Conspiring to violate the Lacey Act.

I. INTRODUCTION

Despite being this nation's oldest wildlife protection statute, (1) the Lacey Act (2) exists in relative anonymity to the general public. Yet this Act is a valuable federal weapon against illegal wildlife trafficking. (3) Over twelve hundred Lacey Act cases were investigated in fiscal year 2000, more than most other wildlife laws. (4) The Lacey Act prohibits the importing, exporting, transporting, selling, receiving, acquiring, or purchasing of "any fish or wildlife or plant taken, possessed, transported, or sold in violation" of a tribal, state, federal, or international law. (5) However, despite the broad scope of the Lacey Act, poaching and illegal wildlife trafficking are still prevalent. (6)

A significant means to combat this problem is found in the federal Conspiracy Act. (7) The federal charge of conspiracy broadens the reach of the Lacey Act by allowing a federal conviction for behavior short of an actual completed Lacey Act offense. The crime of conspiracy occurs when "two or more persons conspire" (8) to violate the Lacey Act. The conspiracy offense can act as further arsenal against wildlife violators. In fact, charging an individual with conspiracy may be considered a graver offense than the contemplated crime (9) and can lead to harsher penalties. (10)

Because illegal wildlife traffickers are often caught before violating the Lacey Act, conspiracy is a way to charge the wrongdoers for committing a crime. Likewise, if a Lacey Act offense is committed, the offenders can be charged with conspiracy to violate the Lacey Act in addition to a charge for actually violating the Act. Considering that over $3 billion in profits is made annually by the illegal sector of the international wildlife trade in the United States, (11) conspiracy is a significant tool to aid the Lacey Act in controlling this expansive trade.

A significant problem associated with uncovering and prosecuting a conspiracy, however, is that a conspiracy's essential features are secrecy and concealment. (12) Further, conspiracy is a complex area of the law, and it can be extremely difficult to understand the necessary requirements to convict under the charge.

This Comment seeks to show that adding a conspiracy count to a Lacey Act prosecution will help combat the illegal wildlife trafficking problem. In addition, this Comment provides an explanation of how to convict under the federal Conspiracy Act, as well as under the Lacey Act, and how the statutes work in conjunction.

Part II of this Comment describes the prevalence of illegal wildlife trafficking. Part III addresses the inherent problems with enforcement of the Lacey Act. Part IV explains the elements of a conviction, first under the Lacey Act, then under a federal conspiracy charge, and finally when the two charges are joined. Part V discusses the advantages and disadvantages of using the federal charge of conspiracy with the Lacey Act, and Part VI concludes that conspiracy is an effective charge to combat illegal wildlife trafficking.

II. THE OVERWHELMING PROBLEM OF WILDLIFE TRAFFICKING

Society's awareness of the problem of illegal wildlife trafficking is minimal in comparison to other problems, such as the trafficking of drugs. The United States devotes millions of dollars to the war on drugs, but little mention (or money) is given to the war on illegal wildlife trafficking. (13) Yet, illegally taken wildlife is the second largest trade on the black market, second only to the drug trade. (14) In fact, the prohibited international wildlife market provides more profit than the sale of illegal weapons. (15) The United States is a major competitor in this trade, especially because it imports and exports more wildlife than any other country. (16) The General Accounting Office (GAO) estimates that anywhere from $100 million to $250 million in illegal wildlife shipments cross the borders of the United States each year. (17) Wildlife poaching in the United States is more dangerous, more profitable, and harder to control than anywhere else in the world. (18) Many involved with combating illegal wildlife trafficking--such as Fish and Wildlife law enforcement officers and Department of Justice attorneys--say that the United States is facing the worst poaching problem in history. (19) The Department of Fish and Wildlife has conservatively estimated that Americans pay $200 million annually for illegally caught domestic animals and $1 billion for illegal animals from abroad. (20)

Profit is the main motivation behind the trafficking problem. (21) Smugglers and poachers make big money in the trade, and trophy hunters are willing to pay large amounts of cash for prized animals. (22) For example, the price for a Dall sheep is $100,000. (23) The high price makes it lucrative for hunting guides to break state and federal wildlife laws. (24) Since record-sized trophy animals are often found in state and national parks, wildlife laws are necessarily broken to catch the animals. (25)

Dall sheep are not the only wildlife that claim high prices. Rocky Mountain bighorn sheep, an endangered species, (26) go for $10,000, (27) and large, white-tailed deer antler racks may get $1000 to $3000. (28) In Alaska, hunters will pay up to $10,000 for an "illegally guaranteed brown bear, often illegally baited with dead caribou." (29) A single U.S. Fish and Wildlife sting operation discovered 17,500 illegal furs worth $1.2 million. (30) Another wildlife investigator found 2000 bear gallbladders in New York's Chinatown for sale at $800 per gram. (31)

The monetary incentive exists not only in poaching, but in smuggling as well. Live Australian cockatoos fetch $15,000 apiece, (32) tempting individuals to smuggle the birds illegally into the United States. High numbers of reptiles are also being stolen from the wild and smuggled to countries like Japan, Belgium, Britain, and the Czech Republic. (33) Even though it is illegal to ship snakes through the mail, 100,000 are mailed each year, and around sixty percent of them die. (34)

Wildlife that claim these high market prices are dwindling in number. (35) For example, in southern Appalachia, the average age of legally killed bears has dropped by half. (36) Fish and Wildlife agents say that it is hard to find a bighorn sheep over the age of eight, and so few are left that in certain habitats the sheep must be transported to avoid inbreeding. (37) Furthermore, wildlife officials report that overall the unlawful killing of wildlife equals or exceeds legal hunting. (38) Trophy hunting not only harms the animal poached, but affects future generations as well, because the hunters kill off the biggest and best of the species' gene pool. (39) The detrimental consequences of illegal wildlife trade, along with the growing loss of wildlife habitat, has led to the depletion of numerous species. (40) As the General Accounting Office noted:

   The growing demand throughout the world for wildlife and wildlife parts and
   products has created a market in which commercial exploitation has
   threatened certain wildlife populations. The oriental medicine trade, for
   example, has created an illicit market in bear gall bladders, rhinoceros
   horns, and parts of other threatened and endangered species. (41)

A former illegal fish broker turned informant says that Washington state's steelhead spawning runs have gone down seventy-five percent due to consumer demand. (42) He estimates that "the illegal take is responsible for a third to a half of that." (43)

Another excellent example of the growing problem is the Caspian sea sturgeon, whose eggs are used for caviar. The sturgeon's numbers are dwindling, and individuals are now looking towards paddlefish for replacement eggs. (44) States already have limitations on the number of paddlefish that may be caught, resulting in individuals illegally poaching the fish for their high-money-fetching eggs. (45) Once one species runs out, consumers turn towards another as a replacement, and the problem continues, wiping out species after species.

The poaching and smuggling of animals also presents health hazards to both humans and wildlife. (46) In areas of the United States, the inlets are so polluted that commercial shell fishing has been prohibited, (47) yet this does not stop people from digging clams in these areas. (48) The infected clams, which may cause hepatitis A or gastroenteritis, are then placed on the market, origins unknown. (49) A poaching investigation in the Great Lakes discovered dealers selling illegal trout and salmon falsely marked as whitefish. (50) Some of the illicit fish were contaminated with PCBs. (51) U.S. Fish and Wildlife Service Director Jamie Rappaport Clark reports that the smuggling of birds into the United States threatens the health of native species as well as people. (52) Parrots may carry diseases such as psittacosis, which can infect humans, and Newcastle disease, which can kill poultry. (53) In the 1970s, eradication of the latter disease cost taxpayers in New York, Texas, Virginia, California, and Florida $600 million. (54)

III. DOES THE SOLUTION LIE WITH THE LACEY ACT.?

A. The Answer May Be in the Lacey Act

The Lacey Act helps to combat the poaching and smuggling problem. Director Clark heralds the Lacey Act as "one of our most important conservation statutes" and notes that the Act "remains a cornerstone for wildlife conservation by giving us the ability to combat interstate and global wildlife trafficking." (55) The Act is touted as the premier weapon in the fight against wildlife trafficking (56) and the "government's key mechanism for deterring crimes against wildlife." (57)

The Lacey Act applies to a larger number of wildlife and fish than any other wildlife protection law. (58) Not only does the Act have a broader scope than other acts, it also has the potential for longer prison sentences than most other wildlife laws with felony provisions. (59) Because the Act allows for longer sentences and higher fines, it has the potential to significantly deter wildlife traffickers. (60) The Act also has the unique feature of enforcing a federal minimum while recognizing that state laws protecting wildlife might provide further protection beyond the federal minimum. (61) "This arrangement upholds the autonomy of states to protect wildlife and recognizes the necessity of having the force of federal enforcement behind the laws to make them most effective." (62) Despite the expansive scope of the Lacey Act, however, wildlife trafficking still abounds in the United States and the global market.

B. Enforcement Problems with the Lacey Act

While the Lacey Act is an excellent tool to protect wildlife and has had moderate success, illegal wildlife trafficking still thrives, and more needs to be done to combat this serious problem. The problems with implementing the Lacey Act stem from the internal functions of the U.S. Fish and Wildlife Service and the enforcement of the Lacey Act sentencing scheme. The Lacey Act is administered by the Departments of Interior, Commerce, and Agriculture. (63)

The Fish and Wildlife Service, under authority of the Department of Interior, is the primary federal agency responsible for the protection of fish, wildlife, and their habitats. (64) The Lacey Act charges the agency with controlling interstate traffic and importation of illegal wildlife and threatened species. (65) The agency's responsibilities also include managing the 93 million-acre National Wildlife Refuge System, which encompasses over 500 national wildlife refuges and thousands of wetland areas. (66) In addition, the agency oversees "66 national fish hatcheries, 64 fishery resource offices and 78 ecological services field stations." (67) The Fish and Wildlife Service's duties further include enforcing federal wildlife laws, "manag[ing] migratory bird populations, restor[ing] nationally significant fisheries, conserv[ing] and restor[ing] wildlife habitat such as wetlands, and help[ing] foreign governments with their conservation efforts." (68) Finally, the Fish and Wildlife Service manages the program that disperses excise taxes from fishing and hunting equipment, amounting to millions of dollars, to state fish and wildlife agencies. (69)

Despite the numerous duties of the Fish and Wildlife Service, the agency is continually under-funded. In fact, lack of funding is the agency's biggest problem. (70)

One example is the wildlife inspection program, aimed at preventing illegal imports of wildlife. Currently, the agency can only inspect about twenty-five percent of all incoming shipments. (71) Even though there have been funding increases in the wildlife inspection program, the program still has problems achieving its objective of intercepting wildlife trade. (72) The Fish and Wildlife Service estimates that the program detects less than ten percent of declared shipments that are illegal and an even lower number of undeclared shipments. (73) Inspection is a time-consuming process. For example, for a shipment of three hundred turtles from Madagascar, agents must measure each turtle to make sure the turtle is more than four inches long and thus legal. (74) Unfortunately, the Fish and Wildlife Service cannot afford such a thorough inspection of animal imports. (75)

Funding problems affect officers in the field as well. The Fish and Wildlife Service only has about two hundred federal agents and seven thousand state officers, approximately half as many as the Chicago police force. (76)) As Fish and Wildlife Agent Terry Grosz says, "[k]nock one bad guy down and ten step forward. I think Custer had better odds." (77) Such a small number of agents cannot handle the overwhelming number of poachers, and, as a result, an estimated ninety-five percent of poachers escape detection. (78) Kris McLean, a federal prosecutor in Montana, points out that the Fish and Wildlife Service would need at least thirty more federal agents in the state to effectively enforce the Lacey Act. (79) Unfortunately, increases in Fish and Wildlife funding are highly unlikely. (80)

The other problem with enforcement of the Lacey Act arises in sentencing. Despite the possibility of severe penalties under the Lacey Act, (81) a prison sentence for smuggling or poaching is rare. (82) Of those convicted, the monetary fines and prison sentences are trivial. (83) Few convicted under the Lacey Act are given the full sentencing the Act provides. (84)

The problems of poaching and smuggling are exacerbated by lack of funding for the Fish and Wildlife Service and light sentences, causing a lack of deterrence. While there are many possible solutions to these problems, one that may assist in combating these problems would be for prosecutors to charge defendants with conspiracy to violate the Lacey Act.

IV. PROSECUTING UNDER THE LACEY ACT AND THE FEDERAL CHARGE OF CONSPIRACY

A. Requirements to Convict Under the Lacey Act

The prohibited conduct of the Lacey Act is divided into three areas--trafficking, marking offenses, and false labeling offenses. (85) Marking offenses hold only civil penalties and thus cannot be used in conjunction with the crime of conspiracy. (86)

I. The Act Element of the Lacey Act Trafficking Violation

A four-step analysis (87) will help a prosecutor determine whether a Lacey Act trafficking violation occurred. (88) First, the fish or wildlife involved in the alleged crime must be included in the scope of the Act. Under the Act, "fish or wildlife" (89) is defined as:

   any wild animal, whether alive or dead, including without limitation any
   wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean,
   arthropod, coelenterate, or other invertebrate, whether or not bred,
   hatched, or born in captivity, and includes any part, product, egg, or
   offspring, thereof. (90)

This definition is very broad, allowing the Lacey Act to cover a greater variety of fish and wildlife than any other wildlife statute. (91)

If the fish or wildlife is covered by the Lacey Act, the next step is to show that a person has taken, (92) possessed, transported, or sold the fish or wildlife in violation of a predicate law. (93) The predicate law must be a state regulation or law, treaty, federal regulation or law, Indian tribal law or foreign law. (94) The predicate violation and the Lacey Act violation must not be the same violation. (95) For example, the prosecution must prove that a person took an animal in violation of a state law and then the defendant acquired the illegally taken animal through interstate commerce. The defendant who actually violated the Lacey Act need not be the same person who violated the predicate law. (96)

After showing a predicate violation, the prosecution must prove that the defendant violated the Lacey Act by importing, (97) exporting, transporting, (98) selling, receiving, acquiring, or purchasing the fish or wildlife taken in violation of the predicate law; (99) alternatively, the prosecution can prove the defendant attempted to do one of these acts. (100) If the predicate violation involves a state or foreign law, the overlying Lacey Act offense must include fish or wildlife being imported, exported, transported, sold, received, acquired, or purchased in interstate or foreign commerce. (101)

As noted above, a person can violate the Lacey Act by selling or purchasing fish or wildlife taken in violation of other laws. In 1988, Congress amended the Lacey Act to define "sale" and "purchase" as including the sale or purchase of guiding and outfitting services and invalid licenses and permits. (102) A sale of fish or wildlife occurs under this section when an individual, "for money or other consideration," (103) offers or provides "guiding, outfitting, or other services" (104) or a hunting license, fishing license, or permit. (105) This sale must be "for the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife." (106) A purchase of fish or wildlife under this section occurs when an individual obtains "for money or other consideration" (107) "guiding, outfitting, or other services" (108) or a hunting license, fishing license, or other permit. (109) The purchase must be "for the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife." (110)

Finally, if the defendant committed or aftempted to commit the requisite act, the additional culpability requirements to prove a misdemeanor or felony violation must be met. (111)

2. The Mental State Element of the Lacey Act Trafficking Violation

The criminal culpability requirements for traffic king under section 3372(a) are found in section 3373(d), which sets out the criminal penalties for Lacey Act violations. (112) This fourth step of proving culpability can in turn be divided into three sub-steps that shadow the three steps used to analyze the act element. (113)

As to the first step of determining whether the fish or wildlife is included in the Act's scope, the statute lists no culpability requirement. (114) However, culpability is required for a felony--the defendant must be aware that the fish or wildlife is covered by some law, treaty, or regulation, but not specifically the Lacey Act. (115)

A culpability requirement also applies to the second step. The Lacey Act requires the government to prove that the defendant knew (for a felonyl (116)) or should have known (for a misdemeanor (117)) that the fish or wildlife at issue was taken, possessed, transported, or sold in violation of an underlying law, treaty, or regulation. (118)

The third step in the act element is to show that the defendant used or attempted to use the illegal fish or wildlife in conduct prohibited by the Lacey Act. (119) At this step, there are two ways the prosecution may meet the culpability requirement for a felony. First, under section 3373(d)(1)(A), the government can prove the defendant was aware of importing or exporting illegal fish or wildlife. (120) Alternatively, under section 3373(d)(1)(B), the government can prove the defendant was aware her conduct involved selling or purchasing, or offering to sell or purchase, illegal fish or wildlife. (121) The prosecution could also prove the accused knew her conduct involved an intention to sell or purchase the illegal fish or wildlife. (122)

To prove a misdemeanor at this third step, the government must show that the defendant knowingly engaged in conduct prohibited by the Lacey Act. (123) Specifically, the government must prove that the defendant was aware that her conduct involved importing, exporting, transporting, receiving, acquiring, or purchasing fish or wildlife. (124) The defendant does not need to know that the fish or wildlife was illegal. Instead, the defendant should have been aware of the risk that the fish or wildlife was illegal.

A defendant can be convicted of a felony, instead of a misdemeanor, if the prosecution proves the defendant actually knew the fish or wildlife was illegal, instead of "should have been aware," and the defendant was aware she imported or exported the fish or wildlife. (125) A felony is also proven if the prosecution shows that the defendant knowingly engaged in conduct that involved selling or purchasing, offering to sell or purchase, or intending to sell or purchase fish or wildlife knowing the fish or wildlife was illegal. (126) Under either felony, the convicted defendant can be sentenced to imprisonment not exceeding five years and also face a maximum fine of $250,000. (127) An organization can be fined up to $500,000. (128)

Under the misdemeanor charge, if the prosecution proves the defendant knowingly engaged in conduct prohibited by the Lacey Act, and in the exercise of due care should have known the fish or wildlife was illegal, the government has proven the requisite culpability. (129) The defendant can be sentenced up to $100,000 along with imprisonment up to one year. (130) An organization can be fined up to $200,000. (131)

3. False Labeling Offenses

The false labeling offense can be the sole charge against a defendant, (132) or it can accompany the trafficking offense. (133) In general, the false labeling offense makes it illegal for an individual to make or submit a false label, record, account, or to falsely identify fish or wildlife that has been or will be transported. (134)

The act element of the crime consists of two steps. First, the prosecution must prove that the defendant made or submitted a false record, account, label, or identification of fish or wildlife. (135) This requirement is met if, for example, the prosecution shows that the defendant falsely labeled a box that contained illegal elephant tusks as containing the horns of domesticated goats. (136)

Next, the prosecution must prove that the defendant committed or intended to commit certain acts with the falsely labeled fish or wildlife as specified in the statute. (137) This can be done in two different ways. First, the prosecution could show that the defendant imported, exported, transported, sold, purchased in interstate or foreign commerce, or received from a foreign country, the falsely labeled fish or wildlife. (138) Alternatively, if none of these specific acts were committed, the prosecution may prove that the defendant intended to commit one of the prohibited acts in the future. (139) Thus, if the defendant is caught with a box full of endangered Hawksbill sea turtles labeled as legal pantherfish and the prosecution proves the defendant intended to transport the turtles to another state, the defendant can still be convicted.

The prosecution must also prove the mental state element for the false labeling offense to convict the defendant. The culpability requirement for the false labeling offense is found in the criminal penalties provision. (140) The two-step analysis used for proving the necessary acts for the false labeling offense is also helpful for determining the necessary culpability. Under the first step, the prosecution must prove that the defendant knowingly made or submitted the false record, account, label, or identification for the fish or wildlife. (141) Thus, the defendant must be aware that she made or submitted a false label. (142)

Under the second step, the defendant must also knowingly commit the listed acts. (143) The prosecution needs to prove the defendant was aware that the falsely labeled fish or wildlife had been, or was intended to be, imported, exported, transported, sold, or received from a foreign country. 144 This step is also met if the prosecution proves the defendant was aware that the falsely labeled fish or wildlife had been, or was intended to be, transported in interstate or foreign commerce. (145)

Once the prosecution has successfully provided evidence for both the act and mental state elements, it can be determined whether the defendant should be convicted of a misdemeanor or a felony. The defendant can be convicted of a felony if the prosecution proves that the offense involved the acts of importing or exporting fish or wildlife. (146) A felony conviction may also apply if the offense involved "the sale or purchase, offer of sale or purchase, or commission of an act with intent to sell or purchase fish or wildlife" worth more than $350. (147) Under the felony convictions, the defendant may be imprisoned up to five years and fined a maximum of $250,000. (148) An organization can be fined $500,000. (149)

If the offense involves any other acts listed in the statute, the defendant can only be convicted of a misdemeanor. (150) For example, if the prosecution proves the defendant knowingly made a false label for a fish, transported the fish across state lines, and had no intention to sell the fish, the defendant committed a misdemeanor. Thus, the defendant could be imprisoned up to a year and fined a maximum of $100,000. (151) An organization can be fined $200,000. (152)

B. Requirements to Convict Under the Federal Charge of Conspiracy

Under 18 U.S.C. section 371, it is a federal offense "[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States ... and one or more of such persons do any act to effect the object of the conspiracy." (153) The statutory language provides limited guidance on the elements necessary to convict a defendant for federal conspiracy. (154) Instead, judicial interpretation has provided most of the essential requirements. This crime is best understood by separating these requirements into the act element and the mental state element.

1. The Act Element of Federal Conspiracy

The act element of a federal conspiracy charge consists of four requirements: a) an agreement b) to commit an unlawful act c) between at least two parties d) attended by an overt act of one or more of the parties in furtherance of the conspiracy. (155)

The agreement requirement is the core of the conspiracy. (156) Individuals may enter the agreement at any time during the course of the crime and still be charged with the crime of conspiracy. (157) The government does not need to prove the existence of an express or formal agreement. (158) A tacit or mutual understanding between the parties is sufficient to prove this element. (159) The prosecution is given broad discretion in what it may offer as proof to establish this "understanding." (160) Allowing such prosecutorial discretion is a means to combat the difficulty of proving a conspiracy because of its highly secretive nature. (161) The agreement may be established by direct evidence or inferred from acts, conduct, and surrounding circumtances (162) that can reasonably be interpreted as participation in a common plan. (163) This element may also be established through evidence of previously committed criminal activities. (164)

An agreement can exist even though each participant does not know all the details of the agreement. (165) If the prosecution proves the defendant was aware of "the essential nature of the plan and [her] connections with it," the prosecution does not need to show that the defendant had knowledge of every arrangement or even of every conspirator for the defendant to be party to the agreement. (166) Once the prosecution has proven a common plan of conspiracy, "slight evidence is all that is required to connect a particular defendant with the conspiracy." (167) An agreement has not been established between a defendant and a conspirator if the prosecution proves merely that the defendant associated with the conspirators or had some knowledge of the conspiracy. (168) However, this association or knowledge, combined with other evidence, may be used to show the defendant's participation in the conspiracy. (169)

Next, the act element of conspiracy requires that the agreement, whether an explicit or a tacit understanding, must be geared toward achieving an unlawful act. (170) This goal must consist of either violating a federal law or defrauding or hindering a federal government objective. (171) The goal may be to violate any federal law--there are no restrictions. Additionally, the government does not need to prove that the conspirators knew or intended that the conspiracy would violate the federal law--concert of action is sufficient. (172) An agreement to defraud the government primarily includes swindling the government out of property or money. (173) However, defrauding the government also covers "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." (174) The conspiracy does not need to cause the government property or pecuniary loss as long as the government's official purpose was hindered in some form. (175)

Another requirement is that the agreement must be between at least two individuals. This is called the plurality requirement. (176) These individuals must be bona fide co-conspirators, so if there are only two co-conspirators one may not be an undercover federal agent. (177) However, a government agent can act as the only connection between two other conspirators. (178)

A further limitation on defining who is a participant in a conspiracy is Wharton's Rule. Under Wharton's Rule, "[a]n agreement by two persons to commit an offense that, by definition, requires the voluntary participation of two persons, cannot be prosecuted as a conspiracy." (179) Examples of crimes affected by Wharton's Rule are adultery, bigamy, and incest. (180) It is impossible for one person to commit these crimes; two individuals are necessary. The justification for Wharton's Rule is that "if a substantive offense cannot be committed in the absence of an agreement, the added dangers relating to group criminality are absent." (181) If the substantive offense requires two individuals, but the conspiracy consists of several conspirators, then Wharton's Rule is inapplicable. (182) The Rule is also not triggered if the two individuals involved in the conspiracy are not the two individuals committing the crime. (183)

Finally, conspiracy requires that one co-conspirator commit an overt act in furtherance of the criminal objective. (184) The rationale behind this requirement is to "demonstrate that the conspiracy was actually operative, rather than a mere scheme in the minds of the actors." (185) The overt act does not need to be an element of the substantive crime or even unlawful. (186) Furthermore, the act may be committed by any co-conspirator; therefore, the defendant does not need to personally perform the act. (187) The Pinkerton Rule establishes that as long as the overt act committed by the co-conspirator was reasonably foreseeable and was committed to further the conspiracy, the other conspirators are vicariously liable. (188) Yet, a defendant may not be liable for offenses committed by co-conspirators before the defendant joined the conspiracy or after she withdrew from involvement in the conspiracy. (189)

2. The Mental State Element of Federal Conspiracy

Conspiracy is composed of two mental state requirements. These requirements are related to the act element requirements that there be an "agreement" to "commit an illegal act." (190) The prosecution must prove that each defendant intended to agree and also intended that the unlawful objective of the agreement be achieved. (191) Both mental state elements must be held by at least two participants in order for a conspiracy agreement to exist. (192) If only one individual intends to agree or intends to achieve the illegal goal, there is no agreement, and not even that one individual may be convicted of conspiracy. (193)

The intent to agree requires only a general intent that an agreement be made. (194) A defendant possesses the necessary general intent if she commits the act with "a morally blameworthy state of mind." (195) The prosecution should first prove that an agreement exists. (196) Normally, proof of the agreement also establishes--by logical inference--that the defendant was aware an agreement was made, became a participant of the agreement, voluntarily joined the agreement, and intended to be a part of the agreement. (197)

The intent to achieve an illegal goal is the specific intent (198) part of the crime of conspiracy. (199) This mental state requirement is best understood through a three-part analysis. First, the prosecution needs to prove the defendant had the mental state of the underlying target crime, (200) including any specific intent defined by the crime. (201) For example, a charge of larceny requires a showing not only of trespassory taking and carrying away of the personal property of another, but also the intent to deprive the owner permanently. Thus, for this first step, the prosecution would have to prove that the defendant had the specific intent defined by larceny--to deprive the owner permanently of the property. (202)

Second, the prosecution must show the defendant had the specific intent for the target crime's conduct, (203) result, (204) or both. (205) For example, the charge of larceny requires that the prosecution prove that the defendant intended the conduct of "taking and carrying away." For the charge of murder, the prosecution must prove that the defendant intended the result of a person being killed.

Because a conspiracy charge requires the prosecution to prove a specific intent, the proof of culpability required for conspiracy may be greater than that necessary for the substantive offense. (206) For example, Tony and Jane agree to set fire to an occupied building for the pleasure of watching their former place of employment burn to the ground. During the fire, an occupant is killed. Tony and Jane are convicted of murder, despite the lack of intent to kill, because the death was caused by extreme recklessness. However, Tony and Jane cannot be convicted of conspiracy to commit murder because their intention was to burn the building, not to cause the result of someone's death. (207)

The term "intent" is sufficient as a definition of the mental state required for conduct and result, particularly when the target crime has a "result" element. (208) Yet, there are times when the term requires a further definition. (209) Specifically, the term "intent" encompasses two similar mental states: "purpose" and "knowledge." (210) Under "purpose," it is a defendant's conscious object to engage in conduct of that nature or to cause a particular result. (211) For "knowledge," a defendant is aware that her conduct is of that nature or "that it is practically certain that [her] conduct will cause such a result." (212) An issue arises in determining when a person, furnishing services or goods to others, knowing that the services or goods will be used in a criminal venture, becomes part of the conspiracy. (213) The supplier might be aware that it is practically certain that her services or goods will help cause the crime, but it might not be her conscious object to cause that crime.

Courts are divided on this issue. (214) However, the courts do agree that if "purpose" is required, it may be inferred from the supplier's knowledge of the conspirator's plan. (125) Certain surrounding circumstances allow this inference of purpose. Some of these factors were emphasized by the Supreme Court in Direct Sales Co. v. United States, (216) including the number of the sales, the longevity of the seller/buyer relationship, the seller's encouragement of the criminal undertaking, and the fact that there was no lawful use for the goods. (217) Other courts have expanded upon these factors. (218) Purpose may also be inferred when the seller provides the services or goods at an inflated price or when the conspirator's purchases have become a grossly disproportionate share of the seller's business. (219) Through circumstances such as these, the government must show that the "supplier shared the intent to achieve the criminal objective." (220)

Finally, if the target crime requires a showing of particular attendant circumstances, (221) the prosecution must show that the defendant had the intent to provide those attendant circumstances. (222) But if the target crime does not specify a necessary intent towards any attendant circumstance, then an intent for an attendant circumstance is not required for the conspiracy charge. (223) For instance, the charge of assaulting a federal officer does not require that the individual knew the person was a federal officer. Thus, if the individual is charged with conspiracy to assault a federal officer, it is not necessary to prove that the individual intended the victim to be a federal officer. (224)

C. Intertwining the Federal Charge of Conspiracy with the Lacey Act

The charge of conspiracy to illegally traffic wildlife combines section 3372(a) of the Lacey Act with the federal conspiracy statute. (225) In order to understand the prosecution's burden, the requirements will be separated into the act element and the mental state element.

1. The Act Element of Conspiring to Illegally Traffic Wildlife

Since the charge focuses on the conspiracy instead of an actual violation of the Lacey Act, the conspiracy act element requirements are the foundation of the requisite proof necessary to convict the defendant. The government must establish the four requirements of conspiracy: a) an agreement b) to commit an unlawful act c) between at least two parties d) attended by an overt act. (226) The act element requirements under the Lacey Act are the "unlawful act" and the "overt act."

The "unlawful act" under this offense involves the violation of a federal law, the Lacey Act. (227) The conspirators' agreement must be geared toward achieving the illegal goal of violating the Lacey Act. The government does not need to prove that the conspirators knew or intended to violate the Lacey Act. (228) However, the government must show that the defendants agreed to engage in behavior that would violate the Lacey Act.

In order to meet this burden, the prosecution must go through the requirements necessary to prove the act element of the substantive offense, the Lacey Act. (229) First, the fish or wildlife involved in the agreement must be covered by the definition of "fish or wildlife." Second, the prosecution must show that a person (not necessarily among the alleged conspirators) violated a state regulation or law, treaty, federal regulation or law, Indian tribal law, or foreign law other than the Lacey Act by taking, possessing, transporting, or selling fish or wildlife. Once this is established, the government must show that the defendant was going to or actually did import, export, transport, receive, acquire, or purchase the illegally taken fish or wildlife.

The difference at this step between a charge for violating the Lacey Act and a charge for conspiracy to violate the Lacey Act is that the former requires an attempt or an actual violation of the Act. For the conspiracy charge, there need only be an agreement to do so in the future.

To establish that defendants had an operative agreement to commit the illegal goal of violating the Lacey Act, proof of an overt act is required. (230) The overt act does not need to be an act violating the Lacey Act or even an illegal act. (231) The overt act need only be an act committed by any one conspirator to further the conspiracy. (232) For example, the defendant or a fellow conspirator could have rented a U-Haul or chartered an airplane. If the charge against the defendant involves conspiracy to transport illegally taken wildlife across state lines, the rented U-Haul or chartered airplane would qualify as an overt act committed in furtherance of the conspiracy.

Once the prosecution establishes an agreement to commit an unlawful act between at least two parties attended by an overt act coupled with the underlying requirements of the Lacey Act, the government's burden for the act element is met.

2. The Mental State Element of Conspiring to Illegally Traffic Wildlife

The mental state requirements of conspiracy act as the stepping point in prosecuting a defendant for conspiring to illegally traffic wildlife. The prosecution first must prove the defendant possessed the general intent to make an agreement. The prosecution then needs to establish the defendant's specific intent to achieve an illegal goal. At this point, the culpability requirements found in the Lacey Act interact with those of the federal conspiracy charge, since the illegal goal is the violation of the Lacey Act. To establish the requisite intent for achieving an illegal goal, the prosecutor should follow the three-step analysis provided for this mental state requirement. (233)

First, the prosecution must prove the mental state required by the target crime--the violation of the Lacey Act. (234) For a felony under the Lacey Act, the prosecution must prove that the defendant was aware that the fish or wildlife was covered by a law, treaty, or regulation; that the defendant knew the fish or wildlife was taken, possessed, transported, or sold in violation of an underlying law, treaty, or regulation; that the defendant was knowingly importing or exporting fish or wildlife, or knowingly engaging in conduct involving selling or purchasing fish or wildlife; and that defendant knew the fish or wildlife was illegal. (235) For a misdemeanor, the prosecution must show that the defendant should have known the fish or wildlife was taken, possessed, transported or sold in violation of an underlying law, treaty, or regulation; that the defendant knowingly engaged in conduct prohibited by the Lacey Act; and that the defendant should have been aware that the fish or wildlife was illegal. (236)

Second, the prosecution needs to establish the specific intent that the conduct and results described by the Lacey Act are carried out. Thus, for the specific intent regarding conduct, the government must show that the defendant intended (237) to import, export, transport, sell, receive, acquire or purchase illegal fish or wildlife. (238) The prosecution does not need to prove a result for conspiracy to violate the Lacey Act because there are no criminal results listed in the Act's trafficking violation. Instead, the Act lists specific behavior (conduct) that is prohibited rather than illegal outcomes (results). (239) Thus, under a charge of conspiracy to violate the Lacey Act, the prosecution only needs to prove conduct.

Finally, the prosecution only needs to show that the defendant possessed the mental state contained in the target crime for attendant circumstances. Thus, if the target crime is a misdemeanor Lacey Act violation, the prosecution must prove that the defendant should have known that the fish or wildlife had been illegally taken. (240) For a felony violation, the requirement is that the defendant knew the fish or wildlife had been illegally taken. (241) The attendant circumstance is the fact that the fish or wildlife was acquired illegally. This last step correlates with the first-step requirement that the mental state contained in the target crime be established. If the prosecution proves this Lacey Act culpability requirement under the first step, this last step is also met.

V. EXAMINING THE ADVISABILITY OF USING THE LACEY ACT WITH THE FEDERAL CHARGE OF CONSPIRACY

A. Evidentiary Advantages of Conspiracy

Several evidentiary advantages exist when prosecuting a conspiracy charge. First, conspirators can be tried together and judges are very reluctant to grant severance motions in conspiracy trials. (242) Thus, prosecutors save time and money by only having to present evidence at one trial for several defendants. (243) This helps to alleviate staffing constraints within the U.S. Attorney's Offices and also the need for FWS witnesses--already short on staff and funding--to appear at several trials. (244)

Secondly, hearsay, a statement made out-of-court that is offered as evidence in a trial "to prove the truth of the matter asserted," is normally inadmissible at trial. (245) Yet, a statement is not considered hearsay, even though made out-of-court, under Federal Rule of Evidence 801(d)(2)(E), if the statement is made by a co-conspirator "during the course and in furtherance of the conspiracy." (246) Thus, out-of-court statements by one conspirator may be used as evidence against all the other conspirators (247) as long as certain factors are proven by a preponderance of the evidence. (248) The offering party must show that a conspiracy existed, that both the individual making the statement and the defendant were members of the same conspiracy, and that the statement was made in furtherance of the conspiracy while the conspiracy existed. (249)

Because a co-conspirator's statement that satisfies these factors is not considered hearsay, any witness may testify the statement was made regardless of whether or not they are a conspirator. (250) The statement also does not need to have been made by one conspirator to another. (251) Further, if conspirator A repeats what she heard from conspirator B to conspirator C, and conspirator C testifies, that testimony is allowed. (252) Finally, a statement of a co-conspirator can be admitted against the defendant even if the statement was made before the defendant joined the conspiracy. (253)

While a conspiracy charge is not necessary to invoke Rule 801(d) 2)(E), (254) prosecutors should add a conspiracy charge to a Lacey Act violation. Rule 801(d)(2)(E) is commonly used with conspiracy charges. (255) After the prosecutor proves the existence of a conspiracy, as well as the other necessary factors, by a preponderance of the evidence and invokes the rule, she only needs to go one step further and provide sufficient evidence to show that a conspiracy exists beyond a reasonable doubt for a conspiracy conviction. (256) This burden is eased by having the ability to use co-conspirator's statements. (257) Once "a conspiracy is shown to exist, slight evidence is all that is required to connect a particular defendant with the conspiracy."258 Plus, by attaching a conspiracy charge, the prosecutor will also receive the other advantages associated with conspiracy.

The admission of co-conspirators' statements is an important tool in convicting defendants of conspiracy. (259) Instead of relying solely on evidence gathered by the prosecution and FWS officials, the government may also use co-conspirator statements--statements that might not require as much time and money to gather and that might provide further evidence FWS was unable to discover. Co-conspirator statements are extremely damaging to the defendant (260) and often describe the defendant's role, thus providing evidence that could potentially allow the court to enhance the sentence of the defendant. (261)

Another evidentiary advantage of conspiracy involves the use of "evidence of other crimes, wrongs, or acts" under the Federal Rule of Evidence 404(b). This evidence is inadmissible to prove "the character of a person in order to show action in conformity therewith" but can be used to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." (262) In conspiracy charges, courts liberally admit evidence of other crimes, wrongs, or acts--referred to as extrinsic evidence--in order to prove intent. (263) "[I]n the context of a conspiracy case, the mere entry of a not guilty plea sufficiently raises the issue of intent to justify the admissibility of extrinsic offense evidence." (264) Thus, while in a Lacey Act violation evidence of other crimes, wrongs, or acts might be excluded, under conspiracy the evidence will more than likely be admitted as a means to prove intent. This helps to further ease the burden of the prosecution, as well as FWS officials, in gathering admittable evidence.

Finally, for a Lacey Act charge, the prosecution must prove an extensive act element that the defendant attempted to or actually did violate. (265) However, for a conspiracy, the prosecution only needs to establish an agreement and an overt act for the act element. (266) If the govermnent cannot prove the act element of the Lacey Act, the government might still be able to prove conspiracy to violate the Act. For instance, in United States v. Todd, (267) the evidence was sufficient to prove that the defendants conspired to take game with a market value over $350 because the price of the hunt was $1000 to $5000 and an overt act was committed in furtherance of the conspiracy. (268) Yet, the defendants could not be convicted of violating the Lacey Act because the Act requires proof of the value of the wildlife actually taken and the government could not show that the value of the dead wildlife exceeded $350. (269) Thus, if the government is unable to prove a requirement of the Lacey Act element because of insufficient evidence gathered through the minimal resources of FWS or for other reasons, the government might still be able to convict the defendants for conspiracy.

A charge for conspiracy to attempt to violate the Lacey Act can also be brought. This charge is formed by combining the conspiracy statute with section 3372(a)(4) of the Lacey Act, which allows a conviction for an attempt to commit any of the trafficking acts listed in section 3372(a)--this includes acts such as importing, exporting, or transporting. (270) Thus, the prosecution may convict the defendant before the act has been completed or even before an attempt to do any of the acts is made. While this will not solve FWS' inability to detect many Lacey Act violations because of insufficient resources, at least when a potential violator, who has not yet violated the Act, is caught, charges can still be brought under conspiracy.

B. Conspiracy Possesses a Greater Reach than the Lacey Act

The federal charge of conspiracy to violate the Lacey Act has the possibility to reach more defendants than the sole charge of violating the Lacey Act. A conspirator is guilty of each substantive offense committed by other conspirators in furtherance of the illegal goal. (271) Even if the defendant had not personally violated the target crime or committed an act in furtherance of the crime, but a fellow conspirator did, the defendant may be convicted. (272) For instance, Ann and Bob--with the requisite culpability for a conspiracy charge (273)--agree to violate the Lacey Act. Ann violates the Lacey Act by transporting an illegally taken fish across the United States border while Bob was in prison for unrelated convictions. Despite Bob not being present or actually having committed the violation, he still may be convicted for conspiring to violate the Lacey Act. (274) In the process of transporting the fish, Ann also committed a third crime, mail fraud. Because mail fraud was committed in furtherance of the conspiracy, and it is foreseeable that mail fraud would need to be committed to illegally transport fish, Bob could also be convicted of this third crime. (275) Thus, in addition to a conspiracy to violate the Lacey Act charge, the prosecution may also attach other charges, leading to the possibility of additional sentences.

C. Sentencing Advantages of Conspiracy

Enforcement of the Lacey Act is hampered by the light sentences given to convicted defendants. (276) Judges, as well as prosecutors, often fall to take wildlife crimes seriously. (277) This, in turn, puts further stress on the Fish and Wildlife Service. Instead of sending the message to illegal wildlife traffickers that if they are caught, they will be punished, the message is the opposite. Thus, after FWS expends its resources to catch a trafficker, the trafficker, after conviction, might be immediately back on the street committing the same crimes. (278)

Conspiracy presents an advantage by adding gravity to the offense. While the judge may not consider a wildlife crime to be serious, two or more individuals conspiring to commit a crime appears inherently more dangerous.

For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes outweighing; in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered. (279)

Conspiracy is a "means of striking against [this] special danger incident to group activity." (280) When a judge is faced with sentencing a defendant for conspiracy, instead of a wildlife crime, the judge may be less likely to downplay or dismiss the crime because of the negative connotations associated with conspiracies. (281) Thus, instead of sentencing the defendant to the lowest penalty possible allowed by the Sentencing Guidelines, as commonly done with Lacey Act crimes, (282) the judge may be more inclined to sentence the defendant to the full extent allowed under the Guidelines. (283)

Further, a defendant may also be charged with both the substantive offense of violating the Lacey Act, and conspiracy to violate the Lacey Act. (284) A single act prosecuted under these two separate offenses allows a judge to sentence a defendant for each separate conviction and these sentences can run consecutively. (285) However, very few individuals actually receive consecutive sentences for conspiracy and the completed offense. (286)

Despite the lack of consecutive sentences, a conspiracy charge will still add gravity to a Lacey Act offense. Plus, based on the defendant's role in the conspiracy, the defendant's offense level under the Sentencing Guidelines may be enhanced because of participation in group criminal activities. (287) A conspiracy charge will hopefully lead to a longer sentence, providing deterrence and consequently assisting FWS by sending the message that trafficking will not be tolerated.

VI. CONCLUSION

The advantages present with a conspiracy to violate the Lacey Act charge could greatly help to combat the expansive poaching and illegal wildlife trade. Since a conspiracy charge reaches more individuals and allows admission of what might be normally inadmissible evidence, more defendants can be convicted for Lacey Act activities. Plus, these defendants may receive longer prison sentences and harsher fines deterring others from committing similar crimes. These advantages will also help to alleviate the Fish and Wildlife Service's need for funding. More criminals may be reached, but the time and money spent to convict these individuals will not increase since more evidence may be used against a greater number of defendants. A charge of conspiracy to violate the Lacey Act will not end the poaching and illegal wildlife trafficking problem. However, it will lead to more convictions, longer sentences, and deter future violations--saving wildlife in the process.

(1) The Lacey Act was introduced by Iowa Congressman John Lacey (R-Iowa) and signed into effect by President William McKinley on May 25, 1900. 33 CONG. REC. 4871 (1900); see also Robert S. Anderson, The Lacey Act: America's Premier Weapon in the Fight Against Unlawful Wildlife Trafficking, 16 PUB. LAND L. REV. 27, 29, 36-53 (1995) (describing the history and development of the Lacey Act). Anderson is the Senior Trial Counsel for the Wildlife and Marine Resources Section in the Environment and Natural Resources Division of the United States Department of Justice.

(2) Lacey Act Amendments of 1981, 16 U.S.C. [subsection] 3371-3378 (2000).

(3) Anderson, supra note 1, at 29.

(4) U.S. FISH & WILDLIFE SERV., DIV. OF LAW ENFORCEMENT, ANN. REP. FY 2000, at 3 (only the Endangered Species Act and the Migratory Bird Treaty Act registered more cases).

(5) 16 U.S.C. [section] 3372(a)(1) (2000).

(6) Donovan Webster, The Looting and Smuggling and Fencing and Hoarding of Impossibly Precious, Feathered and Scaly Wild Things, N.Y. TIMES MAG., Feb. 16, 1997, at 28 (annually between $10 billion and $20 billion plants and animals are traded illegally in the international market).

(7) 18 U.S.C. [section] 371 (2000).

(8) Id.

(9) United States v. Rabinowich, 238 U.S. 78, 88 (1915) (conspiracy is considered a grave offense because it is a partnemhip in planning crime); see also infra Part V.B.

(10) See infra Part V.

(11) Webster, supra note 6, at 28.

(12) Blumenthal v. United States, 332 U.S. 539, 557 (1947) (the more completely secrecy and concealment are achieved, "the more successful the crime"); Keri C. McGrath & Jennifer L. Pfeiffer, Federal Criminal Conspiracy, 36 AM. CRIM. L. REV. 661,663 (1999).

(13) As Fish and Wildlife Service agent Dave Hall states, "[w]e have a war going on.... And as long as enormous profits are attached to wildlife, wildlife loses." Constance J. Poten, America's Illegal Wildlife Trade: A Shameful Harvest, NAT'L GEOGRAPHIC, Sept. 1991, at 106, 112.

(14) Anderson, supra note 1, at 31. A gram of "curative or virility potion from ... a tiger, rhino, or wild bear costs more than two grams of cocaine." Michael J. Goodman, It's a Jungle Out There, L.A. TIMES MAG., Oct. 15, 1995, at 16. A trafficker faces ten years in prison for smuggling a $140 ounce of cocaine and selling it for $1200. Id. In comparison, a trafficker smuggling a $300 live cockatoo or bear gallbladder and selling it for $2000 faces only the risk of a "severe tongue-lashing," creating even greater incentive to smuggle wildlife. Id.

(15) Anderson, supra note 1, at 29.

(16) Webster, supra note 6, at 28 (the United States leads the list of buyers for illegally traded wildlife).

(17) GEN. ACCOUNTING OFFICE, WILDLIFE PROTECTION: FISH AND WILDLIFE SERVICE'S INSPECTION PROGRAM NEEDS STRENGTHENING, CHAPTER REPORT, GAO/RCED 95-8, at 3 (Dec. 29, 1994) (this report is the result of a 22-month study conducted by the General Accounting Office) [hereinafter GAO WILDLIFE REPORT].

(18) Ruth S. Musgrave et al., The Status of Poaching in the United States--Are We Protecting Our Wildlife?, 33 NAT. RESOURCES J. 977, 977 (1993). Ms. Musgrave is the founder of the Center for Wildlife Law at the School of Public Law of the University of New Mexico. She asserts that "the level of poaching [in the United States] has reached a crisis." MICHAEL TOBIAS, NATURE'S KEEPERS: ON THE FRONT LINES OF THE FIGHT TO SAVE WILDLIFE IN AMERICA 5 (1998).

(19) TOBIAS, supra note 18, at 5; see also, Poten, supra note 13, at 110.

(20) TOBIAS, supra note 18, at 6.

(21) Another motive behind the wildlife trafficking problem is "the obsession by some to possess, at any cost, these symbols of power and freedom." Poten, supra note 13, at 119. This obsession also feeds into the profit motive since these hunters will then pay guides large sums of money to help them possess the animal of their choice. Id. at 124.

(22) Fish and Wildlife officials call the illegal wildlife trade "a booming tax-free business." Id. at 110. The trade includes a variety of individuals--rich, poor, outfitters, taxidermists, and even organized crime. The financial return is high and the risk of being caught low. Id.

(23) TOBIAS, supra note 18, at 15.

(24) Id.

(25) Poten, supra note 13, at 110.

(26) Bighorn sheep, ovis canandensis, are listed as endangered in the western conterminous states raider the Endangered Species Act. Endangered and Threatened Wildlife, 50 C.F.R. [section] 17.11 (2001).

(27) Telephone Interview with Bryan Mackie, sole proprietor of Antler Creek Wildlife Creations, specializing in antler art (Nov. 4, 2001).

(28) Id.

(29) Poten, supra note 13, at 114. While Alaska brown bears are not listed under the Endangered Species Act, brown bears in the lower 48 states are listed as threatened. 50 C.F.R. [section] 17.11 (2001).

(30) TOBIAS, supra note 18, at 30.

(31) Id. In Asia, bear gallbladders can cost $2000 to $10,000, according to the 1994 International Symposium on the Trade of Bear Parts for Medicinal Use. Goodman, supra note 14, at 16. Demand for bear gallbladders is the result of 2000 years of traditional Asian medicine--bile from the gallbladders prevents and heals diseases, and is the "cultural embodiment of strength, prowess, and health." Id. While bile from Asian bears is considered the most potent, those bears are almost extinct and black bears from the United States fill the void. Id.

(32) TOBIAS, supra note 18, at 98.

(33) Poten, supra note 13, at 129. Snakes are often caught by illegally pouring gasoline down snake holes to flush the reptiles out. Id. The gasoline has the devastating side effect of killing den-sharing turtles, tortoises, and burrowing owls. Id.

(34) Id.

(35) Some argue that illegally taken wildlife is no longer a problem because game animals are flourishing. Patrick Jonsson, As Hunting Season Begins, Poaching Declines, CHRISTIAN SCI. MONITOR, Nov. 6, 2000, at 6. However, Jonsson is only considering wildlife such as deer, geese, and ducks, and admits that the problem today is not with the typical hunters of these game animals, but rather with "fortune hunters seeking rare game or rich thrill seekers trying to bag a trophy buck." Id. When the animal is rare game, the poaching is likely to have more devastating results; more than likely poaching will lead to extinction.

(36) Poten, supra note 13, at 111. Black bears are listed as threatened in Louisiana, Mississippi, and Texas. Endangered and Threatened Wildlife, 50 C.F.R. [section] 17.11 (2001).

(37) Poten, supranote 13, at 111, 124.

(38) Id. at 111.

(39) Id. at 124.

(40) Service Returns Smuggled Birds to Mexico, M2 PRESSWIRE, Aug. 11, 2000, 2000 WL 26607905.

(41) GAO WILDLIFE REPORT, supra note 17, at 6.

(42) Poten, supra note 13, at 118. The informant admits that he previously illegally shipped up to 20,000 pounds of fish a day and used fourteen aliases to avoid capture. Id.

(43) Id.

(44) Danny M. Boyd, Paddlefish Egg Poaching Investigated, TULSA WORLD, July 13, 2000, at 13, available at 2000 WL 6791404. The eggs sell for $30 to $80 a pound. Id.

(45) Id. The eggs are found in twenty-eight states. Eleven of these states allow sport fishing for paddlefish, but only in limited amounts. Id.

(46) Goodman, supra note 14, at 16 (the risk of disease, such as "the ebola virus, encephalitis, rabies, anthrax, Newcastle and hoof-and-mouth disease," is considerable).

(47) Poten, supra note 13, at 115.

(48) Id. Two individuals were caught digging clams off a garbage dump in an area closed to commercial shell fishing in New York City's Jamaica Bay. The case was dismissed despite the fact that many others could have suffered from eating the contaminated clams. Id.

(49) Id. at 116.

(50) Id.

(51) Id.

(52) Service Returns Smuggled Birds to Mexico, supra note 40.

(53) Id.

(54) Id.

(55) Happy 100th Anniversary to the Lacey Act, ENV'T NEWS SERV., May 30, 2000, at http://ens.lycos.com/ens/may2000/2000L%2D05%2D30%2D09.html.

(56) Anderson, supra note 1, at 27; see also Timothy M. Sullivan, Comment, Inadequate Analysis Leading to an Accurate Conclusion: The Ninth Circuit's Cursory Treatment of the Constitutionality of the Lacey Act in United States v. Senchenko, 29 ENVTL. L. 743, 745 (1999).

(57) TOBIAS, supra note 18, at 95.

(58) Anderson, supra note 1, at 36; see also infra Part IV.A. 1.

(59) Anderson, supra note 1, at 36.

(60) TOBIAS, supra note 18, at 95.

(61) Sullivan, supra note 56, at 758-59.

(62) Id. at 760.

(63) 16 U.S.C. [section] 3371(g) (2000).

(64) Service Returns Smuggled Birds to Mexico, supra note 40.

(65) Chris Gillis, Dead or Alive, AM. SHIPPER, Aug. 1, 2000, at 55, available at 2000 WL 18252823.

(66) Service Returns Smuggled Birds to Mexico, supra note 40.

(67) Id.

(68) ld.

(69) Id.

(70) Gillis, supra note 65, at 55. The Fish and Wildlife's Office of Law Enforcement received $39 million for fiscal year 2000, but the division is asking for an additional $12.6 million for fiscal year 2001. Id. The department also has aging equipment that is technologically outdated. Id.

(71) Id.

(72) GAO WILDLIFE REPORT, supra note 17, at 1.

(73) Id. at 4.

(74) Gillis, supra note 65, at 55.

(75) The program has 72 full-time wildlife inspectors and 235 field operatives to cover all shipping ports in the United States. TOBIAS, supra note 18, at 7. As importer and suspected smuggler, Norm Golub brags, "I could bring in something illegal every week if I wanted. The feds are so overwhelmed, they're useless ... a joke." Goodman, supra note 14, at 16.

(76) Poten, supra note 13, at 131.

(77) Id.

(78) TOBIAS, supra note 18, at 7.

(79) Id. at 112.

(80) GAO WILDUFE REPORT, supra note 17, at 1.

(81) See infra Part IV.A (describing the different criminal penalties under the Lacey Act).

(82 )Mike McPhee, Poacher Guide Bags Prison Time, Helped Htmters Kill Trophy Deer, Elk, DENV. POST, Jan. 6, 1999, at B6, available at 1999 WL 7871960. A wildlife smuggler was caught fourteeen times over a five year period but never received a penalty or fine. Goodman, supra note 14, at 16. As stated in the GAO Wildlife Report:

   Because of higher priorities and staffing constraints within the Department
   of the Interior's Office of the Solicitor and the Department of Justice's
   U.S. Attorney Offices, many violations detected by FWS result only in the
   forfeiture of the seized goods. Penalties or Fines and probation or jail
   are infrequently imposed on violators. According to FWS officials, the lack
   of penalties and fines and other punitive measures assessed for violation
   detected by the wildlife inspection program does little to instill in
   potential violators the need to voluntarily comply with the laws and
   treaties governing wildlife trade.

GAO WILDLIFE REPORT, supra note 17, at 4.

(83) TOBIAS, supra note 18, at 7, 189-90 (judges downplay or even dismiss wildlife crimes). Wildlife crimes tend to be a low priority for the judicial system. ALAN GREEN, ANIMAL UNDERWORLD: INSIDE AMERICA'S BLACK MARKET FOR RARE AND EXOTIC SPECIES 176-77 (1999). Judges "neither understand wildlife crime nor take it seriously." Id. at 176. For example, in a New Mexico case involving the illegal killing of eagles, under the maximum sentence provided by the Lacey Act, the defendant faced a $250,000 fine and five years' imprisonment. TOBIAS, supra note 18, at 189. For charges under the Lacey Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Act, the judge ordered only $3736 in restitution and two years probation. Id. The judge refused to allow a biologist, who witnessed one of the eagle killings, to provide indisputable evidence. Id. at 190. Senior Fish and Wildlife Agent Lucinda Schroeder commented "the judge went nuts." Id.

(84) TOBIAS, supra note 18, at 16; see also infra Part IV.A.2 (discussing the maximum penalties allowed under the Lacey Act). Granted, federal judges rarely impose the maximum penalty under any federal crime, due to the restraints of the Federal Sentencing Guidelines (Guidelines), which restrict the discretion of federal judges when sentencing. SUSAN F. MANDIBERG & SUSAN L. SMITH, CRIMES AGAINST THE ENVIRONMENT 525-27 (1997) (providing a thorough explanation of environmental crimes and the Guidelines); see also UNITED STATES SENTENCING COMM'N, GUIDELINES MANUAL (Nov. 2001) [hereinafter U.S.S.G.]. The Guidelines function by assigning numerical values to a variety of factors. Jane Barett, Sentencing Environmental Crimes Under the United States Sentencing Guidelines--A Sentencing Lottery, 22 ENVTL. L. 1421, 1424 (1992); see also U.S.S.G. [section] 1B1 (application instructions). The numerical values, representing the factors applicable to the defendant's case, are added together, and the sum designates a number for the "offense level" of the specific criminal conduct and a number for the defendant's criminal history. Barett, supra, at 1424; see also U.S.S.G. [section] 2 (offense level); U.S.S.G. [section] 4 (criminal history). "These two numbers are used, in turn, to ascertain a defendant's sentencing range, which is determined by finding the point where the two values intersect" on the Sentencing Table. Barett, supra, at 1424; see also U.S.S.G. [section] 5A (Sentencing Table). For example, a defendant with an "offense level" of fifteen and a criminal history of III would face a sentence of 24 to 30 months. U.S.S.G. [section] 5A. The Guidelines set forth groups of generally related criminal conduct that reflect specific federal criminal statutes. U.S.S.G. [section] 2. For each group, the Guidelines establish a numerical value designated as the "base offense level." The Guidelines also set forth "specific offense characteristics" which identify circumstances that require either an increase or decrease in the "base offense level" of a particular crime. Id. For example, Lacey Act violations would be under the group of "Offenses Involving Fish, Wildlife, and Plants," which is assigned a "base offense level" of six. U.S.S.G. [section] 2Q2.1. For that group, the "specific offense characteristics" allow adjustments to the "base offense level" under three circumstances. First, if the offense "was committed for pecuniary gain" or "involved a pattern of similar violations," increase the offense level by two. Id. Second, if the offense involved fish, wildlife, or plants not lawfully quarantined or created a significant risk of the transmission of harmful disease, increase the offense level by two. Finally, the third circumstance involves two subsections, and if more than one subsection applies, the subsection with the greater increase in offense level is applied. Id. Under the third circumtance, if the offense level involved: 1) fish, wildlife, or plants with a fair market value higher than $2000 but not $5000, the offense level is increased by one, or if the fair market value exceeds $5000, the offense level is increased according to [section] 2B1.1 (Theft, Property Destruction, and Fraud); or 2) a protected species under the Marine Mammal Protection Act, Endangered Species Act, or the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the offense level is increased by four. Id. Thus, if a defendant has an overall offense level of 14--the highest offense level allowed for this group--and a criminal history category of II, according to the sentencing table the sentencing range would be 18 to 24 months. U.S.S.G. [section] 5A. A judge may depart from the range when the defendant has substantially assisted the government, the criminal history score fails to sufficiently reflect the defendant's past criminal conduct or dangerousness, and "the offense involves aggravating and mitigating factors either identified [by the Guidelines] as appropriate grounds for departure or not considered in fornmlating the Sentencing Guidelines." MANDIBERG & SMITH, supra, at 542; see also U.S.S.G. [subsection] 3, 5. Despite federal judges' lack of discretion under the Guidelines, lenient sentencing of environmental criminals continues. Barett, supra, at 1421. Prosecutors have pointed to the willingness of judges to depart from the Guidelines and their reluctance to incarcerate defendants convicted of environmental crimes for one year or more. Barett, supra, at 1447-48 (Barett is an assistant United States Attorney); see also Helen J. Brunner, Environmental Criminal Enforcement: A Retrospective View, 22 ENVTL. L. 1315, 1341 (1992) (Brunner, an assistant United States Attorney specializing in environmental crimes, comments that "courts are reluctant to impose the harsher sanctions that the sentencing guidelines demand").

(85) 16 U.S.C. [section] 3372 (2000).

(86) Therefore, this Comment will not discuss those offenses, or the civil fines related to trafficking and false labeling.

(87) Anderson, supra note 1, at 54. Anderson's article introduces the use of this four-step analysis.

(88) The specific language of the Lacey Act trafficking violation provides that

   It is unlawful for any person--to

   import, export, transport, sell, receive, acquire, or purchase any fish or
   wildlife or plant taken, possessed, transported, or sold in violation of
   any law, treaty, or regulation of the United States or in violation of any
   Indian tribal law;

   to import, export, transport, sell, receive, acquire, or purchase in
   interstate or foreign commerce--any

   fish or wildlife taken, possessed, transported, or sold in violation of any
   law or regulation of any State or in violation of any foreign law, or

   any plant taken, possessed, transported, or sold in violation of any law or
   regulation of any State;

   within the special maritime and territorial jurisdiction of the United
   States (as defined in section 7 of Title 18)--to

   possess any fish or wildlife taken, possessed, transported or sold in
   violation of any law or regulation of any State or in violation of any
   foreign law or Indian tribal law, or

   to possess any plant taken, possessed, transported, or sold in violation of
   any law or regulation of any State;

   to attempt to commit any act described in paragraphs (1) through (4).

16 U.S.C. [section] 3372(a) (2000).

(89) Id. [section] 3371(a).

(90) Id.

(91) Anderson, supra note 1, at 36. The definition makes no distinction between animals that are wild or captive born. United States v. Bernal, 90 F.3d 465, 467 n.4 (11th Cir. 1996).

(92) "Taken" means "captured, killed, or collected." 16 U.S.C. [section] 3371(i) (2000).

(93) Id. [section] 3372(a); see also Anderson, supra note 1, at 59.

(94) Id. [section] 3372(a)(1)-(2)(A). This Comment deals with fish and wildlife. For Lacey Act violations involving plants, there must be an underlying violation of a State law or regulation. The Lacey Act does not impose penalties for violation of a foreign law regarding plants. Id. [section] 3372(2)(B).

(95) United States v. Carpenter, 933 F.2d 748, 750-51 (9th Cir. 1991). The defendant ordered his employees to shoot hundreds of migratory birds flying over his property. The government argued that the defendant violated the Lacey Act by killing the birds. The court found that the government mistakenly interpreted the Lacey Act by collapsing the need for two separate violations into one. The government cannot claim that the act of shooting the bird meets the underlying requisite violation and also suffices for the Lacey Act violation of acquiring the bird. Instead, "[t]he bird must be taken before acquiring it violates the Lacey Act." Id. at 750.

(96) United States v. Mitchell, 985 F.2d 1275, 1284 (4th Cir. 1993) (defendant does not have to violate the predicate statute but only needs to have knowledge it was violated).

(97) "Import" means "to land on, bring into, or introduce into" any place subject to United States jurisdiction, regardless of whether it "constitutes an importation within the meaning of" United States customs laws. 16 U.S.C. [section] 3371(b) (2000).

(98)"Transport" means "to move, convey, carry, or ship by any means, or to deliver or receive for the purpose of movement, conveyance, carriage, or shipment." Id. [section] 3371(j). A defendant who places wildlife into the stream of commerce is thus covered by the Lacey Act. United States v. Gay-Lord, 799 F.2d 124, 126 (4th Cir. 1986) (defendant sold fish to a company that would transport the fish to markets in other states. Even though he did not personally transport the fish, his conviction was upheld because he "knew that the rockfish would be transported in interstate commerce and took the steps that began their travel to interstate markets.").

(99) 16 U.S.C. [section] 3372(a)(1). Maritime violations under 16 U.S.C. [section] 3372(a)(3) are beyond the scope of this Comment and will not be discussed.

(100) Id. [section] 3372(a)(4). An attempt to commit an act described under 16 U.S.C. [section] 3372(a) qualifies as a completed offense under the Lacey Act.

(101) Id. [section] 3372(a)(2).

(102) Id. [section] 3372(c).

(103) Id. [section] 3372(c)(1).

(104) Id. [section] 3372(c)(1)(A).

(105) Id. [section] 3372(c)(1)(B).

(106) Id. [section] 3372(c)(1).

(107) Id. [section] 3372(c)(2).

(108) Id. [section] 3372(c)(2)(A).

(109) Id. [section] 3372(c)(2)(B).

(110) Id. [section] 3372(c)(2).

(111) Anderson, supra note 1, at 59.

(112) 16 U.S.C. [section] 3373(d) (2000). Conspiracy is a criminal charge, thus civil penalties will not be discussed in this Comment because civil penalties may not be used in conjunction with criminal charges.

(113) See supra Part IV.A. 1.

(114) 16 U.S.C. [section] 3371(a), 3373(d) (2000).

(115) The Supreme Court presumes a culpability requirement if a felony statute is ambiguous as to whether a mental state element is necessary. Morissette v. United States, 342 U.S. 246 (1952) (interprets federal theft statute to include mental state element); see also MANDIBERG & SMITH, supra note 84, at 71-74. For purposes of determining the appropriate mental state, the Lacey Act is considered an "innocent activity offense." United States v. Bronx Reptiles, Inc., 217 F.3d 82, 90-91 (2d Cir. 2000); MANDIBERG & SMITH, supra note 84, at 74-75. Thus, because the statute is ambiguous regarding culpability at this step, the appropriate mental state requirement is that the defendant was aware of violating some law, treaty or regulation. MANDIBERG & SMITH, supra note 84, at 74-75; see also Liparota v. United States, 471 U.S. 419 (1985) (absent statutory language or legislative history to the contrary, must prove that defendant knew his conduct was unauthorized by statute or regulation, but not whether he was aware of which specific law he was violating).

(116) 16 U.S.C. [section] 3373(d)(1) (2000) ("knowing that the fish or wildlife ... were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation").

(117) Id. [section] 3373(d)(2) ("in the exercise of due care should know that the fish or wildlife ... were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation").

(118) Id. [subsection] 3373(d)(1), (2); see also United States v. Santillan, 243 F.3d 1125, 1129 (9th Cir. 2001) (defendant's knowledge that importing baby parrots was unlawful was sufficient even though he did not know the actual law violated).

(119) See supra Part IV.A.1.

(120) 16 U.S.C. [section] 3373(d)(1)(A) (2000) ("knowingly imports or exports any fish or wildlife").

(121) Id. [section] 3373(d)(1)(B) ("knowingly engaging in conduct that involves the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase, fish or wildlife ... with a market value in excess of $350").

(122) Id. For this provision, the defendant need not have committed the act of buying or selling. Instead, her conduct shows she manifested an intention to do so at some point.

(123) Id. [section] 3373(d)(2) ("knowingly engages in conduct; prohibited by any provision of this chapter").

(124) Id.

(125) Id. [section] 3373(d)(1).

(126) Id.

(127) On the face of the statute, an individual may only be fined a maximum of $20,000. Id. However, the Sentencing Reform Act of 1984 replaces the listed fines in the Lacey Act. 18 U.S.C. [subsection] 3551-3742 (2000). Under [section] 3571, the listed fines specify the amount of the fine for federal criminal statutes if no specific fine is provided. The listed fines also replace all fines that are specifically provided in federal criminal statutes if those fines are lower than the fines listed in [section] 3571. Id. [section] 3571. Only if an exemption is listed in the federal criminal statute will [section] 3571 not be applicable. Id. [section] 3571(e). Since the Lacey Act felony fines are lower than those felony fines listed in [section] 3571, the fines of [section] 3571 are enforced. Id. [section] 3571(b)(3). For an explanation of how to apply the Sentencing Reform Act, see MANDIBERG & SMITH, supra note 84, at 526-29.

(128) 18 U.S.C. [section] 3571(c)(3) (2000).

(129) 16 U.S.C. [section] 3373(d)(2) (2000).

(130) On the face of the statute, the misdemeanor fine is $10,000 for an individual. Id. However, 18 U.S.C. [section] 3571 replaces the fine under the Lacey Act. See supra note 126. To determine the correct misdemeanor fine under [section] 3571, the judge must determine the category of misdemeanor crime involved. 18 U.S.C. [section] 3571 (2000). Section 3559 lists three misdemeanor categories. Id. [section] 3559. Misdemeanors that carry a sentence from six months to a year are considered Class A misdemeanors. Id. Because this Lacey Act misdemeanor allows for imprisonment for up to one year, it is a Class A misdemeanor. Individuals convicted of Class A misdemeanors that do not result in death cannot be fined more than $100,000. Id. [section] 3571(b)(5); see also MANDIBERG & SMITH, supra note 84, at 527-28.

(131) 18 U.S.C. [section] 3571(c)(5) (2000).

(1320 United States v. McDougall, 25 F. Supp. 2d 85, 90 (N.D.N.Y. 1998).

(133) An example of using the two offenses in conjunction would be when a defendant exports salmon products labeled as squid products to Taiwan when Taiwanese law prohibits the import of salmon products. The defendant could be charged under the trafficking offense for exporting in violation of a foreign law and under the false labeling offense for mislabeling the salmon as squid and exporting the packages. See, e.g., United States v. 594,464 Pounds of Salmon, More or Less, 687 F. Supp. 525 (W.D. Wash. 1987).

(134) Specifically, the statute says,

   It is unlawful for any person to make or submit any false record, account,
   or label for, or any false identification of, any fish, wildlife, or plant
   which has been, or is intended to be imported, exported, transported, sold,
   purchased, or received from any foreign country; or transported in
   interstate or foreign commerce.

16 U.S.C. [section] 3372(d) (2000).

(135) Id. Making or submitting false records, accounts, or labels violates [section] 3372(d) regardless of whether the defendant had a duty to file the forms or not. United States v. Allemand, 34 F.3d 923, 927 (10th Cir. 1994).

(136) The fish or wildlife that is falsely labeled does not need to be an illegally taken fish or wildlife. A defendant may still be charged with the false labeling offense if, for example, elk antlers were taken legally but labeled as magazines. Realistically, however, it seems that an individual would only falsely label an item in order to hide something illegal.

(137) 16 U.S.C. [section] 3372(d) (2000).

(138) Id.

(139) Id.

(140) Id. [section] 3373(d)(3).

(141) See id. [section] 3372(d).

(142) The statute and its legislative history is silent on whether a defendant must knowingly submit a label and also know that the label is false. However, logically, the correct interpretation would seem to be that knowingly is required for both the submitting and the falsity. Otherwise, a defendant could be convicted for knowingly submitting a label, but yet the defendant had no idea that the label was false. This interpretation criminalizes "apparently innocent conduct" and such interpretations should be avoided. Liparota v. United States, 471 U.S. 419, 426 (1985). Requiring culpability for both the submitting and the falsity accords with the principle of using the rule of lenity for ambiguous criminal statutes. Id. at 427.

(143) 16 U.S.C. [section] 3372(d)(1), (2) (2000).

(144) Id. [section] 3372(d)(1).

(145) Id. [section] 3372(d).

(146) Id. [section] 3373(d)(3)(A)(i).

(147) Id. [section] 3373(d)(3)(A)(ii).

(148) The statute specifies the maximum prison term but requires the defendant to be fined under Title 18. Id. [section] 3373(d)(3)(A). The Title 18 maximmn felony fine for an individual is listed as $250,000. 18 U.S.C. [section] 3571(b)(3) (2000).

(149) 18 U.S.C. [section] 3571(c) (2000).

(150) 16 U.S.C. [section] 3373(d)(3)(B) (2000).

(151) The Act specifies the prison term but requires reference to Title 18 for the fine. Id. [section] 3373(d)(3)(A), (B). Under Title 18, this charge is considered a Class A misdemeanor since the prison term can be up to one year. 18 U.S.C. [section] 3559(a) (2000). A Class A misdemeanor not involving death carries a fine up to $100,000. Id. [section] 3571(b).

(152) 16 U.S.C. [section] 3571(c) (2000).

(153) 18 U.S.C. [section] 371 (2000).

(154) Id. A plain reading of the statute requires only that two or more individuals conspire to commit an illegal crime and commit an overt act in furtherance of the conspiracy. Legislative history provides no direction for statutory interpretation. Tanner v. United States, 483 U.S. 107, 128 (1987).

(155) 18 U.S.C. [section] 371 (2000).

(156) KATHLEEN F. BRICKEY, CORPORATE CRIMINAL LIABILITY: A TREATISE ON THE CRIMINAL LIABILITY OF CORPORATIONS, THEIR OFFICERS, AND AGENTS, VOL. I 206 (2d ed. 1992). The word "conspiracy" actually means the agreement. A common mistake is to use the word "conspiracy" to refer to the group committing the crime. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 399 (1995).

(157) Blumenthal v. United States, 332 U.S. 539, 556 (1947) (conspiracies evolve and at different stages it is necessary to bring in new conspirators); see also United States v. James, 528 F.2d 999, 1012 (5th Cir. 1976) (holding that if the individual joining later knows of the criminal plans and acts in concert with the conspirators, she may be held responsible for everything done before and after she joins).

(158) United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989) (noting that the prosecution does not need to show a formal agreement to prove a federal conspiracy); United States v. Restrepo, 930 F.2d 705, 709 (9th Cir. 1991) (noting that a conspiracy agreement does not need to be explicit).

(159) Ellzey, 874 F.2d at 328.

(160) Paul Marcus, Criminal Conspiracy Law: Time to Turn Back from an Ever Expanding, Ever More Troubling Area, 1 WM. & MARY BILL RTS. J. 1, 19 (1992); see also infra Part IV.C (discussing evidentiary advantages of the conspiracy charge).

(161) Marcus, supra note 160, at 19.

(162) DRESSLER, supra note 156, at 398.

(163) United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997) (stating that the agreement "may be inferred from the 'development and collocation of circumstances'"); see also Ellzey, 874 F.2d at 328. In Ellzey, the defendants were convicted of conspiracy to defraud farmers who were searching for loans to stop foreclosure on their farms. Defendants would offer to secure loans in exchange for advanced fees, collect Lhe fees, and then never secure the loans. A mutual understanding between the defendants to defraud the farmers was reasonably inferred from evidence that D1 was defrauded by D2 in a similar scheme but did not distance himself from D2; that D1 would approach farmers with an offer while D2 sent loan commitment letters to farmers; and that the defendants shared the advanced fees. Ellzey, 874 F.2d at 328; see also United States v. Armstrong, 16 F.3d 289, 294 (8th Cir. 1994) (agreement to pass counterfeit money inferred from evidence that the defendants were together when they passed the bills and that the defendants had been together for "numerous hours" on a cross-country trip); Restrepo, 930 F.2d at 709 (holding that the evidence was sufficient to persuade a jury beyond a reasonable doubt that an understanding existed between the defendant and the drug trafficker to sell cocaine when the prosecution proved that defendant was at a meeting at which plans were made to deliver cocaine to undercover agents, that defendant told the agents he was the drug trafficker's partner, and that the defendant discussed the price and quantity of the cocaine he could deliver).

(164) United States v. Aguirre, 716 F.2d 293, 297-98 (5th Cir. 1983). The pertinent Federal Rule of Evidence 404(b) states:

   Evidence of other crimes, wrongs, or acts is not adinissible to prove the
   character of a person in order to show action in conformity therewith. It
   may, however, be admissible for other purposes, such as proof of motive,
   opportunity, intent, preparation, plan, knowledge, identity, or absence of
   mistake or accident ....

FF.D.R. EVID. 404(b). For the court to admit such evidence, the evidence must be directed towards establishing something at issue other than a party's propensity to commit the act charged, such as the defendant's identity. Id. Plus, the evidence must be relevant to the case, however, the court may exclude the relevant evidence under Federal Rule of Evidence 403 if its prejudicial effect substantially outweighs its probative value. FED. R. EVID. 403; see also supra Part V.A.

(165) Blumenthal v. United States, 332 U.S. 539, 557 (1947) (stating that the prosecution need not prove defendant's knowledge of every detail of the agreement because a conspiracy is based on secrecy and to require this knowledge would allow most conspirators to go free "by their very ingenuity").

(166) Id.; see also DRESSLER, supra note 156, at 397.

(167) United States v. James, 528 F.2d 999, 1011 (5th Cir. 1976).

(168) United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir. 1980) (defendant was not a conspirator because he never expressly or impliedly agreed to join the conspiracy, he only associated with conspirators and knew somewhat of their plans), cert. denied, 449 U.S. 956 (1980); Gonzales, 121 F.3d at 935 (presence at the crime scene or close contact with conspirators by itself does not prove involvement in the agreement); United States v. Falcone, 311 U.S. 205, 211 (1940) (a person selling supplies to a conspirator is not part of the conspiracy even though the sale might have furthered "the object of the conspiracy to which the distiller was a party but of which the supplier had no knowledge").

(169) Gonzales, 121 F.3d at 935.

(170) United States v. Faulkner, 17 F.3d 745, 768 (5th Cir. 1994) ( "[T]he government must prove beyond a reasonable doubt that two or more people agreed to pursue an unlawful objective together.").

(171) 18 U.S.A. [section] 371 (2000).

(172) McGrath & Pfeiffer, supra note 12, at 669.

(173) Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). Examples of defrauding the government include passing counterfeit money or bribing government officials to create false reports. Id.

(174) Tanner v. United States, 483 U.S. 107, 128 (1987) (citing Dennis v. United States, 384 U.S. 855, 861 (1966)).

(175) Hammerschmidt, 265 U.S. at 188 (the government's action and purpose need only be defeated by "misrepresentation, chicanery or the overreaching of those charged with carrying out the governmental intention").

(176) An individual would not have anyone to conspire with if she was the oniy person involved in the crime, hence the requirement that the agreement be between two individuals. Morrison v. California, 291 U.S. 82, 92 (1934) ("It is impossible in the nature of things for a man to conspire with himself."). The policy behind making conspiracy a crime is that the threat of danger is greater from a group than from an individual. Marcus, supra note 160, at 3.

(177) United States v. Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985) (there cannot be a conspiracy where there is only the defendant and a government agent or informer).

(178) United States v. Fincher, 723 F.2d 862, 863 (llth Cir. 1984) ( "[A] government agent may serve as a `link' between `genuine' conspirators."). The defendant was found to be a participant in a conspiracy even though his only link with the other conspirators was through a government agent who was trying to purchase guns from the conspirators for the defendant. Id.

(179) DRESSLER, supra note 156, at 422 (citing 2 FRANCIS WHARTON, CRIMINAL LAW [section] 1604 (12th ed. 1932); Iannelli v. United States, 420 U.S. 770 (1975)). Francis Wharton's treatise first recognized the doctrine and, thus, gave rise to the name. Iannelli provides thorough analysis of the history and purposes of Wharton's Rule. Iannelli, 420 U.S. at 770.

(180) DRESSIER, supra note 156, at 422.

(181) Id. at 423.

(182) Id.

(183) Id.

(184) WAYNE LAFAVE, CRIMINAL LAW 592-93 (3d ed. 2000).

(185) McGrath & Pfeiffer, supra note 12, at 672-73.

(186) Pinkerton v. United States, 328 U.S. 640, 644 (1946).

(187) BRICKEY, supra note 156, at 218-19.

(188) Pinkerton, 328 U.S. at 640.

(189) McGrath & Pfeiffer, supra note 12, at 674.

(190) See supra Part IV.B.1 for further explanation of these act element requirements.

(191) See United States v. Sanchez, 917 F.2d 607, 610 (1st Cir. 1990); United States v. Rowland, 592 F.2d 327, 329 (6th Cir. 1979) (convicting defendant of conspiracy because he knew the objective of the agreement and intended to agree to help reach that objective).

(192) LAFAVE, supra note 184, at 586. Not only must there physically be two or more participants, but at least two of those participants must have the requisite mental state for a charge of conspiracy. Id. at 586-87; see also supra Part IV.B.1.

(193) LAFAVE, supra note 184, at 586.

(194) See DRESSLER, supra note 156, at 397-99.

(195) Id. at 102.

(196) See supra Part IV.B.1 for further explanation of what the prosecution must prove for this act element requirement.

(197) The intent to agree is intimately entwined with the agreement requirement of the act element. LAFAVE, supra note 184, at 579. An inference will not be drawn in common law jurisdictions if the defendant proves that she made an honest and reasonable mistake regarding whether she was entering an agreement. DRESSLER, supra note 156, at 138.

(198) There are three types of mental elements in the definitions of specific intent crimes. JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 140-41 (1999) (providing a thorough explanation of the specific intent variations). Here, the applicable specific intent requires that the "defendant acts not only with knowledge of what he is doing, but does so with the objective of completing some unlawful act." United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995).

(199) United States v. Haldeman, 559 F.2d 31, 112 (D.C. Cir. 1976); see also DRESSLER, supra note 156, at 403.

(2OO) The target crime is the illegal goal of the agreement. When the goal of the conspiracy is to defraud or obstruct activities of the United States, the prosecution must prove that the defendant had the specific intent to defraud or obstruct the government. United States v. Southland Corp., 760 F.2d 1366 (2d. Cir. 1985).

(201) United States v. Lichenstein, 610 F.2d 1272 (5th Cir. 1980); see also LAFAVE, supra note 184, at 580.

(202) Despite the necessity for proving the mental state required by the substantive crime, the conspiracy offense never merges with the underlying offense and therefore remains a separate charge. Pinkerton v. United States, 328 U.S. 640, 643 (1945) (explaining that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses" and that a defendant may be given penalties for both). There are a few limited exceptions to this rule, such as Wharton's Rule, which bars a charge of conspiracy when the substantive crime, by its definition, requires two participants. Iannelli v. United States, 420 U.S. 770, 777-78 (1975).

(203) Conduct is the specific behavior prohibited by the law. DRESSLER, supra note 156, at 97.

(2O4) Result is the outcome punished by the law. Id. at 97-98.

(205) The courts usually do not break down the necessary mental state for conspiracy into conduct, result, and attendant circumstances. Instead, the courts generally state that the defendant must possess the specific intent to commit the target crime. See United States v. Jones, 30 F.3d 276, 283 (2d Cir. 1994) (stating that a conspiracy charge will not succeed if the prosecution has not proven beyond a reasonable doubt that "the defendant had the specific intent to violate the substantive statute"). This Comment uses a step-by-step approach to provide a clearer analysis of prosecuting a defendant with the charge of conspiracy. The substantive statute is comprised of requisite act elements for a conviction under that offense. These act elements can be classified as conduct, result, or attendant circumstance. For a conspiracy charge, the defendant must possess a specific intent for each act element listed in the substantive statute. See DRESSLER, supra note 156, at 405 (explaining that specific intent applies to the proscribed result or conduct).

(206) DRESSLER, supra note 156, at 403.

(207) Id.

(208) Id.

(209) Id.

(210) Id.

(211) MODEL PENAL CODE [section] 2.02(2)(a)(i) (Proposed Official Draft 1962). While the federal charge of conspiracy follows common law instead of the Model Penal Code, the Model Penal Code definitions are helpful in describing the two similar mental states of "intent."

(212) Id. [section] 2.02(2)(b)(ii).

(213) LAFAVE, supra note 184, at 581.

(214) DRESSLER, supra note 156, at 404.

(215) Id.

(216) 319 U.S. 703 (1943).

(217) Id.

(218) DRESSLER, supra note 156, at 404.

(219) Id.

(220) LAFAVE, supra note 184, at 582.

(221) Attendant circumstances are the conditions that must be present with the prohibited conduct or result to constitute the crime. DRESSLER, supra note 156, at 98.

(222) Id. at 405; see also United States v. Feola, 420 U.S. 671 (1975) (a charge of federal conspiracy does not require a greater intent for attendant circumstances than that contained in the definition of the substantive offense).

(223) Feola, 420 U.S. at 687.

(224) In Feola, the Supreme Court considered this same charge and ruled that knowledge of the victim's federal status is unnecessary. Id. at 684.

(225) A defendant may also be charged with conspiracy to falsely label under [section] 3372(d), since falsely labeling is a criminal charge. This Comment will not provide further analysis on this issue.

(226) See supra Part IV.B.1.

(227) See supra Part IV.B.1.

(228) McGrath & Pfeiffer, supra note 12, at 669.

(229) See supra Part IV.A.1.

(230) See supra Part IV.B.1.

(231) Pinkerton v. United States, 328 U.S. 640, 640 (1946).

(232) Id.

(233) See supra Part IV.B.2.

(234) See supra Part IV.A.2. The prosecution will need to go through the analysis provided in Part IV.A.2 in order to meet the conspiracy requirement of proof of the mental state found in the definition of the target crime.

(235) See supra Part.III.A.2 for the mental state requirements of the Lacey Act. The prosecution will need to go through the analysis provided in Part.III.A.2 in order to meet the conspiracy requirement that the mental state found in the target crime be proven.

(236) See supra Part III.B.2 for further explanation of the misdemeanor Lacey Act culpability requirement.

(237) See supra Part IV.B.2 for further explanation of the definition of "intent" as used at this step.

(238) 16 U.S.C. [section] 3372(a) (2000).

(239) Id.

(240) See supra Part III.A.2 for further explanation of the culpability required towards this attendant circumstance under the Lacey Act; see also United States v. Hansen-Sturm, 44 F.3d 793, 795 (9th Cir. 1995) ("conspirators in the exercise of due care should have known that the protected prey was taken and possessed in violation of state law"). If the target crime is only a misdemeanor, the crime of conspiracy can only be charged as a misdemeanor. 18 U.S.C. [section] 371 (2000).

(241) See supra Part III.A.2 for further explanation of the culpability required towards this attendant circumstance under the Lacey Act.

(242) Marcus, supra note 160, at 12-13; see also United States v. Paulino, 935 F.2d 739, 751 (6th Cir. 1991) ("In conspiracy cases, the general rule is that persons jointly indicted should be tried together.").

(243) Marcus, supra note 160, at 12-13.

(244) See supra Part III.B. for a discussion of these enforcement problems with the Lacey Act.

(245) FED. R. EVID. 801(c).

(246) FED. R. EVID. 801(d)(2)(E).

(247) Christine Chinni, Criminal Law--Whose Head is in the Sand? Problems with the Use of the Ostrich Instruction in Conspiracy Cases, 13 W. NEW. ENG. L. REV. 35, 57 (1991).

(248) Bourjaily v. United States, 483 U.S. 171, 171-72 (1987). The co-conspirator statements themselves can be considered in addition to other evidence in determining the admissibility of the statements under Rule 801(d)(2)(E). Id. at 172-73.

(249) Id. at 175-76.

(250) McGrath & Pfeiffer, supra note 12, at 683.

(251) United States v. Thompson, 976 F.2d 666, 670 (11th Cir. 1992), cert. denied, 509 U.S. 910 (1993).

(252) JOSEPH F. MCSORLEY, A PORTABLE GUIDE TO FEDERAL CONSPIRACY LAW: DEVELOPING STRATEGIES FOR CRIMINAL AND CIVIL CASES 68 (1996).

(253) United States v. United States Gypsum Co., 333 U.S. 364, 393 (1948).

(254) United States v. Perholtz, 842 F.2d 343, 356 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988) (prosecutor only needs to prove a conspiracy exists). Consequently, the admission of the statement does not need to be confined to the conspiracy count, and can be used on substantive counts, such as a Lacey Act violation. United States v. Snow, 521 F.2d 730, 736 (9th Cir. 1975), cert. denied, 423 U.S. 1090 (1976).

(255) Christopher B. Mueller, The Federal Coconspirator Exception: Action, Assertion, and Hearsay, 12 HOFSTRA L. REV. 323, 324 (1984).

(256) The standard of "preponderance of the evidence" requires at least a 50.1% likelihood that the conspiracy existed. The standard of "beyond a reasonable doubt" requires a "very high level of probability." DRESSLER, supra note 156, at 59-60. Thus, when a prosecutor proves the existence of a conspiracy by a "preponderance of the evidence," she is at least halfway there in proving a conspiracy beyond a reasonable doubt. If the prosecutor has sufficient evidence, she should take that final step for a conspiracy conviction.

(257) Marcus, supra note 160, at 25-32 (co-conspirator exception makes it vastly easier to convict a defendant for conspiracy).

(258) United States v. Prince, 515 F.2d 564, 567 (5th Cir. 1975).

(259) "[T]he chief evidentiary advantage" of conspiracy is "the rule regarding declarations by co-conspirators." Marcus, supra note 160, at 25.

(260) "A co-conspirator statement admitted against a defendant is often the most damaging type of evidence in a criminal case because the statement frequently constitutes admissions of ongoing conspiratorial type activities." Fred Warren Bennett, Litigating the Admissibility of Co-conspirators' Statements: A Defense Attorney's Perspective, 18 AM. J. TRIAL ADVOC. 325, 350 (1994).

(261) See infra Part V.C.

(262) FED. R. EVID. 404(b); see a/so supra note 164.

(263) MCSORLEY, supra note 254, at 85.

(264) United States v. Kopituk, 690 F.2d 1289, 1334 (11th Cir. 1982). In conspiracy cases, the probative value often outweighs the prejudicial impact of allowing in Rule 404(b) evidence. United States v. Glen-Archila, 677 F.2d 809, 816 (11th Cir. 1982).

(265) See supra Part IV.A.1.

(266) See supra Part IV.B.1.

(267) 735 F.2d 146 (5th Cir. 1984).

(268) Id.

(269) Id.

(270) 16 U.S.C. [section] 3372(a) (2000); see also United States v. Mowad, 641 F.2d 1067 (2d Cir.), cert. denied, 454 U.S. 817 (1981) (upheld conviction for conspiracy to attempt to export weapons because 18 U.S.C. [section] 371 prohibits conspiracies and 22 U.S.C. [section] 2778(c) makes it illegal to attempt to export firearms); United States v. Dearmore, 672 F.2d 738 (9th Cir. 1992) (upheld conviction for conspiracy to attempt bank robbery). For a conspiracy to attempt to violate the Lacey Act, the prosecution would need to prove the defendant agreed to violate the Lacey Act with a co-conspirator, an overt act was made in furtherance of the criminal objective, and the defendant intended to attempt to violate the Lacey Act. See supra Part III.B.

(271) Pinkerton v. United States, 328 U.S. 640, 647 (1946); see also supra Part III.B.1 for further discussion of the Pinkerton rule.

(272) For the Pinkerton rule to apply, the substantive offense must be committed by a conspiracy member, the defendant must be a conspiracy member, and the substantive offense must have been done in furtherance of the conspiracy and was foreseeable. United States v. Johnson, 713 F.2d 654 (11th Cir. 1984). However, the defendant cannot be liable for any substantive offense committed before joining the conspiracy or after withdrawing from the conspiracy. Levine v. United States, 383 U.S. 265, 266 (1996).

(273) If there is insufficient evidence to prove a conspiracy, conviction of any substantive counts using the Pinkerton rule cannot stand. United States v. Awan, 966 F.2d 1415, 1433-34 (11th Cir. 1990).

(274) United States v. McDougall, 25 F.Supp.2d 85, 95-96 (N.D.N.Y. 1998) (The "government [is] not required to allege that all of the defendants committed a violation of a substantive Lacey Act provision or the underlying state law for conspiratorial liability to attach."). This analysis is also applicable to the overt act requirement. "An act of one conspirator in furtherance of the agreement renders a prosecution permissible against every other party to the same agreement." DRESSLER, supra note 156, at 413; see also supra Part.III.B.1 for further explanation of the overt act requirement.

(275) See United States v. Fountain, 277 F.3d 714 (5th Cir. 2001) (defendant convicted of violating the Lacey Act false record provision, even though he did not personally create the false records, because the evidence proved the defendant's knowing participation in the conspiracy and that he could reasonable foresee that his co-conspirator would use false records to hide their violations of state oyster laws).

(276) See supra Part II.B.

(277) Interview with Robert Ross, Assistant United States Attorney in Portland, OR (Mar. 19, 2001) (Wildlife crimes are a low priority in comparison to other crimes); see also supra note 83.

(278) See supra note 82 for a discussion of the role sentencing plays with FWS resources and supra Part II.B. for enforcement problems with the Lacey Act.

(279) United States v. Rabinowich, 238 U.S. 78, 88 (1915) (conspiracy to hide property during bankruptcy proceeding); see also Pinkerton v. United States, 328 U.S. 640 (1946).

(280) LAFAVE, supra note 184, at 573.

(281) Dangers of conspiracy include "greater likelihood of success, the ability to carry out more complex legal acts, the increased likelihood of repeat offenses and patterns of crime." Chinni, supra note 249, at 57.

(282) See supra notes 83, 84 for a description of how the sentencing guidelines work and further information on the tendency of judges to provide lighter sentences for wildlife crimes.

(283) When a conspiracy is not covered by a specific offense guideline in the Sentencing Guidelines, as is the case with conspiracy to violate the Lacey Act, Sentencing Guideline [section] 2X1.1 is applicable. U.S.S.G. [section] 2X1.1. The base offense level for conspiracy is the base offense level from the guideline for the substantive offense--here, it is the Lacey Act and so the base offense level is six--plus any adjustments from that substantive offense guideline. U.S.S.G. [section] 2X1.1(a); see also supra note 84 for a discussion of how the Sentencing Guidelines work in regards to the Lacey Act. The base offense level is then decreased by three levels, "unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control." U.S.S.G. [section] 2X1.1(b)(2).

(284) An individual act may be charged under two separate statutes when each statute requires proof of a certain element that the other statutes do not require. Blockburger v. United States, 284 U.S. 299, 301-03 (1932). While conspiracy to violate the Lacey Act requires proof that more than one individual agreed to violate the Act, a Lacey Act charge only requires proof that the Lacey Act was violated.

(285) MCSORLEY, supra note 254, at 193-94.

(286) Marcus, supra note 160, at 33.

(287) U.S.S.G. [section] 3B1.1. "If the defendant was an organizer or leader of a criminal activity involving five or more participants," the offense level can be increased by four levels. U.S.S.G. [section] 3B1.1(a). A "participant" is a "criminally responsible person." United States v. Atkinson, 966 F.2d 1270, 1276 (9th Cir. 1992) (Twelve hunters considered "participants" even though not prosecuted because each hunter was criminally responsible for purchasing game in violation of the Lacey Act and thus, defendant's offense level for conspiracy to violate the Lacey Act enhanced for his role as organizer). If the defendant was a manager or supervisor, and not an organizer, of a criminal activity involving five or more participants, the offense level can be increased by three levels. U.S.S.G. [section] 3B1.1(b). "If the defendant was an organizer, leader, manager, or supervisor, in any criminal activity other than that described in (a) or (b)," the offense level can be increased by two. U.S.S.G. [section] 3B1.1(c). This adjustment to an offense level can be used with any charge, not just conspiracy, that involves criminal activity. However, the adjustment is frequently used with conspiracy because conspiracy requires the prosecution to prove the involvement of two or more individuals. See, e.g., United States v. Narte, 197 F.3d 959 (9th Cir. 1999) (aggravating role adjustment warranted for conviction for conspiracy to violate the Lacey Act); United States v. Allemand, 34 F.3d 923 (10th Cir. 1994) (five participants involved because the four individuals guilty of conspiracy to transport illegally taken wildlife made possible the two defendants' conspiracy to export illegally taken wildlife).

Associate Editor, Environmental Law, 2001-2002; J.D. expected May
2002, Northwestern School of Law of Lewis & Clark College; B.A.
1995, University of Southern California. The author thanks
Professor Susan Mandiberg for her invaluable assistance and Robert,
Mary, Heather, Sierra, Colm, and Keva for their support.