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Henry Joel Simmons | August 31, 2011
According to the Wall Street Journal, the U.S. Fish and Wildlife Service stormed Gibson Guitar’s factories in Memphis and Nashville last week, seizing guitars, electronic files, and pallets of wood. The items were not seized due to any tax evasion, misappropriation of funds, or embezzlement. Nor, presumably, were the items seized merely because Gibson’s CEO, Henry Juszkiewicz, is a prominent conservative (although that is a curious coincidence).
Instead, the Fish and Wildlife Service seized the goods because of an ongoing legal battle to determine whether Gibson’s guitars are made of illegally harvested ebony wood from protected forests in India. If the wood was indeed procured from a protected forest, it would constitute a violation of the Lacey Import Act, which authorizes the federal government to prosecute businesses based on speculation about what foreign law might prohibit. Gibson explained the situation well in its press release: “The Federal Department of Justice in Washington, D.C. has suggested that the use of wood from India that is not finished by Indian workers is illegal, not because of U.S. law, but because it is the Justice Department’s interpretation of a law in India. (If the same wood from the same tree was finished by Indian workers, the material would be legal.) This action was taken without the support and consent of the government in India.” (The Lacey Act was also implicated in McNab v. United States, the infamous “lobster case” that is frequently cited by opponents of overcriminalization.)
The Lacey Act also criminalizes a failure to properly declare all flora or fauna upon import, whether the violation was intentional or not. Not only can Gibson’s goods be seized, but the company could face fines and criminal prosecution for its violation of the Lacey Act. Strict liability (a situation wherein criminal intent is presumed) is typically only applied to abnormally dangerous activities, but one wonders why it is abnormally dangerous – and criminal – to make a mistake on a customs form?