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Law Office of E. Michael Linscheid

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Under the Lacey Act, a prosecution must commence within five years, which is longer than California’s one-year misdemeanor statute of limitations for an underlying defense or even the three-year statute of limitations for felony conspiracy. Federalizing an offense that would typically be charged in state court and a violation of a Lacey Act, you can increase the amount of time the prosecution has to charge the breach of a fish And wildlife violation to five years. The Lacey Act statute of limitation, if there is one, is not necessarily a defense but it will increase the probability that the charge would be filed in more egregious cases.

If The Lacey Act does Not cover a Specific Wildlife Fish Or A Plant At Issue, Does That Mean The Charges Against Me Will Be Dropped Or I Will Win My Case Automatically?

When the Lacey Act was first enacted in 1900, it was directed primarily at poaching birds in one state with the purpose of selling the bird in another state. The act has been amended several times to include all wildlife, including plants, and by making it illegal to sell, import, export, transport, receive, acquire or purchase in interstate or foreign commerce any wildlife that was taken, possessed, transported or sold in violation of state or federal law. Thus, the Lacey Act is broad and comprehensive and federalizes violations of state and international law.

The Lacey Act eliminates the requirement of wrongful intent. Unlike most criminal offenses, a violation of the Lacey Act does not require that the accused willingly violated the law.

What Constitutional Issues Could Be Used By My Defense In A Lacey Act Violation Case?

There are defenses to the Lacey Act, the first being that the prosecution must prove that the accused knew they were importing or exporting wildlife and, in the end, were tainted by a violation of some law associated with their taking, possession, transportation or sell. If the prosecution cannot prove knowledge of the taint, then they would not be able to secure a conviction. A second affirmative defense is the defense of entrapment. To establish the entrapment defense, a person accused of a violation must show that they lack the disposition to commit the offense and that the government’s involvement or inducement is more substantial than simply providing an opportunity to commit the offense. A third defense is a person can challenge the constitutionality of the underlying law that has been violated. If the Lacey Act involves a violation of state law and the state law is deemed unconstitutional, an accused should be able to secure a dismissal of the Lacey Act violation.

If The Government Can’t Show The Defendant Imported, Exported, Transported, Received, Acquired Or Purchased The Illegal Wildlife Fish Or Plant Or Attempted To Do So, Is That Enough To Win My Case?

In order to secure a conviction under the Lacey Act, the prosecution must establish by proof beyond reasonable doubt that the accused knowingly violated the Lacey Act. If the prosecution cannot prove beyond a reasonable doubt a violation, the trier of fact (judge or jury) should find them not guilty. It is important that anyone accused of a Lacey Act violation retain an attorney experienced with these matters who can provide  defense to the government’s allegations.

Can Someone Be Charged With The Fish And Wildlife Violation If They were Not The Same Person Who Took, Possessed, Transported Or Sold The Wildlife?

Under the Lacey Act, the person can be charged with the fish and wildlife violation after having knowingly received or purchased wildlife in violation of federal or international law. A person is not released of liability simply because they were not the person who took, possessed, or transported, they may have knowingly received or purchased the wildlife knowing that it was somehow tainted by the violation of state, federal, or international law.

Does The Degree Of The Accused Knowledge Regarding The Status Of The Tainted Wildlife Distinguish Whether The Charge Will Be A Felony Or Misdemeanor Violation?

Most fish and wildlife violations are deemed regulatory violations, which do not require any wrongful intent. There are strict liability crimes, and the only requirement is the underlying conduct is illegal. In general, crimes making a person strictly liable for the conduct are treated as misdemeanors. They do not carry the same criminal punishment, jail time, or prison as an offense requiring wrongful intent. For example, violations of the Lacey Act where the accused knew or was generally aware of the illegal nature and the value of the wildlife was over $350, the offense will be charged as a felony. Someone who exercises due care or degree of care, which a reasonably prudent person would exercise under similar circumstances, will be charged with a misdemeanor. So, where somebody with all appearances appears that they intend to comply with the law, they are typically charged with a misdemeanor. In contrast, especially under the Lacey Act, if a person understands and knows that the conduct is illegal or has some wrongful intent, they will typically be charged with a felony violation.

For more information on Fish And Wildlife Cases in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 728-9982 today.

E. Michael Linscheid, Esq.

Call Now For A Personalized Confidential Consultation!
(415) 728-9982

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