Fourth Amendment to the U.S. Constitution
Eighth Amendment to the U.S. Constitution
Fourteenth Amendment to the U.S. Constitution
50 CFR 12
50 CFR 14
50 CFR 17
50 CFR 23
16 USC 1533
15 USC 1538
15 USC 1539
16 USC 3372
19 USC 1499
18 USC 983 Civil Asset Forfeiture Reform Act of 2000
Here's the discussion as to why:
50 CFR 14.53(a)
§14.53(a) states:
Detention: Any Servicer officer, or Customs officer acting under §14.54, may detain imported or exported wildlife and any associated property. As soon as practicable following the importation or exportation and decision to detain, the Service will mail a notice of detention by registered mail, return receipt requested, to the importer or consignee, or exporter, if known or easily ascertainable. Such notice must describe the detained wildlife or other property, indicate the reason for the detention, describe the general nature of the tests or inquiries to be conducted, and indicate that if the releasability of the wildlife has not been determined within 30 days after the date of the notice, or a longer period if specifically stated, that the Service will deem the wildlife to be seized and will issue no further notification of seizure.
I never received any notice of detention as required by §14.53(a). The only notice I ever received from any Service or Customs officer was a NOTICE OF SEIZURE AND PROPOSED FORFEITURE from Acting Resident Agent in Charge Marty Hernández.
50 CFR 12.23(b)(1)
§12.23(b)(1) states:
As soon as practicable following seizure, the Solicitor shall issue a notice of proposed forfeiture.
The notice of proposed forfeiture that I received, however, did not come from the Solicitor, but from Acting Resident Agent in Charge Marty Hernández.
I believe the legislature had many good reasons for writing this law the way it did. One of the most important reasons revolves around the fact that the relationship between the officer or employee of the Federal agency who has seized any wildlife or property and the owner of the property is an adversarial one. The role the solicitor plays in the forfeiture proceeding is quasi-judicial, and as such there is a need for the Solicitor to maintain her independence and the appearance of impartiality.
When the officer or employee of the Federal agency who has seized any wildlife or property assumes the powers and duties that by law are those of the Solicitor, the independence of the Solicitor ceases to exist and any appearance of impartiality on the part of the Solicitor is destroyed.
50 CFR 12.24(a)
§12.24(a) states:
…any person who has incurred or is alleged to have incurred a forfeiture of any such property, may file with the Solicitor or, when forfeiture proceedings have been brought in U.S. District Court, the Attorney General, a petition for remission of forfeiture.
In the NOTICE OF SEIZURE AND PROPOSED FORFEITURE that I received, however, I was instructed by Agent Marty Hernández to “Submit three copies of a notice requesting remission of the forfeiture action to this office.” Later in his letter he demands that “All petitions should be submitted in triplicate and addressed to this office.”
Again, I believe the legislature had many good reasons for writing this law the way it did. One of the most important reasons revolves around the fact that the relationship between the officer or employee of the Federal agency who has seized any wildlife or property and the owner of the property is an adversarial one. The role the solicitor plays in the forfeiture proceeding, and especially in deciding the merits of any petition for remission of forfeiture, is quasi-judicial. As such there is a need for the Solicitor to maintain her independence and the appearance of impartiality.
When the officer or employee of the Federal agency who has seized any wildlife or property assumes the powers and duties that by law are those of the Solicitor, the independence of the Solicitor ceases to exist and any appearance of impartiality on the part of the Solicitor is destroyed.
50 CFR 14.55 and 14.22
§14.55 states:
Except for wildlife requiring a permit pursuant to part 17 or 23 of this subchapter B, clearance is not required for the importation of the following wildlife:
(c) Certain antique articles as specified in §14.22 which have been released from custody by Customs officers under 19 U.S.C. 1499.
§14.22 states:
Any person may import at any Customs Service port designated for such purpose, any article (other than scrimshaw, defined in 16 U.S.C. 1539(f)(1)(B) and 50 CFR 217.12 as any art for that involves the etching or engraving of designs upon, or the carving of figures, patterns, or designs from, any bone or tooth of any marine mammal of the order Cetacea) that is at least 100 years old, is composed in whole or in part of any endangered or threatened species listed under §17.11 or þ17.12 of this subchapter, and has not been repaired or modified with any part of any endangered or threatened species on or after December 28, 1973.
The 16 ivory articles seized are somewhere between 200 and 400 years old, well in excess of 100 years. This is stated clearly on each CITES document where the ivory carvings are identified as being either XVII or XVIII century. Furthermore, I furnished Fish & Wildlife with the links to the online catalog where I bought the carvings, which are as follows:
ivory carvings 1
ivory carings 2
ivory carvings 3
ivory carvings 4
Fish and Wildlife has exercised seizure authority where it statutorily has none.
Fourth and Fourteenth Amendments to the U.S. Constitution
The Fish and Wildlife Service has either seized or detained several articles of my property for which I have received no notice of detention or notice of seizure. These include four small wooden sculptures, two glass flasks, a glass tumbler and a small wooden cross. Photos and descriptions of the items can be viewed at the following links:
pharmacy jars
tumbler
cross
eagles
I have made repeated requests that these items be cleared, including:
6/29/2010—In a telephone conversation with Wildlife Inspector De’Marion McKinney
6/29/2010—In a telephone conversation with Agent Kevin Seiler
7/12/2010—In an email to Agent Kevin Seiler
7/13/2010—In a telephone conversation with Acting Resident Agent Marty Hernández
7/21/2010—In a registered letter to Acting Resident Agent Marty Hernández
These articles are being detained or seized in violation of the Fourth Amendment of the Constitution, which is the part of the Bill of Rights that prohibits unreasonable seizures, and the Fourteenth Amendment, which as construed by the courts includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
50 CFR 23.27
50 CFR 23.27 states:
What CITES documents do I present at the airport?
(a) Purpose. Article VIII of the Treaty provides that Parties establish an inspection process that takes place at a port of exit and entry. Inspecting officials must verify that valid CITES documents accompany shipments and take enforcement action when shipments do not comply with the Convention.
(b) U.S. port requirements. In the United States, you must follow the clearance requirements for wildlife in part 14 of this subchapter and for plants in part 24 of this subchapter and 7 CFR parts 319, 352, and 355, and the specific requirement in paragraphs (c) and (d) of this section.
Part 14 of this subchapter states:
§14.55
Except for wildlife requiring a permit pursuant to part 17 or 23 of this subchapter B, clearance is not required for the importation of the following wildlife:
(c) Certain antique articles as specified in §14.22 which have been released from custody by Customs officers under 19 U.S.C. 1499.
§14.22 states:
Any person may import at any Customs Service port designated for such purpose, any article (other than scrimshaw, defined in 16 U.S.C. 1539(f)(1)(B) and 50 CFR 217.12 as any art for that involves the etching or engraving of designs upon, or the carving of figures, patterns, or designs from, any bone or tooth of any marine mammal of the order Cetacea) that is at least 100 years old, is composed in whole or in part of any endangered or threatened species listed under §17.11 or þ17.12 of this subchapter, and has not been repaired or modified with any part of any endangered or threatened species on or after December 28, 1973.
The 16 ivory articles seized are somewhere between 200 and 400 years old, well in excess of 100 years. This is stated clearly on each CITES document where the ivory carvings are identified as being either XVII or XVIII century. Furthermore, I furnished Fish & Wildlife with the links to the online catalog where I bought the carvings. Fish and Wildlife has exercised seizure authority where it statutorily has none.
50 CFR 14.61
§14.61 states:
§ 14.61 Import declaration requirements.
Except as otherwise provided by the regulations of this subpart, importers or their agents must file with the Service a completed Declaration for Importation or Exportation of Fish or Wildlife (Form 3–177), signed by the importer or the importer's agent, upon the importation of any wildlife at the place where Service clearance under §14.52 is requested. However, wildlife may be transshipped under bond to a different port for release from custody by Customs Service officers under 19 U.S.C. 1499. For certain antique articles as specified in §14.22, importers or their agents must file a Form 3–177 with the District Director of Customs at the port of entry prior to release from Customs custody. Importers or their agents must furnish all applicable information requested on the Form 3–177 and the importer, or the importer's agent, must certify that the information furnished is true and complete to the best of his/her knowledge and belief.
The Fish and Wildlife inspector didn't even give my customs broker time to prepare and file the import declaration, and besides it wouldn't have been filed with Fish and Wildlife anyway, but with the District Director of Customs, since the ivory carvings are antique.
Eighth Amendment to the U.S. Constitution and 18 USC 983(g)
Of the many allegations that Fish and Wildlife Service has made against me, the only one for which there is any basis in fact is that Box 27 of the CITES permits issued by the Portuguese government was left blank.
The CITES permits were issued by the Portuguese CITES authority on April 4, 2010. The shipment was exported from Portugal on June 19, 2006. At the time of the export Portuguese customs agents should have filled in Box 27 with the same numbers that appear in Box 10 of the original CITES document. They failed to do so, and for this my shipment was seized by the Fish and Wildlife Service. (Let me just reiterate that, because these articles are more than 100 years old, that Fish and Wildlife has no legal authority over this shipment, and this section is not to be construed in any form or fashion as an admission on my part that Fish and Wildlife has any authority over this shipment.)
The Eighth Amendment is the part of the Bill of Rights that prohibits the Federal government from imposing excessive fines or cruel and unusual punishments. 18 USC §983(g), as part of the Civil Asset Forfeiture Reform Act of 2000, is more explicit in requiring “proportionality” and giving me the right to petition the court as to whether the seizure and forfeiture is constitutionally excessive.
"The time should fit the crime," to invoke a popular colloquialism.
16 USC 1538, 16 USC 1539 and USC 1533
§1538 states:
Prohibited Acts
(a)Generally (1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to - (A) import any such species into, or export any such species from the United States;
§1539 states:
§1539. Exceptions
(h) Certain antique articles; importation; port designation; application for return of articles
(1) Sections 1533 (d) and 1538 (a) and (c) of this title do not apply to any article which—
(A) is not less than 100 years of age;
Section 1533(d) states:
(d) Protective regulations
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538 (a)(1) of this title, in the case of fish or wildlife, or section 1538 (a)(2) of this title, in the case of plants, with respect to endangered species;
The 16 ivory articles seized are somewhere between 200 and 400 years old, well in excess of 100 years. This is stated clearly on each CITES document where the ivory carvings are identified as being either XVII or XVIII century. Furthermore, I furnished Fish & Wildlife with the links to the online catalog where I bought the carvings. Fish and Wildlife has exercised seizure authority where it statutorily has none.
50 CFR 17.21
§17.21 states:
17.21 - Prohibitions.
(a) Except as provided in subpart A of this part, or under permits issued pursuant to 17.22 or 17.23, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit or to cause to be committed, any of the acts described in paragraphs (b) through (f) of this section in regard to any endangered wildlife.
(b) Import or export. It is unlawful to import or to export any endangered wildlife. Any shipment in transit through the United States is an importation and an exportation, whether or not it has entered the country for customs purposes.
Subpart A states:
Subpart A—Introduction and General Provisions
§ 17.1 Purpose of regulations.
(a) The regulations in this part implement the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. 1531–1543, except for those provisions in the Act concerning the Convention on International Trade in Endangered Species of Wild Fauna and Flora, for which regulations are provided in part 23 of this subchapter.
The regulations that are applicable are thus those provided in part 23, and not part 17, as is alleged by Fish and Wildlife. Fish and Wildlife has exercised seizure authority where it has none and under regulations that are not applicable.
16 USC 3372
§3372 states:
§ 3372. Prohibited acts
(a) Offenses other than marking offenses
It is unlawful for any person—
(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law;
I have not imported, exported, transported, sold, received, acquired or purchased any fish or wildlife in violation of any law, treaty, or regulation of the United States. Furthermore, because the seized ivory carvings are antiques, Fish and Wildlife has no legal jurisdiction over this shipment. But despite this, Fish and Wildlife has seized the shipment and it has done so in violation of the laws, treaties and regulations of the United States.
§12.23(b)(2)
§12.23(b)(2) states:
Filing a claim and bond. Upon issuance of the notice of proposed forfeiture, any person claiming the seized property may file with the Solicitor's office indicated in the notice a claim to the property and a bond in the penal sum of $5,000, or ten per centum of the value of the claimed property, whichever is lower, but not less than $250. Any claim and bond must be received in such office within 30 days after the date of first publication or posting of the notice of proposed forfeiture. The claim shall state the claimant's interest in the property. The bond filed with the claim shall be on a United States Customs Form 4615 or on a similar form provided by the Department.
On July 23, 2010 I sent a fax to the Solicitor's office requesting that she provide me the appropriate forms as set out in §12.23(b)(2) so that I could file a claim and bond and have my case moved to Federal Court. But instead of providing those forms, she forwarded my request to the Fish and Wildlife office in Houston and I received an email from Fish and Wildlife Special Agent Kevin L. Seiler asking that I call him.
Fourteenth Amendment
The Fourteenth Amendment has been interpreted as providing “equal justice under the law,” and in fact the phrase is engraved on the front of the United States Supreme Court building in Washington, D.C. The manner in which the Interior Department treats art and antiques collectors vs. the manner it treats multinational oil and gas corporations represents a glaring double standard of justice that violates the Fourteenth Amendment and the mandate for equal justice under the law.
Good luck. We want to know what happens.
ResponderEliminarThanks for the tips that you have given. Regards
ResponderEliminarcustoms broker