UNITED STATES OF AMERICA, Plaintiff, v. TONY LEE COFFMAN, Defendant.
Case No. 2:22-cr-154
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
01/24/23
Judge Sarah D. Morrison
PAGEID #: 184
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,
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
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
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
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
III. MOTION TO DISMISS BECAUSE AMERICAN GINSENG IS NOT A “PLANT” UNDER THE LACEY ACT
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
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.”
(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.
The definition also includes a threatened species exception to the exclusions in subparagraphs (B) and (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.
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
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
If the definition in
In support of his motion, Defendant relies on United States v. McCullough, 891 F. Supp. 422 (N.D. Ohio 1995), which held that American ginseng was a “common food crop.” However, this case was decided before Congress amended the Lacey Act in 2008 to require agency clarification on that exclusion. In fact, McCullough and the unique situation posed by American ginseng is cited in the legislative history of the 2008 Amendments to demonstrate the need for agency clarification on the matter:
The Managers are aware that some plant species produced in agricultural settings as cultivars or for food, food supplements, or medicines, also continue to be taken from the wild in volumes that threaten the conservation of these species. For example, the Court in United States v. McCullough, 891 F. Supp. 422 (N.D. Ohio 1995) read the current Lacey Act exclusion from the definition of plant for “common food crops and cultivars” as applying to American ginseng, a species that is artificially produced but also threatened in the wild by unsustainable exploitation. Therefore, the Managers added [
§ 3376(c) ] to the Act to help clarify the terms of this exclusion such that trade in cultivars and common food crops is not unduly burdened, while wild plant species threatened with extinction (which may also be artificiallyproduced) are adequately protected from illegal and unsustainable exploitation.
H.R. CONF. REP. NO. 110-627, at 895-96 (2008), as reprinted in 2008 U.S.C.C.A.N. 536, 339. Given these concerns, it is significant that states are required to adopt laws balancing commerce of cultivated American ginseng with the conservation of the species in the wild. See
Because wild American ginseng is listed in CITES and is protected by Ohio law it is exempt from exclusion as common food crop and is a “plant” under the Lacey Act. Therefore, the indictment adequately alleges violations of the Lacey Act, and Defendant‘s motion to dismiss the indictment for failure to state an offense is DENIED.
IV. MOTION TO DISMISS FOR LACK OF VENUE
Defendant argues that venue is improper because the Government cannot prove that he took any overt action within the Southern District of Ohio. (ECF No. 17-1, PAGEID # 60-62.) In response, the Government argues that venue is proper under to
A. Venue is proper on the face of the indictment.
Criminal defendants have a constitutional right to be tried in the state where the offense was committed. See
Congress has the authority to define venue for federal offenses by defining the locality of a substantive offense. United States v. Canal Barge Co., 631 F.3d 347, 351 (6th Cir. 2011); see also United States v. Chestnut, 533 F.2d 40, 47 (2d Cir. 1976) (“The constitutional standards for venue concern the locality of the substantive offense rather than the location of the offender at the time of the offense.“) (citing Armour Packing Co. v. United States, 209 U.S. 56, 76 (1908)).
To confirm that venue is constitutional in a given district, the Sixth Circuit applies the substantial contacts test. United States v. Castaneda, 315 F. App‘x 564, 569 (6th Cir. 2009). In applying this test, the Court examines the “site of the defendant‘s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact finding.”
The indictment alleges that each offense occurred within “Southern District of Ohio and elsewhere.” (ECF No. 2, PAGEID # 6-8.) Although the Government must prove venue by a preponderance of the evidence at trial, Grenoble, at 573, this is sufficient to establish venue at this stage.
More specifically, on Counts One and Two, Defendant is charged with Lacey Act Trafficking:
[W]ithin the Southern District of Ohio and elsewhere, defendant TONY LEE COFFMAN did knowingly, and knowingly attempt to, receive, acquire, and purchase wild American ginseng, knowing that said ginseng had been transported in interstate and foreign commerce in violation of, and in a manner unlawful under, the laws and regulations of the state of Ohio that protects American ginseng, specifically [
Ohio Admin. Code § 1501:31-40-03(E) , and did knowingly engage in conduct that involved the sale and purchase of, and the offer of sale and purchase of, wild American ginseng having a market value greater than $350.
On Counts Three though Six, Defendant is charged with False Labeling under the Lacey Act:
[I]n the Southern District of Ohio and elsewhere, defendant TONY LEE COFFMAN did knowingly make and submit, and cause to be made and submitted, a false record, account, and label for, and false identification of, Ohio ginseng root which had been and was intended to be transported in interstate and foreign commerce, and such conduct involved the sale or purchase, offer of sale or purchase, and commission of an act with intent to sell or purchase, ginseng root with a market value greater than $350, in that TONY LEE COFFMAN, in a Ginseng Dealers 30-Day Report, falsely reported that Ohio ginseng root he purchased had been dug in [Kanawha and Boone County] West Virginia.
(Indictment, ECF No. 2, PAGEID # 7-9) (emphasis added). As with the previous counts, the Government alleges that the ginseng originated in Ohio and was transported in interstate commerce. Thus, venue is proper for Counts Three through Six pursuant to
Finally, applying the substantial contacts test confirms the constitutionality of venue in this district. Even if defendant‘s conduct took place outside of this
Accordingly, Defendant‘s motion to dismiss the indictment for improper venue is DENIED.
B. Transfer of venue is not warranted.
The Federal Rules of Criminal Procedure allow for transfer of venue “for the convenience of the parties and witnesses and in the interest of justice.”
Only six of the ten factors are at issue here. Defendant argues that the Southern District of West Virginia is more convenient because the defendant, possible witnesses for the defense, documentary evidence, events likely to be at issue, and defense counsel are located in that district. (ECF No. 17-1, 63.) Defendant also argues that the cultural significance of harvesting ginseng in West Virginia is a special element that might affect transfer. (Id.)
On the other hand, the Government argues that the case agents, civilian witnesses for the government, documentary evidence, events likely to be at issue, and counsel for the government are located within the Southern District of Ohio. (ECF No. 22, 154-55.) In particular, the Government identifies that its civilian witness would be burdened by the time and cost of traveling to the Southern District of West Virginia. Finally, the Government argues that the cultural significance of ginseng harvesting is not relevant to transfer.
To begin, the cultural significance of ginseng harvesting is not relevant to transfer. Even if it were, harvesting wild ginseng is embedded in the cultural heritage of the entire Appalachian region—portions of which are located within the Southern District of Ohio. See American Ginseng, U.S. FISH & WILDLIFE SERV., https://perma.cc/EWX4-7HNL; Emily Cataneo, In Appalachia, a Plan to Save Wild Ginseng, UNDARK MAGAZINE (Nov. 4, 2020), https://perma.cc/JS98-AVRL. (See also Growing American Ginseng in Ohio, ECF No. 18-5.)
That leaves the location of the defendant; while Defendant‘s location weighs in favor of transfer, this factor alone is insufficient to support transfer to another district. Accordingly, Defendant‘s request to transfer venue to the Southern District of West Virginia is DENIED.
V. CONCLUSION
For the reasons stated herein, Defendants Motions to Dismiss the Indictment and request to transfer venue are DENIED. (ECF Nos. 17, 18).
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE