The opinion of the court was delivered by: FOGEL
On August 4, 1977, the Grand Jury returned a thirty count indictment charging defendants with numerous statutory violations arising from an alleged conspiracy to smuggle snakes and sundry other reptiles into this country.
Defendants pleaded not guilty to all counts and have moved to dismiss the indictment on the ground that the Lacey Act, 18 U.S.C. § 43, is unconstitutional.
Although we do not find it necessary to rule on the constitutionality of the Lacey Act, defendants' motion will be granted in part for the reasons set forth fully below.
The charges in the indictment which are relevant to the present issue may be summarized as follows:
1. From 1973, to 1974, defendant Molt owned and operated the Philadelphia Reptile Exchange of Willow Grove, Pennsylvania, which engaged in the business of buying and selling reptiles and animals.
2. Defendant Christensen, an amateur herpetologist, accepted Molt's invitation to accompany him during the summer of 1973, on a world-wide trip for the purpose of collecting reptiles for personal gain and profit.
3. Defendant Udell, also an amateur herpetologist, managed the Philadelphia Reptile Exchange during Molt's absence from about June 23, 1973, until early August of 1973.
4. During June, 1973, Molt and Christensen made numerous shipments from Fiji to the Sacramento City Zoo, California, of reptiles collected in Fiji. Upon arrival, the reptiles were forwarded to Udell at the Philadelphia Reptile Exchange.
5. During July, 1973, Molt and Christensen purchased reptiles in Papua New Guinea. Some of the reptiles were sent to the Philadelphia Zoo; some were sent to Willow Grove, Pennsylvania. The others were smuggled to Hong Kong, where defendant Wee
assisted Molt and Christensen in falsely labeling them and sending them to Philadelphia where they were received by Udell.
6. During the fall of 1973, Molt and Christensen transported some of the reptiles they had sent to the Philadelphia Reptile Exchange from Fiji, Hong Kong and New Guinea, to zoos in Washington, D.C., New York, Texas, and Pennsylvania.
7. Defendants never obtained any permit or authorization from the Fiji Custom Service, Exchange Control Ordinance, Suva, Fiji, or the Conservatory of Fauna, Department of Agriculture, Stock and Fisheries, Port Moresby, Papua New Guinea, which would have permitted their acquisition and exportation of reptiles in Fiji and Papua New Guinea respectively.
The Lacey Act provides in pertinent part as follows:
Transportation of wildlife taken in violation of State, National, or foreign laws; ...