United States v. David Henson McNab, Robert D. Blandford ( 2003 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
__________________________ ELEVENTH CIRCUIT
MARCH 21, 2003
No. 01-15148 THOMAS K. KAHN
__________________________ CLERK
D. C. Docket No. 00-00079-CR-1-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HENSON MCNAB,
ROBERT D. BLANDFORD, et al.,
Defendants-Appellants.
___________________________
No. 02-10810
___________________________
D. C. Docket No. 00-00079-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABNER SCHOENWETTER,
ROBERT D. BLANDFORD,
Defendants-Appellants.
_____________________________
No. 02-11264
_____________________________
D. C. Docket No. 00-00079-CR-1-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HENSON MCNAB,
ABNER SCHOENWETTER, et al.,
Defendants-Appellants.
_____________________
Appeals from the United States District Court
for the Southern District of Alabama
______________________
(March 21, 2003)
Before HULL, WILSON and FAY, Circuit Judges.
WILSON, Circuit Judge:
David Henson McNab, Abner Schoenwetter, Robert D. Blandford, and
Diane H. Huang (collectively the defendants) appeal the convictions and sentences
they received after a jury found them guilty of conspiracy, smuggling, money
laundering, and Lacey Act violations in connection with the importation, sale, and
2
purchase of Caribbean spiny lobsters from Honduras. The defendants’ main
argument on appeal is that the district court erred in determining that the
Honduran laws that served as the underlying basis of their convictions were valid
and enforceable. The defendants contend that the Honduran laws were invalid,
and, therefore, there was no violation of foreign law upon which to base their
convictions.1
The defendants’ challenge to the validity of the Honduran laws requires us
to undertake our own foreign law determination. Our task is complicated by
conflicting representations from Honduran officials regarding the validity of the
Honduran laws. Throughout the investigation and trial, Honduran officials
offered support and assistance to the United States government, and both the
government and the district court relied upon the Honduran officials’ verification
of the Honduran laws. Shortly after the defendants were convicted, the Honduran
government reversed its position; it currently refutes the validity of the laws it
previously verified. Therefore, we must decide whether our courts are bound by a
foreign government’s new representations regarding the validity of its laws when
1
The Lacey Act prohibits the importation of “fish or wildlife taken, possessed,
transported, or sold in violation of . . . any foreign law.” 16 U.S.C. § 3372(a)(2)(A). If the
lobsters were not imported, transported, and sold in violation of Honduran law, there could be no
Lacey Act violations. Accordingly, if the lobsters were brought into the United States legally and
were not criminally-derived property, there could be no smuggling or money laundering
violations.
3
its new representations are issued only postconviction and directly contravene its
original position upon which the government and our courts relied and the jury
acted. This question is a matter of first impression in this Circuit and apparently
the other circuits as well.
For the reasons set forth below, we affirm the defendants’ convictions and
sentences.
BACKGROUND
On February 3, 1999, agents of the National Marine Fisheries Service
(NMFS) received an anonymous facsimile, which provided that McNab’s cargo
transport vessel, the M/V Caribbean Clipper, would arrive in Bayou la Batre,
Alabama on February 5, 1999, with a shipment of lobsters containing “undersized
(3&4 oz) lobster tails, [which was] a violation of Honduran law.” The facsimile
further provided that Honduras prohibits the bulk exportation of lobsters and
requires that lobsters be packed in boxes for export.
In response to the anonymous tip, NMFS agents consulted the Direccion
General de Pesca y Acuicultura (DIGEPESCA) in Honduras2 regarding the
legality of the lobster shipment referenced in the facsimile. The NMFS agents
2
The DIGEPESCA is the agency within Honduras’s Secretaria de Agricultura y Ganaderia
(SAG) that is responsible for the enforcement of the fishing laws and the execution of fishing
programs.
4
questioned whether the shipment violated the Lacey Act, which makes it unlawful
to import into the United States “fish or wildlife [that has been] taken, possessed,
transported, or sold in violation of . . . any foreign law.” 16 U.S.C. §
3372(a)(2)(A). In three separate letters responding to the agents’ inquiry, the
director general of the DIGEPESCA described some of Honduras’s fishing laws
and confirmed that McNab’s shipment “ha[d] been illegally transported in
violation of the Fishing Law, the Industrial and Hygienic Sanitary Inspection
Regulation for Fish Products and Resolution No. 030-95.” The director general
provided authentic copies of the applicable laws and stated that the DIGEPESCA
was ready to support all efforts by the government to prosecute persons who
violate the Lacey Act.
In early March of 1999 NMFS agents seized the lobster shipment that was
referenced in the anonymous facsimile based upon the director general’s
assurances that the lobsters had been exported in violation of Honduran law. Over
the next few months, NMFS agents communicated with Honduran officials about
the Honduran laws and the legality of the seized lobster shipment. In June of 1999
NMFS special agents and an attorney in the United States National Oceanic and
Atmospheric Administration Office of the General Counsel met with various
Honduran officials from the Secretaria de Agricultura y Ganaderia (SAG) in
5
Tegucigalpa, Honduras. The minister, the vice minister, the director of legal
services, the director of legal affairs, the secretary general of the SAG, the director
general of the DIGEPESCA, and the legal advisor for the Servicio Nacional de
Sanidad Agropecuaria (SENASA)3 confirmed that the lobsters had been exported
illegally without first being inspected and processed. Furthermore, the Honduran
officials confirmed that there was a 5.5-inch size limit for lobster tails and that all
catches had to be reported to Honduran authorities. The Honduran officials
provided certified copies of the laws in question. In September of 1999 NMFS
agents inspected the lobster shipment that had been seized earlier in the year. The
inspection confirmed that the seized lobsters were packed in bulk plastic bags
without being processed and revealed that a significant number had a tail length
that was less than the 5.5 inches required by the Honduran size limit restriction. In
addition, many of the lobsters were egg-bearing or had their eggs removed.
In March of 2000 two Honduran officials, a legal advisor in the Despacho
Ministerial and a SAG legal advisor, traveled to Alabama to meet with
government prosecutors and investigators. Both legal advisors provided written
statements that cited Resolution 030-95 as a valid law regulating the lobster
3
Like the DIGEPESCA, the SENASA is an agency within the SAG. The SENASA is
responsible for the enforcement of hygiene laws and regulations.
6
fishing industry. They also described the processing requirements mandated by
Regulation 0008-93.4 They further explained that Honduras prohibits the
harvesting of egg-bearing lobsters.5 Based upon the NMFS’s investigation and the
verification of the applicable foreign laws by the Honduran officials charged with
regulating the lobster fishing industry, the government decided to prosecute the
defendants for their roles in the illegal importing scheme. Subsequently, the grand
jury returned a forty-seven-count second superseding indictment in September of
2000.6
To determine the validity of the relevant Honduran laws, the district court
conducted a pretrial hearing on foreign law in September of 2000. Most of the
defendants’ evidence at the hearing pertained to the validity of Resolution 030-95,
which established a 5.5-inch size limit for lobsters.7 At the government’s request,
4
Processing lobster tails involves several steps: thawing, sorting, and grading the lobsters
by quality and size; placing the tails in individual plastic sleeves; and packing them in boxes.
5
The legal advisors cited Resolution 003-80 as authority for the prohibition against
harvesting or destroying egg-bearing lobsters. Resolution 003-80 is substantially similar to
Article 70(3) of the Fishing Law, as both laws prohibit the harvesting or destruction of lobster
eggs. At the foreign law hearing, the government acknowledged that it could not verify the
publication of Resolution 003-80 in La Gaceta and therefore relied upon Article 70(3) as a Lacey
Act predicate.
6
Although the investigation focused initially upon the seized shipment referenced in the
facsimile, the indictment charged the defendants with violations based upon numerous shipments
of lobsters between 1996 and 1999.
7
Two law professors, both experts in Honduran law, testified for the defendants. The
defendants also submitted a number of legal opinions from members of the Honduran legal
7
the minister of the SAG sent Secretary General Liliana Patricia Paz, the SAG’s
highest-ranking legal official, to testify at the foreign law hearing. Secretary
General Paz testified as to the validity of various laws and confirmed that
Resolution 030-95, Regulation 0008-93, and Article 70(3) of the Fishing Law8
were in effect and legally binding during the time period covered by the
indictment. She also explained the means by which a Honduran citizen may seek
the invalidation of a resolution in Honduras,9 and she testified that no such
proceeding regarding Resolution 030-95 had been initiated at that time. Persuaded
by the testimony of Secretary General Paz, the district court found that the
government met its burden of establishing the validity of the Honduran laws that
served as the predicates for the Lacey Act charges. Shortly after the foreign law
hearing, a jury trial was conducted, and the defendants were found guilty on
community, including the attorney general of Honduras and the regional prosecutor of the
Fiscalia Especial Para la Defensa de la Constitución, and a declaration from a practicing
Honduran attorney.
8
The Fishing Law is a comprehensive statute regulating the Honduran fishing industry.
See Decreto No. 154, May 19, 1959, La Gaceta, June 9, 1959.
9
The Honduran judicial system includes a separate administrative law court system in
which disputes relating to administrative matters are adjudicated. Among the procedures
available in the administrative court system is an action by a Honduran citizen who claims to be
affected adversely by some administrative rule to seek a declaration that the rule is invalid. Such
an action is first brought in the Honduran Court of the First Instance of Administrative Law.
Decisions from that court may be appealed to the Honduran Court of Appeals for Administrative
Law.
8
multiple counts.10
After the trial, the defendants filed a number of motions seeking to have
their convictions overturned.11 In the motions, they attacked the validity of the
foreign laws underlying their convictions, citing recent developments in Honduran
law. In preparation for a hearing on the motions, an official from the United States
Department of Justice and agents from the NMFS and the Federal Bureau of
Investigation traveled to Honduras in early August of 2001 to discuss the
defendants’ challenges to the validity of the Honduran laws. They received
affidavits from three Honduran government officials, including Secretary General
Paz, confirming the validity of the laws the defendants were challenging. They
also received an affidavit from the minister of the SAG, stating that those
Honduran government officials were authorized to provide advice on the
enforcement and validity of the laws. After the hearing, the district court
dismissed each of the defendants’ posttrial motions. Thereafter, in August of
2001, the district court sentenced McNab, Blandford, and Schoenwetter to ninety-
10
McNab was found guilty of conspiracy, smuggling, and money laundering. Blandford
was found guilty of conspiracy, smuggling, Lacey Act violations, and money laundering, as well
as two lesser included offenses under the Lacey Act. Schoenwetter was found guilty as charged
for conspiracy and smuggling, and Huang was found guilty as charged for conspiracy, Lacey Act
violations, and false labeling.
11
The final set of motions included a motion to dismiss because the indictment failed to
charge a crime, a motion for a new trial based upon newly discovered evidence, and a motion for
redetermination of foreign law based upon developments in Honduran law.
9
seven months of imprisonment and Huang to twenty-four months of
imprisonment.
After sentencing, the defendants appealed their convictions based, in part,
upon their contention that the Honduran laws used as the predicates for the Lacey
Act convictions were invalid or void during the time period covered by the
indictment.12 In December of 2001 a government attorney and NMFS agents
traveled to Honduras to discuss the defendants’ new documents with Honduran
officials to prepare the government’s brief on appeal. Once again, the Honduran
officials confirmed their prior statements regarding the validity of the Honduran
laws.
The defendants raise a number of issues in these consolidated appeals.
First, they argue that the scope of the Lacey Act is limited to foreign statutes and
12
After the initial notice of appeal, the defendants obtained additional support for their
claim that the district court misinterpreted Honduran law. As a result, they filed a Motion for
Judicial Notice, as well as alternative motions regarding newly issued Honduran legal opinions
with this Court. We denied those motions without prejudice and held that the motions could be
renewed if the district court refused to certify its intention to grant a new trial pursuant to United
States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987) (per curiam).
Based upon our order, in January of 2002 McNab filed a Motion for Order Certifying
Intention to Grant New Trial Upon Remand with the district court, which was subsequently
adopted by Blandford, Schoenwetter, and Huang. After initially denying the motion, the district
court granted the defendants’ motion for reconsideration. Upon reconsideration, the district court
affirmed its earlier order that it would not certify its intention to grant a new trial. The
defendants appeal that order and argue that the district court erred in denying the motion to
certify its intention to grant a new trial upon remand. In light of our holding regarding the
validity of the Honduran laws, we need not address this issue.
10
that the Honduran resolutions and regulations listed in the indictment were used
improperly as predicates for their convictions. Second, they contend that the
district court’s interpretation of the Honduran resolutions and regulations was
erroneous and that the Honduran laws that served as predicates for the convictions
were invalid. Third, McNab argues that the district court abused its discretion by
excluding evidence at trial relating to his “knowledge” of Honduran law. Fourth,
the defendants assert that the district court made several errors with respect to the
jury instructions. Fifth, they contend that the jury’s verdicts were based upon
insufficient evidence. Finally, Schoenwetter and Blandford argue that the district
court erred in failing to postpone their sentencing and in determining the length of
their sentences.
DISCUSSION
I. Scope of the Lacey Act
The first issue we address is whether the phrase “any foreign law” in the
Lacey Act includes foreign regulations and other legally binding provisions that
have the force and effect of law. The defendants argue that the phrase “any
foreign law” should be read to mean foreign statutes and not foreign regulations or
provisions that are legally binding. According to their argument, Resolution 030-
95 and Regulation 0008-93 do not fall within the scope of the Lacey Act, because
11
they are not statutes.13 They rely upon what they consider a distinction by
Congress between “any law or regulation of any State” and “any foreign law.” 16
U.S.C. § 3372(a)(2)(A). The defendants argue that by failing to include foreign
regulations explicitly, Congress intended that only foreign statutes could serve as
the basis for a foreign law Lacey Act violation.
In accordance with the plain meaning doctrine, “[w]e begin our construction
of . . . [the Lacey Act] where courts should always begin the process of legislative
interpretation, and where they often should end it as well, which is with the words
of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000)
(en banc), cert. denied, 532 U.S. 1065 (2001); United States v. Gilbert, 198 F.3d
13The parties do not dispute the following explanation of the Honduran legal framework:
The Government of Honduras is a constitutional republic. Its legal system
is generally under the continental or civil law system . . . . [T]he Constitution is
the supreme law of the Republic.
The adoption of statutes in Honduras (issued as “Decrees”) is the
exclusive prerogative of the National Congress. At the same time, the
Constitution . . . vests in the Executive Branch the exclusive authority to issue
“Regulations[.”] Regulations (issued in the form of “Acuerdos” – in English,
“Accords” or “Decisions” or “Agreements”) are general rules of conduct
applicable to all who may be affected by them and they have the force of law. The
Constitution provides that Regulations may be issued only by the President of the
Republic with the co-signature of the Secretary of State. [sic] (i.e. Chief Minister)
of the pertinent ministry. Both statutes and regulations become effective only
when they are published in La Gaceta, which is the Honduran equivalent of the
Federal Register.
Br. of Amicus Curiae of the Embassy of Honduras and the Asociacion de Pescadores del Caribe
in Supp. of Def.-Appellant David Henson McNab at 8–9 (citations omitted).
12
1293, 1298 (11th Cir. 1999). It is well established that “[w]hen the words of a
statute are unambiguous . . . [the] judicial inquiry is complete.” CBS Inc. v.
PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) (first alteration
in original) (internal quotation marks omitted); see also Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that a legislature
says in a statute what it means and means in a statute what it says there.”). When,
however, “the language is ambiguous or leads to absurd results, . . . [we] may
consult the legislative history and discern the true intent of Congress.” United
States v. Kattan-Kassin, 696 F.2d 893, 895 (11th Cir. 1983).14
With this guidance in mind, we examine the language of the Lacey Act.
The Lacey Act provides that “[i]t is unlawful for any person . . . to import, export,
transport, sell, receive, acquire, or purchase in interstate or foreign commerce . . .
any fish or wildlife taken, possessed, transported, or sold in violation of any law or
regulation of any State or in violation of any foreign law.” 16 U.S.C. §
3372(a)(2)(A). The Act defines “law” as those “laws . . . which regulate the
taking, possession, importation, exportation, transportation, or sale of fish or
wildlife or plants.” 16 U.S.C. § 3371(d) (emphasis added).
14
We note that although a court may resort to extrinsic materials if the statutory language
is ambiguous or if the interpretation causes absurd results, only the latter is a true exception to
the plain meaning rule. CBS Inc., 245 F.3d at 1227 (“Stating that ambiguity establishes an
exception, instead of disestablishes the predicate for the rule, confuses things.”).
13
Unfortunately, the statutory definition defines the word “law” by using the
word “laws.”15 While the definition is helpful in determining what the “law” must
regulate, it is silent as to whether “law” is restricted to statutes or includes
regulations and other provisions that foreign governments use to promulgate
legally binding rules. Thus, we turn first to the common usage or ordinary
meaning of the word “law” to determine its plain meaning. Cf. Consol. Bank, N.A.
v. United States Dep’t of the Treasury, 118 F.3d 1461, 1464 (11th Cir. 1997) (“In
the absence of a statutory definition of a term, we look to the common usage of
words for their meaning.”). “[T]o determine the common usage or ordinary
meaning of a term, courts often turn to dictionary definitions for guidance.” See
CBS Inc., 245 F.3d at 1223.
Merriam Webster’s Collegiate Dictionary provides several definitions of
law, including “a binding custom or practice of a community: a rule of conduct or
action prescribed or formally recognized as binding or enforced by a controlling
authority” and “the whole body of such customs, practices, or rules.” Merriam
15
Section 3371(d) provides in full, “The terms ‘law,’ ‘treaty,’ ‘regulation,’ and ‘Indian
tribal law’ mean laws, treaties, regulations or Indian tribal laws which regulate the taking,
possession, importation, exportation, transportation, or sale of fish or wildlife or plants.” 16
U.S.C. § 3371(d).
We read the word “law” to refer to laws “which regulate the taking, possession,
importation, exportation, transportation, or sale of fish or wildlife or plants,” and the word
“treaty” to refer to treaties “which regulate the taking, possession, importation, exportation,
transportation, or sale of fish or wildlife or plants,” and so forth.
14
Webster’s Collegiate Dictionary 659 (Frederick C. Mish et al. eds., 10th ed.
1996). Under these broad definitions of the word “law,” the phrase “any foreign
law” incorporates the Honduran decrees and regulations at issue. See United
States v. 594,464 Pounds of Salmon, 871 F.2d 824, 826 (9th Cir. 1989).
On the other hand, there are more narrow definitions of the word “law” that
also are commonly used. Black’s Law Dictionary provides several definitions of
the word “law,” including one that defines law simply as “[a] statute.” Black’s
Law Dictionary 889 (Bryan A. Garner et al. eds., 7th ed. 1999). This definition is
plausible when the phrase “any foreign law” is read in conjunction with the rest of
§ 3372(a)(2)(A). For example, the defendants assert that “any foreign law” can
refer only to foreign statutes, because to read “any foreign law” to include
regulations would render the word “regulation” in the earlier phrase “any law or
regulation of any State” meaningless.16
While the defendants advocate this interpretation of the statute, it is not the
only reasonable one. Another is that Congress intended to punish violations of
state laws and state regulations and to punish violations of foreign laws, whatever
form those foreign laws may take. The Ninth Circuit, in explaining why it
16
“A basic premise of statutory construction is that a statute is to be interpreted so that no
words shall be discarded as being meaningless, redundant, or mere surplusage.” United States v.
Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991).
15
interpreted “any foreign law” to cover different forms of foreign laws, emphasized
how the world’s diverse legal systems defy easy definition or categorization. It
noted,
[B]ecause of the wide range the forms of law may take given the
world’s many diverse legal and governmental systems, Congress
would be hard-pressed to set forth a definition that would adequately
encompass all of them. . . . Thus, if Congress had sought to define
“any foreign law” with any kind of specificity whatsoever, it might
have effectively immunized . . . [conduct] under the Act despite
violation of conservation laws of a large portion of the world’s
regimes that possess systems of law and government that defy easy
definition or categorization.
594,464 Pounds of Salmon, 871 F.2d at 827–28. In other words, the argument is
that Congress specifically chose to limit domestic law to statutes and regulations,
but specifically chose to use the language “any foreign law” to cover the wide
varieties of laws in foreign countries.
The net result is that there are several reasonable ways to interpret the word
“law” in the phrase “any foreign law.” As a result of this ambiguity, we look
beyond the language of the statute to determine legislative intent. We thus now
look to the legislative history of the Lacey Act to ascertain Congress’s intent. Fed.
Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir. 2000). “In
trying to learn Congressional intent by examining the legislative history of a
statute, we look to the purpose the original enactment served, the discussion of
16
statutory meaning in committee reports, the effect of amendments whether
accepted or rejected and the remarks in debate preceding passage.” Rogers v.
Frito-Lay, Inc., 611 F.2d 1074, 1080 (5th Cir. 1980).17
The Lacey Act was introduced by Representative John F. Lacey of Iowa in
1900. H.R. Rep. No. 97-276, at 7 (1981) (discussing the enactment of the Lacey
Act). Representative Lacey recognized that individual states were unable to
protect their wildlife, because their laws did not reach into neighboring states. Id.Thus, he asserted that a federal law was necessary to outlaw the interstate traffic in
wildlife illegally taken from their state of origin.18 Id. By 1981 Congress
recognized the need to strengthen the Lacey Act in response to “the massive
illegal trade in fish, wildlife and plants.” 127 Cong. Rec. 17,327 (1981) (remarks
of Senator Lincoln Chafee). Congress thus amended the Lacey Act in 1981 “to
correct . . . insufficiencies” in the Act and “to simplify administration and
enforcement.”19 S. Rep. No. 97-123, at 2 (1981), reprinted in 1981 U.S.C.C.A.N.
17
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
18
In 1935 the Lacey Act was amended to include foreign law because of concern over the
illegal marketing of wildlife from other countries. H.R. Rep. No. 97-276, at 7.
19
The Lacey Act Amendments of 1981 combined the Lacey Act of 1900 and the Black
Bass Act of 1926. 127 Cong. Rec. 26,537 (1981) (remarks of Representative John Breaux). The
Black Bass Act was similar to the Lacey Act in that it prohibited the interstate transportation of
fish taken in violation of state or foreign law. See 127 Cong. Rec. 17,329 (remarks of Senator
17
1748, 1749.
Although there are certain parts of the legislative history of the Lacey Act
that support the defendants’ position to some extent, the legislative history reflects
that “the [main] thrust of Congress’s intention in amending the Act was to expand
its scope and enhance its deterrence effect.” 20 594,464 Pounds of Salmon, 871
F.2d at 828. Indeed, Congress clearly stated that the amendments were meant to
strengthen the existing wildlife protection laws and to “provide [the government]
the tools needed to effectively control the massive illegal trade in fish, wildlife and
plants.” 127 Cong. Rec. 17,327 (remarks of Senator Chafee); see also 127 Cong.
Rec. 26,537 (1981) (remarks of Representative John Breaux). The Senate Report
provided that the amendments “would allow the Federal Government to provide
more adequate support for the full range of State, foreign and Federal laws that
protect wildlife.” S. Rep. No. 97-123, at 4. The amendments were intended to
“raise both the civil and criminal penalties of the current laws and target
commercial violators and international traffickers.” 127 Cong. Rec. 17,328
Howard Baker).
20
The defendants point to the fact that the pre-1981 Lacey Act prohibited trade in wildlife
taken in violation of “any law or regulation of any State or foreign country,” but that now the
Lacey Act does not refer to foreign laws and regulations. “While the legislative history is not
totally one-sided, the thrust of Congress’s intention in amending the Act was to expand its scope
and enhance its deterrence effect.” 594,464 Pounds of Salmon, 871 F.2d at 828.
18
(remarks of Senator Chafee). By strengthening the penalty provisions of the
Lacey Act, Congress intended “to give the Federal Government stronger
enforcement tools to stop the large-scale importation and taking of fish . . . which
enjoy protection under other foreign . . . laws.” Id. at 17,329 (remarks of Senator
James Strom Thurmond).
Our examination of the legislative history of the Lacey Act leads us to the
conclusion that Congress by no means intended to limit the application of the Act
by its adoption of the 1981 amendments. The defendants’ interpretation is
untenable, because it would restrict the application of the Lacey Act unduly and
would thwart Congress’s stated goal of strengthening the Act by amending it in
1981. See id. at 17,328 (remarks of Senator Chafee). Their narrow interpretation
of the phrase “any foreign law” would prevent the wildlife conservation laws of
many countries from serving as the basis for Lacey Act violations and would limit
the Act’s utility. We therefore conclude that regulations and other such legally
binding provisions that foreign governments may promulgate to protect wildlife
are encompassed by the phrase “any foreign law” in the Lacey Act.21 See United
21
The defendants also argue that because the Lacey Act is ambiguous as to the meaning of
“any foreign law,” the rule of lenity requires that any doubt be resolved in their favor. Lenity,
however, is “reserved . . . for those situations in which a reasonable doubt persists about a
statute’s intended scope even after resort to the language and structure, legislative history, and
motivating policies of the statute.” Moskal v. United States, 498 U.S. 103, 108 (1990) (internal
quotation marks omitted); see also United States v. Curry, 902 F.2d 912, 915 (11th Cir. 1990).
19
States v. Lee, 937 F.2d 1388, 1391–92 (9th Cir. 1991) (holding that a Taiwanese
fishing regulation constituted “foreign law”); 594,464 Pounds of Salmon, 871 F.2d
at 828 (holding the same).
As we have determined that the phrase “any foreign law” includes
nonstatutory provisions such as Resolution 030-95 and Regulation 0008-93, we
now turn to the defendants’ argument that their convictions were based upon the
district court’s erroneous interpretation of foreign law.
II. Honduran Laws
The defendants contend that the Honduran laws that served as predicates for
their convictions were invalid. Specifically, they argue that (1) Resolution 030-
95, which established a 5.5-inch size limit for lobsters, never had the effect of law,
because it was promulgated improperly and has been declared void by the
Honduran courts; (2) Regulation 0008-93, which established inspection and
processing requirements for the lobster fishing industry, was repealed in 1995,
prior to the time period covered by the indictment; and (3) Article 70(3), which
prohibits the harvesting and destruction of lobster eggs, was misinterpreted by the
district court and was repealed retroactively in 2001.
As our examination of the legislative history clarifies the purpose of and motivation behind the
Lacey Act, the defendants’ invocation of the rule of lenity fails.
20
As the defendants were found guilty of conspiracy under a general verdict,
there is no way to know which Honduran law the jury relied upon in determining
their guilt. Thus, if any of the three Honduran laws that the defendants challenge
were invalid during the time period covered by the indictment, the defendants’
convictions must be reversed.22 See Mills v. Maryland, 486 U.S. 367, 376 (1988)
(In criminal cases, “the [Supreme] Court consistently has followed the rule that the
jury’s verdict must be set aside if it could be supported on one ground but not on
another, and the reviewing court was uncertain which of the two grounds was
relied upon by the jury in reaching the verdict.”).
We review a district court’s interpretation of foreign law de novo. United
States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (en banc). Our
determination of foreign law is complicated by the posttrial shift in the Honduran
government’s position regarding the validity of the laws at issue in this case.23
22
The government acknowledges that the rule stated above generally is true, but argues
that the defendants are estopped from benefitting from that general rule because they “objected to
a special verdict form and requested general verdicts.” We disagree. The record indicates that
the only objection to the special verdict forms was made by Blandford’s attorney, who initially
stated that he did not “like” the special interrogatories. Upon hearing the government’s
explanations for the special verdict forms, none of the defendants made any further objections.
Thus, the district court declined to use the government’s special verdict forms sua sponte,
apparently because it considered them too complicated for the jury members to use in their
deliberations.
23
Despite the fact that Honduran officials supported the government throughout the
investigation and trial of this case, the Embassy of Honduras filed an amicus curiae brief in
support of McNab.
21
The Honduran government now maintains that the laws were invalid at the time of
the lobster shipments or have been repealed retroactively. Thus, we must decide
whether we are bound by the Honduran government’s current position regarding
the validity of these laws, or whether we are free to follow the Honduran
government’s original position.24
As we begin our analysis, we must make clear that the crux of this case is
the validity of the Honduran laws during the time period covered by the
indictment. Much of the defendants’ arguments focus upon the fact that none of
the laws are currently valid; however, their reliance upon the current invalidity of
the laws is misplaced. “Although Lacey Act offenses are predicated upon
24
The Executive Branch of the United States government, represented here by the
Department of Justice, has taken the position that the various Honduran laws in issue are valid
and specifically that under Honduran law the Honduran court’s judgment regarding Resolution
030-95 applies only prospectively. The Executive Branch, in effect, has declined to accept the
position of the Honduran Embassy as determinative as to Honduran law.
There is no authority directing courts making foreign law determinations to hold as
determinative declarations made by foreign embassies as to their laws. Instead, this Court
considers the Honduran Embassy’s position as evidence of what the Honduran law is in
conjunction with the other evidence in this case, which conflicts with the Honduran Embassy’s
position. Our Executive Branch’s decision not to accept as determinative the position of a
foreign embassy on foreign law inevitably touches upon considerations of foreign policy, which
typically involve nonjusticiable “political questions” committed to the other branches of
government. See Baker v. Carr, 369 U.S. 186, 211–12 (1962) (recognizing that many questions
touching foreign relations are political questions); Oetjen v. Cent. Leather Co., 246 U.S. 297, 302
(1918). Such is the case here because a judicial decree that the Honduran Embassy’s position is
determinative would place this Court in conflict with the Executive Branch with respect to the
amount of deference due a foreign government official’s position. See Baker, 369 U.S. at 217(“Prominent on the surface of any case held to involve a political question is found . . . the
impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of government . . . .”).
22
violations of [foreign] law, the statute nowhere states that a viable or prosecutable
[foreign] law violation is necessary to support federal charges. Instead, the Act
simply requires that the fish or wildlife have been obtained in violation of any
[foreign] law . . . .” United States v. Borden, 10 F.3d 1058, 1062 (4th Cir. 1993)
(internal quotation marks omitted).25 The reference to foreign law in the Lacey
Act is there to define what constitutes illegal conduct. Thus, the subsequent
invalidation of the underlying foreign laws does not make the defendants any less
culpable for their actions. If the laws were valid in Honduras during the time
period covered by the indictment, the defendants violated the Lacey Act by
importing the lobsters in violation of those laws. Whatever changes in the laws
occurred after the lobsters were imported into the United States illegally have no
effect on the defendants’ convictions.
In a Lacey Act prosecution, once the district court determines the validity of
a foreign law during a given time period, it is up to the government to prove that
25
In Borden, two state statutes served as the predicates for the Lacey Act violations. 10
F.3d at 1062. The defendant “contend[ed] that his indictment [wa]s invalid because the one-year
statute of limitations for the predicate state offenses had expired by the time the indictment was
returned.” Id. He argued that the state statute of limitations governed Lacey Act violations,
“because the existence of a prosecutable violation of state law [wa]s necessary to support a
Lacey Act indictment.” Id. The Fourth Circuit concluded that even though the Lacey Act
“incorporates the substantive elements of state law,” “it is not designed to incorporate state
procedural law.” Id. (internal quotation marks omitted). Thus, although the state statute of
limitations had run on the state offense, the defendant’s indictment still was valid.
23
the defendants knowingly violated those laws. United States v. Todd, 735 F.2d
146, 151 (5th Cir. 1984). The initial foreign law determination, however, is a
question of law for the court. See Fed. R. Crim. P. 26.1. “The court, in
determining foreign law, may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the Federal
Rules of Evidence.” Id. Among the most logical sources for the court to look to
in its determination of foreign law are the foreign officials charged with enforcing
the laws of their country. The district court, in the course of a Lacey Act
prosecution, is entitled to rely upon such representations by foreign officials as to
the validity of their government’s laws. The court reasonably may assume that
statements from foreign officials are a reliable and accurate source and may use
such statements as a basis for its determination of the validity of foreign laws
during a given time period.26
26
Although the amici suggest that the government used improper procedures, such as
seeking out midlevel employees who were not authorized to render opinions on behalf of the
Honduran government in its effort to ascertain the applicable Honduran laws, the record indicates
quite the contrary. On February 9, 1999, an NMFS agent sent a formal request to the deputy
director of the DIGEPESCA seeking information regarding the legality of the lobster referenced
in the anonymous facsimile. The director general of the DIGEPESCA sent two letters to the
NMFS in response to the inquiry. In his first letter, dated February 12, 1999, the director general
described some of the Honduran laws governing the lobster industry, including Resolution 030-
95. In a second letter, dated February 25, 1999, the director general confirmed that the lobsters
“ha[d] been illegally transported in violation of the Fishing Law, the Industrial and Hygienic
Sanitary Inspection Regulation for Fish Products and Resolution No. 030-95” and included
copies of the laws. The director general further stated the he supported all efforts “to legally
prosecute natives or legalized Americans that violate the articles of the Lacey Act.” The letter
24
When, however, a foreign government changes its original position
regarding the validity of its laws after a defendant has been convicted, our courts
are not required to revise their prior determinations of foreign law solely upon the
basis of the foreign government’s new position. There must be some finality with
representations of foreign law by foreign governments. Given the inevitable
political changes that take place in foreign governments, if courts were required to
maintain compliance with a foreign government’s position, we would be caught up
in the endless task of redetermining foreign law.
In this case, the government solicited and received the assistance of the
SAG and the DIGEPESCA during the investigation of the legality of the lobster
shipments. From the earliest stages of the investigation until after the defendants
were convicted, the statements from the SAG were consistent with the
government’s understanding of the laws. After the defendants were convicted,
however, certain events in Honduras induced the Honduran government to refute
its original statements. The newly issued statements and opinions of Honduran
was copied to the minister and vice minister of the SAG. In addition, SAG Minister Guillermo
Alvarado Downing confirmed in an affidavit that Secretary General Paz could “provide the
necessary advice about and explanation of the enforcement and validity of Honduran laws, and
especially the fisheries laws enforced by this Ministry.” Thus, it is clear that the government
conducted its investigation properly through the Honduran officials who were responsible for
interpreting, enforcing, and applying the fishing laws of Honduras.
25
officials, however, do not persuade us that the district court erred in its
determination that the Honduran laws at issue were valid and enforced during the
time period covered by the indictment.
By our decision today, we do not mean to impinge upon any foreign
government’s sovereignty. Honduras has every right to invalidate and repeal the
laws at issue in this case. The district courts and the government of the United
States, however, have the right to rely upon the Honduran government’s original
verifications of its laws. We must have consistency and reliability from foreign
governments with respect to the validity of their laws. Otherwise, there never
could be any assurance when undertaking a Lacey Act prosecution for violations
of foreign law that a conviction will not be invalidated at some later date if the
foreign government changes its laws. Acceptance of the Honduran government’s
current interpretation of its laws as determinative of the validity of the laws would
set the foundation for future Lacey Act defendants to seek postconviction
invalidation of the underlying foreign laws. Although such is not the case here, it
is not difficult to imagine a Lacey Act defendant in the future, who has the means
and connections in a foreign country, lobbying and prevailing upon that country’s
officials to invalidate a particular law serving as the basis for his conviction in the
United States. Such a scenario would completely undermine the purpose of the
26
Lacey Act. There would cease to be any reason to enforce the Lacey Act, at least
with respect to foreign law violations, if every change of position by a foreign
government as to the validity of its laws could invalidate a conviction.
Thus, we conclude that the postconviction shift in the Honduran
government’s position regarding the validity of its laws is not determinative as to
whether the laws were valid at the time the lobsters were imported into the United
States. We now examine each law in turn to determine whether each was valid
during the time period covered by the indictment.
Resolution 030-95
Resolution 030-95, the law establishing the 5.5-inch size limit for lobsters,
provides for sanctions for noncompliance with its terms. See Resolucion No. 030-
95, Dec. 5, 1995, La Gaceta, Jan. 4, 1996. The defendants argue that Resolution
030-95 never was a binding law,27 because it was not issued in accordance with
27
This argument is inconsistent with McNab’s prior acknowledgment of the validity of the
5.5-inch size limit and his instructions to his lobster boat captains to abide by it. In a letter to his
fishing boat captains, dated October 28, 1999, McNab advised that “[i]t is absolutely prohibited
to capture lobsters under the size allowed by the Law and/or eggbearing lobsters. . . . You will
only keep those lobsters measuring more than 5.5-inches.” A second letter was sent to the
fishing boat captains by the general manager of McNab’s company on July 31, 2000. The
captains were “reminded to comply with the sizes and weights that the lobster caught must fulfill,
which is 5 ½ inches.”
Furthermore, throughout the investigation and after the trial, Honduran officials
repeatedly confirmed that Resolution 030-95 was a valid and binding law. The director general
of the DIGEPESCA confirmed the size limit requirement in three separate letters. Resolution
030-95 was cited by several Honduran officials as a valid and binding law during two trips to
Honduras by NMFS agents, one before and one after the defendants’ trial. Secretary General Paz
27
Honduran constitutional procedure.
The basis for the defendants’ argument that Resolution 030-95 never was a
valid law is an opinion from the Honduran Court of the First Instance of
Administrative Law. 28 In May of 2001 the Honduran administrative law court
found that Resolution 030-95 had been promulgated through an incorrect
procedure and ordered that the resolution was “entirely voided, but this is only for
purposes of [its] annulment and future inapplicability: This Resolution does not
confer any right to claims.” R. at 5:324 Ex. B (emphasis added). Subsequently,
the Honduran Court of Appeals for Administrative Law affirmed the lower court’s
decision invalidating Resolution 030-95. R. at 1 Supp.:415 Ex. C.
There are conflicting opinions from Honduran officials as to the effect of
the court’s annulment of Resolution 030-95 on the defendants’ convictions.29
testified as to the validity of Resolution 030-95 during the pretrial foreign law hearing. Thus, it
is evident that Resolution 030-95 was considered binding by those responsible for its
enforcement.
28
After the trial in the district court had begun, McNab filed a petition in the Honduran
Court of the First Instance of Administrative Law, seeking to annul Resolution 030-95 on the
grounds that the resolution had not been signed by the Honduran president before being issued
and that it should have been issued as a decree rather than as a resolution.
29
The affidavit of the assistant attorney general of Honduras indicates that the decision
annulling Resolution 030-95 does not apply retroactively and does not legalize the shipments of
undersized lobsters retroactively. The attorney general of Honduras, however, offers an
alternative explanation for the prospective language in the court’s decision that favors the
defendants. He contends that Resolution 030-95 was annulled ab initio, that it never was a valid
law and, therefore, cannot serve as a basis for the defendants’ convictions. Although the dissent
accepts his explanation that Resolution 030-95 never was binding and that the prospective
28
While we certainly respect the opinions of the Honduran officials, we base our
determination that Resolution 030-95 was valid during the time period covered by
the indictment upon the Honduran court’s opinion. The Honduran court clearly
stated that Resolution 030-95 was annulled for prospective application only, and
we assume that the Honduran court meant what it said. Although we recognize
that Resolution 030-95 is now invalid, we see nothing in the Honduran court’s
opinion to indicate that the nullification should be applied retroactively. 30 In fact,
the decision mandates prospective application.31 Thus, Resolution 030-95 is a
language merely protects the Honduran government from civil liability, we believe that the
attorney general is extracting meaning from the Honduran court’s decision that is not supported
by the language of the opinion. In addition, although a report from the Honduran national human
rights commissioner advised that Secretary General Paz’s testimony be disqualified as legal error
and that Resolution 030-95 be declared void retroactively, a subsequent meeting between the
commissioner and an NMFS agent revealed that the commissioner was unaware of the factual
background of the prosecution at the time he rendered his report. Furthermore, the commissioner
said that he felt “pressured” by McNab’s representatives to issue a quick decision.
McNab points to the statement of SAG Minister Downing to support his assertion that
aside from Article 96 of the Honduran Constitution, the Honduran appellate court’s decision
mandates retroactivity. Downing bases his opinion that the invalidation applies retroactively
upon an inexplicable assertion that the Honduran appellate court’s opinion “expands” the
Honduran Court of the First Instance of Administrative Law’s opinion and somehow mandates
retroactivity. We, however, find nothing in the Honduran appellate court’s decision requiring
retroactivity, because the Honduran appellate court issued a summary affirmance.
30
We note that with the permission and approval of the minister of the SAG, both
Secretary General Paz and SAG Legal Advisor Jose Bernardo Torres Umanzor confirmed that
the Honduran government continued to enforce Resolution 030-95 as a valid and binding law
while the appeal was pending before the Honduran Court of Appeals for Administrative Law.
They also explained that any annulment of Resolution 030-95 would not be retroactive, because
the Honduran court’s judgment pertained to an administrative matter, not a criminal matter.
31
We briefly address the defendants’ argument that the Honduran Constitution requires
that the invalidation of Resolution 030-95 be applied retroactively in this case. Article 96 of the
29
valid predicate for the defendants’ convictions.32
Regulation 0008-93
Regulation 0008-93 was issued pursuant to Decree 40 and required that
lobsters be inspected and processed in Honduras prior to exportation. See
Honduran Constitution provides, “The Law does not have retroactive effect, except in penal
matters when the new law favors the delinquent or the person that is prosecuted.” Constitución
de la Republicá de Honduras art. 96. Article 96, however, has no application in this case. The
reason that we look to foreign law in Lacey Act prosecutions is to determine what constitutes
illegal conduct. At the time of the defendants’ conduct, harvesting lobsters under 5.5 inches was
a violation of Resolution 030-95. The fact that Honduras now may not hold the defendants liable
for past shipments that contained undersized lobsters does not change the fact that those
shipments violated then-valid Honduran laws and the Lacey Act.
The government’s evidence, both pretrial and posttrial, indicates that because the
Honduran court’s judgment about Resolution 030-95 involved an administrative matter and not a
criminal matter it has no retroactive effect. Although McNab’s evidence, submitted
postconviction, may indicate a contrary view, it is clear that a consensus has not been reached on
this issue in Honduras. Nevertheless, we still must determine the best reading of the laws. See
United States v. Mitchell, 985 F.2d 1275, 1281 (4th Cir. 1993) (“Perhaps, as is the case with
many of our own laws, a consensus has not yet been reached in Pakistan. Yet we are charged
with determining the best reading of the laws.”).
In our judgment, the government’s evidence and a plain language reading of Article 96
require us to find that Article 96 does not apply in this case and that the invalidation of
Resolution 030-95 applies prospectively. Article 96 expressly provides that “[t]he Law does not
have retroactive effect.” This is consistent with the Honduran court’s judgment that the
invalidation of Resolution 030-95 be applied prospectively. The only exception under Article 96
is a “new law” in criminal matters.
McNab’s view requires a finding that “[t]he Law” in Article 96 applies to judicial
declarations of the invalidity of an existing law as opposed to the enactment or promulgation of a
“new law.” The language of Article 96 does not support this view. In the second clause of the
sentence, Article 96 specifically refers to a “new law” that favors the accused. It does not refer to
the absence of a law or a declaration that a law is invalid.
32
The dissent concedes that reversal of the defendants’ convictions is not required if the
invalidation applies prospectively. Further, the dissent concedes that “the language of the
Honduran Court could be construed to mean prospective application only.” We conclude that the
language of the Honduran court opinions requires prospective application only and that nothing
else in the record mandates otherwise.
30
Acuerdo No. 0008-93, Jan. 13, 1993, La Gaceta, Apr. 7, 1993. In January of 1995
the Congreso Nacional enacted Decree 157-94, which repealed and replaced
several existing statutes, including Decree 40. See Decreto No. 157-94, Nov. 15,
1994, La Gaceta, Jan. 13, 1995. In December of 1999 the Secretaria de Recursos
Naturales y Ambiente issued Accord 1081-99, an administrative regulation that
contained updated inspection and processing requirements and expressly repealed
Regulation 0008-93. See Acuerdo No. 1081-99, Sept. 23, 1999, La Gaceta, Dec.
2, 1999.
On the basis of their posttrial research, the defendants argue that Regulation
0008-93 was repealed along with Decree 40 in 1995.33 They contend that the
repeal of Decree 40 operated to repeal the regulations promulgated under it,
including Regulation 0008-93. The defendants argue that the automatic repeal of
regulations triggered by the repeal of the statute under which those regulations
were promulgated is a longstanding principle of Honduran law, and they rely upon
a recent interpretive decree by the Congreso Nacional for support. See Decreto
33
The defendants also raise a second challenge with respect to the propriety of Regulation
0008-93 as a Lacey Act predicate. They argue that even if Regulation 0008-93 were not repealed
until 1999 it falls outside the scope of the Lacey Act, because it is not a law regulating the taking,
possessing, transportation, or sale of wildlife. We disagree. When Congress amended the Lacey
Act in 1981, it expressly stated that the Act covers laws “relating or referring to fish or wildlife
or plants.” S. Rep. No. 97-123, at 5; see also United States v. Lewis, 240 F.3d 866, 869 (10th
Cir. 2001) (per curiam); Lee, 937 F.2d at 1392. Accordingly, our review of the regulation
confirms that it unquestionably relates to fish and is within the scope of the Lacey Act.
31
No. 198-2001, Nov. 1, 2001. That decree expressly provides that “the express
total or partial repeal of a law leaves without legal value or effect the general
regulations and the specific regulations totally . . . that the Executive Branch
through the respective Secretariat of State has issued to implement the provisions
of the repealed Law . . . .” Id.We are unconvinced by the defendants’ argument for two reasons. First, we
question why there is a need to issue an interpretive decree if the concept of an
automatic repeal of regulations is such a longstanding principle of Honduran
law.34 Second, Regulation 0008-93 was repealed expressly by the Secretaria de
Recursos Naturales y Ambiente in 1999 when it issued new rules for lobster
fishing. There would be no need to repeal Regulation 0008-93 expressly in 1999
if it was repealed automatically in 1995.
Furthermore, the Honduran Civil Code provides support for the proposition
34
The evidence in the record contradicts this assertion and establishes that the Honduran
government regarded the hygiene regulation as valid between the time of the 1995 repeal of
Decree 40 and the 1999 express repeal of Regulation 0008-93. The March of 2000 statements by
the Honduran legal advisors described the processing requirements mandated by Regulation
0008-93 and Decree 157-94, the very same decree that the defendants contend repealed
Regulation 0008-93 in 1995. At the pretrial foreign law hearing, the SAG’s Secretary General
Paz testified as to the validity of the processing and inspection requirements. Secretary General
Paz stated that Regulation 0008-93 continued to be enforced in Honduras, because it was only
tacitly repealed in 1995.
32
that Regulation 0008-93 remained in effect until the express repeal in 1999.35
According to the Civil Code, a law may be repealed totally or partially by another
law. Código Civil art. 42. Such a repeal may be express or tacit; it is express
when the new law expressly provides that it repeals the previous one, and it is tacit
when the new law’s provisions cannot be reconciled with the previous law.
Código Civil art. 43. Significantly, a “tacit repeal leaves in effect in the previous
law anything not in conflict with the provisions of the new law, even though both
versions may cover the same matters.” Código Civil art. 44. The 1995 decree did
not repeal Regulation 0008-93 expressly, which means that any repeal of the
regulation was tacit. As Regulation 0008-93 did not conflict with the 1995 decree,
it remained in effect until the 1999 regulation expressly repealed it. Thus, the
district court properly determined that Regulation 0008-93 was valid during the
time period covered by the indictment.
Article 70(3)
Article 70(3) of the Fishing Law prohibits the harvesting or destruction of
35
Not only does the Honduran Civil Code support the district court’s determination that
Regulation 0008-93 was valid during the time period covered by the indictment, the defendants’
interpretation leads to an illogical result. An automatic repeal of Regulation 0008-93 in 1995
would have created a four-year window during which there were no sanitary regulations for
lobster fishing. This would have been an odd result considering that the 1995 decree issued by
the Congreso Nacional was intended to strengthen the hygiene requirements.
33
lobster eggs. See Decreto No. 154, May 19, 1959, La Gaceta, June 17, 1959. The
defendants argue that Article 70(3) does not prohibit the destruction or collection
of lobster eggs for profit. They contend that the district court’s interpretation that
the law prohibited the harvesting of the egg-bearing species themselves was
erroneous.36
We fail to see how Article 70(3) can be read other than to prohibit the
destruction or harvesting of the eggs of lobsters for profit. The destruction of eggs
to sell the female lobsters appears to be a clear violation of Article 70(3), which
provides for punishment by fine or imprisonment to “[t]hose who destroy or
harvest the eggs, or the offspring of fish, chelonians or other aquatic species for
profit.” Id. The defendants’ argument regarding the legality of capturing egg-
bearing lobsters is contrary to the plain language of Article 70(3).37
36
Lobsters have swimming legs on their abdomens called swimmerets, which female
lobsters use to hold eggs. 7 The New Encyclopedia Britannica 430 (15th ed. 1998). The
swimmerets of some of the lobsters in the seized shipment were clipped off and the eggs were
removed.
37
Not only is their interpretation contrary to the plain language of Article 70(3), it directly
conflicts with McNab’s own instructions to his boat captains that harvesting egg-bearing lobsters
was prohibited. The October 1999 letter from McNab to his fishing boat captains provided that
“[i]t is absolutely prohibited to cut the pleopods of the Lobsters to remove any eggs . . . . All the
lobsters with eggs will be returned to the sea without any exception. For that purpose, you will
have to instruct the fisherman who work in the boats on how to identify them.” The letter from
McNab’s general manager to the captains in July of 2000 instructed that they may “not capture
lobsters that are in their reproductive phase or gravid lobsters (with eggs). It is absolutely
prohibited to remove egg sacs from the lobster to remove its eggs . . . .”
34
The defendants also argue that Article 70(3) was repealed retroactively in
February of 2001 by the enactment of Decree 245-2000 by the Congreso Nacional.
As stated above, our duty with respect to each of the Honduran laws is to
determine whether they were valid during the time period covered by the
indictment. Whether the 2001 amendment to Article 70(3) repealed the
prohibition against harvesting egg-bearing lobsters for profit is not our concern.
Thus, we reject the defendants’ argument that Article 96 of the Honduran
Constitution requires that we apply the 2001 amendment retroactively for the
reasons stated with respect to Resolution 030-95. Accordingly, we conclude that
Article 70(3) was a proper predicate for the defendants’ convictions.
Thus, the defendants’ newfound support from the Honduran government
does not change the fact that during the time period covered by the indictment, the
laws at issue were valid. Although we certainly respect the Honduran
government’s position, the recent developments since the trial and the newly
rendered opinions from Honduran officials cannot turn what were illegal lobster
shipments into legal lobster shipments retroactively.
Having determined that Resolution 030-95, Regulation 0008-93, and Article
70(3) were valid during the time period covered by the indictment and thus were
proper predicates for the Lacey Act charges, we now briefly address the
35
defendants’ remaining issues on appeal. The defendants argue that (1) the district
court abused its discretion by excluding evidence at trial relating to McNab’s
“knowledge” of Honduran law; (2) the district court made several errors with
respect to the jury instructions; (3) there was insufficient evidence to support the
jury’s verdicts; and (4) the district court erred in failing to postpone Schoenwetter
and Blandford’s sentencing and in determining the length of their sentences. After
thoroughly reviewing the record, we find that these issues are without merit.
CONCLUSION
Thus, we conclude that the Honduran laws used as the underlying predicates
for the defendants’ convictions fall within the scope of the Lacey Act and were
valid and legally binding during the time period covered by the indictment. The
remaining issues raised by the defendants were decided properly by the district
court or are without merit. We therefore AFFIRM the defendants’ convictions and
sentences.
36
FAY, Circuit Judge, dissenting:
The majority opinion is both thorough and scholarly in dealing with this
complicated matter. With some hesitation, I most respectfully dissent from that
portion of the majority opinion upholding the validity of Honduran Resolution
030-95. The theme of the majority opinion is that the government of Honduras
has “shifted” its position. The question for determination is phrased as being
complicated by the changed or new position of the Honduran government. The
majority then decides this issue within the framework of whether or not we are
free to follow the Honduran government’s original position.
Try as I might, I simply cannot read this record that way. There was never
unanimity nor agreement concerning the validity of Resolution 030-95. That
question was hotly contested. But, throughout the course of this litigation, the
resolution of that question was based upon the weight given by the trial judge to
the evidence presented by the U.S. government during a pretrial hearing on foreign
law. At that time, the Honduran courts had not ruled. Now they have.
It should come as no surprise to anyone that some of the “expert” witnesses
were correct and some were wrong. Nor should we be surprised that it was the
courts of Honduras which ultimately answered the question. That is the way it
works in Honduras and in the United States of America. Simply stated, it is my
37
position that we are bound by the rulings of the Honduran courts declaring
Resolution 030-95 null and void. This being the case, the defendants convictions
must be reversed since one of the Honduran laws relied upon by the jury in finding
guilt has now been found to be a nullity.
Most respectfully, I disagree with the majority’s conclusion that the
government of Honduras has changed its position. Government officials testified
on both sides of the issue before the district court. There was no one official voice
for the government of Honduras. But, there is now. The Honduran courts have
ruled and the Honduran Embassy has filed an amicus brief advising us of the
Honduran government’s position - Resolution 030-95 is null and void and was so
during the critical time charged in the second superceding indictment. That is the
only official government position I am aware of in this record.
We all agree that the key component to any alleged Lacey Act §
3372(a)(2)(A) violation is the commission of a predicate State or Foreign offense
concerning fish or wildlife. We further agree that, for purposes of these appeals,
three predicate offenses are pertinent. Of those three, my concern goes to
Resolution 030-95 concerning the minimum legal size of harvested lobster tails.
As the majority correctly notes, the district court properly conducted a
foreign law hearing to determine whether Resolution 030-95 was, in fact, a valid
38
Honduran law during the time period charged in the second superseding
indictment. Over the testimony of an expert in Honduran law, a Honduran law
professor and former Ministry of Justice, the then Attorney-General of the
Republic of Honduras, the Honduras Bar Association and others, the District
Court, based upon the testimony of one lower-level Honduran government official,
Liliana Paz, Secretary General of the Ministry of Agriculture and Livestock,
concluded that Resolution 030-95 was a valid law.
Following trial and conviction, defendant David Hensen McNab (“McNab”)
challenged the validity of Resolution 030-95 in the Court of First Instance of
Administrative Law in Honduras (“Honduran Court”). That challenge was
opposed by an attorney representing the government of Honduras. At the
conclusion of that proceeding, the Honduran Court declared Resolution 030-95 to
be null and void. Specifically, on May 23, 2001, the Honduran Court found:
First: . . . [Resolution 030-95] [does] not conform to law
by virtue of having violated the legal code at the time [it]
[was] issued. Second: the challenged [Resolution] . . . ,
No. 030-95 of December 5, 1995, [is] entirely voided,
but this is only for purposes of [its] annulment and future
inapplicability: This Resolution does not confer any right
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to claims.
R. at 5:324 Ex. B. The Honduran Court premised its decision on the fact that
Resolution 030-95 was not properly issued by the President of the Republic of
Honduras and authorized by the proper Secretary or Under Secretary of State as is
required under Honduran law. Subsequently, the government of Honduras
appealed the Honduran Court’s ruling to the Court of Appeals of Administrative
Matters (“Honduran Court of Appeals”) which on October 11, 2001, confirmed the
correctness of the Honduran Court’s decision.
The rulings of the Honduran courts do raise a second question as to whether
or not the ruling applies retroactively. As quoted above, the language of the
Honduran Court could be construed to mean prospective application only. That is
the position the majority takes in this case. Therefore, the critical question before
this court is whether or not Resolution 030-95 was valid at the time of the
defendants’ conduct as charged in the second superceding indictment. This
question is determined by whether the invalidation of Resolution 030-95 is to be
applied retroactively or prospectively. If the invalidation of Resolution 030-95 is
to be applied retroactively, it seems to me that reversal of the defendants’
convictions is mandated. If invalidation is to be only applied prospectively,
40
reversal is not required.
We all agree that we review a district court’s interpretation of foreign law
de novo. United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (en banc).
We also agree that under certain circumstances an underlying Lacey Act predicate
offense need not be independently prosecutable. See United States v. Borden, 10
F.3d 1058 (4th Cir. 1993) (affirming Lacey Act conviction where the enforcement
of underlying predicate state law was barred by applicable state statute of
limitations but not by federal statute of limitations). However, Borden, or any
similar case, is fundamentally different than this case where the predicate
substantive criminal law supporting the Lacey Act convictions cannot be enforced,
not because of a procedural bar, but because the law itself has been invalidated by
the courts through nullification. In other words, what was thought to be a crime
turns out to not be a crime under Honduran law. It bears noting that had U.S. law
been implicated, reversal of the convictions would not be in question and the case
would easily be resolved in the defendants’ favor. In the United States, where a
substantive criminal law is subsequently declared to be invalid by the courts, any
convictions thereon would be reversed.
Further troubling is the fact that as a matter of Honduran constitutional law,
these defendants could not be tried and convicted for violation of Resolution 030-
41
95 in Honduras. In Honduras, as in the United States, any criminally enforceable
statute later declared to be invalid by the courts is retroactively applied to any
criminal defendant. Article 96 of the Honduran Constitution specifically provides,
“[t]he Law does not have retroactive effect, except in penal matters when the new
law favors the delinquent [(i.e., criminally convicted)] or the person that is
prosecuted.” Constitución de la Republicá de Honduras art. 96.
The majority makes note of Article 96 but simply asserts its inapplicability
by concluding that “[a]t the of time the defendants’ conduct, harvesting lobsters
under 5.5 inches was a violation of Resolution 030-95.” As stated above, if the
invalidation of Resolution 030-95 is retroactively applied, as I believe it must be,
then at the time of the defendants’ conduct, there would not have been a violation
of Resolution 030-95. To this point, there are authorities in the record which I
find particularly relevant in deciding whether the Honduran Court’s invalidation
of Resolution 030-95 should be retroactively applied.
We start with the official voice of Honduras in the United States. The
country of Honduras, through its Embassy in Washington, D.C., has filed an
amicus brief stating unequivocally that retroactive application is the law of
Honduras. The current Attorney General of the Republic of Honduras, Sergio
Zavala Leiva, the National Human Rights Commissioner of the Republic of
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Honduras, Leo Valladares Lanza,1 the current Secretary of State of the Offices of
Agriculture and Livestock, Guillermo Alvarado Downing and Secretary
Downing’s subordinate and star U.S. government witness before the district court,
Secretary General of the Ministry of Agriculture and Livestock, Liliana Paz, all
support the position that retroactive application is required. The only witness
presented suggesting that retroactive application is not required is Juan Arnaldo
Hernandez Espinoza, an Assistant Prosecutor General of the Public Ministry of the
Republic of Honduras.2 Thus, the overwhelming evidence before this court is
squarely on the side of the retroactive application of the invalidation of Resolution
030-95. I can come to no other conclusion.
1
Although his opinion was never altered, amended or changed in any manner, the
majority notes that a National Marine and Fisheries Service agent who interviewed
Commissioner Lanza indicated that Commissioner Lanza revealed that he felt “‘pressured’ by
McNab’s representatives to issue a quick decision.”
2
In his opinion, Assistant Attorney General Espinoza (“Espinoza”) indicates that there is
no retroactive application of the invalidation of Resolution 030-95 because “the sanction to
which [the defendants’] conduct applies is based on a measure that originates in the Fishing Law
and not in the activity of the Executive Branch.” Appellee’s Addendum of Foreign Law
Materials at tab 1. Upon closer examination, it becomes clear that Espinoza’s opinion is
premised on the assumption that the Fishing Law, not Resolution 030-95, defines the minimum
lobster harvest size. Therefore, invalidation of Resolution 030-95, a resolution implemented
pursuant to the authority of the Fishing Law, is without import and the question of retroactivity is
rendered irrelevant. This opinion is mistaken for two critical reasons. Firstly, Espinoza’s
opinion ignores the fact that, for purposes of U.S. law, the predicate act the defendants were
charged with violating is Resolution 030-95, not the Fishing Law. Secondly, Espinoza’s opinion
ignores the fact that, with regard to minimum lobster harvest size, the Fishing Law is silent and
directs such restrictions to be fashioned pursuant to regulation. See Decreto No. 154, May 19,
1959, La Gaceta, June 9, 1959, art. 70.
43
As to the appropriate interpretation of the Honduran Court’s use of the
terms “annulment” and “future inapplicability,” Attorney General Leiva provides
the most reasoned and reasonable explanation. Attorney General Leiva explains:
The reason that the laws of Honduras and, in particular,
the Court of Administrative Appeals, with its specific
language in its judgment, only set forth its future
inapplicability is to guarantee the legal security of the
State, protecting it from damages and losses that could
have been caused by the enforcement of an act that is
null and void as a matter of law.
(Leiva Decl. ¶ 8).
Apparently, in Honduras the government may be subject to civil liability for
the enforcement of a subsequently declared invalid law. Therefore, in the context
of Honduran law, the Honduran Court’s language makes sense and simply seeks to
limit the government’s liability and protect its treasury. The precise language of
the Honduran Court supports this interpretation. Following the use of
“annulment” and “future inapplicability” is a colon followed by the following
illuminating language, “[t]his Resolution does not confer any right to claims.”
Thus, Attorney General Leiva’s explanation, as compared to the other evidence
before the court, is most compelling. Furthermore, this court should not interpret
Honduran law in a vacuum. As stated above, in Honduras, Article 96 of the
Honduran Constitution retroactively applies the invalidation of Resolution 030-95
44
to any criminal defendant. The Honduran Court certainly would have been aware
of the existence and effect of Article 96 when crafting the language and scope of
its opinion and this court should seek to interpret the Honduran Court’s opinion in
its proper context.
The majority advances the important principle of finality in support of its
decision. As a general proposition, I agree that finality is an important aspect of
American jurisprudence. However, in the context of an invalidated substantive
criminal law which forms the basis of a criminal prosecution or conviction,
reliance on the concept of finality is misplaced. As stated above, under both U.S.
and Honduran law, retroactive application is warranted for a criminal defendant
charged or convicted of a subsequently declared invalid criminal statute. Cf.,
Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109,
119 (1974) (in the context of a petition for relief pursuant to 28 U.S.C. § 2255,
concluding that if conviction and punishment are for an act not made criminal by
the law, “[t]here can be no room for doubt that such a circumstance inherently
results in a complete miscarriage of justice . . . .” (Internal quotations omitted)).
For emphasis, I repeat again that the majority opinion discusses extensively
and is strongly critical of the changed position or shift by the Honduran
government. While that terminology may give comfort to the majority, it is simply
45
not accurate. While various government officials gave conflicting opinions
regarding the validity of Resolution 030-95, this was before the Honduran courts
ruled. The Honduran courts have now ruled and both agree, Resolution 030-95
was null and void. The majority casts this in an unfavorable light akin to
something sinister. In my opinion, this is no different than what occurs routinely
in our country. Attorneys, and even the Attorney General of a state or the United
States, often express opinions about statutes only to find that after a court
challenge, they were wrong. That is all that happened here. Some of the experts
were right; some were wrong. But, the Honduran courts have now spoken and
there is simply no doubt that Resolution 030-95 is null and void as if it never
existed.
To suggest that the newly issued statements and opinions of Honduran
officials do not carry the weight of the earlier statements is a strange position for
members of the judiciary. The so-called “shift in position” is the result of lawful
litigation within the courts of a foreign nation. I think we would be shocked
should the tables be reversed and a foreign nation simply ignored one of our court
rulings because it caused some frustration or inconvenience.
The evidence in this case supports the conclusion that the defendants were
guilty of knowingly violating the law at the time they harvested, shipped and sold
46
these “shorts.” The prosecutors did their very best to establish the law of
Honduras which is essential under the Lacey Act. It is easy to understand the
frustration inherent in this present situation. But, the Lacey Act, by its very terms,
is dependent upon the laws of a foreign sovereign. In this situation, we do not
control the outcome of challenges made to those underlying laws. No one has
suggested that McNab was not exercising his lawful rights as a citizen of
Honduras or that the courts of Honduras were without authority to issue the
decisions they did.
Most reluctantly, I therefore dissent.
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