auspices of an

21   avicultural, conservation, or zoological organization.

22   Consequently, whether or not one could be convicted under the

23   Wild Bird Act for importing a bird for a set of dual purposes

24   both covered by § 4911's exceptions is irrelevant in this case.

25   Judge McMahon's instruction to the jury that it inquire into

26   whether the Black Sparrowhawks were imported exclusively for the

                                       14
1    purpose stated in the import permit was correct or at worst

2    harmless error.

3                             V   Other Claims

4         Cullen insists that if his stated dual purpose ran afoul of

5    the Act, then the government should have rejected his application

6    for an importation permit.   Thus, appellant's contention seems to

7    be that having issued the permit with full awareness of

8    defendant's plans, the government should not now be allowed to

9    turn around and later prosecute him for taking the very steps to

10   carry out his plans that it had earlier approved.    This argument

11   is disingenuous because appellant made material

12   misrepresentations in the importation application and made false

13   statements regarding the ownership of the birds.    Had the

14   government been fully aware of defendant's plans -- had he been

15   honest from the outset -- the Wildlife Service most certainly

16   would have rejected his application for an importation permit.

17   Having made misrepresentations to the Wildlife Service every step

18   of the way, Cullen cannot now successfully argue that the

19   government knew all along that what he was doing was illegal and

20   thus should not have granted him an importation permit.

21        We have reviewed appellant's remaining arguments and

22   concluded that none of them has merit.

23                                CONCLUSION

24        Accordingly, for the reasons stated above, the judgment of

25   the district court convicting defendant Cullen of violating the

26   Wild Bird Act by unlawfully importing exotic birds into the

                                      15
1   United States and for filing false statements with the Wildlife

2   Service is affirmed.




                                   16
