Jcc Inc, a Washington Corporation v. 144,774 POUNDS OF BLUE KING CRAB, more or less

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
DEEP SEA FISHERIES INC; DEEP SEA
HARVESTER, INC.,
Claimants-Appellants,
and No. 03-36006
JOHN R. BOGGS, President Deep D.C. No. Sea Fisheries Inc.; GLOBAL FISHING  CV-02-02167-JCC INC, a Washington Corporation;
KAMCHATCOMAGROPROMBANK, a OPINION
Russian chartered bank,
Claimants,
v.
144,774 POUNDS OF BLUE KING
CRAB, more or less,
Defendant. 
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Chief Judge, Presiding
Argued and Submitted
May 2, 2005—Seattle, Washington
Filed June 9, 2005
Before: J. Clifford Wallace, Barry G. Silverman, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Silverman
6771

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COUNSEL
John M. Colvin, Chicoine & Hallett, P.S., Seattle, Washing-
ton, for the claimants-appellants.
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John McKay, Peter O. Mueller, and Richard E. Cohen, United
States Attorney’s Office, Seattle, Washington, for the
plaintiff-appellee.
OPINION
SILVERMAN, Circuit Judge:
King crab taken in violation of Russian fishing regulations
is subject to forfeiture under the Lacey Act, 16 U.S.C.
§ 3374(a), on a strict liability basis. The question before us is
whether an importer of such crab may assert an “innocent
owner defense” in forfeiture proceedings. Under the Civil
Asset Forfeiture Reform Act, 18 U.S.C. § 983, the innocent
owner defense cannot be asserted when the property to be for-
feited is “contraband or other property that it is illegal to pos-
sess.”
We hold today that if the crab at issue here was imported,
received, or acquired in violation of the Lacey Act, 16 U.S.C.
§ 3372(a), it constitutes “property that it is illegal to possess”
for the purposes of 18 U.S.C. § 983(d)(4).
I. BACKGROUND
This interlocutory appeal arises out of a claim to king crab
made by appellants Deep Sea Fisheries and Deep Sea Har-
vester (collectively, “Deep Sea”). The king crab at issue was
caught within the Russian Exclusive Economic Zone (“EEZ”)
by two Russian vessels, the F/V Deep Sea Harvester and the
F/V Lucky Star. The crab was transferred to the M/V Vlada,
a Russian transport ship, which transported the crab out of the
EEZ to Vancouver, B.C. Deep Sea imported the crab into the
United States at Blaine, Washington, where it was detained by
United States Customs officials.
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The United States brought this action for forfeiture of the
defendant 144,774 pounds of cooked, frozen blue king crab
for violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A).
The government alleged that the crab had been taken, pos-
sessed, transported, and sold in violation of the fishing and
resource protection laws of the Russian Federation. The
United States asserted that the M/V Vlada had failed to main-
tain its vessel monitoring system, which provides information
about the location of the vessel and the amount of catch on
board, in continuous operation during the time the vessel was
in use, as required by Russian law. The M/V Vlada had
reported that it was going to Dutch Harbor, Alaska, for major
repairs and turned off its monitoring equipment, but subse-
quent inquiry by United States authorities determined that the
M/V Vlada had not undergone repairs at Dutch Harbor and
had instead left that port after three days and was crabbing off
the books. Russian authorities reported that if the M/V Vlada
had taken on the crab in the EEZ, the vessel had violated Rus-
sian law because it had not reported the loading or transport
of the crab.
Deep Sea filed a statement in response to the forfeiture
action claiming an interest in the crab based upon a security
interest in the catch of the Russian fishing vessels. Deep Sea
also filed an answer to the complaint claiming a lack of
knowledge that the crab was caught or transported in violation
of Russian fishing laws and raising innocent ownership as an
affirmative defense under 18 U.S.C. § 983.
The district court ordered Deep Sea to show cause why the
court should not order summary judgment precluding Deep
Sea from raising the innocent owner defense based on the
government’s argument that the such a defense could not be
raised with respect to the crab because the crab was, in the
words of 18 U.S.C. § 983(d)(4), “contraband or other property
that it is illegal to possess.” Deep Sea responded that because
the crab was not inherently illegal to possess, it was not con-
traband for the purposes of the innocent owner defense.
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The district court granted partial summary judgment in
favor of the United States, holding that the crab was contra-
band and striking Deep Sea’s innocent owner defense. The
district court reasoned that “contraband” as used in CAFRA
“includes both goods that are inherently illegal to possess and
otherwise legal goods that have been imported or exported
illegally.” Deep Sea filed a motion seeking reconsideration of
the order, arguing that the district court’s construction of the
term “contraband” to include illegally imported goods would
result in disparate treatment between fish caught in violation
of domestic law and fish caught in violation of international
law. The district court denied the motion for reconsideration,
but certified an interlocutory appeal of its ruling striking the
innocent owner defense pursuant to 28 U.S.C. § 1292(b). We
permitted an interlocutory appeal to be taken.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to consider an order certified for inter-
locutory appeal under 28 U.S.C. § 1292(b). Rivera v. Nibco,
Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). We review de novo
the district court’s construction of a statute. United States v.
Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).
III. DISCUSSION
A. The Statutory Language
We must decide whether fish, wildlife, or plants taken, pos-
sessed, transported, or sold in violation of foreign law and
subject to forfeiture under the Lacey Act constitute “contra-
band or other property that it is illegal to possess” under 18
U.S.C. § 983(d)(4), thus precluding the assertion of an inno-
cent owner defense in an action to forfeit the items.
1. The Lacey Act
[1] The Lacey Act provides that it is unlawful for any per-
son —
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(1) to import, export, transport, sell, receive,
acquire, or purchase any fish or wildlife or plant
taken, possessed, transported, or sold in violation of
any law, treaty, or regulation of the United States or
in violation of any Indian tribal law;
(2) to import, export, transport, sell, receive,
acquire, or purchase in interstate or foreign com-
merce —
(A) any fish or wildlife taken, possessed,
transported, or sold in violation of any law
or regulation of any State or in violation of
any foreign law;
(B) any plant taken, possessed, trans-
ported, or sold in violation of any law or
regulation of any State; or
(C) any prohibited wildlife species (sub-
ject to subsection (e) of this section) . . . .
16 U.S.C. § 3372(a).
[2] Separate provisions of the Lacey Act provide civil and
criminal penalties for Lacey Act violations. 16 U.S.C. § 3373.
The Lacey Act also has a strict liability forfeiture provision:
All fish or wildlife or plants imported, exported,
transported, sold, received, acquired, or purchased
contrary to the provisions of section 3372 of this title
(other than section 3372(b) of this title), or any regu-
lation issued pursuant thereto, shall be subject to for-
feiture to the United States notwithstanding any
culpability requirements for civil penalty assessment
or criminal prosecution included in section 3373 of
this title.
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16 U.S.C. § 3374(a)(1).
2. The Civil Asset Forfeiture Reform Act
[3] Enacted in 2000, the Civil Asset Forfeiture Reform Act
(“CAFRA”) sets forth the procedures used in all civil forfei-
tures under federal law unless the particular forfeiture statute
is specifically exempted in 18 U.S.C. § 983(i)(2). Section
983(d) provides the following innocent owner defense to a
civil forfeiture:
(1) An innocent owner’s interest in property shall
not be forfeited under any civil forfeiture statute.
The claimant shall have the burden of proving that
the claimant is an innocent owner by a preponder-
ance of the evidence.
* * *
(3)(A) With respect to a property interest acquired
after the conduct giving rise to the forfeiture has
taken place, the term “innocent owner” means a per-
son who, at the time that person acquired the interest
in the property —
(i) was a bona fide purchaser or seller for
value (including a purchaser or seller of
goods or services for value); and
(ii) did not know and was reasonably
without cause to believe that the property
was subject to forfeiture.
* * *
(4) Notwithstanding any provision of this subsec-
tion, no person may assert an ownership interest
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under this subsection in contraband or other property
that it is illegal to possess.
[4] In construing a federal statute, we first look at the plain
meaning of the language in question. United States v. 594,464
Pounds of Salmon, 871 F.2d 824, 825 (9th Cir. 1989). “It is
a maxim of statutory construction that unless otherwise
defined, words should be given their ordinary, common mean-
ing.” Foxgord v. Hischemoeller, 820 F.2d 1030, 1032 (9th
Cir. 1987). Here, the plain meaning of “contraband” is not
defined in the statute, nor is it immediately apparent. Black’s
Law Dictionary defines contraband as, “1. Illegal or prohib-
ited trade; smuggling. 2. Goods that are unlawful to import,
export, or possess.” BLACK’S LAW DICTIONARY (8th ed. 2004).
The district court relied on the dictionary definition of “con-
traband” for the conclusion that “contraband” is commonly
used to denote illegally imported goods. However, we do not
need to reach the question of what “contraband” means if we
can determine the meaning of “other property that it is illegal
to possess” from the plain wording of the statute.
Deep Sea argues that it is entitled to raise the innocent
owner defense because Congress intended “contraband” to
mean “contraband per se,” or items that are inherently illegal
to possess. Deep Sea argues that the “or other” indicates that
“contraband” is one type of a larger category of property “that
it is illegal to possess.” Deep Sea asserts that “property that
it is illegal to possess” means property whose possession is
inherently illegal, and that because there is nothing inherently
illegal about the possession of king crab, it should be permit-
ted to raise an innocent owner defense.
[5] It is an accepted canon of statutory interpretation that
we must interpret the statutory phrase as a whole, giving
effect to each word and not interpreting the provision so as to
make other provisions meaningless or superfluous. Boise Cas-
cade Corp. v. United States EPA, 942 F.2d 1427, 1432 (9th
Cir. 1991); see also United States v. Menasche, 348 U.S. 528,
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538-39 (1955). As the government argues, the fact that “con-
traband” and “other property that it is illegal to possess” are
separated by an “or” signifies that Congress intended them to
mean two separate things. See Prince v. Jacoby, 303 F.3d
1074, 1080 (9th Cir. 2002). Congress’s use of “other” follow-
ing the “or” also connotes that items besides “contraband”
were contemplated to be exempted from the innocent owner
defense. Deep Sea’s proposed construction, that “property
that it is illegal to possess” has an identical definition to “con-
traband,” which it defines as contraband per se, contravenes
our duty to give independent meaning to both phrases in the
statute.
We believe that the phrase “other property that it is illegal
to possess” includes property that becomes illegal to possess
because of extrinsic circumstances. Such a determination
resolves the controversy before us. We do not need to ascer-
tain whether Congress intended “contraband” to refer only to
“contraband per se” because we conclude that, if the govern-
ment establishes that the crab at issue here is taken, possessed,
transported, or sold in violation of Russian law, it is “other
property that it is illegal to possess.”
Deep Sea also argues that it is ambiguous whether the crab
here is in fact actually illegal to possess. Deep Sea asserts that
the possession of crab is not in itself illegal. Rather, the crab
at issue is merely tainted by the associated violations of Rus-
sian law and the importation of the property into the U.S.,
thereby rendering acquisition of the crab illegal under the
Lacey Act. Accordingly, Deep Sea argues that the crab is not
“property that it is illegal to possess.”
We disagree. We do not find dispositive the fact that the
government must prove that the crab here is the product of
violations of Russian law in a forfeiture proceeding before it
is determined to be “illegal to possess.”
Even in the most obvious cases of property that it is illegal
to possess, the government must prove certain elements
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before possession is deemed unlawful. For example, Deep Sea
concedes that certain types of pornography are “generally
understood by the public to be illegal to possess.” We assume
that Deep Sea includes child pornography within this cate-
gory. However, 18 U.S.C. § 2252 makes possession of child
pornography unlawful only if the depiction is of an actual
minor, and the pornography was transported or shipped in
interstate or foreign commerce. Id. § 2252(a)(1); cf. Ashcroft
v. Free Speech Coalition, 535 U.S. 234, 258 (2002) (holding
that ban on virtual child pornography was unconstitutionally
overbroad because it proscribed speech that was neither child
pornography nor obscene).
[6] Although we decline to specifically determine which
items are contraband and which items are illegal to possess
because of extrinsic circumstances, it is sufficient to deter-
mine that “property that it is illegal to possess” includes items
that may be legally possessed in some circumstances but that
become illegal to possess in others. For example, liquor or
cigarettes that generally may be legally possessed by consum-
ers may become illegal to possess if they fail to bear the
appropriate tax stamps. See, e.g., United States v. Baker, 63
F.3d 1478, 1487 (9th Cir. 1995) (“[u]nder Washington law,
mere possession of unstamped cigarettes, even by an Indian,
is prohibited if the cigarettes are not preapproved for tax
exemption”).
Under the Lacey Act, it is unlawful for a person to “import,
. . . sell, receive [or] acquire . . . any fish or wildlife taken,
possessed, transported, or sold in violation of . . . any foreign
law.” 16 U.S.C. § 3372(a)(2)(A). As a result, it is clear that
if the government can establish that the crab was received in
violation of § 3372(a)(2)(A), the crab is “property that it is
illegal to possess.”
[7] Finally, because we hold that the crab in question here
fits within the rubric of “other property that it is illegal to pos-
sess,” we need not decide whether “contraband” is limited to
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“contraband per se,” or whether it also includes illegally
imported goods as determined by the district court. We con-
clude that in wording the CAFRA innocent owner exception
the way it did — especially with its use of “or other” — Con-
gress intended to preclude the assertion of an innocent owner
defense in both items that are inherently illegal to possess and
property that is otherwise illegal to possess because of extrin-
sic circumstances. Our conclusion is bolstered by a similar
formulation found elsewhere in the statute. See 18 U.S.C.
§ 983(a)(1)(F) (“[t]he Government shall not be required to
return contraband or other property that the person from
whom the property was seized may not legally possess”); see
also Boise Cascade Corp., 942 F.2d at 1432 (interpreting
court should assume that words used more than once in the
same statute have the same meaning). Because the meaning
of “other property that it is illegal to possess” is clear from the
wording of the statute, we need not resort to the legislative
history of CAFRA to ascertain congressional intent. See Whit-
field v. United States, 125 S. Ct. 687, 692 (2005).
IV. CONCLUSION
[8] We hold that Deep Sea may not raise an innocent owner
defense here because, if the government can establish that the
crab was taken, possessed, transported, or sold in a way that
rendered it illegal under Russian law, the crab is “property
that it is illegal to possess” for the purposes of 18 U.S.C.
§ 983(d)(4). It is illegal to posses not because crab is inher-
ently unlawful, but because this particular shipment of crab
allegedly was received and acquired in a way that rendered it
illegal under the Lacey Act, 16 U.S.C. § 3372(a).
Although the language of CAFRA, 18 U.S.C. § 983(d)(4),
is ambiguous with regard to the definition of contraband, we
need not resolve this issue because if the crab at issue here
was imported, received, or acquired in violation of the Lacey
Act, 16 U.S.C. § 3372(a), it constitutes “property that it is ille-
gal to possess” for purposes of section 18 U.S.C. § 983(d)(4).
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The district court’s order striking Deep Sea’s innocent owner
defense is AFFIRMED.
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