United States v. David Grigsby, Doris Grigsby

These appeals from convictions for conspiracy to import raw African" elephant ivory in violation of the African Elephant Conservation Act (“AECA”), 16 U.S.C. § 4223(1), violations of the Endangered Species Act of 1973, 16 U.S.C. § 1538(c)(1), and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(a), challenge the jury instructions as being erroneous and incomplete with respect to the AECA, and the verdicts regarding the *809 other wildlife statutes as being contrary to the evidence and jury instructions. The district court instructed that general intent was all that was required to violate the AECA, omitted relevant exceptions to that statute, and instructed that the household effects exception applied to all of the statutes. Because we conclude that the district court’s AECA jury instructions were erroneous and incomplete and that the jury’s verdicts as to the other wildlife statutes were contrary to the jury instructions and evidence, we REVERSE and REMAND with instructions to grant the motions for judgments of acquittal.

I. BACKGROUND

In 1978, defendants-appellants David and Doris Grigsby, husband and wife and United States citizens, moved from Ohio to Stitts-ville, Ontario, Canada, and began operating a taxidermy business. David, a professional taxidermist, performed the taxidermy work, and Doris, who has a high school education, handled the business aspects. In 1987, one of their customers, R.W. Ashton, asked them to sell his sport-hunted trophies, including eight elephant tusks brought into Canada from several African safaris between 1965 and 1973. 1 Illinois resident Kenneth En-right, who owned a company that manufactured cutlery, archery, and pistol handles from ivory, responded to the Grigsbys’ advertisement in June, 1988. After negotiating with the Grigsbys from June through October, 1988, Enright agreed on a price of fifty United States dollars ($50) per pound for the ivory tusks.

Before traveling to Canada to view the ivory, Enright asked Doris Grigsby to inquire about Canadian export permits. Since she had no previous experience with export documents, Doris Grigsby contacted Gordon Shearer, the District Conservation Officer Coordinator of the Ontario Office of the Interior Ministry of Natural Resources, who issued export permits under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249 (entered into force July 1, 1975) [hereinafter “CITES” or “Convention”] 2 and who had known the Grigsbys since their arrival in Canada. Shearer testified that he remembered receiving Doris Grigsby’s inquiry concerning the export permits, but that he had never issued export permits for African elephant ivory and was unfamiliar with the process.

Ashton transferred the original certificates of ownership for two of the ivory tusks. The Canadian Wildlife Service was satisfied that, because the harvesting was before the applicability of CITES, a permit could be issued for all of the ivory tusks. After Doris Grigs-by applied for the original eight African elephant tusks, a Canadian export CITES permit was issued on October 20, 1988. She informed Enright by telephone on October 24, 1988, that the CITES export permit had been issued.

On November 8, 1988, Enright arrived in Canada to purchase the ivory tusks. He brought a completed, certified cheek for twenty-six thousand United States dollars ($26,000) drawn on the account of his Illinois company and payable to Grigsby Taxidermy. Enright then learned that an additional ivory tusk had been added for sale by Ashton, making a total of nine tusks available for sale. After examining the tusks and determining that the quality of the ivory did not meet his expectation, Enright negotiated directly with Ashton to reduce the sales price from fifty to forty United States dollars ($50-$40) per pound.

Upon consummation of the sale with Ash-ton, Enright tendered to Doris Grigsby the completed, certified check. Since the check was payable to Grigsby Taxidermy instead of Ashton and exceeded the final sales price, Doris Grigsby took Enright to her Canadian bank, where the certified cheek was converted to a Canadian bank draft payable to Ashton in Canadian funds, with Enright retaining the difference. Doris Grigsby gave Enright a receipt for the purchase of the ivory in the amount of twenty *810 thousand, five hundred ninety-four Canadian dollars ($20,594), the dollar amount of the Canadian bank draft payable to Ashton.

Following this bank transaction, when the United States funds were converted to Canadian funds, Enright told Doris Grigsby for the first time that his plans had changed and that he no longer wanted the ivory shipped to the United States but, instead, to a subsidiary company in Hong Kong. He explained that the United States recently had enacted the AECA, which prohibited the importation of African elephant ivory from nonivory producing countries, including Canada. 3

Enright asked Doris Grigsby to return to the Canadian Ministry to obtain a CITES permit for Hong Kong. He gave her his company mailing label, pretyped to the address of George Wong, an ivory broker in Hong Kong, for shipment of the ivory tusks that Enright had purchased. Accommodating Enright’s request, Doris Grigsby telephoned Shearer at the Canadian Interior Ministry of Natural Resources and advised him that the plans had changed necessitating a CITES permit for Hong Kong and the addition of the ninth tusk. Shearer testified that Doris Grigsby told him that she had just learned of the change in the United States law precluding taking the ivory shipment into the United States, although she had a Canadian permit for it. A second CITES permit was issued on November 8,1988, for the nine ivory tusks to be exported to Hong Kong.

When Doris Grigsby obtained the CITES permit from Shearer’s office on-November 8, 1988, she noticed and took a free Fish & Wildlife “Facts” sheet printed by the Fish and Wildlife Service of the United States Department of the Interior. This document specifically addressed ivory and contained information concerning the importation of noncommercial shipments of ivory. In pertinent part, the Facts sheet stated:

2. African elephant (Loxodonta africa-na).

A. Non-commercial shipments. Raw and worked ivory may be imported and reexported for personal use (accompanying personal baggage) without CITES documents.

Ivory, Fish and Wildlife Facts (Fish & Wildlife Serv., U.S. Dept. of the Interior, Washington, D.C.), Jan. 1988 (Defendant’s Exhibit No. 20) (emphasis added).

When Doris Grigsby returned to her home after obtaining the CITES permit, Enright had crated the ivory tusks, which filled one entire side of the Grigsbys’ carport. For the additional trouble in returning to Shearer’s office a second time, Enright offered the Grigsbys five hundred United States dollars ($500). Following his meeting with David and Doris Grigsby in November, 1988, En-right’s subsequent contacts were with Doris Grigsby only. Ashton died following this sale of the ivory tusks to Enright.

After the crates had been in the Grigsbys’ carport for two weeks, Doris Grigsby called Enright in Illinois to inquire why the ivory had not been removed. He informed her that his plans to sell the ivory tusks in Hong Kong had not materialized. Doris Grigsby then told Enright that she would charge him one hundred United States dollars ($100) per month as a storage fee for each month that the ivory tusks remained on the Grigsbys’ property after the December 20, 1988, expiration date for the CITES permit to Hong Kong.

The Grigsbys did not hear from Enright regarding his investment in excess of twenty thousand United States dollars ($20,000).un-til July, 1989, eight months after his purchase. -He authorized the Grigsbys to sell the ivory tusks in Canada for him. Enright further wanted the Grigsbys to resell his ivory for his preferred selling price of sixty-five United States dollars ($65), but not less than fifty United States dollars ($50) per pound. After advertising the ivory tusks for sale, Doris Grigsby sold two tusks. On August 14, 1989, she sent Enright a bank draft for four thousand Canadian dollars ($4,000) for the two sales and added two thousand Canadian dollars ($2,000) of her own without retaining her ten percent sales commission to *811 which Enright previously had agreed. Nevertheless, Enright neither attempted to obtain the ivory tusks for which he had paid nor compensated the Grigsbys any storage fees during 1990. Consequently, the ivory tusks were stored in the Grigsbys’ carport in Canada from November, 1988, until 1991.

In the summer of 1991, the deteriorating health of David Grigsby, who suffered from degenerative arthritis, necessitated the Grigsbys’ return to the United States for a warmer climate. They moved temporarily to Toccoa, Georgia. The ivory tusks, however, remained in Canada at their residence there. In March, 1992, Doris Grigsby called Enright to inform him that she would be in Canada in June and July, 1992, for the family’s final move to the United States. She beseeehed Enright to pay the outstanding storage fees for four years of storing the ivory tusks and to obtain the ivory.

Doris Grigsby did not hear from Enright in June or July, 1992. Instead, she heard from a stranger, Alan Zanotti, a former used ear repossesser, who informed her that he had purchased the ivory from Enright and that he was going to confiscate it. By July 31,1992, Doris Grigsby had received no communication from Enright confirming Zanot-ti’s information. Accordingly, she claimed ownership because she believed that Enright had abandoned the ivory and that it had reverted to her in satisfaction of the four years of past-due storage fees.

Enright finally contacted the Grigsbys and advised them that he wanted to travel to Canada at the end of August or September to obtain the ivory. This was unacceptable to the Grigsbys, who needed to be in Georgia by that time to enroll their son in school. Doris Grigsby further informed Enright that the ivory tusks were packed in a moving van and were inaccessible. Enright reiterated to the Grigsbys that it would be illegal to bring the ivory into the United States. He also contacted the United States Fish and Wildlife Service to report the imminent, allegedly unlawful importation of the ivory tusks.

The Grigsbys received two telephone calls from Zanotti to warn them that someone was on the way to repossess the ivory tusks. Suspecting trouble or possible violence and because the moving van could not be closed or locked, Doris Grigsby decided to store the ivory across the border, where it could be obtained on their way to Georgia. Doris Grigsby, her son, and Kathy Rye, a neighbor’s daughter, 4 took the ivory tusks into the United States at Ogdensburg, New York, where they placed the ivory in a miniware-house. Doris Grigsby signed all rental documents in her name.

The Grigsbys did not obtain export or import permits for their move from Canada to the United States. They relied on their permits of ownership, which were trial exhibits, and the Fish and Wildlife Service, Department of the Interior Facts sheet on ivory, which stated that ivory could be moved with personal belongings for a noncommercial purpose. Among their personal, household effects moved by a private moving service were harp seal, black and polar bear skins as well as certain migratory birds, including a barred owl, saw whet owl, kestrel, and goshawk. At United States Customs, the van driver wrote on the form “household effects,” and no search of the van was conducted. The Grigsbys contend that they believed that it was lawful to move the ivory tusks with the other wildlife that they owned and possessed for their personal use as personal household belongings, since these possessions were being taken into the United States for a noncommercial purpose. Doris Grigsby testified at trial that, when she brought the ivory and other personal wildlife into the United States, she did not intend to violate any law. Government witness, Dr. Robert R. Campbell of the CITES Management Authority of Canada, testified that, in August, 1992, the African elephant, threat *812 ened with extinction, was a CITES Appendix I, protected species. He also testified that Canada issued permits for the noncommercial export of African elephant specimens to the United States upon proof that the items were either pre-Convention or a personal effect that had been in possession of the applicant for a number of years.

By mid August, 1992, the Grigsbys had completed their move to Toccoa, Georgia, including the ivory tusks. In late September, 1992, Doris Grigsby learned that En-right had telephoned Canada to locate her. In response and to get his attention, Doris Grigsby wrote Enright a letter dated September 30, 1992, which stated that he could have the ivory for twenty-six thousand, five hundred United States dollars ($26,500). Enright, cooperating with agents of the Fish and Wildlife Service, specifically Special Fish and Wildlife Agent John Decker, testified that he engaged the Grigsbys in a series of telephone conversations and written correspondence concerning disposition of the ivory tusks. After involved negotiations, Enright counteroffered eight thousand United States dollars ($8,000) in a letter dated November 18, 1992. He calculated this amount as five thousand United States dollars ($5,000) for the ivory, computing one hundred United States dollars ($100) per month storage for four years and two months and three thousand United States dollars ($3,000) for delivery. Doris Grigsby’s final offer was ten thousand United States dollars ($10,000).

Following additional written negotiations, Doris Grigsby agreed to ship Enright one ivory tusk for two thousand United States dollars ($2,000), cash on delivery. This shipment was intercepted by federal agents and returned to the Grigsbys’ home in Toccoa in an attempt to recover the remaining tusks. David Grigsby accepted the package and identified it as “ivory.” R13-519-20.

Skeptical of Enright’s trustworthiness regarding the protracted transaction, the Grigsbys loaded all of the remaining ivory tusks to be shipped to Enright in a van. Doris Grigsby was followed by federal and state wildlife agents. Suspecting that she was being followed by Zanotti, Doris Grigsby stopped at a local bait store, where she was arrested. • A search of the minivan revealed the six ivory tusks.

A subsequent search of the Grigsbys’ Toc-eoa residence disclosed the other wildlife items, including the harp seal, polar and black bear skins and the migratory birds. Decker, who was involved in the search of the Grigsby residence and arrest of David Grigsby on. December 17, 1992, testified that David Grigsby admitted repackaging the returned tusk and wrapping three other tusks in preparation for shipment to Enright. While David Grigsby told Decker that he knew that Enright had represented that he could not bring the tusks into the United States because of a “change in the law,” id. at 609, he also maintained to Decker that the tusks belonged to the Grigsbys because En-right failed to pay the storage costs for the tusks, while the Grigsbys stored the tusks in Canada. Although his agency generally requires a written waiver when interviewing a suspect, Decker testified that he did not obtain a written waiver from David Grigsby before questioning him “because I didn’t have a waiver form with me,” id. at 603, even though Decker was involved directly in investigating the Grigsbys for two months prior to the search of the Grigsby residence and arrest of David Grigsby. On cross-examination, Decker acknowledged that he did not record his questioning of David Grigsby, that he did not prepare a summary of David Grigsby’s purported statements for him to review and sign, and that he did not ask David Grigsby to prepare a written summary of his comments for Decker.

David and Doris Grigsby were charged in a superseding indictment on five separate counts: (1) conspiracy to import endangered species of wildlife, 18 U.S.C. §§ 371 and 545; (2) violation of the AECA, 16 U.S.C. § 4223(1); (3) violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(1), (a)(4), and 3373(d)(1)(B); (4) unlawful importation of endangered species, 18 U.S.C. § 545; and (5) violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(a). At the conclusion of the government’s case, counsel for David and Doris Grigsby moved for judgments of acquittal on all five counts of the superseding indictment under Rule 29 of the *813 Federal Rules of Criminal Procedure. The district judge denied these motions since she believed that the Grigsbys were aware of export/import law because of their taxidermy business. During discussion regarding admissibility of certain government evidence, the assistant United States attorney conceded that much of the evidence will relate to actions and statements of Doris Grigsby, and that “[tjhere isn’t much, nearly as much evidence against David Grigsby.” R10-7. Doris Grigsby testified at trial; David Grigsby did not testify. At the end of all of the evidence and renewed Rule 29 motions by David and Doris Grigsby, the district judge granted a judgment of acquittal on violation of the Lacey Act and dismissed Count Three of the indictment.

The transcript of the charge conference reveals that the district judge, the government attorney, and counsel for the defendants grappled with the proper jury instructions to give for the violation of the AECA because there were no federal cases interpreting this statute. They discussed whether the sport-hunted trophies and pre-Con-vention harvest exceptions applied to the AECA violation as well as whether the household effects exception was applicable to the wildlife brought into the United States. The assistant United States attorney consulted with Decker of the Fish and Wildlife Service to answer the judge’s question concerning the residency, as opposed to citizenship, requirements of 50 C.F.R. § 23.18(d). R15-1066, 1072. The district judge expressed exasperation throughout the charge conference with counsel’s inability to provide her with statutory and regulatory interpretive assistance. 5 When she instructed the jury, the district judge explained that “[tjhis case is unusually difficult on the law, and all these times that you have been kept waiting in the jury room are times wh[en] we have been wrestling with the legal issues in this ease.” Id. at 1081.

The district judge then instructed the jury that violation of the AECA required general intent and did not give any instructions regarding the sport-hunted trophies or pre-Convention exceptions to the statute. The judge also instructed that a household effects exception applied to all of the statutes governing the importation into the United States of wildlife not intended for sale. The jury convicted David and Doris Grigsby on all four remaining counts of the superseding indictment.

Doris Grigsby was sentenced to five months of imprisonment, 6 which was to be followed by three years of supervised release, the first five months of which were to be home detention. David Grigsby was sentenced to five years of probation. David and Doris Grigsby individually were fined a special assessment of $150 for each count of conviction and jointly were ordered to pay Enright, the owner of the ivory tusks, restitution of $12,000 for the unlawful importation of the tusks from Canada into the United States. The Grigsbys appeal their respective convictions and sentences. They also challenge the district court’s denial of their mo *814 tions for judgments of acquittal. Because we reverse their convictions, we address only the jury instructions for the statutes under which David and Doris Grigsby were convicted and need not discuss their evidentiary and sentencing issues raised on appeal.

II. ANALYSIS

A. Review of Jury Instructions

“We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party.” United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993), cert. denied, 512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994). Counsel’s objections to proposed instructions “should be sufficient to give the district court the chance to correct errors before the case goes to the jury.” United States v. Sirang, 70 F.3d 588, 594 (11th Cir.1995); see Fed.R.Crim.P. 30. A district judge’s “refusal to give a requested jury instruction is reviewed for abuse of discretion,” because “ ‘[a] defendant is entitled to have the court instruct the jury on the theory of the defense, as long as it has some basis in the evidence and has legal support.’ ” United States v. Morris, 20 F.3d 1111, 1114-15 (11th Cir.1994) (quoting United States v. Orr, 825 F.2d 1537, 1542 (11th Cir.1987)). 7 We reverse when “we are left with ‘a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.’” Mark Seitman & Assocs. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th Cir.1988) (quoting Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir.1982)).

B. CITES: Implementing and Interrelating Legislation

CITES, which entered into force on July 1, 1975, resulted from the recognition by the signatory countries “that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade.” CITES, 27 U.S.T. at 1090 (proclamation of the contracting states). The United States and Canada are CITES signatories. CITES, 27 U.S.T. at 1346, 1349 (signatories to CITES), 50 C.F.R. § 23.4 (1992). CITES establishes a “regulatory system” that “monitors the trade in wildlife, both flora and fauna, passing through one member country to another.” United States v. Stubbs, 11 F.3d 632, 637 (6th Cir.1993). With respect to protected wildlife, such as that at issue in this case, “local authorities, within the various signatory countries to CITES, must know how many animals are being exported, in order to protect the listed species from exploitation.” United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F.Supp. 1281, 1287 (S.D.Fla.1986).

CITES classifies protected species according to the extent to which they are endangered in appendices. Appendix I lists “all species threatened with extinction which are or may be affected by trade,” and Appendix II includes “all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.” CITES, art. II, paras. 1, 2(a), 27 U.S.T. at 1092. Article VIII of CITES requires each signatory country to enact laws to effectuate the treaty, which is not self-executing. CITES, art. VIII, 27 U.S.T. at 1101.

The African elephant, Loxodonta africana, initially protected in the United States by the Endangered Species Act of 1973, 8 which, as amended, implemented CITES and utilized its appendices, was listed in CITES Appen *815 dix II on February 4, 1977, and upgraded to Appendix I in 1990. 50 C.F.R. § 23.23 (1989); 50 C.F.R. § 23.23 (1990). On October 7, 1988, Congress enacted Public Law No. 100-478, a two-part wildlife conservation amendment to the Endangered Species Act of 1973: Title I is the Endangered Species Act of 1988, and Title II is the AECA. Endangered Species Act of 1988, Pub.L. No. 100-478, 102 Stat. 2306 (codified as amended at 16 U.S.C. §§ 1531-1533, 1535, 1538-1540, 1542, 1544 (1988)); AECA, Pub.L. No. 100-478, 102 Stat. 2315 (codified at 16 U.S.C. §§ 1538, 4201, 4203, 4211-4213, 4221-4225, 4241-4245 (1988)). Both the Endangered Species Act of 1973, which includes the birds protected by the Migratory Bird Treaty Act, see 16 U.S.C. § 1531(a)(4), and the AECA use the CITES appendices and seek to implement the goals of CITES. See 16 U.S.C. § 4241 (stating that the AECA supplements the Endangered Species Act of 1973).

The AECA further implemented CITES with respect to the African elephant. See 16 U.S.C. §§ 4223, 4242-4244. The legislative history for the AECA confirms that Congress determined that additional legislation was necessary to protect the African elephant because the CITES system for controlling ivory consumption had been insufficient to prevent lucrative poaching, which would result in the extinction of the African elephant if the then-current rate of slaughter continued. 9 To achieve this end and to adhere to the CITES control of ivory trade, the ACEA established moratoria provisions. 16 U.S.C. §§ 4221^4225. Several ivory morato-ria have been implemented in the United States pursuant to the AECA. 10 The latest moratorium, relevant for this case, precluded *816 the importation of raw and worked ivory from all ivory producing and intermediary 11 countries, effective June 9, 1989. 12 54 Fed. Reg. 24,758 (1989). Since the AECA is part of the Endangered Species Act of 1973, as amended, the federal regulations that implement and govern that statute as well as CITES also control the AECA. 13

C. AECA

1. Requisite Intent for Violation

We review a district court’s interpretation and application of a statute de novo. International Union v. Jim Walter Resources, Inc., 6 F.3d 722, 724 (11th Cir.1993). When statutory language is clear and unambiguous, it controls interpretation “absent a legislative intent to the contrary.” Chandler, 996 F.2d at 1084 (citing United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)) (emphasis added). We resort to legislative history when the statutory language is unclear. United States v. Rojas-Contreras, 474 U.S. 231, 235, 106 S.Ct. 555, 557, 88 L.Ed.2d 537 (1985). “Our objective when interpreting a statute is to determine the drafters’ intent.” United States v. Castro, 829 F.2d 1038, 1049. (11th Cir.1987), modified on other grounds, 837 F.2d 441 (11th Cir.1988). Under these guiding interpretive principles, we must examine the statutory language of the AECA to determine if the district judge properly instructed the jury as to its application, given the facts in this case.

Regarding the prohibited importation act at issue, the AECA states: “Except as provided in section 4222(e) [the sport-hunted trophies exception] of this title, it is unlawful for any person-to import raw ivory from any country other than an ivory producing country.” 16 U.S.C. § 4223(1). The AECA provides both criminal and civil penalties. 16 U.S.C. §§ 4224(a) & (b). This ease was prosecuted criminally, and it is that statutory penalty provision that has caused the interpretive determination of the requisite intent for violation: “Whoever knowingly violates section 4223 of this title shall, upon conviction, be fined under Title 18, or imprisoned for not more than one year, or both.” 14 16 U.S.C. § 4224(a) (emphasis added).

Although the district judge tentatively had been inclined toward defense counsel’s interpretation that “knowingly,” as used in section 4224(a) with reference to section 4223(1) meant specific intent, 15 she reverted to her original interpretation, urged by the government, of general intent. 16 Consequently, the *817 district judge instructed the jury that violation of the AECA required only general intent:

In order for a defendant to be found guilty of Count Two [AECA violation], the government must prove the following elements beyond a reasonable doubt.

That the defendant either knowingly or fraudulently imported into the United States raw African elephant ivory.

And secondly, that the importation was from a non-ivory producing country, in this case the country of Canada.

The word knowingly means that an act is done voluntarily and intentionally, and not because of mistake or accident.

R15-1089-90. 17

Because no federal court had addressed whether “knowingly violates” in section 4224(a) requires general or specific intent, the district court was persuaded by the government’s analogy to the Endangered Species Act, which contains similar language. 18 The Fifth Circuit and a district court in our circuit have determined that general intent is sufficient to violate the Endangered Species Act. United States v. Ivey, 949 F.2d 759, 766 (5th Cir.1991), cert. denied, 506 U.S. 819, 113 S.Ct. 64, 121 L.Ed.2d 32 (1992); United States v. Nguyen, 916 F.2d 1016, 1018-20 (5th Cir.1990); United States v. Billie, 667 F.Supp. 1485, 1492-93 (S.D.Fla.1987). In denying Doris Grigsby’s motion for a new trial, the district judge clarified that she had adopted this rationale in determining that general intent was required for violation of the AECA: ■

The court finds the analogy to the Endangered Species- Act persuasive, and agrees with the rationale of the Fifth Circuit cases and the Billie case. The pattern of the language in § 4224(a) of the African Elephant Conservation Act (“whoever knowingly violates”) is identical to the language which has been interpreted not to require specific intent under the Endangered Species Act. The two acts are similar in purpose. Both criminal violations are misdemeanors. Accordingly, the court finds that the violation of § 4223(1) required only a finding of general intent and that the court properly charged the jury in this regard.

R3-115-10-11.

David and Doris Grigsby argue that, to be convicted under section 4224(a) of the AECA, the government must prove that the importer had specific knowledge of the AECA as well as knowledge that the specific, challenged conduct would be violative. David Grigsby sought the following jury instruction in his Request to Charge No. 11:

The African Elephant Conservation Act, 16 U.S.C. § 4223(1) and § 4224(a), makes it a violation of criminal law to knowingly import raw ivory from any country other than an ivory producing country. In order to prove a violation of this law as allegéd in Count Two of the indictment, the govern *818 ment must prove beyond a reasonable doubt both of the following two elements:

1. That the defendant imported raw ivory from a country other than an ivory producing country as charged in the indictment; and

2. The defendant imported raw ivory knowing that such importation was in violation of federal law.

R4-74-11 (citing 16 U.S.C. §§ 4223(1) & 4224(a)) (emphasis added). This request to charge, which was adopted by Doris Grigsby, was rejected by the district judge. 19 R15-957, 966.

Similarly, Doris Grigsby proposed jury instructions explaining that knowledge that the importation was unlawful was required for conviction in Request to Charge Nos. 17 and 20:

Ladies and gentlemen of the jury, with respect to the charge alleging possession or concealment of smuggled goods, I charge you that the law “does not make the mere receipt or concealment of smuggled goods an offense. There must be, on the part of the person receiving or concealing the goods after their importation, knowledge of their illegal importation .... It has been uniformly held that ‘the jury was not authorized to convict unless the possession or concealment of the goods was accompanied with knowledge on the part of the possessor that they had been smuggled or imported contrary to law.’ ”

R4-77-17 (quoting United States v. Sauer, 73 F. 671, 677 (W.D.Tex.1896) (emphasis added)).

Ladies and gentlemen of the jury, I charge you that you are not to presume the Defendants knew, or should have known, the sophisticated importation or customs laws of the United States just because they were in the taxidermist business in Canada.

Id. at 20 (citing One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 234 n. 4, 93 S.Ct. 489, 491 n. 4, 34 L.Ed.2d 438 (1972) (per curiam)). The district judge refused to give both of these proposed instructions. R15-978, 979. Thus, there was no jury instruction that the government must prove that the importer actually knew that the specified importation violated the AECA. After the jury charge, Doris Grigs-by’s counsel included in her objections to the charge the judge’s giving government’s Request to Charge No. 15 and not giving Doris Grigsby’s Request to Charge Nos. 17 and 20 as well as David Grigsby’s Request to Charge No. 11. R15-1100.

*819 In the absence of federal ease law interpreting the intent requirement of section 4224(a), and with conflicting interpretations advanced, we review the legislative history of this statute to ascertain if there is interpretive guidance as to the requisite intent for criminal violation of the statute. 20 The AECA was introduced in the House of Representatives on July 28, 1987, as House Bill 2999 (“H.R. 2999”). In this initial draft, under the Penalties and Enforcement section, civil penalties were provided for “[a]ny person who knowingly violates, or who knowingly commits an act in the course of a commercial activity which violates, any provision of this Act.” H.R. 2999, 100th Cong., 1st Sess. § 6(a)(1) (1987) (emphasis added). The initial draft provided criminal penalties for “[a]ny person who willfully commits an act which violates any provision of this Act.” Id. at § 6(b) (emphasis added). Responding to the request for views on the proposed legislation, B. Wayne Vance, General Counsel of the United States Department of Transportation, emphasized the apparent interpretive confusion in the legislative description of the civil and criminal violative acts:

Section 6(a)(1) (page 5, lines 23-4) creates civil penalties against a person who “knowingly violates” the bill, but section 6(b) (page 7, lines 18-9) creates criminal penalties against a person who “willfully commits an act” which violates the bill. If a distinction between “knowingly” and “willfully” is intended, it should be clarified in some way.

African Elephant Conservation: Hearing on H.R. 2999 and H.R. 4849 Before the Sub-comm. on Fisheries and Wildlife Conservation and the Environment of the House Comm, on Merchant Marine and Fisheries, 100th Cong., 2d Sess. 64-65 (1988) (letter of B. Wayne Vance, General Counsel, U.S. Dept, of Transp.) (emphasis added).

In the final version of the AECA, codified at 16 U.S.C. § 4224(a), “[wjhoever knowingly violates section 4223,” is subject to criminal penalties and “[w]hoever violates section 4223” is subject to civil penalties. 16 U.S.C. § 4224(a) & (b) (emphasis added). While “knowingly” is omitted from the codified civil penalties provision, it significantly is included in the criminal penalties provision. Thus, in the final version of the statute, the adverb “knowingly” modifies the verb “violates” and connotes deliberate, cognitive or specific intent as a requirement for criminal violation of section 4224(a). 21

The Grigsbys acknowledge that the raw ivory was imported from a nonivory producing or intermediary country, Canada. They argue, however, that they did not have actual knowledge that this importation was in violation of United States law; consequently, they lacked specific intent to violate criminal section 4224(a) of the AECA. At the outset, we note that the importation into the United States of the ivory tusks in November, 1988, at the time of Enright’s purchase from Ash-ton, would not have violated the AECA, since the applicable ivory moratorium for intermediary countries did not become effective until June 9, 1989. 54 Fed.Reg. 24,758, 24,761 (1989). It was Enright’s apparent misunderstanding that the date of enactment, October 7,1988, was the effective date of the applicable moratorium and his subsequent failure to obtain the tusks that he purchased from Ash-ton, extending after the effective date of the moratorium, that caused the predicament for the Grigsbys that became the basis of this case against them by the government.

The Grigsbys were not exporters/importers; they owned and operated a' Canadian *820 taxidermy business. 22 Most of their customers appear to have been Canadian. The evidence showed that they had not dealt in ivory tusks, which are not the usual objects of a taxidermist’s trade, and that they undertook assisting their customer Ashton in selling the tusks as an accommodation to him. Clearly, Enright did not expect the Grigsbys to have export/import knowledge or he would not have asked them to obtain this information and to get the proper Canadian export documentation. The district judge, however, believed that the Grigsbys were fully cognizant of export/import law because of their experience in the taxidermy business. When David and Doris Grigsby’s counsel moved for acquittal on all counts under Rule 29 at the conclusion of the government’s case, the district judge stated:

Let me say this: I would love to be able to rule on these points now, but, quite frankly, the law is just too difficult. I am concerned about the issue of specific intent. If this were a case involving two people who don’t deal in wildlife, I would throw all these charges out in a minute.

[T]he thing that gives me pause is the fact that the Grigsbys are in the taxidermy business. I haven’t heard as much evidence relevant to Mr. Grigsby’s intent as Mrs. Grigsby’s, but I think at this point the prudent thing to do is go ahead and deny the Rule 29 motions, and that’s what I’m going to do.

R13-681 (emphasis added). <