Background
Bhagavan Kevin Antle owns and operates a zoo in Myrtle Beach, South Carolina, where customers pay to interact with exotic animals including lion cubs. For several years he purchased lion cubs from Keith Wilson, the owner of a Virginia zoo near Winchester. After lions were listed as endangered and threatened species under federal law in 2016, Antle continued the transactions—buying two cubs from Wilson for $5,000 in 2018 and three more for $9,000 in 2019.
Virginia charged Antle with two counts of purchasing lion cubs in violation of Code §§ 29.1-564 and 29.1-567, and two counts of conspiring with Wilson to sell or purchase lion cubs in violation of Code §§ 29.1-505.1, 29.1-564, and 29.1-567. At trial in Frederick County Circuit Court, Antle argued that Code § 29.1-564—which lists “taking, transportation, possession, sale, or offer for sale” of endangered species as prohibited acts—does not mention “purchase” and therefore does not criminalize buying protected wildlife. The circuit court rejected that argument, reading the penalty statute (§ 29.1-567), which references “purchasing or offering to purchase,” together with § 29.1-564 to imply a purchase prohibition. The jury convicted Antle on all four counts.
The Court of Appeals reversed the purchasing convictions, agreeing that § 29.1-564’s plain text does not prohibit purchasing and that a penal statute cannot be extended by implication. The Court of Appeals nonetheless affirmed the conspiracy convictions on the theory that Antle conspired with Wilson to sell cubs, even if the agreement to purchase was lawful. Both parties appealed.
The Court’s Holding
The Supreme Court of Virginia affirmed the reversal of the purchasing convictions and went further, reversing the conspiracy convictions as well, and dismissed all four underlying indictments. On the purchasing counts, the Court held that Code § 29.1-564’s enumerated prohibitions—taking, transporting, possessing, selling, or offering to sell—do not include purchasing or offering to purchase. Because other Title 29.1 statutes explicitly prohibit both sale and purchase of certain wildlife, the General Assembly’s omission of “purchase” from § 29.1-564 must be treated as intentional. The penalty provision in § 29.1-567, which does reference purchasing, cannot supply a substantive prohibition that the underlying criminal statute lacks; § 29.1-567 addresses penalties only.
On the conspiracy counts, the Court held that the indictments were fatally defective because they charged Antle with conspiring to “sell, offer for sale, purchase, or offer to purchase” lion cubs—expressly encompassing an agreement to purchase, which is not a criminal offense. Because the indictments permitted conviction based on legally innocent conduct, they could not stand. The Court declined to salvage the conspiracy convictions on a sell-only theory, as the Court of Appeals had attempted, given the indictments’ express inclusion of purchase as a charged object of the conspiracy.
Key Takeaways
- Virginia Code § 29.1-564 prohibits selling, transporting, taking, or possessing endangered or threatened wildlife, but does not criminalize purchasing or offering to purchase such species—even after those species are federally listed.
- A penalty statute (§ 29.1-567) that references purchasing cannot create a substantive criminal prohibition absent such language in the underlying offense statute; penal statutes must be strictly construed and cannot be extended by implication or construction.
- A conspiracy indictment that charges an agreement to commit both lawful and unlawful acts is subject to dismissal when the indictment cannot be cleanly severed to eliminate the legally innocent conduct.
- Courts must presume the General Assembly’s deliberate choice when it uses specific language in some wildlife statutes (explicitly prohibiting both sale and purchase) but omits that language in others.
Why It Matters
This decision exposes a significant gap in Virginia’s endangered-species enforcement regime: buyers of protected wildlife face no criminal liability under § 29.1-564, even where sellers do. Prosecutors and wildlife enforcement agencies must rely on other statutes—or urge a legislative fix—to reach the demand side of illegal wildlife transactions. The ruling also reinforces Virginia’s strict-construction rule for penal statutes, signaling that courts will not read purchasing liability into a sale-only prohibition even when the penalty provision seems to assume one exists.
For defense practitioners, the case illustrates that conspiracy indictments charging conjunctive objects (sell or purchase) are vulnerable when one object is not a criminal offense—particularly where the indictment cannot be read to charge only the lawful object in the alternative. Prosecutors in wildlife and other regulatory criminal cases should ensure that each charged act within a conspiracy indictment is independently unlawful.