By Jacqueline Trescott
Washington Post Staff Writer
Wednesday, February 23, 2005
More than a year after he pleaded guilty to buying tribal art made from the feathers of endangered birds, Smithsonian Secretary Lawrence M. Small has not started the 100 hours of community service he was sentenced to by the federal court, in part because of a disagreement with the U.S. attorney over what he should do.
In correspondence with the U.S. District Court in North Carolina last spring, Small proposed doing extensive reading on the Endangered Species Act so that he could make "a constructive contribution to the effort to preserve endangered species." He said there was "gridlock" in Congress over reauthorizing the law. Small initially suggested doing traditional service, such as working in a soup kitchen, but the judge rejected that.
In his letter to the court, Small said: "It is conceivable that with extensive research, lots of contact with people who are key players in the world of endangered species legislation, legal affairs and regulation and a great deal of luck, I might be able to contribute in some small way to progress in this highly contested and extremely troubled area."
In reply, the government argued that his education on endangered species matters would lead to another role -- as a person who would "mediate political discussion and promote legislative change."
Frank Whitney, U.S. attorney for the Eastern District of North Carolina, where Small was sentenced in January 2004, said in a brief opposing the plan: "Allowing the defendant to spend time learning about the [Endangered Species Act] so that he may change the law he violated fails to promote a respect for the ESA."
The problems with Small's community service, first reported by Hearst News Service, emerged after the U.S. District Judge Terrence Boyle suggested Small do something that would "address the issue of endangered species in the Amazon, and that would build off the Defendant's strength, such as his business and community contacts," according to court documents.
In his letter to the court Small said he could play a useful role because of the Smithsonian's prestige and involvement with scientific issues.
"As long as care is taken to make sure I am not viewed as involving the institution in an effort that is motivated entirely by personal obligation, I can see the approach described above as perfectly viable," he said. He added that involvement of the Smithsonian should wait until he completed his service.
"It might be possible for me, as a non-participant in the conflict with no prior history of involvement, to create a means to bring about some degree of consensus among the conflicting forces. This might be done by having the Smithsonian Institution convene a conference, create a task force or commission, or produce a series of reports or articles, all designed to make specific recommendations persuasive enough to allow a bipartisan coalition of legislators to form and, ultimately, make constructive changes" to the existing law.
Whitney's letter, written last April, said, "The Court should not permit the Defendant to satisfy his obligations to the community for his criminal conduct by reading and chatting with prominent political figures. To do so would minimize his criminal activities and remove any deterrent value of his sentence."
"The phrase 'community service' brings to mind activities such as helping the poor, the elderly, or young, or promoting awareness on the consequences of criminal conduct. It does not conjure visions of leisurely reading materials at a desk, and meetings over coffee to discuss the status of a statute," Whitney said. "The defendant's proposal falls far short of being just punishment for the offense."
The government attorney suggested that Small could combine his "managerial and financial skills" with organizations that are concerned with the issue. "Perhaps the defendant could impart his fund-raising skills to an organization such as the World Wildlife Fund or the Environmental Defense Fund, two organizations which already appear in his proposal. Alternatively, he could participate in an Earthwatch program in the Amazon, or volunteer with an Amazon conservation group," according to the court document.
Smithsonian spokeswoman Linda St. Thomas said Small would not discuss the impasse.
The court has not commented on the community service plan since the government's rejection last April.
Small was accused of violating the Migratory Bird Treaty Act because he bought a $400,000 collection of Amazonian tribal artifacts that contained 219 items with endangered feathers. The government said Small had participated in "illegal trafficking in wildlife."
Small bought the collection in 1998, two years before he became Smithsonian secretary. Articles about his extensive collection and the private gallery he built to house them led to the inquiry by the U.S. Fish and Wildlife Service. Court documents said Small also introduced another collector to his art dealer. That resulted in a sale that took place when he was Smithsonian secretary.
The person who sold the items to Small was sentenced last December. The other buyer has only been identified as a Washington collector.
After pleading guilty to the misdemeanor, Small was sentenced to two years' probation with 100 hours of community service. He was also ordered to send a public apology to several national newspapers. The letter was sent; none of the papers printed it.