United States of America v Eyoum Pays/Territoire États-Unis d'Amérique Type de cour Nationale - cour supérieure Date Jui 5, 1996 Source UNEP, InforMEA Nom du tribunal United States Court of Appeals for the Seventh Circuit Langue Anglais Sujet Espèces sauvages et écosystèmes Résumé The defendant pleaded guilty of knowing receipt, concealment, and sale of illegally imported pancake tortoises. The tortoises were sent to the defendant from his brother in Tanzania and were to be picked up at O'Hare International Airport. They were sent over in secret compartments in four crates. Import documents stated that these crates only contained other exotic animals, specifically ten springhares and two genets. When the crates arrived at O'Hare on December 9, 1994, they were transferred to a “wildlife rehabilitator” because protruding nails inside the crates had injured some of the springhares and genets, and they were bleeding. On December 14, three of the four crates were returned to O'Hare (one remained with the rehabilitator), where the defendant took custody of them and one day later shipped them to an organization called “The Reptile Service,” in Deerfield Beach, Florida. On December 22, agents of the United States Fish and Wildlife Service (USFWS) discovered the illegally imported tortoises at The Reptile Service and were told by Rian Gittman, a reptile wholesaler and the principal officer of the business, that the tortoises had all come from the defendant. Some of these tortoises were less than four inches in carapace (shell) length, the commercial importation of which has been prohibited since 1975 for public health reasons. 42 C.F.R. § 71.52. In total, the USFWS agents discovered 81 tortoises at The Reptile Service that had been originally imported by Eyoum. A letter from The Reptile Service to the defendant, subsequently recovered by Florida USFWS agents, revealed that the defendant and the store had agreed to a price of USD 50 each for the tortoises. On April 14, 1995, the defendant plead guilty to the second count of a two-count indictment against him. He plead guilty to knowingly receiving, selling, and facilitating the transportation, concealment, and sale of imported pancake tortoises, knowing that they had been imported unlawfully, in violation of 18 U.S.C. § 545. At his sentencing, the defendant received an enhancement under U.S.S.G. § 2Q2.1(b)(3)(A), based on the market value of the illegally imported tortoises. The district court found that the fair-market retail price of the tortoises was USD 298 each, resulting in a total market value of USD 39,038 for the 131 tortoises. The defendant also received a two-level enhancement under U.S.S.G. § 2Q2.1(b)(2) for committing an offense that created a significant risk of infestation or disease. The defendant was sentenced to twelve months and one day imprisonment, with three years of supervised release. He challenges both enhancements. Judgment: The use of the price list from the Texas dealer had no impact on the defendant's sentencing enhancement and so did not prejudice him. If the average pancake tortoise price is calculated using only the Florida dealers, the overall market value would still have been in the USD 20,000-40,000 range, resulting in the same four-level enhancement. Furthermore, the defendant did not propose any alternative prices lists or an alternative fair-market retail price. The Court concludes that the district court's calculation of the four-level market value enhancement under U.S.S.G. § 2Q2.1(b)(3)(A) was proper and not clearly erroneous. The Court also concludes that U.S.S.G. § 2Q2.1(b)(2) does not require the government to establish that the specific animals or wildlife involved were actually diseased or infested. Where a federal public health regulation forbids the importation of a whole category of animals due to the substantial risk that they will spread illness-causing bacteria, a district court can reasonably conclude that the illegal importation of such animals creates a significant risk of infestation or disease. This interpretation corresponds with the language of § 2Q2.1(b)(2), which refers to the creation of “a significant risk of infestation or disease transmission potentially harmful to humans, fish, wildlife, or plants”. Accordingly, the government need not prove that the offense conduct actually resulted in disease transmission or that it was necessarily harmful or dangerous to people, plants, or animals. The public health regulation itself represents an administrative finding that the commercial importation of small turtles-because they are likely to be sold as pets for children-creates a significant risk of disease to humans.The district court was entitled to rely on this regulatory conclusion to support the two-level enhancement in the defendant's sentence. For the foregoing reasons, the Court affirms the district court's enhancement of the defendant's sentence under U.S.S.G.§ 2Q2.1(b). (Provided by: UNODC SHERLOC) Texte intégral www.unodc.org