United States v. Huang

2002 WL 32593948 (11th Cir.)

United States Court of Appeals, Eleventh Circuit.

Diane H. HUANG, Defendant-Appellant, v. UNITED STATES OF AMERICA, Plaintiff-Appellee.

No. 01-15148-JJ.

January 04, 2002.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA MOBILE DIVISION

Reply Brief of Appellant Diane H. Huang

John M. Tatum, Esq., Georgia Bar Number 699000, Dennis B. Keene, Esq., Georgia Bar Number 410801, Hunter, Maclean, Exley & Dunn, P.C., Alex L. Zipperer, Esq., Georgia Bar Number 785900, Zipperer & Lorberbaum, 200 East Saint Julian Street, Savannah, Georgia 31412, (912)236-0261

Attorneys for Appellant Diane H. Huang

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iii-v

ARGUMENT ... 1

I. The invalidity of Honduran "law" on which the Government's case is based requires reversal of Mrs. Huang's convictions on counts one and thirteen through twenty-seven ... 1

A. Resolution 030-95 has never been valid Honduran law and cannot serve as the underlying "foreign law" in support of the Lacey Act counts ... 2

B. The repeal of Agreement 0008-93 and deletion of Article 70(3) from the Fishing Law of 1959 ... 5

II. The Government attempts to impermissibly shift the burden of proof to the Defendants to show that the "foreign law" utilized by the Government in its Lacey Act prosecution is invalid when Rule 26.1, Federal Rules of Criminal Procedure, requires the proponent of the "foreign law" to establish its validity ... 6

III. Ms. Huang is not estopped from seeking the reversal of counts one and thirteen through twenty-seven on the grounds that the convictions on those counts were based on invalid foreign law ... 7

IV. The Government incorrectly analyzes the Florida law provisions relied upon in its Lacey Act prosecution as Florida Statute § 370.07 (1996) and Florida Administrative Code Ann R. 68B-24.003 only regulate lobster harvested in Florida waters, and there is no evidence to establish a violation of Florida Administrative Code Ann R.68B-24.007 in counts twenty-three through twenty-seven ... 11

*ii V. Reversal is required as to counts twenty-three through twenty-seven if all three alleged violations of Florida law are incorrect, regardless of the validity of the Honduran law relied upon by the Government in those counts ... 17

VI. Per se reversible error occurred when the district court constructively amended the Indictment by instructing the jury that it could convict Mrs. Huang based on Florida law not charged in the Indictment ... 17

VII. There is insufficient evidence to support a conviction on count forty seven (the false labeling provision of the Lacey Act) as there is no evidence that the harvested lobster were "Honduran" lobster, or that the lobster were not products of the United States ... 19

VIII. The case law cited by the Government concerning the conviction for conspiring to launder money (§ 1956(a)(1)(A)(i)) does not preclude this Court from determining that the Government failed to produce any evidence establishing Mrs. Huang conducted a financial transaction that "promoted" any unlawful activity ... 22

CONCLUSION ... 27

CERTIFICATE OF COMPLIANCE ... 27

CERTIFICATE OF SERVICE ... 28

*iii TABLE OF AUTHORITIES

CASES

Bell v. Maryland, 378 U.S. 226 (1964) ... 3-4

Conn. Nat'l Bank v. Germain, 503 U.S. 249 (1992) ... 2, 6, 12-14

Griffin v. United States, 502 U.S. 46 (1991) ... 8, 17

National Fisherman Producers Co-operative Society, Ltd. of Belize v. Florida, 503 So.2d 430 (Fla. Dist. Ct. App. March 3, 1987) ... 12, 21

Southeastern Fisheries Assoc. v. Dep't. of Nat. Resources, 453 So. 2d 1351 (Fla. 1984) ... 12-13

Stirone v. United States, 361 U.S. 212 (1960) ... 18

United States v. Ahmad, 974 F.2d 1163 (9th Cir. 1992) ... 11

United States v. Calderon, 169 F.3d 718 (11th Cir. 1999) ... 26

United States v. Cancelliere, 69 F.2d 775 (11th Cir, 1995) ... 18

United States v. Carcione, 272 F.3d 1297 (11th Cir. 2001) ... 22-26

United States v. Chambers, 219 U.S. 217 (1934) ... 4

United States v. Elkin, 885 F.2d 775 (11th Cir 1989) ... 8

United States v. Keller, 916 F.2d 628 (11th Cir. 1990) ... 19

United States v. Kimes, 246 F.3d 811 (6th Cir. 2001) ... 8, 10

United States v. Peel, 837 F.2d 975 (11th Cir. 1988) ... 18

United States v. Pena-Lora, 225 F.3d 17 (1st Cir. 2000) ... 8, 10

*iv United States v. Schaff, 948 F.2d 501 (9th Cir. 1991) ... 11

United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801) ... 3-4)

United States v. Shotts, 145 F.3d 1289 (11th Cir. 1998) ... 8

United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985) ... 7

United States v. Stone, 139 F.3d 822 (11th Cir. 1998) ... 10

United States v. Weissman, 899 F.2d 1111 (11th Cir. 1990) ... 18

Zimmer v. McKune, 87 F.Supp. 2d 1153 (D. Kan. 2000) ... 16

STATUTES

1 U.S.C. § 109 ... 4

16 U.S.C. § 3372 ... 1, 6, 25-26

16 U.S.C. § 3373 ... 6, 25-26

18 U.S.C. § 1951 ... 25

18 U.S.C. § 1956(a)(1)(A)(i) ... 22, 24-26

Fla. Stat. § 370.01 ... 12

Fla. Stat. § 370.07 ... 11-12, 14, 17

Fla. Stat. § 370.14 ... 12, 14

REGULATIONS & RULES

19 C.F.R. § 177.22(a) ... 21

*v Rule 26.1 Federal Rules of Criminal Procedure ... 6

Fla. Admin. Code Ann. R. 68B-24.003 ... 11-12, 14, 17-18

Fla. Admin. Code Ann. R. 68B-24.007 ... 11, 14-15

TREATISES

Moore's Fed. Pract. & Proc. § 31.02(3) ... 10

HONDURAN PROVISIONS

Agreement 0008-93 (Jan. 13, 1993) ... 1, 5

Decree 154, Art. 70(3) (May 19, 1949) ... 5

Decree 157-94 (Nov. 15, 1994) ... 5

Decree 245-2000 (Feb. 1, 2001) ... 5

Resolution 030-95 (Dec. 5, 1995) ... 1-3

*1 ARGUMENT

I. The invalidity of Honduran "law" on which the Government's case is based requires reversal of Mrs. Huang's convictions on counts one and thirteen through twenty-seven [FN1]

FN1. Count one is a conspiracy count with four discrete subparts, all of which are premised on the invalid Honduran points of law discussed in Mrs. Huang's Initial Brief. Two subparts allege violations of the Lacey Act, which require a determination that Mrs. Huang violated the Honduran points of law. The remaining subparts, conspiracy to smuggle and launder money, rely on the Lacey Act violations, which in turn rely on the Honduran points of law. The invalidity of the Honduran points of law mandates a reversal as to the entire count.

The Government's case against the Defendants focused on Mr. McNab's fishing company's harvesting and "smuggling" into the United States undersized lobster captured in international waters off the shore of Honduras, which purportedly violated the Lacey Act, 16 U.S.C. § 3372. [FN2] The Honduran "law" relied upon by the Government in support of the Lacey Act allegations boils down to five points which were given in instructions to the jury (R33-1589 to 1590). The three primary points, the validity of which are in contention, are Resolution 030-95 (relating to size limits), Agreement 0008-93 (relating to sanitation requirements) and Article 70(3) of the *2 1959 Honduran Fishing Law (relating to egg-bearing lobster) (see Government's Response Brief served December 24, 2001, at pp. 20-37; hereinafter "Gov't. Br. at p._"). These Honduran laws on which the Government's case is based are invalid. Moreover, the Honduran resolutions and regulations relied upon by the Government are not "foreign law" as defined in the Lacey Act. The act strictly requires the violation of "state laws and regulations" and "foreign laws" without any reference to foreign regulations. Despite the Government's position to the contrary, "courts must presume that a legislature says in a statute what it means and means in a statute what it says." Conn. Nat'l. Bank v. Germain, 503, U.S. 249, 254 (1992). In addition to the arguments made herein, Mrs. Huang adopts and incorporates by reference Mr. McNab's reply brief which further addresses the Government's position regarding the Honduran law provisions.

FN2. The Government's Response Brief states "[m]ost of the offenses of which the defendants were convicted were in some way contingent on the jury finding that the shipments of Honudran lobsters identified in the indictment had been taken, possessed, transported, or sold in violation of Honduran law or Florida law." (Gov't. Br. at p. 45).

A. Resolution 030-95 has never been valid Honduran law and cannot serve as the underlying "foreign law" in support of the Lacey Act counts.

The appropriate Honduran courts annulled Resolution 030-95 thereby confirming that the Resolution was never properly promulgated and is thus invalid. The Government now asks this Court to overrule the Honduran courts.

Envisioning that this Court will not set aside the Honduran court's own decision to annul Resolution 030-95, the Government attempts to side step the merits *3 of the issue by asking this Court to declare that the Resolution's nullification should only be applied prospectively (Gov't. Br. at pp. 30- 35). This argument fails for the following reasons: 1) the arguments concerning the invalidity of the Resolution were made prior to the trial, and the Honduran court merely confirmed what Defendants already argued was the proper state of the law in Honduras, a de novo review of the District Court's ruling will not require a retroactive application of the Honduran court's ruling; 2) the Government should be estopped from urging the retroactive application of the annulled Resolution in light of its insistence and representations made to the District Court that the Defendants' only form of redress would be through an annulment proceeding, which would be reviewed de novo (R23-21); and 3) even if the Defendants failed to argue pretrial the invalidity of Resolution 030-95, precedent requires this Court to apply the current law at the time this appeal is considered.

This third point requires further discussion because the Government attempts to distinguish the controlling precedent (Gov't. Br. at p.34). Bell v. Maryland, 378 U.S. 226, 232 (1964), held that the repeal of a criminal law has retroactive effect on a pending criminal proceeding. "If subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the lawmustbe obeyed, or its obligation denied." *4United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801); see Ml, 378 U.S. at 232 (proceeding is deemed pending as long as the judgment of conviction has not yet become final). This point of law is particularly applicable in a criminal case. United States v. Chambers, 219 U.S. 217, 226 (1934) ("prosecution for crimes is but an application or enforcement of the law, and, if the prosecution continues, the law must continue to vivify it"). The Government unconvincingly attempts to distinguish Bell by arguing that Bell only "involved an interpretation of Maryland common law" (Gov't. Br. at p.34) and that the savings clause of 1 U.S.C. § 109 is the applicable law. First, Bell offers nothing to support the Government's conclusion that its holding is limited to interpreting state common law. Bell applies "to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition." Bell, 378 U.S. at 230 (emphasis added). The holding is clearly not limited to any given state's common law. Second, 1 U.S.C. § 109 has no application to the instant case because that statute's "savings clause" only applies to federal laws native to this country, not foreign resolutions. Bell provides the appropriate standard: apply the existing law at the time of the appeal. Applying the existing law at the time of this appeal requires reversal of counts one and thirteen through twenty-seven.

*5 B. The repeal of Agreement 0008-93 and the deletion of Article 70(3) from the Fishing Law of 1959.

The significance of a de novo review of the District Court's determination of foreign law becomes apparent in light of the changes to two of the provisions of Honduran law relied on to support the Lacey Act violations. First, Decree No. 245-2000, effective February 5, 2001, deleted Article 70(3) of the Fishing Law (R1 5-397-10)(Mrs. Huang's RE6 at p. 10). The "new" Article 70 no longer contains the very language relied upon by the Government as part of count one of the Indictment. Second, Agreement 0008-93 was issued pursuant to Decree No. 40 (R1 5-397-7). On January 13, 1995, prior to any of the acts alleged against Mrs. Huang in the Indictment, Decree No. 157-94 expressly repealed Decree No. 40 (R1 5-397-7). Under Honduran law, the express repeal of Decree No. 40 operated to repeal Agreement 0008-93.

As discussed in Section II of this Brief, the Government, as the proponent of the foreign law, had the burden of establishing the validity of the foreign law. Whether the Government met its burden of establishing the validity of these foreign law provisions during the hearing is questionable based on the subsequent events discussed above. With respect to Article 70(3), the Government fails to present any evidence or argument as to why the Honduran legislature elected to delete this *6 provision. As the Government points out, "courts must presume that a legislature says in a statute what it means and means in a statute what it says" (Gov't. Br. at p. 58, citing Conn. Nat'1 Bank v. Germain, 503 U.S. 249, 254 (1992)).

The Government seeks to reverse the settled principle that it alone bears the burden of proof in a criminal prosecution as to the elements of the charged offense. An element of the Lacey Act counts is that each defendant violated "state law or regulation or foreign law..." 16 U.S.C. §§ 3372 and 3373. The Government relies on nothing more than the inapplicable premise that "statutes and regulations are presumed valid until shown otherwise" and cites two cases that give the examples that Department of Treasury and Social Security Regulations are presumed valid (Gov't. Br. at p. 20). This appeal is not premised on the Defendants challenging the constitutionality of the Lacey Act, which might require the presumption of the Act's validity. Rather, this appeal focuses on the Government's reliance on invalid Honduran legal principles which were determined to be applicable law pursuant to Rule 26.1, Federal Rules of Criminal Procedure.

The Government cites no Lacey Act case wherein the burden of proving the invalidity of the state or foreign law relied upon in the prosecution had been borne *7 by the defendant. [FN3] To the contrary, Defendants cited United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985). Sohappy held "Congress did not intend to relieve the federal government, in a Lacey Act prosecution incorporating a state law violation, of the burden of establishing the state law's validity." Id at 823. The Government's attempt to render this point of law as a meaningless "exception" (Gov't. Br. at p. 21) provides no guidance for this Court and is an apparent attempt by the Government to avoid the invalidity of the Honduran provisions at issue in this appeal.

FN3. The Government did, however, recognize during the Rule 26.1 hearing its burden of proving the validity of any foreign law: "The Resolutions that we have dropped, we didn't drop them because they are invalid.... We dropped them because we could not confirm that they were [properly] published... If we can't confirm it, and it is our burden to do so. we are not going to rely on it." (R21-396).

III. Ms. Huang is not estopped from seeking the reversal of counts one and thirteen through twenty-seven on the grounds that the convictions on those counts were based on invalid foreign law.

The Government recognizes that "under most circumstances" if the District Court's determination of Honduran law was erroneous, this Court must reverse any convictions potentially based on invalid law erroneously given in the jury charge (Gov't. Br. at p.42). According to the Government, "special and unusual circumstances of this case" estop Defendants from claiming the benefit of this rule. Id The Government, however, fails to identify any such circumstances to warrant that drastic result.

*8 A. The law requires reversal due to the use of the general verdict form.

The controlling precedent, Griffin v. United States, 502 U.S. 46 (1991), recognizes a distinction between an invalid general verdict relying on inadequate legal bases as opposed to invalid evidentiary bases. See also United States v. Shotts, 145 F.3d 1289, 1293, n.3 (11th Cir. 1998) ("a general verdict which rests upon an insufficient legal theory must be reversed"); United States v. Elkin, 885 F.2d 775 (11th Cir. 1989). In the instant case, the general verdict form used at the discretion of the district judge resulted in convictions which are most likely based on invalid Honduran laws. The Government's decision to prosecute a case based on invalid foreign law does not create "special and unusual circumstances" that preclude this Court from reversing the convictions on counts one and thirteen through twenty-seven as required by Griffin.

B. Mrs. Huang did not induce the District Court to use a general verdict form.

It was not "error" for the District Court to sua sponte refuse to use the Government's requested special verdict form. A court's decision to use a special verdict form lies within its sound discretion. United States v. Kimes, 246 F.3d 811 (6th Cir. 2001); United States v. Pena-Lora, 225 F.3d 17 (1st Cir. 2000). Even assuming arguendo that the District Court's decision constituted error, Mrs. Huang did not invite such error, despite the Government's contention to the contrary (Gov't. *9 Br. at p. 43,n.21). [FN4] Mrs. Huang did not object to the Government's request to use the special verdict formnor did she "adopt" any other Defendant's statements concerning the use of the special verdict form. In support of its position the Government refers this Court to one statement made by counsel for Mr. Blandford, which does not constitute an objection to the use of a special verdict form, but was rather made in response to a specific question from the district judge:

FN4. The Government refers this Court to record cites R39-95 and R40-5 for the contention that "the defendants expressly adopted each other's trial objections." (Gov't. Br. at p. 43), R39-95 refers to Mr. Schoenwetter's counsel adopting co-defendants' arguments made during sentencing. It is not conceivable that counsel can adopt co-defendants' objections made during trial at a post-trial proceeding. Moreover, R26-476 provides an example of when the remaining Defendants specifically joined in an objection made by counsel for Mr, McNab, which the district judge permitted them to do on that one issue. This clearly implies there was no understanding or practice during the trial that any objection made was deemed to have been made by all defendants.

THE COURT: All right. What do the Defendants say about the Government's suggested charge?

MR. CLARK: Not much other than the fact that why can't we just do it, we, the jury, find the Defendant as to Count One, Count Two, Count Three, and not have all the interrogatories.

(R33-1575). No other cite to the record is given by the Government that suggests Mrs. Huang objected to the use of a special verdict form. [FN5] Mr. Clark's opinion as to *10 "not thinking much" of the interrogatories is not a recognized objection nor is the remainder of his comment as it merely questions the need for a special verdict form. After the Government gave its reasons for wanting to use the special verdict form (R33-1575) no other comment, objection or statement in support of or against the use of the form was made by any Defendant. The district judge, however, in refusing to give the special verdict form, expressed his concern about the jury not being "able to figure it out" and that it would take the jury "six months to do it." (R33- 1576). The District Court's concerns cannot be translated into "invited error" by any of the Defendants and such concerns are accepted reasons for not using a special verdict form. "[I]n general, special verdict forms are not favored and 'may in fact be more productive of confusion than clarity."' Kimes, 246 F.3d at 810 quoting 8A Moore's Federal Practice & Procedure § 31.02(3) at 31-9.

FN5. The Government's other reference to an "objection" being made by Mrs. Huang is that the Government noted on the record that the special verdict forms "were objected to by the Defendants" (Gov't. Br. at p. 43, n.21, citing R33-1633). This objection by silent acquiescence should be carefully scrutinized particularly in light of the fact that when Government counsel "noted" "Defendants' objection" to the special verdict form (R3-1633), the record indicates all counsel had just been instructed by the court to look at the trial exhibits prior to their being given to the jury for deliberation and were in the process of doing that. Thus, whether the comment was even heard is verv questionable (see R33-16331

"The doctrine of invited error is implicated when a party induces or invites the District Court into making an error." United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998)(holding defendant did not invite error by requesting jury instruction). *11 Based on the discussion, supra., it was not error for the District Court to utilize a general verdict form. There is no allegation by the Government that the general verdict form was legally incorrect [FN6] and the District Court did not abuse its discretion in using the general verdict form.

FN6. The Government even concedes "the district court's decision to submit general verdict forms was not necessarily legal error" (Gov't. Br. at p. 44).

Even assuming the existence of error and that Mrs. Huang in some manner "invited" the error, such error is still reversible due to the invalid Honduran law relied upon in the prosecution, which, if not reversed, would result in a miscarriage of justice and impugn the integrity of the judicial process. See United States v. Ahmad, 974 F.2d 1163 (9th Cir. 1992): United States v. Schaff, 948 F.2d 501 (9th Cir. 1991).

IV. The Government Incorrectly analyzes the Florida law provisions relied upon in its Lacey Act prosecution as Florida Statute § 370.07 (1996) and Florida Administrative Code Ann. R. 68B-24.003 do not regulate lobster harvested in International waters, and there is no evidence to establish a violation of Florida Administrative Code Ann. R. 68B-24.007 in counts twenty-three through twenty-seven.

A. Florida Statute § 370.07 (1996) and Florida Administrative Code Ann. R. 68B-24.003.

Mrs. Huang argues that Florida Statute § 370.07 and Florida Administrative Code Ann. R. 68B-24.003 do not apply to lobster harvested in waters outside the territorial waters of Florida. Section 370.07 requires in-state dealers of "salt water" *12 products to be licensed. Rule 68B-24.003 regulates certain undersized lobster within the state. The Government asserts that neither the statute nor the rule "contains any language limiting its application to lobsters harvested in Florida" and that Mrs. Huang failed to "cite[] any case law or legislative or administrative materials that adopt her interpretation of the two provisions." (Gov't. Br. at p.58). The Government's position completely ignores Mrs. Huang's discussion of Florida Statute § 370.01(5), which defines the terms used in chapter 370 (to include § 370.07) and expressly limits the term "salt water" to "all of the territorial waters of Florida," Similarly, when Rule 68B-24.003 was promulgated it specifically limited its application to Florida waters by deleting the language contained in its predecessor statute, Florida Statute § 370.14, that made that statute apply beyond the Florida waters. The former Florida Statute § 370.14 prohibited the possession of undersized lobster "regardless of where taken." See National Fisherman Producers Co-operative Society. Ltd, of Belize v. Florida, 503 So.2d 430, 432, n.3 (Fla. Dist. Ct. App. March 3, 1987). Rule 68B-24.003 deleted that language. The deletion can only mean that the rule-making body intended to limit the jurisdiction of the rule. Again, "courts must presume that a legislature says in a statute what it means and means in a statute what it says." (Govt. Br. at p.58 citing Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992)). The Florida Supreme Court has recognized the limited territorial application of a similar fishing law. See *13Southeastern Fisheries Assoc. v. Dep't. of Nat. Resources, 453 So.2d 1351 (Fla. 1984). [FN7] The Government urges this Court to ignore this precedent because, according to the Government, Southeastern Fisheries was decided "in order to avoid a conflict between state and federal law." (Gov't. Br. at p. 58, n.29). A close reading of Southeastern Fisheries does not support this contention as the court indicated that all extraterritorial waters (non-Florida waters) are controlled by the federal government; thus, every Florida statute (not just the statute at issue in Southeastern Fisheries) seeking to extend its reach to extraterritorial waters confronts the federal government's authority to regulate. The court stated:

FN7. The Government argues that Southeastern Fisheries, which states a legislature should expressly declare when it intends to apply a statute in extraterritorial waters, should not govern this issue. However, a fair reading of the case does not support the Government's position.

"[t]he state's authority to regulate in those [extraterritorial] waters is only by the consent and acquiescence of the federal government. We find that if there is to be a confrontation between the state and federal government, then the [Florida] legislature should expressly declare that it is the intent that the statute apply in extra-territorial waters, as it did in section 370.15."

Southeastern Fisheries. 453 So.2d at 1355. The Florida Supreme Court also noted that the Florida legislature has on several occasions intended to extend a regulation to the extra-territorial waters of Florida and those statutes expressly state that that is the intention. Id. at 1354. Therefore, if this Court is to "presume that a legislature says in a statute what it means and means in a statute what it says" (*14Germain, 503 U.S. at 254) then § 370.07 and Rule 68B-24.003 must be read to apply only to lobster harvested within the territorial waters of Florida.

B. Florida Administrative Code Ann. R. 68B-24.007 (egg-bearing prohibition).

Florida Administrative Code Ann. R. 68B-24.007 prescribes restrictions relating to the possession of egg-bearing lobster. Although Mrs. Huang was not indicted for violating this offense, the jury was instructed as to its applicability in counts twenty-three through twenty-seven. [FN8] The Government concedes "that none of the shipments covered by counts 23-25 were inspected for egg-bearing lobster tails." (Gov't. Br. at p.67). Likewise, the Government concedes "[t]he shipments of lobster tails involved in [] counts [26-27] were never sent to Florida and the government never argued that these shipments violated Florida law." [FN9] (Gov't. Br. at p.56). Thus, there is no issue that Mrs. Huang could be convicted in counts twenty-six *15 and twenty-seven based on any Florida law as none of the lobster alleged in those counts ever went to Florida.

FN8. The Government's Brief at p. 66 indicates Mrs. Huang's argument only applies to counts twenty-three through twenty-five, however, the Florida law was read to the jury on counts twenty-three through twenty-seven (R33-1593).

FN9. Although the Government asserts it never argued that the shipments alleged in counts twenty-six through twenty-seven violated Florida law, its closing argument references Rule 68B-24.007's prohibition on the possession of egg-bearing lobster (which is not alleged in the Indictment) and fails to limit its argument on Florida law to counts twenty-three through twenty-five: "[y]ou also heard testimony from Islander Fisheries from Mr. Koutsofios, and he said that every boat that came to his facility had clipped lobster in it.... The Judge will explain to you that it is illegal in Honduras to destroy the eggs. Florida has a similar prohibition." (R33-1484).

Despite these admissions, the Government rests its argument in support of the convictions on counts twenty-three through twenty-five on 1) "persuasive circumstantial evidence" that the lobster tails contained eggs, or had eggs removed (despite the fact that Rule 68B-24.007 is not cited in the Indictment) and 2) the convictions on those two counts can be affirmed on "one of several provisions of Florida and Honduran law instructed on counts 23-25." (Gov't. Br. at p.67).

There was no circumstantial evidence introduced during the trial that could be considered by this Court to support the convictions. The Government asserts that the circumstantial evidence supporting these convictions is the testimony of a Honduran seafood processing plant manager who testified that "every shipment he received at the plant contained lobsters whose eggs had been removed" (Gov' t. Br. at p.67, citing R28-840). The witness never made this precise statement. Rather, he testified: "Everybody - - all the boats that were bringing some clips [FN10], so I cannot specify that I was looking for clips on his [McNab's] particular product there." (R28-840). This generalization can hardly confirm the existence of egg-bearing lobster being shipped to Florida by or at the direction of Mrs. Huang, particularly since it is the *16 Government' s position that not all shipments of lobster were brought into a Honduran processing plant prior to shipment to Alabama (see Gov't. Br. at p.9).

FN10. "Clips" refer to lobsters whose appendages have been cut or removed (R26-485 to 486).

The Government's other "persuasive evidence" in support of its argument is the assertion that the only shipment of Mr. McNab's that was inspected for egg-bearing lobster contained a "significant number" of egg-bearing lobster tails (Gov't. Br. at p. 67). The evidence dictates otherwise. First, the seized shipment is not the lobster involved in counts twenty-three through twenty-five of the Indictment. Second, only approximately 5,219 pounds of lobster tails "with evidence of egg-bearing" were seized from Mr. McNab's vessel (R29-922). The total lobster in the seized shipment was "around 70,000 pounds" (R29-939). Thus, the "significant number" of seized egg-bearing lobster was approximately 71/2% of the total shipment. Evidence supporting the conviction must be substantial: that is it must do more than raise a suspicion of guilt. Zimmer v. McKune, 87 F. Supp. 2d 1153, 1157 (D. Kan. 2000). This incidental number of purported egg-bearing lobster does not constitute persuasive circumstantial evidence and even fails to raise a probable suspicion that a completely unrelated delivery of lobster, only a part of which was even sold to Ex-tm (Gov't. Tr. Ex. D10), contained egg-bearing lobster that were then sent to Florida.

*17 V. Reversal is required as to counts twenty-three through twenty-seven if the alleged violations of Florida law are incorrect, regardless of the validity of the Honduran law relied upon by the Government in those counts.

The Government also argues that the convictions on counts twenty-three through twenty-five must stand because even if there is insufficient evidence to support the alleged Florida law violations, Mrs. Huang cannot show that the jury could not have found that she violated any of the other alleged Florida or Honduran laws (Gov't. Br. at p. 66, citing Griffin v. United States, 502 U.S. 46, 48-58 (1991)). The Government's application of Griffin to this case misses the point. The arguments raised, supra., which establish the invalidity of Honduran law relied on to support counts twenty-three through twenty-five provide an adequate basis to reverse the convictions on counts twenty-three through twenty-five. Therefore, even if Mrs. Huang incorrectly interprets one of the two Florida points of law alleged in the Indictment (Florida Statute § 370.07 and Rule 68B-24.003), the convictions on counts twenty-three through twenty five must still be reversed. Moreover, the discussion in the previous section of this Reply Brief relating to Section 370.07 and Rule 68B-24.003 belies any notion that these provisions of Florida law apply to Mrs. Huang.

VI. Per se reversible error occurred when the District Court constructively amended the Indictment by instructing the jury that it could convict Mrs. Huang based on Florida law not charged in the Indictment.

The District Court instructed the jury that three points of Florida law could be considered as grounds for conviction on counts twenty-three through twenty-seven *18 (R33-1594). Counts twenty-three through twenty-five cite only Florida Administrative Code Ann. R. 68B-24.003, and counts twenty-six through twenty-seven cite no specific Florida law. [FN11] Despite this fact, the District Court instructed the jury that a conviction on counts twenty-three through twenty-seven can be based on either of these Florida laws (R33-1593- 1594). The Government concedes this was error. (Gov't Br. at p. 57). The Government contends this is not a constructive amendment stating "the jury could not have concluded that Huang was guilty under counts 26-27 on the basis of violations of Florida law, and the court's erroneous reference... could not have prejudiced Huang." (Gov't. Br. at p.57).

FN11. Mrs. Huang concedes Florida Statute Ch. 370 is referenced in Paragraph 101 of the Indictment and that that paragraph is incorporated by reference into counts twenty-three through twenty-seven. Ironically, the Government insists that Chapter 370 is incorporated by reference into counts twenty-three through twenty-five (Gov't. Br. at p.56), but claims the Indictment "alleges only Honduran law in counts 26 and 27." (Gov't. Br. at p.57). The Government cannot have it both ways.

This Court recognizes that a Defendant has a constitutional right to be tried on only the charges presented in the indictment. United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). There is said to be a constructive amendment when jury instructions are given that modify the charging terms. United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988). Jury instructions that constructively amend an indictment constitute per se reversible error. Stirone v. United States, 361 U.S. 212, 217-18 (1960); United States v. Weissman, 899 F.2d 1111 (11th Cir. 1990). A constructive *19 amendment is per se reversible error because of the fundamental principles of our justice system which it violates. The Government's unsupported speculation that the jury could not have based the conviction on Florida law not charged in the Indictment but given in the trial judge's instructions must heed to the Constitutional protections afforded Mrs. Huang by the Presentment Clause of the Fifth Amendment. United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990)(finding constructive amendment occurred where the district court broadened the possible bases for conviction beyond the indictment). Accordingly, counts twenty-three through twenty-seven must be reversed on this basis.

VII. There is insufficient evidence to support a conviction on count forty-seven (the false labeling provision of the Lacey Act) as there is no evidence that the harvested lobster were "Honduran" lobster, or that the lobster were not products of the United States.

The Government apparently misconstrues Mrs. Huang's position concerning the mislabeling count of the Indictment (count forty-seven). The argument made in section VIII of Mrs. Huang's Initial Brief is not merely "a hypothesis of innocence" which the Government need not disprove (Gov't. Br. at p. 68), but rather the argument attacks an element of the offense, which the Government must prove. A conviction under count forty-seven requires substantial evidence that Mrs. Huang falsely labeled fifteen boxes of lobster by having "Caribbean Fresh" labels replaced with labels that state the following:

*20 Ocean Jewel Brand

Packed for: Export Packers Co. Ltd.

Packed by: American Ex-Im Corp. Mobile, AL 36615

Product of U.S.A.

(R29-968, see Gov't. Trial Ex. M60). The Government merely ignores the reality that its only documentary evidence (Trial Ex. M60) offers no evidence that Mrs. Huang falsely labeled the boxes of lobster. [FN12]

FN12. Exhibit M60 consists of a check stub, invoice and other documents portrayed by the Government as evidence in support of the conviction on count forty-seven. The check stub indicates it was a payment from Ex-Im for "Honduran lobster" (R29-969; Gov't. Trial Ex.M60). The check indicates payment is for invoice number 3000 (R29-969-970). The invoice attached to Exhibit M60 is invoice number 3035 (Govt'. Trial Ex. M60). Although there is a reference on this invoice to "3 oz." and "4 oz." rock lobster tails, there is no connection between these lobsters, which are legal to possess and process in Alabama (R26-552) where Ex-Im purchased them, and any lobster harvested in Honduras.

The Government relies on the fact that the lobster boats from which the shipment originated were owned by Mr. McNab, which it believes supports its position that "a reasonable juror could conclude that Huang had caused [the processor] to falsely label Honduran lobster tails as a product of the United States." (Gov't, Br. at p. 68). The boxes of lobster which Mrs. Huang is accused of altering merely contained the words "Caribbean Fresh" (R29-968) and make no reference to "Honduran" lobster. In fact, the lobsters were undeniably harvested in international *21 waters (R29-1055). [FN13] Despite the easy reference throughout the trial to "Honduran" lobsters, there is nothing that makes these lobsters "Honduran." There is no dispute the type of lobster at issue is a "Caribbean" spiny lobster and that this is the identical species as a Florida spiny lobster (See Indictment (RE1 at ¶5), Mrs. Huang's Initial Br. at p. 33, n. 16). [FN14] Taking the Government's argument to its natural conclusion, a lobster's country of origin is determined solely by the country of registry of the boat that harvests it. Thus, if a boat registered in Alabama harvested the exact same lobster at issue at the identical place in international water as did Mr. McNab's vessel, then the lobster automatically become "American" lobster and "products" of this nation in which event there clearly could be no criminal violation. The Government's argument leads to an illogical result and ignores the facts of the case.

FN13. The Government incorrectly argues the lobster were harvested in Honduran waters. See Gov't. Br. atp.68.

FN14. The lobster were harvested 100-300 miles off the coast in international waters (R32-1335; Rl 3-46-Folder 1, Ex. 5, ¶3, Aff. of Andres Sauceda) and there is no distinction between the lobster species Panulirus argus harvested in the United States and anywhere in the Caribbean Sea. See National Fisherman Producers Co-operative. Society, Ltd, of Belize v. Fla., 503 So.2d 430 (1987).

Moreover, the country of origin of the lobster contained in the boxes at issue does not necessarily have to be the same country that processes and turns the item into a "product." Therefore, the Government's reference to 19 C.F.R. § 177.22(a), *22 which discusses when an article of commerce changes its country of origin, has no application to the instant case (see Gov't. Br. at p.68). Despite the Government's position, the facts do not show that Mrs. Huang changed a label from "Honduran" lobster to "American" lobster (a distinction without a difference based on the species at issue). Rather the facts show that the "Caribbean fresh" labels were removed and replaced with a label indicating the lobster being sold was a "product", i.e., it underwent a processing from raw bulk lobster to ready-to-consume lobster, of the United States. Based on these undisputed facts, Mrs. Huang's conviction on count forty-seven must be reversed.

Mrs. Huang asserts on appeal that there is insufficient evidence to establish that she conspired to use the proceeds of illegal activity to "promote" the carrying on of some unlawful activity. The Government asserts this was accomplished by Mr. Blandford and Mrs. Huang through "transfers to McNab of proceeds from the sale of illegal lobster tails," and relies on United States v. Carcione, 272 F.3d 1297 (11th Cir. 2001) to support its position (Gov't. Br. at pp. 64-65). Based on the facts of the instant case, the case law cited by Mrs. Huang in her Initial Brief, and the *23 distinguishable holding in Carcione, this Court must reverse Mrs. Huang's conviction for conspiring to launder money.

It should first be noted that Mrs. Huang's employer, American Ex-Im ("Ex-Im"), not Mrs. Huang, purchased the lobster at issue from Mr. Blandford's company, Seamerica (Rl 4-183-7 ¶20). The lobster purchased by Ex-Im constituted only a part of the lobster imported by Seamerica. Id. Once Mrs. Huang confirmed receipt of the shipment, as an employee who handled the logistics of these transactions, Ex-Im paid Seamerica for the lobster by mail or wire transfer from its main office in San Francisco (R26-551; R27-639 to 648). Each payment was made immediately after Mrs. Huang received confirmation that the shipment was received because the terms of the invoice were "Net Upon Receipt" as is common industry practice. Once Seamerica was paid, it had no further interest in the lobster. On occasion, Ex-Im sold some of its processed lobsters back to Mr. Schoenwetter's company (Horizon Seafood) or to Seamerica, if they had a customer demand for the lobster (see, e.g., Gov't Tr.Ex. D10, voyages V-60 and V-70). In these cases, Ex-Im treated Horizon and Seamerica as any other customer. There is no evidence that Messrs. McNab's or Blandford's companies were paid directly or indirectly with the "proceeds" of the sale of the lobster by Ex-Im. There is no evidence to suggest Mr. McNab's company or Seamerica did not get paid by Seamerica or Ex-Im, respectively, due to Ex-Im not reselling the lobster or making its own profit from reselling the lobster. This was a *24 standard supplier-broker-wholesaler relationship with Ex-Im ultimately selling the lobster to industry-savvy purchasers such as Darden Restaurants (owner of Red Lobster and Olive Garden restaurants)(R26-399; R26-435; R27-646).

The Government seeks this Court to uphold the conviction for conspiring to launder money based on payments made amongst and between the alleged co-conspirators without any evidence that the specific proceeds from the sale of the lobster by Ex-Im went to "promote" some unlawful activity. If Defendants are truly co-conspirators, then the "conspiracy" cannot have achieved its "ultimate objective of... turn[ing] illegal lobster tails into money" (Gov't, Br. at p. 64) if the conspirators are merely passing their own money around.

A Section 1956 promotion conviction requires evidence that a Defendant (1) conduct or attempt to conduct a financial transaction; (2) know that the property involved in the transaction represents the proceeds of unlawful activity; (3) know the property involved was in fact the proceeds of the specified unlawful activity; and (4) conduct the financial transaction with the intent to promote the carrying on of the specified unlawful activity. 18 U.S.C. § 1956(a)(l)(A)(i). The "proceeds" in the instant case is not the money used by Ex-Im to purchase the lobster from Seamerica as the Government suggests in its Brief (Gov't. Br. at p. 64) and there is no evidence how the money Ex-Im made on the resale was used to promote any unlawful activity. The Government incorrectly relies on United States v. Carcione, supra., to *25 support its position. Carcione stated that the promotion prong of 18 U.S.C. § 1956 was satisfied when analyzed in the context of a conspiracy to commit a Hobbs Act violation. The Hobbs Act criminalizes the delay or obstruction of, or any affect on, commerce by robbery, extortion, or attempts or conspiracies to do so. 18 U.S.C. § 1951 (a). The Defendant in Carcione was convicted of conspiracy and robbery under the Hobbs Act and for the subsequent sale of part of the stolen property. Carcione, 272 F.3d 1297. The Court found that the sale of the stolen goods could "promote" the underlying Hobbs Act conspiracy. Id. at 1302. The Hobbs Act conviction was based on appellant's impact on interstate commerce in devising and executing a scheme to commit robbery. Id. at 1300. Appellant traveled and communicated across state lines to plan the robbery and later to sell the stolen goods. Id. Selling the goods was not an element of the Hobbs Act charges. Based on those facts, the Court determined the sale of the stolen goods "promoted" the conspiracy's ultimate goal of making money from the robbery.

Such a holding is not appropriate in a Lacey Act case where the very essence of the violation is the purchase and sale of the alleged illegal lobster - two acts that are not elements of a Hobbs Act prosecution. The Indictment alleges that the Defendants conspired to "knowingly transport, sell, receive, acquire and purchase said fish or wildlife" in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and *26 3373(d)(1)(B) (R3-183, ¶ 13b)(emphasis added). In the substantive Lacey Act counts (counts thirteen through twenty-seven), it is alleged that Mrs. Huang was involved in "the sale and purchase of, offer of sale and purchase of, and intent to sell and purchase fish or wildlife." (Mrs. Huang's RE2 at p. 27). Evidence of "selling" and "purchasing" of the lobster is part of the Government's proof necessary to sustain the allegations in the Indictment, whereas proof of the sale of the stolen item in Carcione is not necessary to prove the Hobbs Act violation. In the instant case, the Government would not be required to prove anything beyond the violation of the Lacey Act to obtain the conviction under § 1956(a)(1)(A)(i), i.e., the money laundering conviction would be nothing more than an included offense of the Lacey Act violation if the mere sale of the lobster constitutes promotion of the Lacey Act violation. Therefore, based on the distinctions in the Hobbs Act violation in Carcione and the Lacey Act violations in the instant case, it is not appropriate to hold that the mere existence of financial transactions "promoted" the alleged Lacey Act conspiracy. For this reason this Court's holding in United States v. Calderon, 169 F.3d 718 (11th Cir. 1999) parallels the instant case and requires reversal of Mrs. Huang's conviction for conspiring to launder money.

*27 CONCLUSION

For the foregoing reasons, the judgment of the District Court should be reversed.