United States v. Coffman

1

UNITED STATES OF AMERICA, Plaintiff, v. TONY LEE COFFMAN, Defendant.

No. 2:22-cr-154

United States District Court, S.D. Ohio, Eastern Division

January 24, 2023

OPINION AND ORDER

SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

This matter is before the court on two motions to dismiss a federal indictment charging Defendant Tony Lee Coffman with violations of the Lacey Act, 16 U.S.C. § 3371. Defendant moves to dismiss the indictment for lack of venue (ECF No 17) and because American Ginseng is not a “plant” under the Lacey Act (ECF No. 18). In the alternative Defendant requests transfer of the case to Southern District of West Virginia. (ECF No. 17.) The motions are fully briefed.

For the reasons set forth below, Defendant's motions and request to transfer venue are DENIED.

I. BACKGROUND

A. American Ginseng

Defendant is a licensed dealer of wild American ginseng who operates his business out of Birch River, West Virginia.^[1] (ECF No. 2, PAGEID # 3.) American ginseng (Panax quinquefolius) is a plant native to North American forests. See American Ginseng, U.S. FISH & WILDLIFE SERV., https://perma.cc/EWX4-7HNL. It is listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) and is protected by state law in Ohio and West Virginia. Ohio Rev. Code § 1533.87; West Virginia Code § 19-1A. Due to the high value of American ginseng, is particularly vulnerable to overharvesting, and federal law requires that states adopt ginseng protection programs to ensure survival of the species in the wild. See 50 C.F.R. § 23.68; see also Ohio Admin. Code § 1501:31-40 (Ohio's Ginseng Management Program); West Virginia Code § 19-1A (West Virginia's Ginseng Management Program).

B. The Indictment

On August 23, 2022, a federal grand jury returned an indictment charging Defendant with six violations of the Lacey Act. (ECF No. 2.) Specifically, Counts One and Two of the indictment charge Defendant with trafficking American Ginseng in violation of 16 U.S.C. §§ 3372(a)(2)(B)(i), (a)(4), and 3373(d)(1)(B), and Counts Three through Six charge Defendant with knowingly falsely labeling American ginseng in violation of 16 U.S.C. §§ 3372(d)(2) and 3373(d)(A)(ii).

The factual allegations are that over the course of several years, Defendant purchased American ginseng with knowledge that it was harvested in and unlawfully transported from Ohio; that he engaged in the sale and purchase of that ginseng; and, in doing so, submitted false records indicating that the Ohio ginseng was harvested in West Virginia. (Id. 6-9.) For each count, it is alleged that unlawful conduct took place “within” or “in the Southern District of Ohio and elsewhere.” (Id.)

Defendant now moves to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Civil Procedure for improper venue and failure to state an offense.

II. STANDARD OF REVIEW

Rule 12 of the Federal Rule of Criminal Procedure states that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1); see also 12(b)(3)(A)(i) (improper venue); 12(b)(3)(B)(v) (failure to state an offense). The Court can rule on a motion to dismiss before trial “if it involves questions of law instead of questions of fact on the merits of criminal liability.” United States v. Craft, 105 F.3d 1123, 1126 (6th Cir. 1997); see also United States v. Med 1st, No. 3:16-CR-000076-JHM, 2017 WL 4848823, at *1 (W.D. Ky. Oct. 26, 2017) (“The Court ‘may make preliminary findings of fact necessary to decide the questions of law presented by a pre-trial motion so long as the court's findings on the motion do not invade the province of the ultimate finder of fact.'”) (quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir. 1976)). When ruling on a pretrial motion to dismiss, the Court reads the indictment “as a whole, accepting the factual allegations as true, and construing those allegations in a practical sense with all the necessary implications.” United States v. McAuliffe, 490 F.3d 526, 530 (6th Cir. 2007) (citing United States v. Reed, 77 F.3d 139, 140 n. 1 (6th Cir.1996) (en banc)). “An indictment is to be construed liberally in favor of its sufficiency.” McAuliffe, at 531 (citing United States v. Davis, 306 F.3d 398, 411 (6th Cir. 2002)).

III. MOTION TO DISMISS BECAUSE AMERICAN GINSENG IS NOT A “PLANT” UNDER THE LACEY ACT

Federal R. Crim. P. 7(c)(1) provides that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged....” An indictment is constitutionally sufficient if it: (1) “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend”; and (2) “enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)). Apart from protecting the rights of the accused, the constitutional requirements of a valid indictment further “inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction....” Russell v. United States, 369 U.S. 749, 768 (1962).

The indictment charges Defendant with trafficking and falsely labeling American ginseng in violation of the Lacey Act, which prohibits such activities involving “plants.” Thus, for the indictment to be legally sufficient, wild American ginseng must be a “plant” under the Act.

Defendant argues that the indictment does not state an offense because wild American Ginseng is a “common food crop” excluded from the definition of “plant.” (ECF No. 18-1, PAGEID 68-76.) In response, the Government argues that American Ginseng is exempt from the “common food crop” exclusion because it is listed as a threatened species in CITES and is protected by Ohio law. (ECF No. 23, PAGEID # 158-62.)

A. The Lacey Act and Related Regulations

The Lacey Act defines “plant” as “any wild member of the plant kingdom, including roots, seeds, parts, or products thereof, and including trees from either natural or planted forest stands.” 16 U.S.C. § 3371(g)(1). The Act then carves out three exclusions from the general definition:

(2) Exclusions

The terms “plant” and “plants” exclude--

(A) common cultivars, except trees, and common food crops (including roots, seeds, parts, or products thereof);

(B) a scientific specimen of plant genetic material (including roots, seeds, germplasm, parts, or products thereof) that is to be used only for laboratory or field research; and

(C) any plant that is to remain planted or to be planted or replanted.

16 U.S.C. § 3371(g)(2).

The definition also includes a threatened species exception to the exclusions in subparagraphs (B) and (C). 16 U.S.C. § 3371(g)(3). However, the Act does not define “common food crop” or provide any exception to that exclusion. Instead, Congress directed the Secretary of Agriculture and Secretary of the Interior to promulgate regulations defining the term. 16 U.S.C. § 3376(c).

Pursuant to that authority, the Department of Agriculture adopted the following regulatory definition of “common food crop”:

A plant that:

(1) Is raised, grown, or cultivated for human or animal consumption; and

(2) Is a species or hybrid, or a selection thereof, that is produced on a commercial scale; and

(3) Is not listed:

(i) In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);

(ii) As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or

(iii) Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.

7 C.F.R. § 357.2. The threatened species exception in subsection (3) is identical to that included in 16 U.S.C. § 3371(g)(3) of the Lacey Act.

B. The regulatory definition for the “common food crop” exclusion is entitled to Chevron deference.

Where, as here, Congress is silent as to the meaning of a term and expressly delegates authority to an administrative agency to fill the gap, “regulations made pursuant to that delegation are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Atrium Med. Ctr. v. U.S. Dep't of Health & Hum. Servs., 766 F.3d 560, 566 (6th Cir. 2014) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984)). See also Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 900 (6th Cir. 2021) (Chevron deference applies to interpretation of criminal statutes) (collecting cases). For a regulatory definition to control, it must conform with the statutory text and purpose. See Oakbrook Land Holdings, LLC v. Comm'r of Internal Revenue, 28 F.4th 700, 718 (6th Cir. 2022).

The parties agree that subsections (1) and (2) of the regulatory definition of “common food crop” are valid and entitled to Chevron deference. According to the Government the threatened species exception in subsection (3) is also valid because it is consistent with text and purpose of the Act. (ECF No. 23, PAGEID # 158-62.) In contrast Defendant argues that subsection (3) is inconsistent with Lacey Act under the canon of construction expressio unius est exclusio alterius (the mention of one thing implies the exclusion of another). (ECF No. 26, PAGEID # 179.) He argues that because Congress applied an identical threatened species exception to some exclusions from the general definition of “plant” but not to the “common food crop” exclusion, see § 3371(g)(3), that Congress implicitly intended...