The opinion of the court was delivered by: POLLAK
POLLAK, United States Magistrate Judge:
On May 9, 1995, the United States Fish and Wildlife Service (the "Service") issued a Violation Notice charging the defendant Bronx Reptiles, Inc. ("Bronx Reptiles") with the illegal importation into the United States of seventy-three (73) Solomon Island frogs under inhumane and unhealthful conditions, in contravention of 18 U.S.C. § 42(c). On April 17, 1996, the case was tried before this Court
and post-trial briefs were subsequently submitted by both parties. Based on the evidence presented at trial and upon consideration of the legal arguments presented, this Court makes the following findings of fact and conclusions of law.
1. Testimony of Inspector Yen
The government presented the testimony of three witnesses at trial. The first witness, Inspector Leo Yen, a fish and wildlife inspector with the Fish and Wildlife Service (the "Service"), testified that on or about May 9, 1995, he received instructions to proceed to the United Airlines cargo warehouse at John F. Kennedy International Airport ("JFK") in Queens, New York. As part of his responsibilities as a fish and wildlife inspector, Inspector Yen is charged with inspecting the importation or exportation of cargo containing live animals or wildlife products.
Inspector Yen testified that he first went to the import office, where he met with an individual previously known to him as Chris, an employee of defendant Bronx Reptiles. According to Inspector Yen's testimony, Chris handed him several documents, including: 1) a Form 3177 which is the Service's declaration form relating to the import or export of fish and wildlife; 2) a commercial invoice relating to a shipment of live skinks
and frogs; 3) an airway bill of Solomon Airlines; 4) a United States Custom Service Form 3461, which is a customs entry document; 5) a Solomon Islands government agricultural quarantine service document, declaring that the animals shipped were in good health; and (6) an export permit issued by the Solomon Islands Ministry of Natural Resources. According to the documents presented and examined by Inspector Yen, defendant Bronx Reptiles was listed as the importer or consignee of the shipment of skinks and frogs.
Following receipt of the documents from defendant's employee, Inspector Yen examined the shipment, which consisted of two wooden crates, each approximately two and a half to three feet wide and four to five feet long. In examining the contents of the boxes,
Inspector Yen determined that although the skinks appeared to be fine, the vast majority of the frogs were dead. Based on his examination, Inspector Yen gave a conditional release of the animals to Bronx Reptiles so that the live animals could be cared for, but he refused to clear the importation and issued a Refusal Clearance Report. In the Report, Inspector Yen noted that the frogs were packed in a shallow container, with no damp materials, no separate bags, and no water tray with sponge, which he considered to be inhumane and unhealthful conditions and not a "normal [way] to ship live frogs."
Inspector Yen further testified that the crates themselves were made of thin wood, not strong enough to hold a live animal shipment, and that the lid on the crate containing the frogs appeared to be slightly open and had been taped shut with airline tape on one end. He also testified that although there was a cloth of some sort in the box, he observed no signs of moisture, sponges or other damp materials. He did, however, notice that a cluster of frogs appeared crushed together in one end of the compartment.
Upon releasing the shipment to Bronx Reptiles, Inspector Yen instructed them to separate the live frogs from the dead ones and return the dead ones to Inspector Yen. The next day, Inspector Yen was informed by Bronx Reptiles that all of the frogs were dead.
2. Testimony of Peter Brazaitis
The government also presented the testimony of Peter Brazaitis, curator of animals at the Central Park Zoo and formerly the superintendent of reptiles and amphibians at the Bronx Zoo for over 20 years. He was qualified as an expert in the care, management, and transport of live reptiles and amphibians.
Specifically, Mr. Brazaitis testified that frogs, as amphibians, take in water and oxygen through their skin, which is part of their respiratory system, and that it is critical for frogs to have sufficient water to keep their skin from dehydrating. If the frog becomes dehydrated, its respiratory functions are impaired, causing stress to the animal and resulting in the rapid production of mucous, urine and toxins, which ultimately kills the animal. By contrast, skinks, which are reptiles, do not have to be kept moist. Mr. Brazaitis testified that while skinks need to drink water to survive, they may come from arid regions and therefore may tolerate dry conditions without any difficulty at all.
Thus, according to Mr. Brazaitis, it is critical that frogs and other amphibians be packed with a reservoir of water when transported so that their skin does not dehydrate. In addition, he testified that frogs should be packed in separate compartments and in groups of small numbers for two reasons. First, he explained that the compartments should be small enough to prevent the frogs from leaping about inside the compartment and injuring themselves by breaking their skin and causing abrasions on their snouts and elbows. Second, if one of the frogs becomes injured and dies, it decomposes rapidly and the resultant bacteria can spread to and kill the other frogs. Thus, if the frogs are kept separated into small compartments, the death or illness of one is less likely to be spread to the entire shipment.
Mr. Brazaitis then testified that in his experience as an importer of wild animals, it is customary for the importer to ensure the health and well-being of animals for which the importer has placed an order. Mr. Brazaitis testified that the shipping standards that he utilizes are the regulations of the International Airlines Transportation Association ("IATA"), which are guidelines for the airlines and for government agencies in the Wildlife Association. IATA catalogues all species of live animals and sets forth instructions for the size of the box, the environmental conditions and other requirements necessary to ensure the health of the animals during shipping. With respect to the shipper, Mr. Brazaitis testified that he would personally inspect the shipper, seek out references and then call the shipper to be certain that the shipper was aware of and understood the shipping requirements, including the IATA standards.
Mr. Brazaitis also testified that based on his review of the documents in this case and the photographs taken of the frogs
in the condition in which they were shipped, it was his opinion that the method and conditions of shipment were not appropriate for the health and well-being of the frogs. The absence of any container of water or moist towels, coupled with the fact that the animals were all loosely packed together in an open area where they would bang themselves against the side of the box or even escape, led Mr. Brazaitis to his conclusion that they were improperly shipped. He then opined that had the frogs been separated into smaller groups in plastic containers with absorbent material containing water, it would have required another shipping box and would have added additional weight to the shipment -- thus increasing shipping costs. Mr. Brazaitis further testified that given the larger number of skinks in the total shipment, the greater durability of the skinks, and the generally higher sales price of skinks in the United States as compared to the frogs, he felt that the importation of the skinks was the primary purpose of the shipment, with the frogs being "the frosting on the cake." (Tr. at 88-91).
On cross-examination, Mr. Brazaitis admitted that he had never purchased animals from the Solomon Islands nor did he necessarily visit the foreign countries from which he purchased wild animals. Rather, he relied on the supplier to package the animals properly and in accordance with his instructions. He also testified that on occasion, animals might die in shipment from old age or simply from the stress of being shipped. Mr. Brazaitis could not, however, recall any instance where an animal which he had ordered had died because of faulty packaging.
3. Testimony of Special Agent LiBrandi
Finally, the government called as a witness Special Agent Saverio LiBrandi of the U.S. Fish and Wildlife Service, Division of Law Enforcement, who testified that as part of his responsibilities, he was charged with investigating violations of various fish and wildlife statutes. He further testified that he had spoken on several occasions with Bruce Edelman from Bronx Reptiles and visited their facilities on a number of occasions during the course of conducting his investigations. He described the Bronx Reptiles facility in Yonkers as a large commercial establishment occupying a warehouse of several thousand square feet and employing approximately six to seven employees, including a secretary. He described Bronx Reptiles as one of the largest establishments of its kind on the east coast and among the five or six largest in the United States.
During the course of his investigations, Agent LiBrandi visited Bronx Reptiles on or about April 1, 1993 and discussed with Mr. Edelman the responsibilities of an importer regarding the transportation of live animals into this country. The purpose for Agent LiBrandi's visit was to investigate two importations of live reptiles -- iguanas and boa constrictors -- from Colombia in March 1993. Both shipments, which were consigned to Bronx Reptiles, arrived in the United States with a substantial number of dead reptiles due to improper ventilation and improper labeling.
During the conversation, Mr. Edelman admitted that he was aware of the IATA guidelines used by the industry to determine how a specific species is to be shipped and of the container requirements listed in the guidelines. According to Agent LiBrandi, Mr. Edelman stated that he knew that, as an importer, he was liable for the conditions under which wildlife enters the United States. Based on the two shipments from Colombia, notices of violation were issued to Bronx Reptiles and the fines were subsequently paid.
Finally, in March 1995, Bronx Reptiles was cited for yet a fourth importation of animals in an inhumane fashion. This incident involved an importation of chameleons, skinks, geckos, other lizards and frogs. Not only was it determined that the IATA guidelines had been violated, but once again the shipment contained a number of dead animals, including frogs. According to Agent LiBrandi who investigated the case, the shipment was inadequately packed ...