Victor Bernal and Eduardo Berges were convicted of various crimes in connection with an attempt to export two endangered primates--an orangutan and a gorilla--from the United States to Mexico in violation of the Lacey Act Amendments of 1981 and the Endangered Species Act of 1973. The applicable sentencing range under the Sentencing Guidelines was twenty-four to thirty months for Bernal and fifteen to twenty-one months for Berges. The probation officer noted in the pre-sentence report that a downward departure from the guidelines range might be warranted in Bernal's case under U.S.S.G. § 5K2.11 because Bernal had intended to export the gorilla for purposes of breeding and exhibition, and thus his conduct did not "cause or threaten the harm or evil sought to be prevented by the law" under which he was convicted. The probation officer did not consider a similar downward departure for Berges. Following a lengthy sentencing hearing, the district court decided to apply U.S.S.G. § 5K2.11 to both defendants, and gave them sentences of only seventy days (which they had already served). The United States now appeals the sentences imposed on both defendants.

Appellees have cross-appealed on two grounds. First, they claim that the Lacey Act is not applicable in this case because the term "wildlife," as used in the Act, does not apply to animals bred in captivity. Second, they claim that the district court erred in denying their motion for acquittal with respect to the Lacey Act counts because there was no evidence introduced at trial to prove that they knew the animals had previously been sold in violation of the law. These claims are wholly meritless, and we therefore reject the cross-appeal.

The district court found that there was no evidence that Bernal intended to harm the primates involved in this case. Rather, the evidence showed that Bernal, the director of a Mexican state Commission of Parks and Resources and of Foreign Fauna, was a conservationist, that he loved animals, and that he intended to use the gorilla for breeding purposes to help perpetuate the species. The district court also found that Berges knew that Bernal intended to use the gorilla for breeding and exhibition purposes. The court concluded that the conduct of both Bernal and Berges did not "cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue." U.S.S.G. § 5K2.11. Because the court concluded that the Sentencing Commission did not consider the special factors involved in this case under the applicable sentencing guideline, it decided that a downward departure was justified. The district court did not abuse its discretion in making this decision.