Exotic bird smuggling generates colorful language in Court of Appeals

It's been a slow week for civil rights decisions out of the Second Circuit, but here's a case of particular interest with a small civil rights angle. Thomas Cullen of upstate New York is a highly regarded rare bird expert who was convicted in 2006 for importing exotic birds into the United States in violation of the Wild Bird Conservation Act, among other things. This case offered the Court of Appeals an opportunity to untangle this unique law and feature once again the colorful opinion-writing of Judge Richard Cardamone.

As Judge Cardamone notes in United States v. Cullen, "Judicial opinions often characterize an odd provision fo the law or an ingenious argument of counsel as a 'rare bird' (rara avis). But in this case we have before us as the subject matter literally a rara avis in terris or a rare bird on the earth."

The case began when Cullen asked a friend who was living in Europe to import into the U.S. a Black Sparrowhawk. According to the decision in this case, the Sparrowhawk is quite unique in that this large and colorful bird only lives in Africa and eats mainly other birds. It also sometimes eats small mammals and snakes. It prefers to live in trees rather than fly. Cullen's friend submitted the application, but Cullen was to own the bird. The Wildlife Service Inspector at JFK Airport was skeptical when Cullen said he was picking up the birds for his friend who was still living in England, so the birds were placed in safekeeping, where one of the birds died. At trial, the jury found Cullen guilty of importing the birds in violation of the Wild Bird Act.

Among other arguments, Cullen said on appeal that the law was vague in that it does not sufficiently explain when an exotic bird qualifies as "a personally owned pet" and is therefore exempt from the Wild Bird Act. Cullen explained that he reasonably thought his actions fell within the personal pet exemption. The Court of Appeals disagreed.

It's tough to prevail on a "void for vagueness" argument in the context of criminal law. This defense has constitutional underpinnings under the Due Process Clause. The statute must be precise so that would-be offenders know whether their actions are illegal. Law enforcement also has to know when to invoke the law so they can arrest the alleged offender. As Judge Cardamone wrote, "Although we recognize in many English words there lurk uncertainties, to meet the fair warning prong an ounce of common sense is worth more than an 800-page dictionary."

Cullen did not prevail in the Second Circuit on the void-for-vagueness defense. The Court noted that the words "personal" and "pet" are comprehensible to the ordinary person. And here's the kicker: "An ordinary person would realize that an exception to the import ban for personally owned pets of repatriating Americans would not apply if a person living in the United States asked an American living abroad to pretend that birds being imported belonged to the person living abroad."