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United States v. Zarauskas

United States Court of Appeals, First Circuit

February 10, 2016

UNITED STATES OF AMERICA, Appellee,
v.
ANDREW ZARAUSKAS, Defendant, Appellant

Page 510

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, Jr., U.S. District Judge.

Stephen C. Smith, with whom Lipman & Katz, P.A. was on brief, for appellant.

John Emad Arbab, Attorney, Appellate Section, with whom Allen M. Brabender, Attorney, Appellate Section, John C. Cruden, Assistant Attorney General, and the Environment and Natural Resources Division of the United States Department of Justice, were on brief, for appellee.

Before Barron and Stahl, Circuit Judges, and Sorokin,[*] District Judge.

OPINION

Page 511

STAHL, Circuit Judge.

Following a jury trial, Andrew Zarauskas was found guilty on charges relating to the illegal importation of narwhal tusks.[1] In this appeal, Zarauskas contends that the district court erred by allowing, then failing to cure, a series of comments and questions by the prosecutor, which Zarauskas claims violated the Fifth Amendment by drawing the jury's attention to his decision not to testify. Zarauskas also challenges the district court's admission of records of vehicular border crossings between the United States and Canada, which the government offered to establish that the tusks in question had originated in Canada. After careful review, we AFFIRM.

I. Facts and Background

A. The Tusk Purchases and the Café Vivaldi Interview

Between approximately 2003 and 2009, Zarauskas served as a confidential informant for the United States Fish and Wildlife Service (" FWS" ), providing information about individuals engaged in the smuggling of whale teeth and other wildlife contraband.[2] In this capacity, Zarauskas developed a relationship with FWS Agent Andrey Guidera, with whom he spoke on many occasions.

On February 17, 2010, Zarauskas agreed to meet with Agent Guidera, as well as Guidera's colleague, FWS Agent Eric Holmes, and a Canadian wildlife official. The meeting took place at Café Vivaldi, located in Zarauskas's home state of New Jersey (the " Café Vivaldi Interview" ). In initiating the Café Vivaldi Interview, Agent Guidera told Zarauskas that he wanted to discuss the recent conviction of an individual whom Zarauskas had identified to the FWS as illegally trafficking in sperm whale teeth.

In truth, Agent Guidera and his colleagues had a very different reason for initiating the Café Vivaldi Interview. As part of a separate investigation, the FWS had gathered information on Gregory and Nina Logan, a Canadian couple whom the FWS believed to be illegally importing narwhal tusks into the United States. In the course of that investigation, the FWS learned that Zarauskas had purchased some thirty-three tusks from the Logans between 2002 and 2010 and had resold many of them for profit.

The Café Vivaldi Interview, which the parties agree was a voluntary, non-custodial encounter, was recorded with Zarauskas's consent. Although it began amiably, the agents soon confronted Zarauskas with evidence of his dealings with the Logans. Zarauskas was initially evasive, but ultimately admitted to purchasing approximately a dozen tusks from the Logans. Zarauskas insisted, however, that he believed the tusks were sourced not from Canada, but from a collection in Maine known as the Hildebrant Collection.[3]

At the conclusion of the Café Vivaldi Interview, Zarauskas consented to a search of his home and his computer. Although Zarauskas initially told the agents that he had only two narwhal tusks at his home, Agent Guidera's search uncovered a total of seven, including several hidden in the rafters of Zarauskas's basement. A subsequent search of Zarauskas's computer

Page 512

turned up email correspondence between Zarauskas and Gregory Logan, which suggested that Zarauskas had arranged to submit a series of payments to Logan at a Canadian address.

B. Zarauskas's Indictment and Prosecution

Zarauskas was charged under a network of treaties, statutes, and regulations that govern the importing and exporting of wildlife. The United States has signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (" CITES" ), Mar. 3, 1973, 27 U.S.T. 1087, which aims to protect endangered and threatened species by regulating trade in wildlife specimens and artifacts. See United States v. Place, 693 F.3d 219, 222 (1st Cir. 2012). Species subject to CITES are listed in three separate appendices to the treaty. See CITES art. II. Narwhals are listed in Appendix II, meaning that the export of any narwhal specimen (including a tusk) requires the possession of a special permit. See id. at art. IV(2); Place, 693 F.3d at 222.

CITES has been implemented in the United States through a series of statutes and regulations. The Endangered Species Act (" ESA" ), 16 U.S.C. § 1531 et seq., makes it a crime " to engage in any trade in any specimens" or " to possess any specimens" in violation of CITES. 16 U.S.C. § 1538(c)(1). Separately, the Marine Mammal Protection Act (" MMPA" ), 16 U.S.C. § 1361 et seq., makes it unlawful " for any person to use any port, harbor, or other place under the jurisdiction of the United States to take or import marine mammals or marine mammal products," unless done in compliance with CITES or another agreement to which the United States is a party. 16 U.S.C. § 1372(a)(2)(B). Finally, pursuant to regulations promulgated by the FWS, all wildlife specimens must be imported through a designated port of entry, accompanied by an appropriate declaration, and cleared by an FWS officer (the " FWS Regulations" ). See 50 C.F.R. § § 14.11, 14.52, 14.61.

In November 2012, a federal grand jury returned an indictment against Zarauskas, the Logans, and a fourth defendant. Zarauskas was charged with one count of conspiracy to illegally import narwhal tusks into the United States, in violation of the ESA, the MMPA, the FWS Regulations, and 18 U.S.C. § 371; one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); two counts of smuggling narwhal tusks into the United States, in violation of the ESA, the MMPA, the FWS Regulations, and 18 U.S.C. § 545; and two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(2)(A).

The case against Zarauskas proceeded to trial. Although Zarauskas did not testify, his defense centered on his purported belief that the tusks in question were not imported contrary to law, but rather were obtained by the Logans from the Hildebrant Collection in Maine. On this basis, the defense claimed Zarauskas did not know that the tusks had been brought into the country illegally, as was required to prove an act of smuggling. See 18 U.S.C. § 545 (criminalizing the " knowing" receipt, concealment, purchase, or sale of merchandise " imported or brought into the United States contrary to law" ). The jury apparently rejected his defense, returning guilty verdicts on all counts of the indictment. Zarauskas was sentenced to thirty-three months in prison.

We briefly overview several facets of the trial that are of central importance to this appeal. First, Zarauskas contends that the district court erred when it allowed, then failed to cure, a series of statements and questions by the prosecutor regarding the Café Vivaldi Interview and Zarauskas's failure during the interview to deny

Page 513

his involvement in the Logans' tusk smuggling operation. Zarauskas argues that these statements and questions violated his Fifth Amendment right to remain silent by drawing the jury's attention to his decision not to testify at trial.[4]

Second, Zarauskas contends that the district court erred when it found, over his objection, that the government could rely on the public records exception to the rule against hearsay to admit a series of records of vehicular border crossings between the United States and Canada. See Fed.R.Evid. 803(8). The government used these records to establish that a vehicle belonging to Gregory Logan crossed the border from Canada into Maine at times corresponding to Logan's shipment of tusks to Zarauskas. We consider Zarauskas's two arguments in turn.

II. The Fifth Amendment

A. Prosecutorial Comment on the Café Vivaldi ...


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