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America on its Journey to Socialism and Communism.
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No. 44
July 27, 2009
The Unlikely Orchid Smuggler:
A Case Study in Overcriminalization
Andrew M. Grossman
George Norris, an elderly retiree, had turned his
orchid hobby into a part-time business run from the
greenhouse in back of his home. He would import Talking Points
orchids from abroad—South Africa, Brazil, Peru—and • Federal endangered species laws are a trap
resell them at plant shows and to local enthusiasts. He for the unwary, combining vague and open-
never made more than a few thousand dollars a year ended offenses (defined in part by interna-
from his orchid business, but it kept him engaged and tional law) with harsh criminal penalties.
provided a little extra money—an especially impor- • In 2003, that trap ensnared George Norris,
tant thing as his wife, Kathy, neared retirement from an elderly orchid enthusiast who had
her job managing a local mediation clinic. turned his hobby into a small business. Fed-
Their life would take a turn for the worse on the eral agents bearing weapons raided his
bright fall morning of October 28, 2003, when fed- home and carried off 37 boxes of business
records and his computer.
eral agents, clad in protective Kevlar and bearing
guns, raided his home, seizing his belongings and set- • Norris was ultimately prosecuted for a com-
ting the gears in motion for a federal prosecution and mon paperwork violation: He had imported
jail time. some orchids that were improperly labeled.
Unable to pay for attorneys after his and his
The Raid wife’s life savings ran out in the early stages
of the case, Norris pleaded guilty and was
Around 10:00 a.m., three pick-up trucks turned sentenced to 17 months in federal prison.
off a shady cul-de-sac in Spring, Texas, far in Hous-
ton’s northern suburbs, and into the driveway of Nor- • Norris’s case is not an aberration. Many
small business owners struggle to comply
ris’s single-story home. Six agents emerged, clad in
with enormously complex regulatory regimes,
dark body armor and bearing sidearms. Two circled knowing that a single error could land them
around to the rear of the house, where there is a small in jail.
yard and a ramshackle greenhouse. One, Special
Agent Jeff Odom of the U.S. Fish and Wildlife Ser-
vice, approached the door and knocked; his compan-
ions held back, watching Odom for the signal.
This paper, in its entirety, can be found at:
Norris, who had seen the officers arrive and sur- www.heritage.org/Research/LegalIssues/lm0044.cfm
round his house, answered the knock at the door Produced by the Center for Legal and Judicial Studies
with trepidation. Odom was matter-of-fact. Within Published by The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002–4999
(202) 546-4400 • heritage.org
Nothing written here is to be construed as necessarily reflect-
ing the views of The Heritage Foundation or as an attempt
to aid or hinder the passage of any bill before Congress.
No. 44 July 27, 2009
10 seconds, he had identified himself, stated that papers, old photographs, and trash were strewn on
he was executing a search warrant, and waved in the floor. Everything was out of place.
the rest of the entry team for a sweep of the pre- His wife arrived home shortly after the agents
mises. Norris was ordered to sit at his kitchen table left. She had panicked when, calling home to talk
and to remain there until told otherwise. One agent to her husband, an agent picked up the phone and
was stationed in the kitchen with him. refused to put him on or answer any questions. It
As Norris looked on, the agents ransacked his took the two of them hours to clean up the house
home. They pulled out drawers and dumped the and try to assess the damage.
contents on the floor, emptied file cabinets, rifled
through dresser drawers and closets, and pulled A Passion Blossoms
books off of their shelves. George Norris, now 71 and arthritic, carries his
When Norris asked one agent why his home was large frame wearily. His gestures are careful, as if
the subject of a warrant, the agent read him his held back by pain or fear, and his stride slow and
Miranda rights and told him simply that he was not deliberate. And his voice, once booming, is now
charged with anything at this time or under arrest. softer and tentative. Visibly, he is a man who has
Norris asked more questions—What were they been permanently scarred by experience.
searching for? What law did they think had been Yet his mood and movements become animated
broken? What were their names and badge num- when he discusses the birth of his passion for
bers?—but the agents refused to answer anything. orchids. His first was a gift, twice over: A neighbor
Finally, they handed over the search warrant, but had received the blooming plant, straight from the
they would not let Norris get up to retrieve his store, for Mother’s Day, and she gave it to Norris
reading glasses from his office; only an agent could after the flowers faded. At the time, he had a small
do that. lean-to greenhouse and dabbled in horticulture. He
put it there and forgot about it. A year later, as he
It was as if he were under arrest, but in his
was doing the morning watering, his eyes were
own home.
drawn to two stunning yellow flowers on stems
Attached to the warrant was an excerpt of an e- shooting out of the plant. They were prettier than
mail message, from two years earlier, in which a any other flowers he had ever seen.
man named Arturo offered to have his mother He dove into the world of orchids with an
“smuggle” orchids from Ecuador in a suitcase and unusual passion, reading everything he could find
send them to Norris from Miami. Norris remem- on the subject. One book extolled the diversity of
bered the exchange; he had declined the offer and species in Mexico. It was not so far from Houston,
had stated that he could not accept any plants that and his wife spoke fluent Spanish, so they planned
were not accompanied by legal documentation. an orchid-hunting trip. In every small town, the
The agents questioned Norris about the orchids locals would point them to unusual plants, often
in his greenhouse, asking which were nursery- deep in the woods. Norris managed to collect 40 or
grown and which were collected from the wild. 50 plants, and their beauty and diversity were
Norris explained that nearly all of them had been stunning. He was hooked.
artificially propagated; one agent, knowing little That was 1977, years before an orchid craze
about orchids, asked whether this meant they had would hit the United States. All of a sudden, Norris
been grown from seeds. found himself part of a small, close-knit commu-
The agents boxed and carried out to their trucks nity of orchid enthusiasts and explorers committed
nearly all of Norris’s business records, his com- to finding and collecting the unknown species of
puter, his floppy disks and CD-ROMs, and even Asia, Africa, and South America. They communi-
installation discs, and left him a receipt for the 37 cated by newsletters and at regional orchid shows.
boxes that they took. Then they left. Norris sur- While man had thoroughly covered and mapped
veyed the rooms of his home. In his tiny office, the terrain of the world, the world of orchids was
page 2
No. 44 July 27, 2009
still frontier, with exotic specimens being discov- “The Regulation Is Out of Hand”
ered regularly. Passion for the flower is not enough today to
Within a few years, orchids were taking up more succeed in the orchid business. Moving beyond the
and more of Norris’s time and attention, and he standard hybrids sold at big-box stores requires
had become dissatisfied with his work in the con- either gaining a detailed knowledge of several com-
struction field. So he quit work and set off to see if plicated bodies of law or hiring attorneys. This is a
he could make a living as a full-time explorer, find- necessity because not only is the law complicated,
ing orchids in the wild and introducing them to but the penalties for getting anything wrong are
serious collectors in the U.S. severe: fines, forfeiture, and potentially years in prison.
His new business was not initially a success. It Trade in orchids is regulated chiefly by the Con-
took years to build up a mailing list of customers vention on International Trade in Endangered Spe-
and credibility in the field. By the mid-1980s, he cies (CITES), an international treaty that has been
was beyond the break-even point, and from there, ratified by about 175 nations. Though initially con-
business kept growing. In 2003, revenues topped ceived to protect endangered animals, the subject
$200,000—a huge sum considering that most matter was expanded to include flora as well.
plants sold for less than $15. CITES classifies species, and the limitations on
Norris, meanwhile, was gaining prominence. their trade, in three appendices.
Through word of mouth, and after seeing his • Appendix I species are the most in danger of
orchids in collections, more and more enthusiasts extinction; importing or exporting them from
wanted to be on his mailing list, and he began any CITES country is prohibited, except for
using his catalogue as a platform for his views on research purposes.
orchids, the orchid community, and even politics.
Orchid clubs all around the South invited him to • The species listed in Appendix II are less
deliver talks and slideshows. endangered and can be traded so long as they
are accompanied by permits issued by the
Norris made a name for himself as one of the few exporting country.
dealers importing non-hybrid plants, known as
“species” orchids. He got commissions from botany • Appendix III species are listed by individual
departments at several universities that needed countries and are subject to the permit require-
non-hybrid plants for their research, from botanical ment only when they originate in the listing
gardens, and from the Bronx Zoo when it needed country.
native orchids to recreate a gorilla habitat. Years Determining the listing of a plant is not always an
later, some of those orchids are still a part of the easy task. Some species of orchids are listed in
zoo’s Congo Gorilla Forest. Appendix I, and so cannot be traded, and Appendix
Norris’s work took him to Costa Rica, Peru, II covers the remainder. Exporters, however, often
Ecuador, Mexico, and other countries where exotic have a tough time identifying plants, especially
species grew wild. On each trip, he tried to meet those collected from the wild. The result is rampant
local collectors and growers, contacts who could mislabeling of orchid species. Usually, this has few
lead him to the best plants. Some of these, in later consequences, because permitting agencies and
years, would become his chief suppliers. customs agents, who tend to focus on animals and
invasive species, rarely have the expertise to recog-
Rules at the time were lax. In Mexico, Norris
nize the often subtle differences between varieties of
explained, “You could collect as many as you
orchids, especially when they are not in bloom.
wanted” and get permits for them all. And with
that paperwork, importing them into the U.S. was Making matters even more complicated, CITES
a breeze. contains a major exception to the tough restrictions
As orchids became more popular, however, that of Article I. Article I plants that are artificially prop-
would change. agated are deemed to be covered by Article II and
page 3
No. 44 July 27, 2009
so may be traded. But artificial propagation is not Violations also carry severe penalties. Under the
simply a matter of ripping a plant from the wild ESA, “knowing” violations—that is, ones in which
and breeding it in a nursery. To take advantage of the dealer knew the basic facts of the offense, such
the exception, nurseries must be registered with as what kind of plant was being imported or that
CITES and obtain a permit from their government the CITES permit did not match the plant, though
to remove a small number of plants from the wild not the legal status of the plant, such as whether it
for the purpose of propagation. Then there is the was legal to import—can be punished by civil fines
difficulty—and often impossibility—of distinguish- of up to $25,000 for each violation, criminal fines
ing Article I plants raised in nurseries from those of up to $50,000, and imprisonment. The same
collected from the wild. conduct can also be punished under the Lacey Act,
Countries that have joined CITES agree to which allows civil penalties of up to $10,000 for
enforce its requirements within their laws. This each violation, criminal fines of up to $20,000, and
means establishing agencies to research domestic imprisonment of up to five years.
wildlife and, when appropriate, grant permits. It Importers also face possible legal penalties under
also requires close monitoring of imports and more general federal statutes, such as those prohib-
exports to ensure that no Appendix I species are iting false or misleading statements to government
traded and that shipments of species listed in officials (imprisonment of up to five years); the
Appendix II and Appendix III are properly permit- mail fraud statute (20 years); the wire fraud statute
ted. While the treaty requires countries to “penal- (20 years); and the conspiracy statute (five years).
ize” improper imports and exports, it does not The result is that minor offenses, such as incor-
require any specific penalties; that is left up to each rect documentation for a few plants, are treated the
country’s lawmakers. same as the smuggling of endangered animals and
In the United States, CITES is implemented can lead to penalties far more severe than those
through both the Lacey Act, a 1900 wildlife protec- regularly imposed for violent crimes and dealing
tion act that was amended in 1981 to protect drugs. Because this legal risk is so great, many
CITES-listed species, and the Endangered Species orchid dealers have stopped importing foreign
Act (ESA). Both, in their original forms, covered plants—even those that can be traded legally—
only animals; plants were added later and made while others have sharply curtailed their imports.
subject to the same restrictions as animals. Taken Perversely, the result of this drop in legal imports
together, these laws prohibit trade in any plants in has been a blossoming in black-market orchids,
violation of CITES, as well as possession of plants illegally imported into the country and command-
that have been traded in violation of CITES. ing large premiums due to their rarity and allure.
More specifically, federal regulations lay out the Meanwhile, those who continue to import plants
requirements for importing plants. Every plant through the proper channels, even if they do so
must be accompanied by a tag or document identi- with great care and top-notch legal advice, know
fying its genus and species, its origin, the name and that they could be ruined at any time by so much
address of its owner, the name and address of its as a single slipup. As one academic ecologist put it,
recipient, and a description of any accompanying “The regulation is out of hand.”
documentation required for its trade, such as a Worse than that, it’s ineffective. “Habitat destruc-
CITES permit. The importer is required to notify tion poses much more of a threat to [the] survival”
the government upon the arrival of a shipment. of orchid species than collection and trade do, con-
After that, the plants are inspected by the Animal cludes a recent survey of the ecology literature. In
and Plant Inspection Service, a division of the U.S. Singapore, for example, clearance of old-growth
Department of Agriculture, which checks for possi- forest caused the extinction of 98 percent of orchid
ble infestations, banned invasive species, and species versus 26 percent of other plants. While
proper documentation. Any red flags can cause a there are several examples of collection dealing the
shipment to be turned back at the port of entry.
page 4
No. 44 July 27, 2009
final blow to a vulnerable species—for example, it took for dealers to cultivate ties with growers in
the Vietnamese Lady Slipper—the vulnerability in Southeast Asia, whose output multiplied, and push
each instance was due to development, particularly prices down.
rain forest clearance. The fundamental problem may be that CITES is
CITES strictly regulates trade in orchids but does simply a poor fit for plants. As originally con-
nothing to address this greater threat. Indeed, some ceived, the treaty was intended to cover only
argue that CITES has not protected a single species endangered animals; plants were added toward the
of orchid from extinction. end of negotiations. The amendment was crude,
It may even have pushed a number of species doing little more than replacing “animals” in every
into extinction. Orchid growers frequently com- instance with “animals or plants.” An orchid picked
plain that the treaty’s restrictions on collection from from the wild, which could produce a thousand
the wild restrict preservation efforts in the face of seedlings in short order, is subject to the same reg-
habitat destruction. Under CITES, it is illegal to ulation as an elephant, a female of which species
collect wild orchids for artificial propagation with- will produce fewer than 10 offspring in its decades-
out a permit, but obtaining a permit can take long lifespan. And by extension, that orchid and
months if it can be had at all. By that time, the elephant are subject to the same means of criminal
point may be moot: The habitat has already been enforcement in the United States.
destroyed. And when collection is allowed, it is The difference, needless to say, is that elephant
highly regulated and usually limited to just a few poaching may lead to that species’ extinction,
plants. If those plants cannot be propagated, there while picking the orchid will more likely lead to its
is no second chance; even if another specimen species’ preservation in the face of widespread
exists, if it was not legally collected, neither are habitat destruction. It is truly a perverse result that
its offspring. furthering the ends of CITES and U.S. environ-
Further, there is evidence that regulation has mental law carries the same massive penalties as
served to increase wild collection and smuggling of frustrating them.
rare species. Trade in Phragmipediums surged in Business as Usual
advance of their Appendix I listing, leading to the
loss of several species. After the listing went into George Norris was among that group of legal
effect, black-market prices rose for many species, importers, counting on his common sense and
increasing incentives for smugglers. Growers, understanding of orchids to see him through any
meanwhile, struggled to collect species from the legal risks. That would be his downfall.
wild legally for propagation. In this way, CITES Over the years, he had built relationships with
benefits poachers while putting hurdles in the path orchid gatherers and growers around the world,
of legitimate, conservation-minded collectors. and many became his suppliers. He worked the
The other group that benefits are the large orchid most with Manuel Arias Silva, who operated sev-
growers of Germany and the Netherlands, which eral nurseries in Peru and was known for cultivat-
supply the bulk of the world market. The Dutch, in ing the toughest species from the wild that few
particular, lobbied for the inclusion of Phrags in others could persuade to grow.
Article I, despite little evidence that Phrags were Norris had met Arias in the late 1980s, when
more endangered than other orchids, on the Arias had just started his export business and was
grounds that they were difficult to distinguish from looking to build a customer base in the United
plants from the unrelated Paphiopedilum family. States. The two hit it off immediately, and in 1988,
The listing stifled growing competition with Euro- Norris spent two weeks in Peru with Arias, collect-
pean growers in the potted-plant market from ing plants and surveying Arias’s operations.
lower-cost producers in South America. The Their families also grew close. After meeting
respite, however, lasted only a few years—the time Arias’s relations, Norris and his wife offered to take
page 5
No. 44 July 27, 2009
in two of Arias’s sons, Juan Alberto and Manolo, big shipment comes in from the countryside. Or a
who were badly scarred about their hands and new family or species comes into fashion overseas.
faces from a fire years earlier, and to arrange plastic And then the permits arrive, and the plants are
surgery for them. Kathy Norris persuaded a local ready to ship. Because of the delay, only rarely does
hospital to donate its facilities, and Dr. David the permit perfectly match the merchandise. There
Netscher, a prominent surgeon and professor at are always at least a few discrepancies. Going
the Baylor College of Medicine, agreed to do the strictly by the book would mean giving up the
work for $1,500 per child, barely enough to cover lucrative foreign markets that account for nearly
his expenses. all profits.
In 1993 and 1994, first Manolo and then Juan Importers face a similar dilemma. Fashionable
Alberto spent six months with the Norrises under- plants come from foreign soil, and without
going surgery, follow-up care, and recuperation. imports, no boutique could attract collectors—that
After that experience, the Norrises and the Arias is, anyone willing to pay more than fifteen or
family were in regular contact, exchanging family twenty dollars for a flower.
photographs and visiting from time to time.
In the 1990s, what these collectors wanted were
Norris had other suppliers. One was Raul Xix, a Phragmipediums, better known as tropical lady
native Maya in Belize who supported his 11 chil- slippers. Phrags became popular in the early 1990s
dren and wife through odd jobs: building homes, after all of the species in the family were uplisted to
tapping chicle trees, and collecting orchids from CITES Article I, a move that many in the orchid
the jungle. Norris had befriended Xix on a trip and business attribute to commercial rather than preser-
encouraged him to try his hand at exporting plants, vationist motives. Demand for the flowers surged.
a potentially more lucrative and dependable source
of income. Arias had been breeding Phrags for years from
plants that he had legally taken from the wild. But
Xix, Norris soon learned, had no business expe- in Peru, Phrags were common and almost worth-
rience, could barely read and write, and knew little less. So in 1998, he turned to the export market. It
about exotic orchids. He would ship boxes loaded would be months or even years, Arias guessed,
with all manner of flora, some not even orchids and before he was approved to have all of them listed
many infested with ants, and though bearing on his permits.
CITES permits from Belize, few plants were cor-
rectly identified—not that it ever mattered. Arias began including Phrags in the price sheets
that went to his best foreign customers. Norris
Norris, charmed by Xix and admiring his work ordered a few, along with hundreds of other plants.
ethic, decided that he would be a regular customer On the forms, they were described as Maxillarias,
and use their interactions to teach Xix the ins and a type of orchid that Arias had cleared for export.
outs of the business. Keeping that commitment was Per usual industry practice, he received a separate
a challenge: Xix’s first few shipments were a total letter matching the names on the permit with the
loss, and others were turned back at the port of plants’ real identities.
entry because of poor packing and infestations. But
slowly, Xix did become more reliable. Over time, Arias’s nurseries received permits
and CITES registration to grow many of the Phrags
For Xix and Norris’s other suppliers, paperwork he had previously shipped under other names, and
was more of a hassle than growing or gathering as that happened, he began labeling them properly
orchids. In most developing nations, months pass in his shipments. But there were always at least a
between applying for and receiving a CITES per- few in each shipment that were mislabeled because
mit. To compensate, orchid exporters request per- he had not yet received the proper permit.
mits early, long before the plants are ready to sell.
In that gap between applying for a permit and But it was a flower that Norris never actually
receiving it, some plants die and others thrive. Or a imported that would lead to the investigation and
his arrest.
page 6
No. 44 July 27, 2009
If there is a rock star of the orchid world, it is sale. With illegal trade in the flower already flour-
the Phragmipedium kovachii. James Michael ishing, Arias figured that he could get the right per-
Kovach discovered the flower while on an orchid- mits to collect a few from the wild for artificial
hunting trip to the Peruvian Andes in 2002 and propagation. Breeding the flower would not be
sneaked it back into the United States without any easy—Phrags have a reputation for being difficult
CITES documentation to have it catalogued by plants, and that is especially true of the rarer
Selby Botanical Gardens’ Orchid Identification ones—but he had succeeded before with other
Center, a leader in identifying and publishing new tough plants and had a high-altitude greenhouse
species. Two Selby staff members, recognizing the that would be perfect for the kovachii. Doing it
importance of the discovery, rushed out a descrip- legally could take a year or two, maybe even three.
tion of the new flower, christening it kovachii, Norris was more optimistic and ran with the
after Kovach, and barely beating into print an arti- information in his next catalog, boasting that he
cle by Eric Christensen, a rival researcher who had would have legal kovachiis for sale in a year, per-
been working from photos and measurements haps less—far sooner than anyone else thought
taken in Peru. possible. That caught the attention of an orchid
The most striking thing about the kovachii is its researcher who had long believed that the U.S.
size. The plants grow thick leaves up to two feet in orchid trade was overrun with illegal plants, threat-
length. Flower stalks shoot up from the plant, ris- ening the survival of many species in the wild.
ing two feet or more. But the real stunner is the Enforcement was a joke; there had been only one
flower: It is velvety, a rich pink-purple at the tips of prosecution to date for dealing in illegal orchids.
its petals, brilliant white in the center. And the size! He decided to take a closer look at Norris’s spring
Some measure more than 10 inches across. The orchid specialties and brought Norris to the atten-
flower is a rare combination of grace and might, a tion of the U.S. Fish and Wildlife Service.
giant unrivalled in its delicacy and elegance. Lee Around that time, a new customer placed an
Moore, a well-known collector, dubbed it “the Holy order for four Phrags and specifically asked Norris
Grail of orchids.” to include the CITES permits for the flowers. It was
Pictures circulated on orchid mailing lists and an unusual request. Usually, the Department of Agri-
discussion reached a fever pitch. “People decided culture inspectors took the permits at the port of
they would become excited beyond all reason,” entry for their records. Except for the few times that
said one orchid dealer. “Everyone wanted it. It was shipping brokers made copies, Norris hardly ever
a meteoric plant.” According to rumors, black-mar- received them with plant shipments. Assuming that
ket specimens had sold for $25,000 or more. the request was just a misunderstanding, he shipped
The orchid fever was only heightened by the the plants with a packing list but no permits.
legal drama that had engulfed Selby Gardens and Several days after the orchids were delivered,
Kovach as a result of the find. The Peruvian gov- Norris received another e-mail from the buyer, ask-
ernment caught wind of the frenzy over the flower ing again for the permits. The Department of Agri-
and, irked that its country had lost out on the culture had them, Norris responded, but he would
honor of identifying the plant, pressed U.S. author- try to get a copy. That, thought Norris, was the end
ities to investigate for CITES violations. Eventually, of the matter. The buyer made another order for
criminal charges were brought against Kovach, more Phrags a year later and again asked for the
Selby Gardens, and its chief horticulturalist, Wesley permits. Once again, Norris shipped the flowers
Higgins. All pleaded guilty, receiving probation and without them.
small fines. Unknown to Norris, the buyer in these trans-
Right after he heard about the kovachii, Norris actions was working with Fish and Wildlife Ser-
contacted Arias to press for information about the vice agents. Because of the controversy over the
flower, especially when they would be available for kovachii, the Service had a newfound interest in
page 7
No. 44 July 27, 2009
orchids. A few prominent prosecutions would sonal surety bond: He was now their responsibil-
serve as a warning to the rest of the tight-knit ity. Rumors raged that Norris would be arrested on
orchid community. the floor of the show.
That informant’s two transactions with Norris But it was another week before Norris was in-
would serve as the basis for the raid on Norris’s home. dicted. There were seven charges: one count of con-
spiracy to violate the Endangered Species Act, five
The Prosecution counts of violating CITES requirements and the
The raid occurred in October 2003, but George ESA, and one count of making a false statement to
Norris was uncertain of his fate for the next five a government official, for mislabeling the orchids.
months, receiving no communications from the Arias faced one additional false-statement charge.
government. On the advice of friends, he wrote a On March 17, 2004, Norris and his wife flew to
letter to the Miami-based prosecutor who was Miami, where he voluntarily surrendered to the
probably overseeing the case, explaining that he U.S. marshals. The marshals put him in handcuffs
had never imported kovachiis—this was at the and leg shackles and threw him in a holding cell
time that others were being charged for importing with three other arrestees, one suspected of murder
the flower—and asking for a meeting to answer and two suspected of dealing drugs. Norris
any questions. At the very least, he asked, could expected the worst when his cell mates asked him
the government tell him what he was suspected to what he was in for. When he told them about his
have done? After a few weeks, his computer was orchids, they burst into laughter. “What do you do
returned, broken, and Norris resumed business as with these things, smoke ’em?” asked one of the
best he could, taking orders and showing off his suspected drug dealers.
plants at shows.
The next day, Norris pleaded not guilty, and a
Meanwhile, Fish and Wildlife Service Agents day after that, he was released on bail. The Nor-
were poring over the records retrieved from Nor- rises returned to Spring, Texas, to figure out their
ris’s home, as well as others obtained from the next steps. Their business was destroyed; their
Department of Agriculture. There was no evidence retirement savings and home were on the line for
that Norris had ever obtained or sold a kovachii, the Peruvian orchid dealer who was now living in
but the agents did notice minor discrepancies in the spare bedroom; and Norris, 67 and in frail
the documents. Some of the plants Norris had health, faced the prospect of living out his days
offered for sale were not listed on any CITES per- in a federal prison. Still, Norris believed he had
mits. Among those missing were three of the 10 not done anything wrong and would win out in
Phrags in the informant’s second order. The agents the end.
also found Norris’s correspondence with Arias and
Xix, which seemed to confirm their hunch: Norris So they made a go of fighting the charges. Norris
had been engaged in a criminal conspiracy to skirt hired an attorney who, with most of his experience
CITES and violate U.S. import laws. at the state or county level, quickly found himself
in over his head with the complexities of interna-
Norris’s business slowly recovered but suffered a tional treaties, environmental law, and the intrica-
devastating blow when Manuel Arias Silva was cies of a federal prosecution.
arrested in Miami one day before the Miami
Orchid Show in March 2004. After that, everyone In April, the attorney accompanied Norris to
assumed that Norris would be next. Norris and his what turned out to be a proffer meeting, at which
wife scrambled to sell Arias’s flowers (mostly defendants are typically offered the opportunity to
Phrags, by now properly permitted) at the show, cooperate with the government in exchange for
earning just enough to pay his expenses and get leniency. Norris had not been told what to expect
him out of jail. With no one else to step in, they and did not have anything to say when prosecutors
guaranteed Arias’s $25,000 bail and $175,000 per- asked what he was willing to admit. They peppered
him with names of other orchid dealers, but Norris
page 8
No. 44 July 27, 2009
was not inclined to inform on them—not that he judge suggested to Norris and his wife that good
knew enough about their operations, in any case, could come of his conviction and punishment:
to offer anything more than speculation. Life sometimes presents us with lemons.
After that, Norris got a more experienced—and Sometimes we grow the lemons ourselves.
much more expensive—attorney. With bills piling But as long as we are walking on the face of
up and the complexity of the case and the resulting the earth, our responsibility is to take those
difficulty of mounting a defense finally becoming lemons and use the gifts that God has
apparent, Norris took the step he had been dread- given us to turn lemons into lemonade.
ing: changing his plea to guilty. “I hated that, I Norris reported to the federal prison in Fort
absolutely hated that,” said Norris. Five years after Worth on January 10, 2005; was released for a year
the fact, the episode still provokes pain, his face in December 2006 while the Eleventh Circuit Court
blushing and speech becoming softer. “The hardest of Appeals considered a challenge to his sentence;
thing I ever did was stand there and say I was guilty and then returned to prison to serve the remainder
to all these things. I didn’t think I was guilty of any of his sentence. Prison officials, angered by Norris’s
of them.” temporary reprieve, threw him in solitary confine-
While Norris and his wife were focused on his ment, where he spent a total of 71 days. He was
case, Manuel Arias Silva was plotting his own next released on April 27, 2007.
moves. By mid-May, he had managed to obtain a
new passport and exit visa from the Peruvian Con- The Aftermath
sulate. On May 19, soon after they had returned to George Norris has lost his passion for orchids.
Texas from a hearing in Miami, Kathy Norris The yard behind their home is all dirt and grass,
received a call from Juan Silva, in Peru, who was in nothing more. The greenhouse is abandoned. Bro-
tears. His father, he explained, had returned home ken pots, bags of dirt, plastic bins, and other clutter
to evade the charges against him in the United spill off its shelves and onto the floor. The roof is
States. The Norrises would be on the hook for sagging. A few potted cacti are the only living
Arias’s bail and bond—nearly $200,000. things inside it, aside from weeds.
Based on Norris’s transactions with Arias, as well A dozen potted plants grace the Norrises’ back
as those with Xix, the government recommended a porch; three or four are even orchids, though none
prison sentence of 33 to 41 months. Such a lengthy are in bloom. Kathy waters them. “They’re the ones
sentence was justified, according to the sentencing I haven’t managed to kill yet,” she says.
memorandum, because of the value of the plants The couple’s finances are precarious. Following
in the improperly documented shipments. Two the flood of 1994, Norris rebuilt most of their
choices pushed the recommended sentence up. home himself, but they had to refinance the house
First, the government used Norris’s catalog prices to pay for materials. Kathy had to make those pay-
to calculate the value of the plants rather than what ments and all the others while Norris was in
he had paid for them. prison, relying on her salary as director of Mont-
Second, it included all plants in each shipment in gomery County’s Dispute Resolution Center, which
its calculations, reasoning that the properly docu- she ran on a shoestring budget. The same disci-
mented plants—by far the bulk of every ship- pline now reigns at home. “I figured out how to live
ment—were a part of the offense because they were on as little as it’s possible to live on and still keep
supposedly used to shield the others. the house,” says Kathy.
On October 6, Norris was sentenced to 17 Neither Norris nor his wife knows how they will
months in prison, followed by two years of proba- face retirement with all of their savings used to pay
tion. In the eyes of the law, he was now a felon and legal expenses. Arias’s bond hangs over their heads
would be for the rest of his life. The sentencing as well, and the government has said that it will
seek to enforce it. That threat keeps Kathy up at
page 9
No. 44 July 27, 2009
nights. She doesn’t know what else they could give brought against George Norris. His crime, at its
up, other than the house, or how they could possi- core, was a paperwork violation: He had the wrong
bly come up with the $175,000 still owed. documents for some of the plants he imported but
Norris has already suffered the indignity of his almost certainly could have obtained the right ones
grandchildren knowing that he spent over a year in with a bit more time and effort. Neither he nor
federal prison and is a convicted criminal. What other dealers ever suspected that the law would be
hurts him now is that he cannot introduce them to enforced to the very letter so long as they followed
the hunting tradition—small game, squirrels, and its spirit.
rabbits—that has been a part of his family, passed Norris was singled out because he was in the
from generation to generation. As a felon, he can- wrong place at the wrong time. As controversy
not possess a firearm. They sold off and gave away roared over the kovachii and prosecutors were gun-
his grandfather’s small gun collection, which he ning for a high-profile conviction to tamp down
had inherited. In poor health and unarmed, Norris sales in truly rare and endangered plants, Norris
fears that he cannot even defend his own family. bragged that he would soon have the extraordinary
But the hardest blow, explains Kathy, has been flower in stock.
to their faith in America and its system of crimi- To this date, he has never seen one.
nal justice: Armed with overly broad laws that criminalize a
I got raised in a country that wasn’t like wide range of unobjectionable conduct, prosecu-
this. I grew up in a reasonably nice part of tors could look past that fact. Burrowing through
Dallas, I came from a family where nobody Norris’s records, they found other grounds for a
had been indicted for anything, and so had case. One way or another, they would have their
George. And the government didn’t do this poster child.
stuff to people. It wasn’t part of anything I This is the risk that all American entrepreneurs
ever got taught in my civics books. face today. Enormously complex and demanding
That lack of faith is almost visible in George regulations are regularly paired with draconian
Norris’s frailty and fear. “I hardly drive at all any- criminal penalties for even minor deviations from
more,” he explained. “The whole time I’m driving, the rules. Minor violations from time to time are
I’m thinking about not getting a ticket for any- all but inevitable because full compliance would
thing…. I don’t sleep like I used to; I still have be either impossible or impossibly expensive.
prison dreams.” He pauses for a moment to think Nearly every time, nobody notices or cares, but all
and looks down at the floor. In a quiet voice, he it takes is one exception for the hammer of the law
says, “It’s utterly wrecked our lives.” to strike.
Conclusion —Andrew M. Grossman is Senior Legal Policy Ana-
lyst in the Center for Legal and Judicial Studies at The
Probably any dealer in imported plants could Heritage Foundation.
have been prosecuted for the charges that were
page 10
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