Liberty and Hyperbole: Is Orchid Importer George Norris a Good Example of Rampant Criminalization of Innocent Conduct?

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42 Responses

  1. Chris says:

    Good for you – it is a rare person to provide evidence that contradicts their 'own side.'

  2. Patrick says:

    I still don't get it Ken. In fact, as you know I tweeted about this.

    The man was prosecuted for selling undocumented orchids. Why the hell is there a federal law on orchid control?

    You're missing the forest for the flowers.

  3. Ken says:

    Why the hell is there a federal law on orchid control?

    Well, as I understand it, CITES restricts international trafficking in plants and animals to prevent those plants and animals from going extinct, as apparently they might if people could cultivate and import as many as the market would absorb. Congress made a judgment to prohibit importation in violation of CITES. That regulation of commerce is more clearly within Congress' legitimate constitutional authority than most things they do. You can quarrel with that decision on a policy level, certainly — you can say that Congress ought to value free trade over species protection. I suppose then you would have to say why the hell is there a law against the importation of any endangered animal or plant. If you have to say "why the hell is there a federal law on orchid control," I think you also have to say "why the hell is there a federal law against importing baby pandas."

    Congress also prohibits, through Section 371, conspiring to violate federal law. It prohibits, through section 545, deliberately smuggling items the importation of which is prohibited by Congress. And it prohibits, under section 1001, making knowing material false statements to the government. All of those things are, I think, within the government's legitimate enumerated powers. And those are the things Norris was charged with.

    The point is, Norris didn't get prosecuted for selling "undocumented orchids." He got prosecuted for smuggling, and conspiring to smuggle, and lying about it. He didn't get prosecuted for failing to fill out the right form or being careless with paperwork — he got prosecuted for deliberately falsifying and evading it. It's inaccurate to say otherwise, and clouds the discussion about over-criminalization.

  4. First, thank you for providing some deeper background on this case.

    Second:

    Norris copped to conspiring to smuggle, to deliberate smuggling, and to making knowingly false statements in the course of that conduct.

    I don't see that as necessarily indicative of his criminal guilt, since many people guilty of no crime are convinced by their attorneys to cop plea bargains every day.

    Of course, at this point, I'm arguing well past the edge of Ockham's Razor ("well, maybe he really was innocent, but got railroaded into a plea because, because …").

  5. Chris says:

    According to Ken's post, he didn't accept a plea bargain. He pled guilty to the original charges.

  6. strech says:

    Professor Coldheart:

    Check pages 5-9 of the indictment. It has a number of communications between Norris and Arias that are pretty clear about hiding plants from customs by labeling them as other plants. Some samples (spelling and punctionation as in original):

    Norris to Arias:

    And I don't see any problem with shipping Phrags *** Make sure they are wrapped with moss and paper and in plastic and marked Maxillarias as before.

    Arias to Norris:

    In this year is not posible to receive the CITES for Phragmi. because is necesary many paper; is probably the Agriculture inspection in December and in March 2001 I will have this CITES. Is posible to send Ph. species only with other name (Maxillarias)

    Norris to Arias:

    I have a new customer who collects Ornithocephalus.*** Please add some to my order and just put them in there anywhere. I need 5 of each kind you have. You can call them a Maxillaria. They are not inspecting hard at all. They open a box and look at maybe 5 plants and if they are clean the order passes through.

  7. Ken says:

    I don’t see that as necessarily indicative of his criminal guilt, since many people guilty of no crime are convinced by their attorneys to cop plea bargains every day.

    No doubt. Here, the most likely explanation for Norris pleading straight up to the indictment rather than taking a plea agreement (which likely would have let him plead to one or two counts) is that the government wanted him to stipulate to a loss calculation or other sentencing factors that he would not accept.

    I submit that his rhetoric in his own sentencing papers is not consistent with the "he actually didn't do it" interpretation. Rather, it appears to me that his case has been reinvented, after the fact and based on Congressional testimony, as the little guy being oppressed based upon complex paperwork.

  8. Will says:

    Great catch, Ken. I fell for this story hook, line and sinker.

  9. Richard says:

    Sure, defend the government now. However, you will be singing a different tune when the government comes for Nero Wolfe. :)

  10. george norris says:

    When we were completely out of money and could no longer afford to procede to trial, my lawyer got a plea offer from the Feds. Plead guilty to all 7 counts and receive a 2 year probation. The government refused to put any offer in writing. Like a dummy and still trusting in our government I plead guilty. Then the Judge gave me 17 months as well as the 2 years probation.

    After 11 months the Appeals Ct. heard my appeal and determined that the Court had given me too harsh a sentence and released me immediately. Six months later the Fed. Prosecutor somehow convinced the Appeal Ct. to over turn my case and sent me back to prison where my earned good time and priviledges were suspended and I was to spend 4 months in Solitary Confinement. After released, I received a notice from the BOP Regional Office stating that there had been an error and that I should not have done the extra time and no time in Solitary. Not much help then.

    And Ken, you do not even begin to understand this case. I would like to know who you are and would like to communicate with you privately. I think it is cowardly to attack someone hiding behind a false identity.

  11. Ken says:

    See, I have significant doubts that you are the George Norris featured in the story. I think you are someone pretending to be him to make a point by using his email address (which anyone who Googles him could find) and an IP in his town, or spoofing the IP. And you're doing a lousy job of it.

    I don't credit your version of events, for a number of reasons:

    1. No competent federal practitioner would accept a unwritten plea agreement, unless it was stated on the record in open court. Any competent federal practitioner would know that such an "agreement" is worthless.

    2. In any federal plea colloquy, under the requirements of Rule 11, the court will ask the defendant to affirm under oath that no promises or threats have been made to induce the plea. Any unwritten plea agreement would have to be disclosed during the plea colloquy. The only way George Norris could have pled guilty as a result of an oral plea agreement or promise is if he either disclosed it during the plea colloquy or committed perjury during that colloquy by falsely stating that no promises had been made to him. Also, it's awfully strange that if the government promised probation as an oral plea deal, George Norris doesn't bring that fact up in any of the sentencing papers he filed — linked in this post.

    3. The government has no incentive to rely on oral plea agreements. If the government had George Norris over a barrel, it would force him to sign a written plea agreement that helped the government by, among other things, waiving his right to appeal the sentence, and waiving subsequent collateral attacks. That's how the government flexes its power.

    4. Examination of PACER shows that the 11th Circuit did not, in fact, reconsider its own ruling. Its ruling affirming the district court is the only order on the substance. The court did grant bail pending appeal at one point — which is what you are no doubt misrepresenting in your comment as a ruling on the merits, which it was not.

    5. Finally, none of the the "George Norris" comment above addresses what I demonstrated in my post — the things that George Norris necessarily admitted, under oath, in pleading guilty.

    Feel free to call me cowardly for blogging anonymously, "George." Take it up with the Framers if you don't like it. I blog anonymously so, among other things, crazy people won't call up and swear at my secretaries, or show up at my kids' school.

  12. eddie says:

    The IP address that shows up in your server logs cannot be spoofed – at least, not as that term is used as a technical term of art.

    It's possible that the poster may be using a proxy at that address (either with or without the permission of the owner of the machine being used as a proxy), in which case the address that the posting appears to originate from (the proxy) is different from the address of the machine the poster is actually posting from. A layman might consider that to be "spoofing". However, a technical expert would distinguish "using a proxy" from "spoofing". As an analogy: spoofing is like delivering a speech while wearing an Obama mask, using a proxy is like getting Obama himself to deliver your speech.

    The UDP network protocol can be spoofed in certain situations, but posts to your blog use the TCP network protocol, which is not spoofable. Because it's not spoofable, you can be confident that the post came from that IP, although you can't know for certain whether the post ultimately originated from that IP. If TCP were spoofable, you couldn't even know for certain whether that IP had been involved at all in making the post.

  13. Thor says:

    Ken has it quite right in his bit about why orchids merit federal intervention. The Convention on International Trade in Endangered Species (CITES), of which the United States is a signatory, regulates international commerce in species that are imperiled. Of the orchids, all are at least Appendix II; a handful are on Appendix I, meaning they are tightly restricted. For intents and purposes, the commerce in Appendix I species (excepting some conditions, such as plants in sterile tissue cultures) is prohibited. Or, at least, for commercial purposes it is; the paperwork is so onerous that nobody in their right mind would go about it.

    However, there are 20,000+ species of orchid; the reason they were all afforded a minimum of protection under Appendix II is that the rare ones look pretty much like the common ones to the uninitiated. The Appendix I species are even worse; if they're not in flower, there's no way to tell one paphiopedilum from another. For what it's worth, George was buying phragmipediums; the entire genus is on Appendix I. All species (but not hybrids) are tightly restricted. That particular phrag had just been discovered, and the locals were digging them up as fast as they could find them because they sure are purty.

    Unfortunately, as the documents showed (based on an analysis of George's computer, it seems), there was a little label switcheroo going on- labeling phrags as maxillarias, which is something the average inspection agent would miss. It is an intentional deception, and not a terribly good one.

    Manuel skipped town, leaving George and the missus with the tab. Lost their house over the deal. One presumes if George gets enough money for a plane ticket to Peru and his probation officer turns his back long enough, it's going to get ugly.

  14. George Norris says:

    One facet of this case that has not been addressed is the aspect of CITES. First of all this is a treaty and not a law. The treaty has never been ratified by our congress so we are not even a legal participant in this treaty. Second of all, plants and animals are routinely put on the endangered list with little or no scientific field research to assertain if the plant or animal is actually threatened. And thirdly, to my knowledge, CITES has never kept a plant or animal from becoming extinct and to the contrary, it has done the opposite. By declaring the item as endangered, it has encouraged the value of the plant or aminal to increase and become more valuable to harvest. This is one of the reason for the scarcity of some items. Habitat reduction due to encroachment by people is what has caused more plants and animals to become threatened.

    And CITES does not even practice what they preach. One of the most threatened animals on earth is the White Lipped Rhino. There are now less than 200 in the world. At the request of the Eithiopian governent, CITES authorized an exemption of the law on these animals to allow the harvest of 10 a year so the Eithiopian government could offer hunting permits for this trophy at $10,000 each. In fact, the first year they actually sold 27 permits on which 23 Rhinos were killed.

    These stately animals do not mature to breeding age for 10 years and then have a nearly 2 year gestation period before a single calf is born. Natural preditors clain 80% of these newborns. This is not a sustainable reproduction rate but CITES will still allow 23 to be killed a year with no concern other than having Eithiopia continue as a treaty nation.

    Look at the facts. CITES was ill concieved, poorly written and does not work yet many countries are creating laws to enforse it's provisions.

    People that have written so passionately either for or against what I did or didn't do should turn their attention to something that actually matters. Get on CITES and either get them disbanded or at least, straightened out.

  15. CJ says:

    Sorry, George; the United States was the first country to ratify CITES, on January 14, 1974, under the well-known liberal wacko, Richard M. Nixon:

    http://www.cites.org/eng/disc/parties/chronolo.shtml

    Secondly, of the species listed under CITES, only one (the Spix's macaw) has gone extinct in the wild.

    Personally, I find it a little ironic to have someone who is convicted of smuggling highly-coveted plants complaining that listing a species makes it "more valuable to harvest."

    Lastly, the white rhino (more properly, the "wide rhino," as the upper lip is wide, versus pointy as it is in the black rhino) consists of two subspecies: northern and southern. The southern is known from 8 animals, all in zoos. The northern consists of some 17,480 animals IUCN, 2008 report). Moreover, if an individual country were to permit hunting, that is not an international affair- up until such time that the bones, skin, flesh, etc. were to be exported- at which point, the hunter would not be permitted to take their trophies out of country.

    For a guy who literally lost his house from these laws, you sure don't seem to know much about them.

  16. George Norris says:

    CJ,

    Don't know who you are as you don't show your name but if you think CITES is doing a good job you're not as bright as you seem to think you are. Btw, I don't know who's idea it is that I lost my house. Still in the same house for 40 years. All I lost was 553 days of freedom and my respect for this country, it's courts, it's prosecutors and the new media. Now that we are a third world nation run by a "darkie" and his lunatic gophers in congress, watch things get worse. I hope you enjoy it CJ.

  17. CJ says:

    |A third world nation run by a "darkie"

    A convicted smuggler dumb enough to think label switching could fool the feds- AND a racist. You're a rare one, George.

  18. George Norris says:

    CJ, If you only understood what my case was really about you would think differently but I won't try to explain to you, you'd never catch on.

    If you don't think this country has been corrupted and is starting to crumble, you are even dumber than you appear. At least I can use my name and not hide behind some initials. It is easy to attack when you don't have to show who you are.

    As for the "darkie" in the white house, what else can you call him? Maybe a muslin or foreigner? I just know that no one in this country is better off after the 3 trillion dollars pissed away by him and his nut-case buddies….pelosi, reid and biden.

  19. CJ says:

    Well, George, I'm not the guy who violated an international treaty, and then blamed everyone but himself for getting thrown in jail. I mean- let's think about this here: intentionally mislabeling plants, leaving an electronic trail- getting your own computer used against you- and then suggesting CITES is the problem?

    Given that your conviction was under the Bush administration- not to mention your jail time- I'm really not sure how the current president even weighs into the matter. Yes, yes- I know. The country's falling apart, going to hell in a handbasket, etc. Secret halfbreed Kenyan socialist Nazi in office, going to get thrown out by the Supreme Court and Teabaggers any day now. But maybe you could take a little personal responsibility and say you thought the APHIS/PPQ people would be fooled by mislabeling phragmipediums as maxillarias. Or is the indictment completely wrong?

    And I don’t see any problem with shipping Phrags *** Make sure they are wrapped with moss and paper and in plastic and marked Maxillarias as before.

  20. Ken says:

    Class will out. Mr. Norris' justifications and excuses are as slippery as orchid mulch.

  21. George Norris says:

    Ken and CJ, you can both kiss my ass!

  22. Charles says:

    They can now, George, but there were 553 days when they couldn't. Because you were a mediocre smuggler.

  23. George Norris says:

    Charles, you can pucker up too!

  24. Ken says:

    George, George, George. The manners you learned in the Big House aren't suitable here, George. You're not tough enough to make anyone here your bitch.

  25. George Norris says:

    I would really like to know who you pair of cowards really are. I guess you both must really be afraid of this crippled-up, 72 year old felon. I might be a lot of things but I am not a coward.
    Get a copy of the new book "One Nation, Under Arrest". I am chapter #7. Maybe you'll learn something reading it. There will also be an article in a near issue of The Economist magazine. I have gotten an apology from a U.S. Congressman for what happened and he is looking into a presidential pardon to exponge my record. Manuel and I have a document from the Peruvian government stating there was no crime in what we did. If I had it to do over again, I would never plead guilty again. That was my big mistake. That and protecting friends who I never heard from again.

  26. Ken says:

    Is it your position that you did not knowingly lie on any customs forms?

    Or is it your position that ought not be a crime, because you disagree with the customs limitations reflected in those forms?

  27. George Norris says:

    My position is that I never even saw the Customs forms. They were prepared by the government in Peru, taken by the U.S. Customs when the shipment arrived in the U.S., a copy was never given to my broker in Miami and I never saw a copy. The Feds could not produce a copy at the hearings stating that"such evidence is beyond our jurisdiction". This can only mean 3 things. This Custom document was either lost, destroyed, or never existed. This is probably why they pushed so hard for a plea because they had no evidence.
    I can not say what that document said as I have never seen it.
    Secondly, my sentence was based on the total value of the shipment. There were at most 75 questionable plants. The government contended that the rest of the shipment was also illegal and that the value of the shipment was what I was selling the plants for and not what I paid for them. This increased the value of my crime to a point that would make my crime elligible for prison time and not just fine and probation.
    No consideration was taken of my 67 years of crime free life, that this was a first time offence, age, health or that there was no victim in this crime.
    My position is that the punishment did not fit the crime and that I, personally, did not lie on any Customs form. Also the whole affair is based ultimately on a very flimsy CITES regulation.
    And besides, I have served my 553 days, 71 days of it in solitary confinement, and done my 2 years probations, so cut me some f–king slack.

  28. Ken says:

    By "cut me some fucking slack", you seem to mean "take all of my self-pitying, self-justifying, self-promoting statements at face value without criticism or skepticism."

    No can do.

    People interested in evaluating the honesty and sincerity of your constantly shifting explanations for your guilty plea, and your underlying conduct, should review the primary documents linked above, particularly your own sentencing papers.

    It's a free country. Nothing stops you from continuing to try to seduce gullible agenda-driven writers and politicians. But that doesn't mean anyone has to buy what you're selling.

  29. George Norris says:

    Ken, you are not only a coward but an asshole! You are too stupid to try to explain anything to so I am just gonna leave this line alone…….Bye

  30. Chris says:

    "…the value of the shipment was what I was selling the plants for.." The nerve!

  31. andy says:

    Dear Mr. Popehat :
    I appreciate you spent the time to check this out, but your research does not make what the Gov did seem any more rational.
    I too am a former prosecutor. People lie in court every day and never get charged much less sent to federal prison. Unless there is something you have not yet discovered this still seems like an extraordinarily disproportionate action by an ever expanding Government.
    Plus : I am with the guy who said " a federal law on orchids ? " I mean WTFO .

  32. will nott says:

    Just read part of the article in the Economist….it was so unbelievable I immediately googled George Norris half way through the article….thanks for the additional information.

  33. adamatari says:

    Well, it's obvious that Mr.Norris is no angel (even more obvious from this exchange). However, I think the larger point still holds – it's frankly absurd to send someone to jail for a first offense in a victimless crime, especially in a case where it's not even clear that any of the orchids were illegally taken from the wild (only that that they were illegally shipped without proper paperwork). Certainly sending him BACK to jail after release, and into solitary at that, is a bit much. No doubt he made as great an impression on the DA, the fish and wildlife service, and the judge as he did here, but that still doesn't change the fact that putting him in jail is extreme.

    The question of whether Mr.Norris is a good example hinges more on your opinion of the justice of his punishment that it does on the matter of his guilt, or of his character. It's similar to attempts to decriminalize drugs, or lower penalties for crack – if you think the law is just, then you won't be convinced.

    Also, Ken, to state that "no competent federal practitioner" would accept such a bad deal may be true, but there are many incompetent lawyers. There are people who are falsely convicted in the US who had lawyers that fell asleep in court, etc. You're going too far to assume that George's lawyer was competent.

  34. Imaginary Lawyer says:

    adamatari, you state that jail for a "first offense for a victimless crime" is ludicrous as though this is self-evident. Why is this so, particularly (as Ken points out) there were crimes, not merely a single "crime", which involved deliberately and knowingly violating the law? And WTF orchids cuts both ways; bring in your damn plants, just fill out the paperwork like you're supposed to. It's not like he was smuggling children out of a concentration camp or sneaking Bibles to political prisoners in North Korea.

    I get the impression that a lot of people going "WTF orchids" have their knees jerking because they are drawing mental parallels to the War On Other People's Drugs. I'm having a hard time connecting international agreements on the protection of dangerous species to the irrational prosecution of marijuana users.

  35. Anthony Powell says:

    Thank you very much to strech for clarification by the posting of the extracts from Norris's emails.
    Norris has not denied them here, so I work on the assumption that they are genuine.
    They do strongly suggest that he did engage in deliberate deception so deserved some punishment, although the damage he caused to happen to rare plants seems to have been between none and minimal.
    The punishment does seem to have been disproprtionately harsh.

    But what I want Ken to reconsider is his reliance on documents from the prosecution and courts.

    Imagine that you are visiting China and are arrested on some trumped-up charge.
    You are threatened with torture so you plead guilty.
    You appear in court and the judge asks you to confirm that you were not tortured.
    Would you really say that you were?
    That would just be a route to more torture.
    Then everybody says that you must be guilty because you pleaded guilty.
    How would you feel?

    The inclusion of the statement in American guilty pleas: "The defendant is pleading guilty because he is guilty" is a clever way to prevent appeal later, but if duress is involved it doesn't mean anything.

    Texas isn't China; I'm pretty sure there is no physical torture, but there certainly is financial pressure involved in the legal process with such enormous amount of time being required from lawyers who are expensive. And being locked up in jail adds its own pressure. Once someone has agreed to make some sort of guilty plea it is invalid to deduce anything from their compliance with prosecution requirements.

    You were right to delve behind the journalist's story (it being hard to believe is what prompted me and others above to come to this posting) but please do also think what happens behind court documents.

  36. Scott says:

    So what we're saying is the law is fine, but the punishment is too harsh.

  37. The feds did not charge Norris until after they had raided his house and found that whole series of messages, dating back for several years, in which Norris counseled his Peruvian supplier about how to smuggle the orchids past the inspectors in Miami.

    Also, a point that most writers on this case miss is that not only did George Norris plead guilty, but so did his Peruvian co-defendant, Manuel Arias Silva — but rather than stick around for sentencing, Arias fled the country. My understanding is Norris help post his bond, which means Arias cost his friend & business associate quite a lot of money. I suspect Arias' turning fugitive helped get his friend Norris a tougher sentence, too.

  38. Ed says:

    I have been familiar with George's case since the beginning. I'm an orchid grower for 35 years. I've purchased orchids which came from George (not any illegal ones). I support the CITES treaty when it comes to protecting rare animals. I support the CITES treaty when it comes to protecting rare plants which don't breed well. Orchids breed very, very well. Each seed capsule contains millions of viable seed, and horticulturalists could easily produce a million orchids for every person on the planet. The undocumented Phragmipedium orchids that George was importing are not rare. I have the very same species in my greenhouse and they grow like weeds and they are bulldozed in their native country every time a road is built or a housing development comes in. The CITES treaty uses an unreasonable broad-brush to paint every orchid as rare. Phragmipedium orchids receive special attention during imports because they all look alike and the delays during inspections often cause their deaths. The Phrags that George was importing are not rare, they are extremely common in the US orchid collections and are in relatively low demand. (I can hardly give mine away.) It was a silly mistake for George to send emails to try hide their identity in order to save them from damage and death during our Federal government's inspection process. It was a silly mistake that George paid for with prison time. He pled guilty and this was after his legal costs were 100 times the value of the orchids. His cell could have held a real criminal…like a drug dealer, a murderer, or a government official that accepted bribes. It was way out of line to give him prison time after his plea…and then to bring him back in for additional time and then solitary confinement…that in itself is a crime.

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