United States v. Huang

2002 WL 32595266 (11th Cir.)

United States Court of Appeals, Eleventh Circuit.

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

Nos. 01-15148, 02-10810, 02-11264.

June 26, 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 No. 410801, Hunter, Maclean, Exley & Dunn, P.C., 200 East Saint Julian Street, Savannah, Georgia 31412, (912)236-0261, Attorneys for Appellant Diane H. Huang

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... ii-iii

ARGUMENT ... 1

I. During this Court's de novo review of the foreign law determination, it should give strong weight to the Honduran Government's interpretation of the relevant Honduran legal provisions ... 2

A. Resolution 030-95 ... 3

B. Agreement 0008-93 ... 8

C. Article 70(3) from the Fishing Law of 1959 ... 10

II. The evidence submitted by Mrs. Huang in support of her motion for the District Court to certify its intention to grant a new trial upon remand is appropriate and, if considered, would have required the District Court to grant the motion ... 12

III. Unsubstantiated ulterior motives cannot rationalize this prosecution and should not be the subject of this Court's analysis ... 15

CERTIFICATE OF COMPLIANCE ... 17

CERTIFICATE OF SERVICE ... 18

*ii TABLE OF AUTHORITIES

CASES

Bell v. Maryland, 378 U.S. 226 (1964) ... 5

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

Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708 (1987) ... 5

Hulin v. Fibreboard Corp., 178 F.3d 316 (5th Cir. 1999) ... 5

United States v. Borden, 10 F.3d 1058 (4th Cir. 1993) ... 6

United States v. Christy, 3 F.3d 765 (4th Cir. 1993) ... 13

United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987) ... 12

United States v. Fitzhugh, 78 F.3d 1326 (8th Cir. 1996) ... 14, 15

United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997) ... 14

United States v. Shelton, 459 F.2d 1005 (9th Cir. 1972) ... 13

United States v. Suescan, 237 F.3d 1284 (11th Cir. 2001) ... 14, 15

United States v. Tayman, 885 F.Supp. 832, 836 (E.D. Va. 1995) ... 5

United States v. Thomas, 887 F.2d 1341 (9th Cir. 1989) ... 7

STATUTES

1 U.S.C. § 109 ... 11

18 U.S.C. § 3282 ... 7

*iii REGULATIONS & RULES

Rule 12(b)(2), Federal Rules of Criminal Procedure ... 14

Rule 26.1, Federal Rules of Criminal Procedure ... 12, 13, 14

Rule 33, Federal Rules of Criminal Procedure ... 12, 13, 14

TREATISES

Moore's Fed. Pract. & Proc. § 33.03 [1] ... 13

HONDURAN PROVISIONS

Agreement 0008-93 (Jan. 13, 1993) ... Passim

Civil Code of Honduras, Art. 43 ... 8

Constitution of the Republic of Honduras, Art. 96 ... 11

Decree No. 40 ... 8, 9

Decree 154, Art. 70(3) (May 19, 1959) ... Passim

Decree 157-94 (Nov. 15, 1994) ... 8

Decree 198-2001 ... 7, 8

Decree 245-2000 (Feb. 1, 2001) ... 9

Resolution 030-95 (Dec. 5, 1995) ... Passim

*1 ARGUMENT

The Government recognizes that when the United States prosecutes someone for a crime premised in part on a violation of foreign law, it is incumbent upon it to prove the foreign law through a fair and upright process, most commonly through official contacts with authorized representatives of the relevant foreign government (Gov't. Bri pp. 46-47). Despite this recognition, when the appropriate Honduran officials present viewpoints with which the Government disagrees, the Government then casts those views aside as "the whims of the Honduran government" (Gov't. Br p. 47). The "whims" at issue in this appeal include the passage of new legislation by the National Congress of Honduras, and opinions from the former and current Attorneys General of Honduras, a former Honduran Supreme Court Magistrate, the Secretary of State of the Ministry of Agriculture and Livestock, and learned scholars of Honduran law who have provided accurate and correct interpretation of the relevant Honduran legal provisions. [FN1] These interpretations are the official position of the Honduran Government as clearly discussed in the Amici brief filed on behalf of the Honduran Government through its Embassy and on behalf of an association of *2 Carribean fishermen, El Associacion De Pescadores Del Caribe. [FN2] It is with this background that the Government continues with this prosecution and responds to Mrs. Huang's Initial Brief.

FN1. The relevant Honduran provisions are Resolution 030-95, Agreement 0008-93 and Article 70(3) of the Fishing Law of 1959. Two other Honduran provisions were charged to the jury as part of the Government's case. Despite the Government's insistence to the contrary (Gov't. Br p. 16, f.n. 5), there is no evidence that any of the appellants violated these two provisions as the jury's verdict does not indicate upon which foreign laws it is based.

FN2. Mrs. Huang adopted the Amici Curiae brief filed on behalf of Mr. McNab by Order of this Court, dated June 6, 2002.

I. During this Court's de_ novo review of the foreign law determination, it should give strong weight to the Honduran Government's interpretation of the relevant Honduran legal provisions.

The Government emphasizes the steps it took to discern the "truth" before and after Mrs. Huang's trial regarding the validity of the relevant Honduran legal provisions (see Gov't. Br. pp. 5-11, 45-47). [FN3] These investigative steps, however, fail to bring this Court any closer to the correct and official interpretation of the *3 Honduran legal provisions at issue. Rather, the Government uses its investigation as a "cloak of correctness" [FN4] and argues that the senior Honduran officials' interpretation of their own laws is "conclusory, inconsistent, [] self-contradictory, and overall poorly reasoned." (Gov't. Br. p. 46). The Government, however, fails to present any authoritative evidence by way of affidavit or otherwise to refute the official position of Honduras. The merits of Mrs. Huang's arguments and the supporting documentation contradict the very laws relied upon to convict her and require reversal of Count one and Counts thirteen through twenty-seven of the Indictment.

FN3. The Government asserts its investigation received assistance from the Minister, Vice-Minister, director general and deputy director of DIGESPESCA, as well as the directors of legal services and legal affairs, secretary general and legal advisor for SENASA (Gov't. Br. p. 9). However, the only Honduran representative to testify on behalf of the Government was Secretary General Liliana Paz (Gov't. Br. p. 11). According to the Attorney General of Honduras, a secretary general lacks the authority to render legal opinions on behalf of the Republic. (See Declaration by Attorney General Sergio Zavala Leiva, Br. Amici Curiae, Tab 2). The appropriate procedures for determining the proper state of Honduran law were not followed by the Government (id.) It is also significant to note that no Honduran official who purportedly "supported" the Government's position has come forward, by means of sworn testimony or affidavit, to rebut any of the formal, official positions propounded by the Honduran Government and argued by Mrs. Huang in this appeal.

FN4. The Government incorrectly asserts that "the laws it has proven are due a strong presumption of validity." (Gov't. Br p. 47). Since this Court conducts a de novo review of foreign law determinations, this new standard of review as advanced by the Government is unwarranted.

a. Resolution 030-95

The Government's position with respect to the validity of Resolution 030-95 has turned 180 degrees. At the pretrial hearing conducted pursuant to Federal Rule of Criminal Procedure 26.1, the Government (and its witness, Liliana Paz) proclaimed the validity of Resolution 030-95 (R-19-62 to 86). As this Court may recall, Resolution 030-95 was the subject of an annulment proceeding in Honduras which resulted in the Resolution being declared "null and void" (Huang's Initial *4 Br., tab 2). [FN5] The basis of the Honduran court granting the annulment was a recognition of the fact that the resolution was never properly promulgated (id.). Hence, the resolution never existed as an enforceable law. Now, faced with the annulled resolution, the Government has been forced to argue 1) that the Resolution is invalid, but the annulment should only be applied prospectively (Gov't. Br. pp. 32-34), and 2) even though the Resolution is invalid, the Lacey Act convictions are not contingent upon whether this invalid Resolution is enforceable against Mrs. Huang (Gov't. Br. pp. 39-40). The Government's arguments boil down to asking this Court to make Resolution 030-95 enforceable (which it had never been before) in order for it to be enforced against these appellants and then allow it to return to its ineffective, annulled form thereafter. This position is inconsistent with both United States and Honduran law.

FN5. Mrs. Huang refers to her initial brief in this appeal as "Huang's Initial Br." Her briefs filed in Case No. 01-15148-JJ are referred to as "Huang's App. 1 Br." and "Huang's App.l Reply Br." References to other parties' briefs follow this same format.

First, Mrs. Huang, as well as her co-appellants, thoroughly briefed the issue of the post-annulment application of Resolution 030-95 to this case (see Huang's App.l Br. p.18; McNab's App. 1 Br. pp.23-24; Huang's Initial Br. pp. 17-19). Appellants made these same arguments beginning at the Rule 26.1 hearing (R13-46-1). *5 Since Mrs. Huang's trial, the Honduran Secretary of State of the Ministry of Agriculture and Livestock (Secretary Alvarez), as well as the Attorney General of Honduras (Attorney General Zavala) and numerous other Honduran officials confirmed the arguments made pretrial by declaring that the Resolution 030-95 never had the force of law and is void ab initio (see, e.g., Huang's Initial Br., tab 5; Opinion of the Attorney General of Honduras, Amici Br. tab 2, pp. 6-10, McNab's Initial Br., pp. 18-26).

Moreover, all newly declared rules of law are to be applied retroactively to all criminal cases pending on direct review. See Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987); Hulin v. Fibreboard Corp., 178 F.3d 316 (5th Cir. 1999); United States v. Tayman, 885 F.Supp. 832, 836 (E.D. Va. 1995)("long standing and well-established traditional principle is that judicial decisions... generally apply retroactively as well as prospectively"); see also Bell v. Maryland. 378 U.S. 226 (1964)(holding repeal of criminal law after conviction has retroactive effect on pending criminal proceeding). The rationale for this principal is clear; it "strips a court of the quintessentially legislative prerogative to make rules of law retroactive or prospective within its discretion...and [it maintains] the *6 principle of treating similarly situated parties the same." Griffith, 479 U.S. at 323, cited in Hulin. 178 F.3d at 330.

Honduras applies this fundamental rule of retroactive application in pending criminal matters as well. Attorney General Zavala states in his formal declaration that Resolution 030-95 "can no longer be applied in any judicial or administrative proceeding, including all of those proceedings awaiting final resolution; no individual can be sanctioned for failing to comply with it, even when it is shown that the violation occurred before being declared null and void." (Amici Br. tab 2, p. 7).

The annulment of Resolution 030-95 merely confirmed the correctness of the interpretation of Honduran law first presented by Mrs. Huang and the co-appellants at the Rule 26.1 hearing. The'District Court was thus aware of the fact that Resolution 030-95 was not properly promulgated and not a valid "law" before the Resolution was formerly annulled. The District Court chose not to accept Appellants' evidence on this issue. To now assert that the annulment somehow negates the arguments and evidence submitted to the District Court (by saying the annulment can only be prospectively applied) is not proper.

*7 Second, the Government misconstrues case law in its assertion that an invalid law can be used as the basis of a Lacey Act prosecution. The Government cites United States v. Borden, 10 F.3d 1058 (4th Cir. 1993) and United States v. Thomas, 887 F.2d 1341 (9th Cir. 1989) for the proposition that the Lacey Act does not require a viable or prosecutable state law violation (Gov't. Br. p. 39). The Government misses the point with these cases. First, both Thomas and Borden. which deal with Lacey Act prosecutions based on violations of underlying state law not foreign law, merely hold that the federal "catch-all" statute of limitation (18 U.S.C. § 3282) governs in a Lacey Act prosecution. Borden, 10 F.3d at 1062; Thomas, 887 F.2d at 1348. Second, whether a law is "not viable" and "not prosecutable," as used in Thomas and Borden, for a Lacey Act prosecution, does not equate to a law being invalid for purposes of the Lacey Act. In Thomas and Borden, the underlying laws were valid and in force - the defendants merely could not be charged in a state prosecution because the states' statutes of limitation had run on the offenses. Contrast this with the annulment of Resolution 030-95 where there was never a valid law to serve as the basis of a Honduran prosecution. The Fourth and Ninth Circuits' holdings do not attempt to extend a Lacey Act *8 prosecution to invalid, annulled or repealed foreign (or even state) law. Thus, the Government's argument is misguided.

b. Agreement 0008-93

The new Honduran statute, Decree 198-2001, correctly interprets Article 43 of the Civil Code of Honduras as meaning that when a decree is repealed, any implementing regulations of the repealed decree are also repealed (Huang's Initial Br. tab 3). The significance of this new statute is clear when applied to Agreement 0008-93. Decree 157-94 repealed Decree No. 40 (Gov't. App, 1 Br., p. 22). Since Agreement 0008-93 is an implementing regulation of Decree No. 40, it too was repealed by Decree 157-94. In light of this hurdle, the Government now contends that Decree No. 40 "was not merely repealed" (Gov't. Br. p. 25), and therefore, the new Decree 198-2001 does not apply to this situation. A statute, or portion thereof, is either repealed or it is not repealed; there is no middle ground that precludes the repeal of Decree No. 40 and Agreement 0008-93 by Decree 198-2001. Despite this express statutory repeal, and without providing anything more than argument, the Government baldly asserts that Attorney General Zavala, former Honduran Supreme Court Magistrate Nicolas Cruz Torres, Secretary of State Alvarado, and the Director General of SENASA (Dr. Francisco Rodas) are *9 the ones who misinterpret Honduran law. Each of these Honduran officials interpret Decree 198-2001 consistent with the above analysis (see Huang's Initial Br. tabs 7 and 12; Amid Br.tab 2).

The Government alternatively, and incorrectly, argues that if Decree 198-2001 did repeal Agreement 0008-93 in November 2001, such repeal does not affect this prosecution. Again, the uncontradicted interpretations of Nicolas Cruz Torres and the academic scholars from the University of Chile, whose publication is widely accepted by the Supreme Court of Honduras (Cruz Affid., Huang's Initial Br. tab 7), clearly and unequivocally recognize that the repeal of Agreement 0008-93 is effective from.the date the statute it implemented, Decree No. 40, was repealed in 1995 (id-). The Government's only response is in the form of an unsigned memorandum which indicates it was prepared by a "Senior Foreign Law Specialist" (Gov't. Br. tab 4). According to this memorandum, a former magistrate of the Supreme Court of Honduras and two well-respected academia incorrectly interpret Honduran law. [FN6]

FN6. The unsigned memorandum contains no qualifications of its author and its reasoning is.specious as it attempts to impeach Mr. Cruz's reasoning through an incomplete understanding of the Honduran Civil Code and the application of that Code in Honduras.

*10 c. Article 70(3) of the Honduran Fishing Law of 1959

Decree 245-2000 repealed Article 70(3) of the Fishing Law of 1959 (Rl 15-397- 10; Huang's Initial Br. p. 7; McNab's Initial Br. tab 9). The Decree literally rewrote Article 70 and prefaced it with the following language: "Article 70 of the Fishing Law, contained in Decree No. 154, dated May 19, 1959, which hereafter must read as follows..." (Decree 245-2000, McNab's Initial Br. tab 9). The phrase "hereafter must read" clearly indicates the statute is repealing the former language of the statute. That repealed portion includes Article 70(3), which was first used by the Government in its Lacey Act prosecution the morning of the Rule 26.1 hearing. (R19-42). Attorney General Zavala, Secretary of State Alvarez and the General Director of DIGESPESCA, Gabriela Pinela de Arias, agree with this position (See Amici Br. tab 2, p.9; Huang Br. tab 5; and McNab Br. tab 8, respectively). The Government's only response, is that these opinions are not well-reasoned, and that the opinions ignore a "catch-all" provision of the new Article 70, which the Government submits will resurrect the repealed portion of the statute (Gov't. Br pp. 41-43). The Government offers no conflicting opinions from within the Honduran government to contest the statements presented by appellants and Amici and provides no authority for the proposition that the *11 repealed portion is now deemed to be enforced through the "catch-all" provision of the statute.

Recognizing the difficulties with its argument, the Government next asserts that if Decree 245-2000 repealed Article 70(3) (which it did), it would not have retroactively legalized the lobster shipments at issue in this case (Gov't. Br. p.44). The Government asserts that Article 96 of the Honduran Constitution (id.), which gives a repealed statute retroactive application in criminal matters (R5-336, Ex. 1), does not apply. [FN7] Instead, the Government seeks to apply the federal savings clause statute, 1 U.S.C. § 109(Gov't. Br. p. 44). This statute, however, as explained in Huang's First Reply Brief (Huang's App. 1 Reply Br. p. 4), 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. The Government can point to no case that applied § 109 to a foreign law, rule or regulation. If the Lacey Act had been repealed and was the issue of this appeal, 1 U.S.C. § 109 might apply to preserve the conviction, however, this is clearly not the situation.

FN7. Honduran Secretary of State Alvarez and Honduran Attorney General Zavala disagree with this contention (Huang's Initial Br. tab 5, Amici Br. tab 2).

*12 II. The evidence submitted by Mrs. Huang in support of her motion for the District Court to certify its intention to grant a new trial upon remand is appropriate and, if considered, would have required the District Court to grant the motion.

In another effort to divert this Court's attention from the substance of the Honduran legal provisions at issue, the Government attacks the District Court's ability to consider the evidence submitted to that court by Mrs. Huang (Gov't. Br. at pp. 17-22) in support of her motion underlying this appeal. (Huang's Initial Br. tab 9) ("the Motion"). The Motion sought relief from the District Court in accordance with this Court's direction and the guidelines of United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987). The Government did not object to the consideration of the evidence at the District Court, but now asserts that the case-dispositive documents submitted to the District Court do not constitute "newly discovered evidence" as that term is interpreted under Rule 33 (Gov't. Br. pp. 19-20). In light of the procedural posture of this case, the evidence submitted to the District Court is appropriate for consideration and does warrant reversal of the judgment and remand of the case for a new trial.

Federal Rule of Criminal Procedure 26.1 governs the District Court's determination of foreign law. The Rule provides that the Court "may consider any relevant material or source, including testimony, whether or not submitted by a *13 party or admissible under the Federal Rules of Evidence. The Court's determination shall be treated as rulings on a question of law" Fed.R.Cr.P. 26.1. A court resolves these questions of law based on the evidence presented to it and/or its own investigation into the validity and existence of the foreign law. The rule is designed to free the court from the "restraints of the ordinary rules of evidence in determining foreign law." Fed.R.Cr.P. 26.1, 1966 Cmte. Note. The evidence submitted by Mrs. Huang, all of which aids the court in determining the relevant Honduran provisions, clearly falls within this framework.

"Evidence" is also defined under Rule 33 in a loose sense. United States v. Shelton, 459 F.2d 1005, 1007 (1972) citing 8A Moore's Fed. Pract, ¶33.03[l]. Applying this liberal standard of Rule 33 and analyzing the evidence under the dynamics of Rule 26.1 results in the conclusion that the evidence submitted by Mrs. Huang was timely and appropriate for consideration, and after due consideration should have caused the District Court to certify its intention to grant a new trial upon remand.

Although the Government correctly points out that evidence admissible under Rule 33 has not been extended to include the discovery of a new issue of *14 law, [FN8] United States v. Shelton, 459 F.2d 1005 (9th Cir. 1972), or legal research, United States v.-Christy, 3 F.3d 765 (4th Cir. 1993) (Gov't. Br. p. 20), these cases do not involve evidence being considered pursuant to a Rule 26.1 hearing and for this reason are distinguishable. In fact, since the ultimate purpose of a Rule 26.1 hearing is to properly determine foreign law - be it with legal research, interpretive laws, or testimony - logically such evidence can form the basis of a motion for new trial. [FN9] Moreover, the essential elements of Mrs. Huang's Motion did not relate to a jury's determination of guilt but rather to the judicial determination of foreign law. [FN10] None of the cases cited by the Government take exception with these points and do not preclude the evidence at issue from being considered pursuant to a motion for a new trial.

FN8. The instant matter does not involve the discovery of a new issue of law as cited to in Shelton. The issues on appeal have been at the forefront of this case since the Indictment.

FN9. Counsel has found no federal case either prohibiting or permitting a new trial based on newly discovered evidence in the context of a foreign law determination pursuant to Rule 26.1.

FN10. The Government incorrectly alleges that "the defendants proffer the documents for the sole purpose of attacking the accuracy of the district court's jury instructions regarding Honduran law." (Gov't. Br. p. 20). Although the jury instructions are impacted by the improper pretrial determination of foreign1 law, the primary purpose of the motion was not to attack the factual findings of the jury based on the instructions it received.

Rule 33, must be applied within the framework of the evidence tendered and the underlying purpose of the submissions. In light of the admissibility of the *15 evidence submitted by Mrs. Huang for the purpose of challenging the pretrial Rule 26.1 determination, the submitted materials are timely, may be considered by the District Court and warrant a new trial.

Moreover, regardless of Rule 33, Federal Rule of Criminal Procedure 12(b)(2) authorizes courts to submit evidence at any time during the proceeding when an indictment creates no criminal liability. See, e.g., United States v. Fitzhugh. 78 F.3d 1326 (8th Cir. 1996) cited in United States v. Suescan, 237 F.3d 1284, n. 8 (11th Cir. 2001). Mrs. Huang's submissions demonstrate that there can be no criminal liability for the Lacey Act violations premised on the invalid Honduran legal provisions.

III. Unsubstantiated ulterior motives cannot rationalize this prosecution and should not be the subject of this Court's analysis.

As noted, supra, the Government cannot explain away Honduran interpretation of its own laws which are at issue in the instant and initial appeals. Instead, it alleges the Honduran officials' interpretations are merely incorrect and inconsistent, and then goes on to offer ulterior motives for the purported changes in these interpretations such as "political pressure, the recent change in political administrations in Honduras, [or] a disagreement with McNab's sentence" (Gov't. *16 Br. p. 46). [FN11]First, Honduras has not changed or altered the meaning of its laws. The laws have only been misinterpreted by the Government.

FN11. The record is devoid of any evidence of political "connections" between any appellant and the Government officials of Honduras and any reason why a country would alter the proper interpretation of its own laws.

Second, this Court should not be swayed by the Government's attempts to shift the central focus of these consolidated appeals. The sole inquiry should be the validity of the applicable Honduran laws - random speculation as to motives of an entire government.are not at issue, nor does such speculation further this Court's.analysis. Upon reviewing the opinions and law contained in the documents at the core of this case, it is apparent the District Court clearly erred in ruling on the existence of three Honduran legal provisions: Resolution 030-95, Agreement 008-93 and Article 70(3) of the Fishing Law of 1959. The District Court then abused its discretion when given the opportunity to grant a new trial in light of the overwhelming evidence to support the invalidity of these provisions. Mrs. Huang respectfully requests this Court to correct these errors.