decided as amended march 20 1980.: February 12, 1980.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Rosenn, and Garth, Circuit Judges.
Defendant Henry A. Molt appeals from sentences imposed following his conviction under 18 U.S.C. § 371 (1976) of conspiring to violate 18 U.S.C. § 545 (1976), and under 18 U.S.C. § 545 of knowingly importing merchandise, i. e. reptiles indigenous to Fiji, contrary to the Tariff Act of 1930, 19 U.S.C. § 1481 et seq. (1976). We affirm the section 545 conviction, but reverse the section 371 conviction.
In 1974 Molt, accompanied by Steven N. Levy and Edward B. Allen, participated in a world-wide reptile collection expedition. During the course of this expedition over 600 reptiles of varying species were collected. Molt, Allen, and Levy intended to sell the reptiles to zoos and private collections for profit.
The reptiles were first sent to a zoological park in Switzerland for safekeeping before their shipment to the United States. Of the three reptile collectors, Molt returned to the United States first. Thereafter, he instructed Levy and Allen on the mechanics of transporting the reptiles from Switzerland to the United States. Levy and Allen shipped the reptiles, arriving themselves one day before the reptile shipment. As instructed by Molt, they brought the reptiles through Customs after 5:00 p. m. to avoid Fish and Wildlife inspection. On their Customs Informal Entry Form they declared a value of $1,000 for the reptiles, although the Australian reptiles alone were worth approximately $5,500, and stated that the importation was for personal, rather than commercial, use. In addition, on their accompanying Fish and Wildlife Forms, Levy and Allen misrepresented the number and origin of the reptiles.
Levy and Allen, however, did not follow Molt's instructions in every respect. Suspicious and resentful of his past unilateral departures from group plans, they decided to proceed alone and imported the reptiles one day ahead of schedule to avoid Rudolph Komarek, a confederate of Molt experienced in the illegal importation of wildlife. Instead of taking the reptiles where originally planned, Levy and Allen transported them to Levy's home in Pittsburgh, Pennsylvania.
Subsequently, however, Levy and Allen concluded that they could not sell the reptiles without Molt's help. Accordingly, Molt, Levy, and Allen entered into a formal, written agreement providing for sale of the reptiles and division of the profits. The reptiles were removed from Levy's house, taken to Molt's place of business, the Philadelphia Reptile Exchange, and put on display. Certain reptiles, whose detection was feared, were secreted in an apartment rented by Molt. These reptiles were later transported to Allen's apartment.
In March 1975, Molt began negotiating a sale of six Fiji Island iguanas to Barney Tomberlin and James Brockett, co-owners of the Western Zoological Supply Company (Western Zoological) in Monrovia, California. The sale was subsequently finalized and the iguanas shipped by Molt to Western Zoological on April 10, 1975.
On February 14, 1979, Molt, Tomberlin, and Brockett were indicted by a federal grand jury. They were charged with conspiring, under 18 U.S.C. § 371, to violate 18 U.S.C. § 545 by dealing with Fijian wildlife knowingly imported contrary to the Tariff Act of 1930, and the Lacey Act, 18 U.S.C. § 42 et seq. (1976), and with committing substantive section 545 and Lacey Act violations. Before trial the government dismissed the Lacey Act charges against Molt and tried the case on its Tariff Act theory. Since Molt waived his right to a jury trial the case was tried to a judge. Tomberlin and Brockett negotiated guilty pleas, and their cases were transferred to the District Court for the Central District of California for sentencing. After a two day trial Molt was found guilty on both the conspiracy and substantive counts. On the conspiracy charge he was sentenced to one year and one day in prison. On the substantive section 545 charge he was fined $10,000, and sentenced to three years probation consecutive to his one year, one day imprisonment. This appeal followed.
Molt advances three contentions for reversal of his section 545 conviction. First, he contends that the evidence used to convict him was obtained in violation of the Fourth Amendment. Second, he argues that, even if there were no Fourth Amendment violation, the evidence, nonetheless, was insufficient to sustain his section 545 conviction because: 1) the government failed to prove that he dealt with the Fiji Island reptiles knowing that they had been imported contrary to the Tariff Act; and 2) the government failed to prove that the illegally imported Fiji Island reptiles were the same reptiles handled in violation of section 545.
To prove a section 545 offense the government must prove beyond a reasonable doubt that the defendant: 1) received, concealed, bought, sold, or facilitated the transportation, concealment, or sale; 2) of merchandise after importation; 3) knowing the same to have been imported contrary to law. See 18 U.S.C. § 545 (1976). At trial the government relied upon the Tariff Act of 1930 as the law contrary to which the Fijian reptiles were knowingly imported. In particular, the government contended that the reptiles were imported contrary to section 485 of the Tariff Act which requires accurate representations on the value or price of imported goods as well as on all documents filed with Customs Entry Forms. See 19 U.S.C. § 1485(a)(2), (3) (1976). Molt argues that the government failed ...