January 26, 2010

"Are you guys really out here to get me into trouble?"

A very sympathetic presentation — in the L.A. Times — of a man who is found guilty of violating the Endangered Species Act. Jerry Snapp had a "Cabinet of Curiosities" that he displayed at various renaissance fairs and craft shows. He acquired the carcass of an Asian elephant that had been born in Thailand and shipped to the U.S. in 1966 (before the enactment of the ESA) and that lived out its life in zoos.
Snapp paid cash, and a forklift dropped the box onto the truck. Once home in Riverside, he found a corner of his property sheltered from the breeze and added dermestid beetles. Soon he could hear them chewing away, a sound like a child eating Cheetos.

It took two years, and when the beetles were done, Snapp washed the skull with peroxide, named her Tiffany -- the glittery name from a tiara that he had saved from a Halloween costume -- and put her on display.
But, years later, when he tried to sell it across state lines, it was a violation of the ESA.
In the end, [the government agent] wasn't concerned that it had come from the zoo. That it was on the market was enough. It fueled an appetite for endangered species, and his job -- indeed, the government's job -- was to stop the trade of illegal wildlife products in the United States.
And that's the key: stopping the trade to protect the animals. Snapp was only successfully prosecuted because the government was able to convince a jury that "Snapp knew that selling the skull across state lines was illegal and ... he was a regular in the trade."
He may have broken the letter of the law, but as he saw it, he hadn't endangered any species by trying to sell the skull. He saw himself as no different from piano manufacturers who ship antique ivory keys around the country....
Of course, legally, it's not a question of how he sees it. The ESA contains the penalties the government saw fit to enact. Apparently, the theory is that the market in animal body parts endangers the animals that are still alive. A man can convince himself that what he wants to do isn't really the problem that led the government to pass the law, but that doesn't entitle him to do the things that the law proscribes.

60 comments:

rhhardin said...

Try possessing a hawk feather you find in your yard someday.

Lem said...

This guy should just get Obama to announce..

That's why I am instructing my Administration to get to work immediately.. to develop a forceful response to this decision. The public interest requires nothing less.

Expat(ish) said...

I have actually always viewed laws like this as some strange miscegenation between anti-hunters, high class disdain for 'junque' art, and liberal guilt over 'native cultures.'

So it's like the AIDS virus of laws - it's not clear where it comes from, or why, or what it was really intended to do, but we know it sweeps up people with disproportionate penalties.

Does any reall think there is a dang market for elephants or elephant skulls?

-XC

Pogo said...

Rhhardin, you said it.

Last summer I found a really cool feather in the water, while kayaking. When I brought it back, the in-laws absolutely freaked.

Turns out you cannot even possess an eagle feather you find. Not selling or trafficking, possessing. The law is an ass if it cannot distinguish true harm from the perception of harm.

If the law lacks judgement by discrimination, the law is worse than useless, it is harmful.

It breeds disgust and distrust for the law, much as the gummint bailouts and reneging on contracts has done.

Why follow the law when the gummint is capricious about its own adherence?

Screw them.

TosaGuy said...

In this case the law has departed from justice.

save_the_rustbelt said...

Many years ago I was a college lecturer and the VP of Student Life asked me to be an adviser to a frat house that was having money problems.

Being insane I took the job and soon had them stabilized.

During my first tour of the house they showed me a room where they kept ceremonial items, and sitting in a large glass box was a stuffed bald eagle - oh crap.

A number of my friends were Native Americans who were pow-wow enthusiasts and I knew the federal law on possessing feathers.

The glass case had a tag with a date four decades earlier than the ESA, but I had them lock it up so no one would see the damn thing and snitch.

And then the was the time a hawk dived after a bird and hit the side of my house - I ditched his carcass in the woods really quick.

Theo Boehm said...
This comment has been removed by the author.
Freder Frederson said...

And so what should be the law on possessing and selling parts of endangered species? Only those that are innocently found or sold without bad intent can be kept? How exactly do you demonstrate that?

Many species are endangered precisely because there is a lucrative market for their parts. It is a small price to pay to prevent the trade in these parts to institute an overall ban on animal parts covered by the ESA.

You guys all sound like a drunk whining--"I don't know why the cop pulled me over, I'm a good driver when I am drunk."

Salamandyr said...

Freder, that "small price to pay" is the penalizing and incarceration of people who haven't actually done anything wrong.

Your attitude seems to be "who cares if a few innocent people get caught up in it, it's still good pour encourager les autres". Should we apply a similar logic to the death penalty?

Windbag said...

If only the government was as diligent concerning human trafficking.

wv = strat...for all you music lovers out there...

Pogo said...

"How exactly do you demonstrate that?"

The provenance was clear here.
"He acquired the carcass of an Asian elephant that had been born in Thailand and shipped to the U.S. in 1966 (before the enactment of the ESA) and that lived out its life in zoos."

The case is PC bullshit.
They should use some judgement fer chrissakes. Otherwise, replace the courts with a software program. Mindless stupidity should be cheaper than this.

rhhardin said...

I did capture an owl once.

He was apparently sick, because the dog found him actually. The owl just stood and looked.

I put him in a large cardboard box in the shade, labelled in black magic marker "OWL," and called owl rehab, which came out and took him away in a jeep.

I assume he died, but the ritual is important.

Probably ate a poisoned mouse.

Christy said...

Freder, don't you think this is more akin to being cited for sitting drunk in your own back yard?

Big Mike said...

@Freder, two to one you'd violate the ESA yourself in a nanosecond if the law turned out to be inconvenient to you personally in some small way. I say that with confidence because from your comments you're a classic liberal, and that's how liberals deal with the laws they inflict on the rest of us.

Me, if I was on Snapp's jury I'd vote to acquit and I'd hang that jury for a year if need be.

Freder Frederson said...

The provenance was clear here.

The provenance wasn't that clear.

From the article:

"Snapp posted Tiffany on Craigslist for $9,000 on Nov. 11, 2008, and immediately heard from a collector in Toutle, Wash. They exchanged e-mails, but negotiations stopped when Snapp admitted he didn't have documentation proving the skull was legally obtained."

Nichevo said...

So he has to prove he's innocent? So why doesn't Abdul in Guantanamo have to prove he's innocent?

Joseph said...

"Apparently, the theory is that the market in animal body parts endangers the animals that are still alive."

Sounds like the justifications for criminalizing sale of child pornography.

Pogo said...

"he didn't have documentation proving the skull was legally obtained.""

For a 1966 elephant?
Since it's illegal, how can it possibly be "legally obtained" anyway?
Is it really from the LA Zoo or not?
Can't tell from the article.
Is he lying or being railroaded?
I suspect the latter, knowing the caprice of prosecutors.

Freder Frederson said...

The provenance was clear here.

You really shouldn't skip over the inconvenient facts in the article to bolster your sense of outrage. Snapp apparently did not have the proper paperwork that would have allowed him to legitimately sell the skull, which is why the first sale fell through. After he realized this, he discounted the skull 50%. That is probably what sunk him.

wind.rider said...

So, Snapp buys the elephant (dead) from the LA Zoo, cleans up the skeleton, gets busted by the feds for trying to sell the Skull, and in the end, the Fed who made the bust offers it back to the LA Zoo.

Which wasn't prosecuted, as an organization, nor the individuals involved in the original sale, for breaking the law Snapp was charged and convicted of.

Yeah, makes perfect sense, like Fruit Loops at the Opera.

Freder Frederson said...

So he has to prove he's innocent

No, the government has to prove beyond a reasonable doubt that Snapp knew it was illegal to sell the skull across state lines. I would imagine that the fact that the original buyer was willing to pay $9000, backed out when Snapp could not produce the paperwork, after which he dropped the price 50%, was enough to convince the jury.

Saint Russell said...

Am I really the first one to post the "Snapp! Someone got told" comment?

Freder Frederson said...

So, Snapp buys the elephant (dead) from the LA Zoo, cleans up the skeleton

You really need to work on your reading comprehension skills. He bought the skull from the rendering plant where the elephant had been sent after it died at the zoo. That sale was probably the one that was the actual and initial crime. I doubt that the zoo authorized or approved of the rendering plant selling the elephant carcass to a private party (especially one that had been discovered to be infectious).

Freder Frederson said...

Which wasn't prosecuted, as an organization, nor the individuals involved in the original sale, for breaking the law Snapp was charged and convicted of.

And there might be a lot of reasons the rendering plant wasn't prosecuted. E.g., not an interstate sale, statute of limitations has passed.

Allen Cogbill said...

There are so many Federal laws on the books that it is awfully easy to break one unknowingly, as pointed out nicely by law professor James Duane, whose main point was the excellent advice that one should never talk to the police.

Peano said...

Frederson said, "And so what should be the law on possessing and selling parts of endangered species?"

Back that up a step: What should be the law on endangered species? The underlying assumption for current law seems to be: If any species is endangered, it must be protected from extinction.

To which we rarely, but should, ask in all seriousness: WHY??

Pogo said...

"Snapp apparently did not have the proper paperwork that would have allowed him to legitimately sell the skull....

He bought the skull from the rendering plant where the elephant had been sent after it died at the zoo.
"

Oooh, the Proper Paperwork.
Well, fuck The Proper paperwork.

Either the elephant came from the LA Zoo or it did not. That should be all that matters.

He wasn't trafficking anymore than the zoo was trafficking.
Goddamn feds making being legal impossible.
Screw the law, it's a make-work authoritarian trap that no one can escape.

Freder Frederson said...

He wasn't trafficking anymore than the zoo was trafficking.

The zoo wasn't trafficking anything--the rendering plant sold the carcass. I doubt the zoo knew anything about it.

For that matter either was Snapp. Trafficking is a felony. He was convicted of a single sale, a misdemeanor.

You should really should read the article carefully before you get your panties all in a wad.

Pogo said...

" Trafficking is a felony. He was convicted of a single sale, a misdemeanor. "

BFD. He was convicted of doing nothing illegal.
In the USA, everyone's now guilty of 3 federal crimes. It just depends on the prosecutor whether and when to convict.

Screw laws like this.
What utter bullshit.
Who did it help?
No one.
What animals did it save?
None.
Make-work statism.

Freder Frederson said...

He was convicted of doing nothing illegal.

Of course he did something illegal. And it's not like this is a new law. The ESA has been the law of the land since 1973.

So are things only illegal if you think they should be illegal? Do you only obey the laws you like and agree with?

It must be nice to be you and know which laws are right and which are wrong, which are smart and which are stupid.

Richard Dolan said...

In its way, this story highlights the fact that prosecutors today are unwilling to use their discretion not to pursue criminal charges when, on reflection, that might be the better course. Of course, reflection only helps if the person doing the reflecting is an adult looking at the situation without ideological blinders. Here, Snapp was hardly a poster child for rapacious poachers killing off endangered species for profit, and it's ahrd to see why the gov't did not pursue a solution involving something other than criminal prosecution.

As the comments here show, criminal prosecutions like this for technical violations of regulatory statutes generate a lot of ill will, having the effect of undermining support for the very policies that the regulatory scheme is trying to advance.

It's generally a bad idea for gov't regulators to make laudable but abstract ideals look absurd in practice. But I think that's what they have achieved with this prosecution. Whether the 'encouragez les autres' rationale for prosecutions like this outweighs that effect seems doubtful to me.

Freder Frederson said...

As the comments here show, criminal prosecutions like this for technical violations of regulatory statutes generate a lot of ill will, having the effect of undermining support for the very policies that the regulatory scheme is trying to advance.

But part of the point of the purpose of prosecution is the deterrent effect. And this guy did not do any jail time and he didn't have to pay a fine. The punishment was not particularly harsh unless you are already inclined to think the ESA is a stupid law anyway.

AllenS said...

For the life of me, I don't understand why anyone would want to kill a bald eagle. They taste like shit.

Pogo said...

"But part of the point of the purpose of prosecution is the deterrent effect."

As the USSR discovered, these prosecutions become mere political tools to curry favor or wipe out opponents or gain fame. It deters everything when everything is potentially illegal. So your choice is to say fuck it and hope for the best, or go whole hog and break some serious laws because it's only a matter of time anyway.

Just bribe the right people and you'll be fine.
That's the end result of bullshit laws.

bagoh20 said...

"A man can convince himself that what he wants to do isn't really the problem that led the government to pass the law, but that doesn't entitle him to do the things that the law proscribes."

If only the constitution was a law. Sigh.

Smilin' Jack said...

He saw himself as no different from piano manufacturers who ship antique ivory keys around the country with impunity.

Why isn't that a good point?

But the really hilarious part is that this guy was prosecuted, not for attempting to sell animal bones, but for attempting to sell them across our sacred state lines.

bagoh20 said...

"not for attempting to sell animal bones, but for attempting to sell them across our sacred state lines."

Might give someone the impression that convicting someone of anything was the objective rather than preventing some public harm.

DADvocate said...

It's laws like this, interpreted like this and prosecuted like this plus rigid, anal retentive types like freder that reinforce my belief that I don't want government having anything to do with my health care.

Next thing you know my doctor will be prosecuted for prescribing me a medication for an "off label" use, or an "unnecessary" treatment. Bad laws interpreted poorly are poor excuses for frederism.

Of course, circumventing the ESA is just fine when the government wants to do it.

bagoh20 said...

We prosecute because we can, not because we should is the mantra of prosecutor.

Imagine if prosecutors spent all their resources on a benefit-to-the-public basis.

bagoh20 said...

"For the life of me, I don't understand why anyone would want to kill a bald eagle. They taste like shit."

Pluck 'em.

JAL said...

he was a regular in the trade

And they demonstrated this how? If he was a "regular," wouldn't that have been "trafficking?"

On a back road (we have a lot of those around here) a number of years ago I saw a reddish blob on the road that looked like a bird. I went back, and found what I think was a dead screech owl. Not squashed. Just dead. In the middle of the road.

I put it in the car and next day called a friend who was a taxidermist -- thought he might like it to sell, teach on, display, give to a school, whatever ... HA!

That thing was bagged in the back of my freezer for quite a while before it ended up in a hole in my backyard.

So some biology classroom missed a chance to have something cool and interesting as a draw. (Virtual owls and occasional trips to the nature museum just don't do it.)

I suppose I could have been arrested. Supposedly for promoting the hunting of birds of prey. Possessing feathers?

(Wondering -- Did his backyard not have ... an odor?)

Big Mike said...

So are things only illegal if you think they should be illegal? Do you only obey the laws you like and agree with?

No, we leave that for liberals who vote for higher taxes and then cheat on their own; for liberals who emote all over the poor and downtrodden, but see to it that their own kids are safely ensconced in private schools; for liberals who push for alternative energy but fight fang and claw to keep windmills away from Cape Cod. Shall I go on, Freder?

veni vidi vici said...

"They should use some judgement fer chrissakes. Otherwise, replace the courts with a software program. Mindless stupidity should be cheaper than this."

Prosecutors to be tarred and feathered, judges to be censured for failure to use their discretion to throw out a silly case like this.


And the great irony is Fred-Fred going on about "Do you have your propah PAYPAHZ???" like the finest SS stormtrooper, under the illusion that he's the enlightened "liberal" in this thread.

Classic.

Freder Frederson said...

I went back, and found what I think was a dead screech owl.

And your problem was? As far as I can tell, the only endangered American species of owl is the Northern Spotted Owl. What law was your taxidermist friend afraid of violating? It wasn't the ESA.

tim maguire said...

Like it or not, Frederson is right. There is a market for endangered species (those of you here who don't even know that should sit out the discussion) and that market is pushing those animals towards extinction.

Exceptions for innocently or responsibly acquired animals or animal parts become loopholes for the illegal trade. That's not a debating point, it's a fact.

It may seem to the casual observer that a distinction should be made, but as a practical matter, if you value species preservation, then you cannot allow any sort of trade in endangered species.

reader_iam said...

Good grief. Every now and again we go outside to find an American Bald Eagle hanging out in one of our trees (we're just up the street from the Mississippi, and the Quad Cities area is a winter nesting ground for the eagles). Never thought to pray one doesn't run into the side of our house and get injured or something.

(They're no longer on the endangered list, by the way, but it's still illegal to "kill, harass, possess [without a permit], or sell" them under the the 1940 Bald Eagle Protection Act. Not sure why anyone would want to, myself. They are glorious, and their comeback is an amazing story.)

(Coincidentally, I lived in this area at the time the Eagles were placed on the list, back in 1967. It's been quite a thrill to see them everywhere, since moving to this area as an adult 14 years ago.)

mccullough said...

If only he had a blog Obama read. Then the federal prosecutors would have dropped the charges.

Pogo said...

"if you value species preservation, then you cannot allow any sort of trade in endangered species."

That's preposterous.

Rules that are blind to the facts are an unjust way of preserving species.

bagoh20 said...
This comment has been removed by the author.
bagoh20 said...

"Exceptions for innocently or responsibly acquired animals or animal parts become loopholes for the illegal trade. That's not a debating point, it's a fact."

Tough. If every innocent violation was a conviction we would all be in jail for something.

The legal system is there to sort this out. If we find a dead body in your house, we don't just convict you of murder. We determine if you have a good excuse for said body.

All laws should have exceptions for this type of innocence. Bad guys using it as a loophole is just too bad.

Nichevo said...

As a matter of fact it is not obvious that this total protection regime is the best way to foster growth of a species. Whose future is more assured than the cow or chicken? Why? Because a chicken is worth a few bucks and a cow is worth a grand or so. How many millions or billions of chickens, cows, pigs, sheep, etc., are there?

It may seem a little risible to suggest that commercial or recreational exploitation is the best way to assure the continuation of a species, but while it's counterintuitive, work with it. We all know about the dodo, the passenger pigeon, etc., but that was in the past when these issues were not so well understood.

Essentially it was a tragedy-of-the-commons problem. Now we would know about the populations, and take steps, which (as with fisheries) would certainly not have to go to total bans on hunting, etc. People would cultivate dodos and passenger pigeons, craft habitat for them, etc. Hell, in some places in Africa, there are so many elephants their populations have to be culled.

Everything is not so simple as it appears.

DADvocate said...

Good points, Nichevo.

In the U.S., once hunters realized uncontrolled hunting and diminishing habitat seriously depleted animal populations, they began working towards preservation and conservation of species and habitats. In 1900 there were an estimated 50,000 whitetail deer in the U.S., by 2005 there were approximately 30 million. Ducks, geese and many other species flourish for the same reasons.

jgm said...

When fake Indian, plagiarist and serial liar Ward Churchill testified in his suit against CU, he had an eagle feather on the stand next to him. Not legal for non-Indians.

And btw, the greatest disappointment I've had here wasn't Althouse's vote for Obama (lots of people made that mistake), but her ill-informed belief that Wart was fired in violation of his First Amendment rights, rather than for blatant and repeated academic misconduct.

wv: appussi. Definitely not Althouse, except in the physical sense. She was just wrong on that one.

Synova said...

"Apparently, the theory is that the market in animal body parts endangers the animals that are still alive."

It's probably true enough.

Sort of like how buying outrageously expensive but *legal* sea bass for your son's ginormous wedding reception dinner promotes the illegal fishing of those endangered fish because of an established demand.

Synova said...

"And your problem was? As far as I can tell, the only endangered American species of owl is the Northern Spotted Owl. What law was your taxidermist friend afraid of violating? It wasn't the ESA.'

It's illegal to possess the feather of *any* bird of prey.

Since when isn't that true?

Duncan said...

that doesn't entitle him to do the things that the law proscribes.

So I gather that all those committing sodomy prior to Lawrence were un-entitled. Or in California prior to January 1, 1975. etc.

Malum Prohibitum vs Malum in Se.

He was probably just protesting the ESA that is starving the masses of the Central Valley to save the Delta Smelt (whether or not it's endangered).

Just another Civil Rights activist.

Paul Ciotti said...

Several years ago I wrote a story about a small town southern lawyer named Leighton Deming who was arrested by the FBI for trying to sell a 48-feather golden eagle feather headdress that Geronimo gave to the lawyer's grandfather in 1907.

Knowing that, under the Migratory Bird and Eagle Protection acts, private ownership of golden eagle feathers was legally suspect, Deming first tried to give the headdress to a museum. But nearly 50 museums, including the Smithsonian, turned him down, apparently for fear the federal government would either seize the headdress or destroy it.

Deming then tried to sell the headdress on the open market but was quickly arrested in an FBI sting that resulted in his facing 5 years in jail and a $250,000 fine.

Deming was both terrified and indignant. Why, he asked the FBI, was it charging him with a crime for attempting to sell something he'd been trying to give away free for the last 25 years?

Thankfully for Deming, he had lots of friends. Seven local judges contributed to his defense fund or wrote letters to the court attesting to his character. In the end the government allowed Deming to plead guilty to the charge of "unknowing bartering," accept a six month suspended sentence and surrender the headdress.

To Deming, who was terrified that he might lose his law license, it was too good a deal to pass up. But to University of Torledo emeritus law professor, Richard Edwards, Deming took the easy way out.

Until 1979, it was possible for people charged with selling eagle feathers to plead that they were selling "old" feathers that pre-dated the eagle feather ban. Under that theory, Deming would have presumably been on safe legal ground because he had uncontested documentation showing chain of custody all the way back to Geronimo himself.

But in 1979 in the Andrus v. Allard case, the Supreme Court ruled that the government had the right to ban even the sale of pre-ban eagle feathers.

To Edwards, Andrus v. Allard was not a decision bathed in glory. Unlike the Deming case, it involved dealers who were trying to sell eagle feathers for which they had no documentation (they claimed they could tell old feathers by their "patina".) Not surprisingly, the court didn’t put much stock in the age-dating-by-patina argument and it ruled against the dealers. In the process it sidestepped the Fifth Amendment "taking" issue, saying that a ban on selling feathers wasn’t really an unconstitutional taking of private property since the owners could still make money of the feathers by putting them on display, for instance, and charging admission.

But in the three decades since Andrus v. Allard, changing membership on the court accompanied by a growing respect for the Fifth Amendment has resulted in a new attitude toward government assertions that it has the right to seize private property without compensation.

"No one relies on Andrus anymore," says Edwards. "It’s been overruled on everything but the facts. Scalia would love to reverse it."

The last time such a case came up, says Edwards, the government let it be dismissed on a technicality rather than risk endangering Andrus. In 1986, the government tried to prosecute a man named Paul Raczka for trying to sell an old Indian headdress (containing in this instance pre-protection act feathers from bald eagles, golden eagles, red tailed hawks and owls). As in the Deming case, the government wasn’t so much interested in punishing Raczka as it was in getting the headdress. And the government offered him what Edwards calls a "sweetheart deal."

When Raczka boldly refused the deal, the government was in a quandary. To avoid a trial on the issue, says Edwards, the government simply held on to the headdress until it violated the speedy trial act, whereupon the judge dismissed the case, without ruling on the merits one way or the other. Andrus v. Allard was preserved (and Raczka kept his headdress).

bagoh20 said...

Lawyers are funny.

Alcuria said...

Try possessing a hawk feather you find in your yard someday.

Agreed. In the state I live in, you need a permit to possess feathers.

The Federal regulation of birds is pretty strict.

I'm a federally and state licensed bander (can band all species except waterfowl, eagles or endangered/threatened species - actually can band endangered/threatened species if they are incidental captures) and the federal application required a valid research proposal in order to be approved. Want to do feather pulls or blood draws of birds? Your federal permit needs those specific "endorsements".

Most of the laws regarding possession of remains of wild animals are outcomes of late 19th century/early 20th century conservation/preservation efforts.

Methadras said...

We have lost our collective fucking minds.