DOJ Raids Gibson Guitars looking for Illegal Wood

DOJ Raids Gibson Guitars looking for Illegal Wood

Ben Howe
Red State
Thursday, August 25, 2011

The Department of Justice is under fire for taking the bold step of sending armed agents into the factories of Gibson Guitar in Nashville and Memphis to seize what it believes to be illegal wood.

Via press release from Gibson:

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.

Unbelievably enough, this was not the first time that the Gibson factories have been raided for this same reason.

In 2009, more than a dozen agents with automatic weapons invaded the Gibson factory in Nashville. The Government seized guitars and a substantial amount of ebony fingerboard blanks from Madagascar. To date, 1 year and 9 months later, criminal charges have NOT been filed, yet the Government still holds Gibson’s property. Gibson has obtained sworn statements and documents from the Madagascar government and these
materials, which have been filed in federal court, show that the wood seized in 2009 was legally exported under Madagascar law and that no law has been violated. Gibson is attempting to have its property returned in a civil proceeding that is pending in federal court.

So why has the DOJ gone crazy for wood? They believe they are complying with the Lacey Act, specifically, this provision:

Anyone who imports into the United States, or exports out of the United States, illegally harvested plants or products made from illegally harvested plants, including timber, as well as anyone who exports, transports, sells, receives, acquires or purchases such products in the United States, may be prosecuted. In any prosecution under the Lacey Act, the burden of proof of a violation rests on the government.

It doesn’t seem that the DOJ has lived up to the standard emphasized above according to Gibson. They are asserting that the Justice Department is actually trying to shut down indefinitely the civil court case that Gibson filed to have their property returned. Given that Gibson is the premier guitar manufacturer worldwide, you have to wonder where the music industry is on this issue.

Reuters is reporting that the guitar maker is being charged with illegally importing wood under a U.S. law barring importation of endangered plants and woods.

In an affidavit, agent John Rayfield of the U.S. Fish and Wildlife Service said U.S. Customs agents in June detained a shipment of sawn ebony logs from India.

The paperwork accompanying the shipment identified it fraudulently as Indian ebony fingerboards for guitars and it did not say it was going to Gibson, the affidavit said.

Of course there will be some back and forth apparently on the legitimacy of the case and whether or not Gibson actually broke any laws, but one thing from the press release stood out to me:

The wood the Government seized on August 24 is from a Forest Stewardship Council certified supplier and is FSC Controlled, meaning that the wood complies with the standards of the Forest Stewardship Council, which is an industry-recognized and independent, not-for-profit organization established to promote responsible management of the world’s forests. FSC Controlled Wood standards require, among other things, that the wood not be illegally harvested and not be harvested in violation of traditional and civil rights. See www.fsc.org for more information. Gibson has a long history of supporting sustainable and responsible sources of wood and has worked diligently with entities such as the Rainforest Alliance and Greenpeace to secure FSC certified supplies. The wood seized on August 24 satisfied FSC standards.

I find it fascinating that Gibson had been in compliance with a self-regulatory agency like the FSC and has also been picked on by the government for alleged non-compliance. I’ve always believed that self-regulation is a viable alternative for many industries that currently answer to the overreaching government.

It’s hard not to see this as the government getting territorial about who gets paid to oversee American industry.

Keep Your Laws Off My Guitar

Carrie Severino
National Review
August 26, 2011

The Wall Street Journal has an important story today about a federal-government raid of Gibson Guitar plants in Memphis and Nashville. Our musically inclined readers know Gibson as the company behind the guitars played by legends like B.B. King, Jimmy Page, and Eric Clapton.

What was Gibson’s crime? Turns out the feds went after Gibson for violating the Lacey Act, a law that could make you a federal criminal for violating “any foreign law — regardless of whether you knew of the foreign regulations.” A Gibson official maintains that they complied with the relevant law and, according to the Journal, suggested that the feds “are using the aggressive enforcement of overly broad laws to make the company cry uncle.” I am sure the Lacey Act experts will comment on the specific provisions that were allegedly violated and I will leave it to them to decide whether DOJ technically has a case here. What I can say with a fair amount of certainty is that the Gibson official has a point when he complains about overly broad laws.

This particular case is emblematic of a much larger public-policy problem that a growing number of high-profile organizations and individuals, on the right and the left, have been highlighting. It is often called “over-criminalization,” but it might as well be thrown in with the problem of over-regulation and federal overreach.

According to this Federalist Society study, the federal criminal code has exploded in recent decades. As of 2004, there were “over 4,000 offenses that carry criminal penalties in the United States Code. This is a record number, and reflects a one-third increase since 1980.” And we have no reason to believe the trend is slowing. Dodd-Frank included its own batch of criminal provisions. In recent months, Republicans and Sen. John Cornyn jumped on the bandwagon to expand the reach of mail- and wire-fraud statutes and “fix” the honest-services-fraud law that has been a special nuisance to anyone who truly cares about federalism and liberty.

Unfortunately, even the most well-intentioned criminal laws can have serious unintended consequences — for federalism, for liberty, and for our economy. The problem is especially acute when those laws have become so numerous and poorly worded that they fail to provide Americans fair notice of what conduct could make them a federal prisoner. According to a joint study by the Heritage Foundation and NACDL:

Members of the 109th Congress (2005–2006) proposed 446 criminal offenses that did not involve violence, firearms, drugs and drug trafficking, pornography, or immigration violations. Of these 446 proposed non-violent criminal offenses, 57 percent lacked an adequate mens rea [criminal intent] requirement. Worse, during the 109th Congress, 23 new criminal offenses that lack an adequate mens rea requirement were enacted into law.

Instead of using federal criminal law to protect legitimate interstate commerce, we now have a mess of federal criminal laws that capture ordinary human conduct and give federal prosecutors the ability to steer the private sector with the threat of criminal sanctions. (It is “Regulation by Prosecution,” as the Manhattan Institute put it.) I know I’ve quoted it before, but it is worth repeating this excellent quote from a recent opinion of Justice Scalia:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And
no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt.

How did a potentially unlawful product get through Customs in the first place? U.S. Fish and Wildlife Service should first review Customs records before raiding an importer. I smell something fishy here (no pun intended).