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United States of America v Duke
United States of America
North America
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This is a criminal case in which a tremendous effort to smuggle psittacine (parrot) birds into the United States from the Republic of Mexico was exposed. There is a quarantine against the importation of such species into the United States. The indictment was in ten counts. Three separate conspiracies were charged (Counts 1, 4, and 7). Five counts charged smuggling (2, 5, 8, 9, 10). Two counts charged certain defendants with knowingly receiving, concealing and facilitating the transportation and concealment of certain birds after illegal importation (3 and 6). Appellants Duke, Ballard and Buono, having been convicted on certain counts by a jury, appealed their convictions. All of these appellants raise the point that the convictions under 18 U.S.C.A.§ 545, the general smuggling statute for felony, cannot stand because the Surgeon General, under authority of 42 U.S.C.A.§ 264, passed a health and safety regulation forbidding, with minor exceptions, importation of psittacine bird, as laid out in 42 C.F.R.§ 71.152(b). This regulation carries a penalty for misdemeanor. Furthermore, it is argued that psittacine birds are not merchandise which should have been invoiced under the customs laws. Judgment: This argument does not hold, because the appellants may have committed two crimes, one a misdemeanor and the other a felony. If there is any conflict between the statute and the regulation, the former prevails. Concerning psittacine birds not being merchandise, it is urged that the substantive counts are defective because they were insufficient to charge that appellants violated 18 U.S.C.A.§ 545, by failing to comply with 19 U.S.C.A.§§ 1461 and 1484. This latter point has no apparent connection with any count except those relating to receiving and facilitating. The Court of Appeals held that the evidence sustained the convictions. (Provided by: UNODC SHERLOC)