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Deciding a "rare bird" of a case, a federal appeals court last week upheld the unusual conviction of an "enigmatic and colorful" exotic bird collector for illegally importing black sparrowhawks from South Africa. Thomas W. Cullen of Goshen, N.Y., was convicted and sentenced to four months in jail under the Wild Bird Conservation Act of 1992, 16 U.S.C. §4901 et. seq. His case may have been the first criminal prosecution ever under the act.

Cullen challenged his conviction on the grounds that the act does not apply to captive-bred birds and that its failure to specifically define the term "personal pet" rendered it unconstitutionally vague.

But the 2nd U.S. Circuit Court of Appeals rejected those arguments in United States v. Cullen, 06-0607-cr.

Judges Richard Cardamone and Chester Straub, along with Southern District of New York Judge John Koeltl, sitting by designation, decided the appeal.

Writing for the court, Cardamone noted that judges frequently describe odd legal provisions or ingenious arguments as a "rare bird."

"We have before us as the subject matter literally a rara avis in terris or a rare bird of the earth," he wrote.

The court described Cullen as "an internationally known professional falconer." He was hired at one time by the City of New York to help restore bald eagles to Inwood Hill Park. Cullen once claimed to own one of the largest collections of birds of prey in the country. At the time of his trial, he maintained 47 birds of prey in Goshen.

But Cardamone added that Cullen "also has a history of questionable activity involving exotic birds."

According to the court, Cullen wanted to add the black sparrowhawk to his collection, but he did not meet the criteria for any of the four exceptions to the Act's importation ban: he had not been away from the United States for more than a year, so he did not come within the personal pet exception; he was not conducting scientific research; he was not involved in zoological breeding or display programs; and he was not engaged in cooperative breeding programs.

The government alleged Cullen used an American couple living in London, Joseph and Kristen Kulak, as a front for the importation in 1999 of three black sparrowhawks said to be the couple's personal pets.

One of the birds died in transit, and a Wildlife Service inspector at JFK Airport refused to believe Cullen's claim that he was just picking up the remaining birds for the Kulaks. The officer quarantined the birds pending an investigation.

A second bird died while in quarantine. The lone remaining bird was turned over to Cullen in 2000 with the understanding that he would return it to the Kulaks.

Instead, Cullen made a breeding arrangement with the owner of the only other black sparrowhawk in North America. That failed and the bird was returned to Cullen.

Kulak testified against Cullen, pursuant to a nonprosecution agreement, at a jury trial in 2005 before Southern District Judge Colleen McMahon. Cullen was convicted of knowingly importing exotic birds and making false statements about his activities. However, he was acquitted of illegally importing saker falcons.

WILD VERSUS CAPTIVE

At the 2nd Circuit, Cardamone addressed first Cullen's contention that Congress passed the Wild Bird Conservation Act because it was concerned about protecting birds in the wild -- not captive-bred birds.

"Yet, nothing in the language of the statute itself supports Cullen's assertion," Cardamone said. "Quite the contrary -- the statute provides that any exotic bird listed ... is covered, with no limiting language as to where or how an exotic bird is bred."

The judge added that a "Wild Bird Act provision mandating the Secretary of the Interior to exempt selected captive-bred species from the act's prohibitions on importation ... conclusively demonstrates that Congress aimed to have all other captive-bred species, like the Black Sparrowhawk, covered under the act. Otherwise, this exemption would be meaningless."

Cullen's complaint about the vagueness of the personal pet exception required the court to employ the requirement that a law must give "fair warning" to the accused of exactly what activity it prohibited.

"Although we recognize in many English words there lurk uncertainties ... to meet the fair warning prong an ounce of common sense is worth more than an 800-page dictionary," Cardamone wrote. Here, he said, the words personal and pet are "comprehensible to an ordinary person."

"The common meanings of these words, coupled with the Wild Bird Act's explicit provisions as to who qualifies for the personal pet exception, gave adequate notice to defendant that the activities he was planning did not fit within the pet exception," Cardamone said.

Peter Ginsberg of Crowell & Moring in New York represented Cullen.

"We're obviously disappointed in the circuit's opinion," Ginsberg said. "Tom has dedicated his life to protecting and expanding the bird population and if he made a technical mistake in how he obtained some birds -- and it's clear the jury did think he made mistakes -- it was certainly not out of malice or the desire to break the law."

Assistant U.S. Attorneys Jesse Furman, Stephen Ritchen and John Hillebrecht represented the government.


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