United States v. McNab

2002 WL 32595268 (11th Cir.)

United States Court of Appeals, Eleventh Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. David Henson MCNAB, Defendant-Appellant.

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

June 5, 2002.

ON APPEAL FROM UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NO. 00-00079(1)-RV

Brief Amicus Curiae of the Embassy of Honduras and the Asociacion be Pescadores Del Caribe in Support of Defendant-Appellant David Henson Mcnab

J. Anthony Smith, Martin J. Gaynes, Robert Duston, Tony Lee, Schmeltzer, Aptaker & Shepard, P.C., 2600 Virginia Avenue, N.W., Suite 1000, Washington, D.C. 20037-1922, Telephone: (202) 333-8800, Facsimile: (202) 337- 6065

*vi STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested.

*vii TABLE OF CONTENTS

Certificate of Interested Persons ... ii

Statement Regarding Oral Argument ... vi

Table of Contents ... vii

Table of Authorities ... ix

Statement Regarding Adoption of Briefs of Other Parties ... xiii

Statement of the Issues ... xiv

I. INTEREST OF AMICUS CURIAE THE EMBASSY OF HONDURAS AND THE ASOCIACION DE PESCADORES DEL CARIB ... 2

Embassy of Honduras ... 2

APESCA ... 2

The Purpose For Filing This Amicus Brief ... 3

II. SUMMARY OF POSITION ... 5

III. THE HONDURAN LEGAL FRAMEWORK ... 8

IV. ARGUMENT

1. Had The Proper Authority and Sources of Honduran Law Been Followed, the District Court Would Have Determined that No Honduran Law Was Violated ... 10

*viii 2. The Correct Interpretation of Honduran Law ... 12

(i) Resolution 030-95 ... 13

(ii) Regulation 008-93 ... 19

(iii) Article 70(3) ... 22

V. THE DISTRICT COURT'S HOLDING UNDERMINES THE INTERNATIONAL TRADING SYSTEM ... 28

VI. CONCLUSION ... 31

CERTIFICATE OF COMPLIANCE ... 32

*ix TABLE OF AUTHORITIES

CASES

Section 4(d)(1) of the Lacey Act ... 11

Seguros del Estado, S.A. v. Sci. Games, Inc., 262 F.3d 1164, 1171 (11th Cir. 2001) ... 6

United States v. 2507 Live Canary Winged Parakeets, 689 F.Supp. 1106 (S.D. Fla. 1988) ... 11

STATUTES

16 U.S.C. Section 3372 et seq ... 5

19 U.S.C. Section 2101 et seq. ... 28

19 U.S.C. Section 2501 et seq. ... 28

19 U.S.C. Section 2701 et seq. ... 28

19 U.S.C. Section 3501 et seq ... 28

22 U.S.C. Section 1977 et seq ... 29

OTHER U.S. AUTHORITIES

S. Rep. No. 97-123, U.S. Code Congressional and Administrative News, 1748, 1754, 1759 (1981) ... 10

*x HONDURAN LAWS, REGULATIONS, AND OTHER AUTHORITIES (cited throughout the Brief)

Constitution of the Republic of Honduras ... 5

Section 315 (R19-257) ... 8

Article 205 ... 21

Article 228 (Leiva Declaration, Tab 2 at p. 8) ... 5

Article 245 (Leiva Declaration, Tab 2 at p. 14) ... 8, 9

Article 248 (Leiva Declaration, Tab 2 at p. 17) ... 9

Article 321 (Leiva Declaration, Tab 2 at p. 17) ... 9

Statutes

General Law of Public Administration, Article 120 (Leiva Declaration, Tab 2, at p. 19) ... 9

Resolution 030-95 (McNab Brief, Addendum Tab 2 in Case No. 01-15148-JJ) ... Passim

Regulation 008-93 (Folder 1, Ex. 28) ... Passim

National Congress Decree No. 40 ... 19, 22

Decree No. 198-2001, issued by the Honduran National Congress on November 1, 2001 that the total or partial repeal of a law rendered all general and specific regulations issued under that law without legal value or effect. (Doc. 416, Ex. E) ... 20, 27

Decree 245-2000, published February 5, 2001, which repealed and replaced Article 70(3) with a new and amended Article 70 and thus rendered Article 70(3) without legal effect. (R5-326) ... 12, 22, 23, 24

Decree No. 157-94, the PhytoZoo Sanitary Law, which repealed Agreement 008-93. (R5-325, Ex. C) ... Passim

Decisions

1. Legal opinion of the Attorney General determining that Resolution 030-95 is neither a "law" nor a valid "Regulation." (Folder 4, Ex. 1) ... 14, 16

*xi 2. Opinion of the Special Prosecutor for the Defense of the Constitution stating that Resolution 030-95 was null and void and compliance with it was not obligatory. (Folder 4, Ex. 4) ... Passim

3. The Statement of the Director-General of the National Service of Agricultural Sanitation (part of the Ministry of Agriculture and Livestock) that there is no record of any violations by McNab. (Folder 4, Ex. 13) ... 26

4. Special report and recommendations issued by the National Human Rights Commissioner for the Republic of Honduras dated November 8, 2001 that the testimony of Ms. Paz was a violation of McNab's Human Rights. (Doc. 415, Ex. A) ... 14, 18, 26

5. Resolution of the Secretary of State of Agriculture and Livestock for the Republic of Honduras, dated November 16, 2001, stating that Resolution 030-95 was null and void. (Doc. 416, Ex. F) ... 13, 18, 26

6. Decision of the Court of First Instance of Administrative Law, dated May 23, 2001 annulling Resolution 030-95 (R5-324, Ex. B) ... 13, 26

7. Decision of the Court of Appeals for Administrative Law affirming the decision of the Court of First Instance and Administrative Law dated October 15, 2001 that Resolution 030-95 was null and void. (Doc. 415, Ex. D) ... 13, 14, 26

8. Statement of Director General of SENASA dated January 11, 2002, relating to the repeal of Regulation 008-93 in 1995 (Doc. 416, Ex. G) ... 27

9. Statement of Director General of SENASA dated January 13, 2002, relating to the non-enforcement of Regulation 008-93 after 1995 (Doc. 421, Ex. A) ... 27

*xii 10. Statement of Director General of DIGEPESCA, dated March 4, 2002, interpreting Article 70(3)(Addendum Tab 8. McNab Brief) ... 27

11. A letter from the Honduran Embassy to the United States Department of State forwarding the resolution of the Secretary of Agriculture and Livestock to the Department of State which "clarifies the initial official position of that Ministry and finds that the laws of Honduras were not violated by Mr. McNab." (Doc. 421, Ex. B) ... 27

*xiii STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES

Amici adopt the Brief filed by David Henson McNab.

*xiv STATEMENT OF ISSUES

Amici adopt the Statement of Issues filed by David Henson McNab.

*1 The Embassy of Honduras, on behalf of the Government of the Republic of Honduras ("Embassy") and the Asociacion de Pescadores del Caribe ("APESCA"), a Honduran fishing Association, submit this brief as amicus curiae in support of David Henson McNab ("McNab"). For the reasons set forth in this brief, and in the accompanying Motion for Leave to File, the Embassy and APESCA respectfully request that this Court (a) reverse the District Court's *2 decisions on McNab's motions concerning the interpretation of Honduran law and (b) vacate his conviction and sentence.

INTEREST OF AMICUS CURIAE THE EMBASSY OF HONDURAS AND THE ASOCIACION DE

PESCADORES DEL CARIBE

Embassy of Honduras

The Embassy is the representative of the Government of the Republic of Honduras within the United States. The Embassy is charged, inter alia, with safeguarding the rights of Honduran citizens trading with and traveling to the United States, [FN1] defending Honduran citizens in the United States against improper interpretations and enforcement of Honduran law, ensuring the proper interpretation and enforcement of Honduran law by the United States and its courts, and implementing of international trading and management regimes, statutes and agreements.

FN1. McNab is the only Honduran citizen involved in this case.

APESCA

APESCA is, under applicable Honduran laws and regulations, the representative of the commercial fisheries on Honduras' Caribbean coast *3 responsible for working with the Ministries to implement the fishing and maritime laws of the Republic of Honduras.

APESCA is composed of a fleet of 300 boats from the Bay Islands and the Honduran communities which fish on the Honduran Caribbean waters. The target species are lobster, shrimp, conch, red snapper and grouper. Virtually all (over 90%) of the catch is exported, primarily to the United States. To fulfill its mission, APESCA works with the Ministries, the Honduran Congress and its members to ensure that commercial fishing operations are carried out pursuant to Honduran law. This includes commercial practices that allow the export of product to the United States. APESCA and its members have an interest in the outcome of this case because of its members' trade and travel to the United States in connection with their seafood products. These Honduran fishermen require assurance that if they have taken all steps mandated by Honduras to comply with its laws, they will not be arrested and charged with a crime when visiting the United States for allegedly violating these same laws when their product enters the United States.

The Purpose For Filing This Amicus Brief

The Embassy and APESCA believe that had the proper procedures, resources and authorities necessary for determining the law of Honduras, as it *4 applies to this case, been followed, the District Court would have been required to find that no Honduran law was violated and that no Lacey Act action could lie. The Embassy is filing as Amicus to ensure that this Court is informed about the correct interpretation of the Honduran system of law and understands the correct Honduran procedure for applying that law in cases such as this one. APESCA and the Government of Honduras also have an interest in promoting the economy of Honduras by removing disincentives to free trade with this country. Both believe that one of the clearest disincentives would be a practice by the U.S. Government of interpreting and enforcing Honduran law in a manner inconsistent with the manner of its interpretation and enforcement in Honduras. The District Court's decision in this case is a stark example of such an inconsistency. [FN2] It has had and will continue to have a chilling effect on the Honduran fishing industry, were it to stand. Principles of international law and comity are threatened by the District Court's ignoring the authoritative exposition of Honduran law by the relevant Honduran legal authorities.

FN2. The testimony at trial demonstrated that McNab's lobster catch passed all inspections in Honduras before shipment. (R32-1345-49, 1361-62, 1392, 1397). The testimony also showed that McNab was doing business in the same manner as everyone else in the Honduran lobster industry. (R28-807, 840, 846).

*5 Because of the importance of correctly interpreting and enforcing (a) Honduran law, and (b) the international management, conservation and trading system, the Embassy and APESCA respectfully submit this brief so as to assist this Court in determining the correct manner in which Honduran law should be interpreted to be consistent with and further that system. Appended hereto is the Declaration of the Attorney General of Honduras. The Attorney General of Honduras is the person empowered under Article 228 of the Honduran Constitution to represent the interests of the Honduran Government. [FN3] The Court is respectfully directed to the attached Declaration of Attorney General Sergio Leiva (Leiva Declaration) which sets forth in detail the relevant Honduran law and the position of the Embassy as it relates to this case.

FN3. HTTP://www.georgeTown.edu/pdba/constitutions/Honduras/hond82.html (Honduran Constitution website). See Leiva Declaration attached as Addendum, Tab 1 (Spanish and Tab 2 (English). Article 228 is Addendum, Tab

II.

SUMMARY OF POSITION

In August 2001, McNab was sentenced to 97 months' incarceration based on the charge that he committed a Lacey Act [FN4] violation by violating a fish or wildlife law of a foreign nation (Honduras). On August 23 he was incarcerated. *6 The manifest paradox in this case (which must be corrected by this Court) is that McNab remains in jail even though the highest governmental legal authorities in Honduras have uniformly advised, averred and made clear that McNab, in fact, violated no Honduran law. The only testimony to the contrary was given by persons not empowered or authorized to express such opinions. For the District Court to rely upon such compromised testimony is plain error which this Court should correct in its task of de novo review. [FN5] The District Court's decision is plainly inconsistent with the objectives and goals of the Lacey Act.

FN4. 16 U.S.C. 3312 et seq.

FN5. District Court determinations of controlling law (such as foreign law) are reviewed de novo. Seguros del Estado, S.A. v. Sci. Games, Inc., 262 F.3d 1164, 1171 (11th Cir. 2001).

The allegations against McNab under the Lacey Act are that: (i) some seven percent of his fleet's lobster catch was undersized under Honduran law; (ii) the catch was not placed in cardboard boxes in accordance with a Honduran health regulation; and (iii) one shipment contained some seven percent of egg-bearing lobster allegedly in violation of a Honduran statute. However, even if the facts were as the government stated, Amici will demonstrate that the conduct of McNab did not violate Honduran law and thus cannot lay the foundation for a Lacey Act violation. Because the prosecution failed to present to the District Court the legal sources and authorities that would have authoritatively and correctly interpreted *7 the relevant Honduran law, the lower court received incorrect interpretations of Honduran law from sources not competent to give them and was thus led into error. In addition, the Court did not allow evidence that McNab, and other fishermen, complied completely with Honduran law. There was no evidence given by appropriate authorities that would support the Court's findings on Honduran law, the instruction to the jury, or the verdict in this case.

As this is a de novo review, the Court now has before it a wide breadth and depth of analysis from the highest and most relevant legal authorities in Honduras, who are the persons empowered under Honduran law to render definitive statements about it. Those authorities establish that of the Honduran laws that McNab allegedly violated: (i) the "Resolution" [FN6] regarding lobster size, was void ab initio - i.e., it never had the force of law; (ii) the "Regulation" [FN7] (roughly equivalent to a U.S. administrative regulation) regarding failure to meet the health and hygiene regulations was never in effect at any time relevant to this case; and (iii) the Decree (equivalent to a U.S. statute) [FN8] regarding the harvesting of eggs of aquatic species did not prohibit what McNab was accused of - the harvesting of *8 egg-bearing lobsters and, moreover, was repealed by a later Decree, which operates retroactively in criminal cases, so that under Honduran law the repealed statute cannot be applied in the instant case.

FN6. Resolution 030-95.

FN7. Agreement ("Acuerdo") 0008-93. (Folder 1, Ex. 28)

FN8. Article 70(3) of Decree No. 157-94.

In short, contrary to the Government's contention, McNab violated no Honduran law, and thus no provision of the Lacey Act.

III.

THE HONDURAN LEGAL FRAMEWORK

The Government of Honduras is a constitutional republic. Its legal system is generally under the continental or civil law system (R19-134) and contains numerous guaranteed rights protecting due process of its citizens. Pursuant to Section 315, the Constitution is the supreme law of the Republic. (Rl 9- 257).

The adoption of statutes in Honduras (issued as "Decrees") is the exclusive prerogative of the National Congress. (R19-132). At the same time, the Constitution (Articles 245(11) and 321) 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, (i.e. *9 Chief Minister) of the pertinent ministry. (Rl 9-131). See Honduran Constitution, Articles 245(11), 248, and 321. Both statutes and regulations become effective only when they are published in La Gaceta, which is the Honduran equivalent of the Federal Register.

A "Resolution" (as distinct from a "Regulation") is an administrative or judicial decision that is designed to conclude a proceeding or dispute involving an interested party within the jurisdiction of that agency or court. (R19-130). See Article 120, General Law of Public Administration.

The Honduran judicial system includes a separate administrative law court system which adjudicates disputes relating to administrative matters. Among the procedures available in the administrative court system is an action by a Honduran citizen who claims to be adversely affected by some administrative rule, to seek a declaration that the rule is invalid. Such an action is first brought in the Honduran "Court of First Instance in Administrative Law." [FN9] Decisions of the Court of First Instance may be appealed to the Court of Appeals of Administrative Matters.

FN9. McNab, in fact, did institute such an action and as will be shown below, successfully demonstrated to the Honduran Administrative Court that the Regulation he is alleged to have violated was, in fact, null and void ab initio.

*10 IV.

ARGUMENT

1. Had The Proper Authority and Sources of Honduran Law Been Followed, the District Court Would Have Determined that No Honduran Law Was Violated.

The Lacey Act does not contain its own substantive provisions proscribing conduct related to the taking or possession offish and wildlife. It simply borrows such laws which have been duly adopted by the states, Indian tribes, or foreign nations. According to the legislative history to the 1981 Amendments, the Act should be viewed "not as increasing the federal role in managing wildlife, but as a federal tool to aid the states in enforcing their own laws concerning wildlife." S. Rep. No. 97-123 (1981), reprinted in U.S.C.C.A.N. at 1748. The 1981 amendments to the Act do not "constitute a broadening of federal authority under the Act, but merely would allow the Federal Government to provide more adequate support for the full range of state, foreign and federal laws that protect wildlife." Id. at 1751.

Thus, in prosecuting foreign law violations of foreign laws relating to fish and wildlife, the U.S. Government must accurately and faithfully "import" the laws of that country into its prosecution, rather than "exporting" its own laws or *11 its own interpretation of the foreign country's laws. To do otherwise is to frustrate the legislative intent of the Lacey Act as well as to violate fundamental principles of international law and comity. With respect to felony prosecutions, under Section 4(d)(l) of the Lacey Act, and its concomitant requirement of a "knowing" violation, it should be even more incumbent upon the Government to prove, unequivocally, the existence, validity, and authoritative meaning of the foreign laws involved.

There are many potential methods for determining a foreign country's laws. Certainly, however, the most reliable method is to follow that country's own protocol and procedures for an explanation of those laws from the proper, authoritative source. The proper procedure which should have been followed here, as exemplified in United States v. 2,507 Live Canary Winged Parakeets, [FN10] was for the Government to obtain evidence of Honduran law from the appropriate Honduran sources who were competent and empowered to give such evidence. The importance of such a procedure is precisely to obviate the ambiguities, uncertainties and confusion exemplified in this case as to the meaning of Honduran law. Unfortunately, this procedure was not followed in this case. *12 Rather than obtain testimony from persons and sources empowered to explicate Honduran law, the Government proffered instead the testimony of mid-level ministerial employees who were not empowered to do so. Thus the District Court was led into error. The American legal system rejects the "concept of forum shopping." Yet that is precisely what the Justice Department did in this case. Evidently unable to obtain the testimony they wanted from the responsible Hondvran officials, they searched for minor officials who had not been authorized to render opinions on behalf of the Honduran Government and whose opinions had to be later recanted when confronted with the actual administrators of the programs, and with the controlling legal interpretations and/or judicial decisions. [FN11]

FN10. 689 F. Supp. 1106 (S.D. Fla. 1988), where the Court relied on the testimony of the Director of the Department of Forestry and Fauna at the Ministry of Agriculture, who specifically was responsible for interpreting, enforcing and applying the wildlife laws of Peru.

FN11. As an example, the Affidavits of Andres Sanceda and Jose Umanzor, dated August 4, 2000 (see Folder 4, Exs. 8 and 9) make clear that these individuals explained to the U.S. Government that they "were not authorized" to give sworn affidavits on legal matters relating to fishing in Honduras. Nevertheless, the Government obtained notarized statements from them and filed these in support of its position.

2. The Correct Interpretation of Honduran Law

The core of the allegations against the defendants is that they violated: (1) Resolution 030-95, relating to lobster size limits; (2) Regulation ("Acuerdo") 0008-93, relating to hygiene rules for fisheries; and (3) Article 70(3) of the *13 Fishing Law of 1959, relating to the harvesting of eggs of aquatic species. None of these allegations is true.

(i) Resolution 030-95. The record below is replete with testimony of Honduran government officials and sources to the effect that Resolution 030-95 (the lobster size provision) was declared void ab initio, and was of no force and effect, because it was not adopted in accordance with Honduran law and thus it could not legally provide the basis for any violation of Honduran law. This was explicitly declared by the Honduran Court of the First Instance of Administrative Law in response to an action brought by McNab to declare the Resolution null and void on May 23, 2001 in response to a petition filed by McNab seeking annulment of the resolution. (R5-234, Ex. B). Its decision was unanimously upheld in all respects by the Court of Appeals for Administrative Law (October 11, 2001) and is now a final decision. (Doc. 415, Ex. D). The decision of both Administrative Courts was recognized as binding and conclusive by the Secretary of State for Agriculture and Livestock, [FN12] who also decreed (November 16, 2001) that Resolution 030-95 was null and void ab initio, and "never had the force of law." (Doc. 416, Ex. F) (emphasis in original). The *14 Attorney General of Honduras had reached the same conclusion in an earlier opinion (Folder 4, Ex. I), [FN13] as did the Honduran Commissioner on Human Rights, who concluded that the Resolution was "null and void and, therefore, does not produce legal effects...." (Doc. 415, Ex. A at p. 31).

FN12. The issue of the legality offish catches is placed by Honduran law within this Ministry.

FN13. The Attorney General's legal opinion of July 24, 2000 stated that the Resolution was invalid because express constitutional requirements had not been followed." (Folder 4, Ex. 1).

Yet the District Court ignored both the source of these opinions and the overwhelming weight of such evidence and instead accepted as determinative the argument made by the prosecution that (a) the Administrative Law Court of First Instance included in its decision a statement that its voiding of Resolution 030-95 was "only for purposes of their annulment and future inapplicability: This Resolution does not confer any right to claims," and therefore (b) the Administrative Court ruling had only prospective effect and had no impact on the McNab prosecution case because his activities occurred prior to the date of the Court's decision. The same rationale also appears in an affidavit of Jose Umanzor, another mid-level employee of the Ministry of Agriculture and Livestock.

There are a number of flaws in the argument. First, the prosecution's argument, adopted by the District Court, is incorrect as a matter of Honduran law. *15 In his Declaration (attached hereto), the Attorney General of Honduras, the authorized "legal representative" of Honduras, has declared that the language upon which the Justice Department relies was meant by the Administrative Court to do two things: (a) point out that the resolution was "officially nonexistent for any persons who could have been affected by it," and (b) confer protection upon the Honduran Government for enforcing those regulations prior to the Administrative Court's declaring them null and void, so that no person or entity could make legal claims against the Government for money or other damages as a result of the Administrative Court's decision. (Leiva Declaration, Tab 2, at p. 7). The Declaration also establishes that if McNab had been charged with violating this resolution in Honduras, and had successfully challenged it, as he did, he would have been acquitted of all charges and there could have been no fine imposed. (Leiva Declaration, Tab 2, at pp. 7-8).

The language was not intended as a holding that the Resolution had any legal effect upon fishermen prior to the date of the Court's ruling. Such a position is legally and logically incompatible with the Administrative Court's unambiguous declaration that the Regulations were null and void ab initio. The District Court's holding would create a legal oxymoron because a law which is void ab initio is one which never has or has had any legal force, while acceptance *16 of the District Court's position would have given the null and void law legal effect up until the date of the Administrative Court's decision. What could have been more incongruous than for others to benefit from the decision, and not McNab, when he was the one who had obtained the judicial declaration of annulment?

The Attorney General of Honduras made the error of such a position absolutely clear in a legal opinion he issued on July 24, 2000, in which he stated, inter alia, that Resolution No. 030-95 had neither the character nor effect of a "law" or "regulation" at any time. (Folder 4, Ex. 1). The Amid respectfully direct the Court to that opinion, to the consistent opinions of every government official or entity empowered to render such opinions, cited above, and to the attached Leiva Declaration which discusses Honduran law generally and this matter specifically at Tab 2, pp. 6-8.

Liliana Paz Testimony

The District Court, essentially ignoring the extensive evidence submitted by McNab, relied instead upon the testimony of Liliana Paz, a Secretary-General of the Ministry of Agriculture and Livestock, who testified that Resolution 030-95 was valid. In fact, however, the attached Leiva Declaration (Tab 2, pp. 4-5), makes clear that Ms. Paz's position is merely a mid-level, essentially ministerial, one. Her job under Honduran law is basically to serve as an instrument of *17 communication for the Secretary of State of that Ministry. The powers of Secretaries-General are limited to: receiving requests and petitions and registering them, ensuring that matters are processed within established deadlines; maintaining a register of the decrees and accords that are promulgated by that Ministry; maintaining a record of the official correspondence of the Ministry and delivering that correspondence to the proper personnel within the department; maintaining a General Archive of the dispatches of the Minister; authorizing the signature of the Secretary of State in accords or resolutions that are promulgated by him; notifying those persons interested in such resolutions or provisions; transmitting to interested parties decisions on relevant matters; and coordinating and supervising legal services, i.e., assigning the files to the appropriate legal advisors and supervising the bureaucratic procedures developed to handle such files. The Secretary-General is also in charge of the institutional communication and management services regarding requests by persons outside the Ministry. Most important, however, the Secretary-General is not authorized to resolve any type of matter or issue except those that the Secretary (Minister) expressly designates to him or her through a "Delegation Acuerdo that meets all of the requirements set forth by the Law" (Leiva Declaration at Tab 2, p. 5). That did not happen here, but instead the Secretary (Minister) specifically intervened to *18 disqualify Ms. Paz's participation. The Secretary-General's position does not involve rendering opinions or legal pronouncements at any time, either within the Ministry or outside of it. To do so, would violate the legal structure of Honduras.

The participation of Ms. Paz in this case, as a purported interpreter of Honduran law, was irregular and illegal. Indeed, Ms. Paz's transgression in this respect was considered so grave that the Secretary of State for Agriculture and Livestock, at the behest of the Honduran Human Rights Commissioner, specifically intervened to disqualify that participation (see Doc. 416, Ex. F). Further, the action of functionaries in this case, issuing opinions which they were not authorized to emit, constituted a most serious violation of McNab's human rights, as was made clear by the Honduran National Human Rights Commissioner. Ms. Paz, herself, co-signed the Secretary of State's Resolution of November 16, 2001 (Doc. 416, Ex. F), in which the Secretary of State held that Ms. Paz had committed an error of law and that her testimony in this case should be disqualified. The conduct of the Justice Department in presenting Ms. Paz's testimony is in stark contrast to the procedure followed in United States v. 2,507 Live Canary Winged Parakeets, supra. In that case the Peruvian law was proved by the testimony of the government officials who were responsible for interpreting *19 and administering the program in question. Had the Justice Department followed such a procedure in this case, the Court would have dismissed the indictment.

(ii) Regulation 008-93. The same considerations apply to the Regulation here involved, Regulation ("Acuerdo") 008-93. This "Acuerdo" (equivalent to a U.S. administrative regulation) relating to hygiene rules for fisheries, was issued pursuant to National Congress Decree No. 40 (equivalent to a U.S. statute) of May 16, 1973.

Decree No. 40 was repealed by Article 42 of Decree No. 157-94, effective January 13, 1995 and therefore was not in effect at the time the lobsters were caught. The repeal of Decree No. 40 operated, under Honduran law, to repeal the regulations promulgated under that Decree, including Regulation 008-93. McNab presented expert testimony on this longstanding principle of Honduran law. (R6- 788). Thus, Regulation 008-93 was of no legal effect during the time period relevant to this case.

Again, at the Government's urging the District Court was persuaded to ignore this law and evidence and instead relied upon the testimony of Ms. Paz that Regulation 008-93 was only "tacitly repealed." Therefore, because the new statute (Decree 157-94) adopted in place of the old statute (Decree No. 40) did not totally conflict with Regulation 008-93, Regulation 008-93 continued in effect in relevant *20 part during the time period relevant to McNab's actions. The District Court further held that, according to Liliana Paz's testimony, Honduran Government officials continued to enforce Regulation 008-93 during the relevant time period and that such testimony was consistent with (indeed buttressed) the distinction between "explicit" and "tacit" repeal relied upon by Ms. Paz. The District Court also noted that in 1999 there was a set of regulations which explicitly repealed Regulation 008-93, a fact which also supported the "explicit" versus "tacit" distinction made by Ms. Paz. [FN14]

FN14. The District Court reasoned that if the Regulation had been totally repealed in 1995, there would have been no need for the language of repeal in the 1999 Regulations.

But the District Court was wrong. Subsequent developments established conclusively that Regulation 008-93 was of no legal effect during the time period involved here. The Honduran National Congress in fact issued an interpretive law (Decree No. 198-2001) concerning the interpretation of its civil code, which makes clear that the express total repeal of a law leaves "without legal value or effect the general regulations and the specific regulations totally... that the Executive Branch... has issued to implement the provisions of the repealed law, unless there is an express provision to the contrary in the new repealing law." See also Leiva Declaration, Tab 2, p. 8. Thus, Decree No. 198-2001 (an interpretative *21 law which is part and parcel of the interpreted law and is to be applied from the date of the interpreted law), obliterated Ms. Paz's erroneous "explicit" versus "tacit" distinction. In Honduras, the sole power to "interpret" the law rests with the National Congress. See Article 205(1) of the Honduran Constitution. The National Congress' interpretation of the law is, in fact, the law. On this basis alone, the District Court's decision must be reversed.

Further, if any more be needed, the Secretary of State for the Ministry of Agriculture and Livestock (Ms. Paz's superior) has specifically declared that Ms. Paz's theory of "explicit" versus "tacit" repeal was incorrect and that Regulation 008-93 was "repealed in its entirety and rendered without any value or legal effect as of January 13, 1995," the date that Decree 157-94 went into effect. The Director General of SENASA, the Agency within the Ministry of Agriculture and Livestock which is responsible for enforcement of the hygiene laws and regulations such as 008-93, [FN15] has stated to the same effect and has further explained that the language repealing Regulation 008-93 in 1999 (the existence of which led the District Court to conclude that the regulation must have been in effect until that date), was unnecessary and was inserted as a result of his agency's *22 oversight in failing to consider the earlier repeal of the Decree No. 40 in 1995 by Decree 157-94. (Doc. 416, Ex. G). The SENASA Director General has also directly contradicted the testimony of Ms. Paz that SENASA continued to enforce Regulation 008-93 after 1995. The Director General stated that the regulation was not enforced after January 13, 1995 because Regulation 008-93 upon which it was based was repealed in 1995 by Decree No. 157-94. (Doc. 421, Ex. A).

FN15. See Decree No. 157-94, Articles 3, 4 and 5.

In summary, the conclusions of the District Court, based upon erroneous testimony from mid-level officials not empowered or authorized to issue opinions with respect to the law, cannot be allowed to contravene the Decrees of those authorities specifically given the power to interpret the laws by the Constitution and statutes of Honduras, such as the National Congress, and cannot contravene the-statements of those persons authorized to enforce these laws and issue resolutions, such as the Secretary of the Ministry of Agriculture and Livestock, the Director General of SENASA, and now the Honduran Attorney General as stated in the attached Declaration.

(iii) Article 70(3). Similarly, Article 70(3) as contained in Decree No. 157- 94, the Fishing Law of 1959, which the prosecution relied upon as a Honduran law violated by McNab, was itself specifically repealed by Decree No. 245-2000, effective February 5, 2001, which replaced Article 70 in its entirety *23 with a new and amended Article 70. Under Honduran law, the old Article ceased to have any legal validity or effect when the amended Article went into effect. The new Article 70, adopted by Decree No. 245-2000, contains no prohibition against destroying or collecting the eggs of an aquatic species and, as the Secretary of Agriculture and Livestock has stated, the repeal and replacement of Article 70(3) by Decree No. 245-2000 rendered the previous provisions of Article 70(3) invalid and without legal effect at any time. This is also stated in the attached Leiva Declaration, Tab 2, p. 10: "Article 70, Item 3, of the Fisheries Law ceased to have legal validity when it was repealed, which, when applied retroactively, causes the related article to be unenforceable in the case...."

Despite the clear authority cited above demonstrating that Article 70(3) was repealed by necessary implication since restated Article 70 contained no provisions concerning the destruction or collection of eggs of aquatic species, whereas the prior article specifically prohibited such activities, the District Court found it had not been repealed by substituting his speculation that repeal could not have been intended by the Honduran National Congress because the purpose of the Congress in adopting the new Article 70 was to "strengthen" environmental protections. In the District Court's view, allowing egg-bearing aquatic species to *24 be collected and harvested would not, in his opinion, strengthen environmental laws. Thus, he was loath to accord that interpretation to Congressional action.

But this speculative interpretation by a United States Court is simply wrong. This is made clear by the fact that the Secretary of State of the Ministry of Agriculture and Livestock (which is the Ministry that administers fishing laws) has issued a Resolution disqualifying Ms. Paz's affidavit testimony and expressly declaring that Article 70, as amended by Decree No. 245-2000 rendered "invalid and without legal effect" the provisions (i.e., Article 70(3)) originally contained in said article.

In summary, the express resolutions of the Head of the Ministry charged with enforcement of Honduran fishing laws, and the Declaration of the "legal representative" for the Honduran state, must surely be given effect over and above the speculations of the District Court as to what the Honduran Congress may have intended when it adopted the amended Article 70.

The District Court was also manifestly wrong in its interpretation of former Article 70(3). The Director General of DIGEPESCA [FN16] has declared that this law prohibited only the destruction or collection of the eggs of aquatic species in situ, *25 not the harvesting of the egg-bearing species themselves. (McNab Brief, Addendum Tab 8). The attached Leiva Declaration, (Tab w, pp. 9-10) makes clear that if Article 70(3), as originally worded, had been applied by Honduran officials in a manner consistent with the U.S. District Court's view, the law would have had the practical effect of prohibiting the collection of aquatic species entirely. [FN17] Such a law would have been "commercially impossible to comply with" and would have caused "tremendous harm to the economy of the country." (Leiva Declaration, Tab 2, at p. 9). The District Court's conclusion that retention of Article 70(3), as part of the new law, would be consistent with a Congressional intent to "strengthen" the environmental law was 180 degrees incorrect.

FN16. The General Directorate of Fisheries and Acquacuture (DIGEPESCA) is the Division of the Ministry of Agriculture and Livestock responsible for the enforcement of the fishing laws and execution of fishing programs.

FN17. This is because a fisherman could never know whether the fish was egg bearing until after it was caught and gutted, and thus could not legally fish at all!

In sum, the record before this Court contains the following evidence by Honduran officials and legal scholars that support McNab's contention and establishes that McNab violated no Honduran law:

1. Legal opinion of the Attorney General determining that Resolution 030-95 is neither a "law" nor a valid "Regulation." (Folder 4, Ex. 1).

*26 2. Opinion of the Special Prosecutor for the Defense of the Constitution stating that Resolution 030-95 was null and void and compliance with it was not obligatory. (Folder 4, Ex. 4).

5. Resolution of the Secretary of State of Agriculture and Livestock for the Republic of Honduras, dated November 16, 2001, stating that Resolution 030-95 was null and void. (Doc. 416, Ex. F).

6. Decision of the Court of First Instance of Administrative Law, dated May 23, 2001 annulling Resolution 030-95 (R5-324, Ex. B).

*27 8. Decree No. 198-2001, issued by the Honduran National Congress on November 1, 2001 that the total or partial repeal of a law rendered all general and specific regulations issued under that law without legal value or effect. (Doc. 416, Ex. E).

9. Decree 245-2000, published February 5, 2001, which repealed and replaced Article 70(3) with a new and amended Article 70 and thus rendered Article 70(3) without legal effect. (R5-326).

10. Decree No. 157-94, the PhytoZoo Sanitary Law, which repealed Agreement 008-93. (R5-325, Ex. C).

11. Statement of Director General of SENAS A dated January 11, 2002, relating to the repeal of Regulation 008-93 in 1995 (Doc. 416, Ex. G).

12. Statement of Director General of SENASA dated January 13, 2002, relating to the non-enforcement of Regulation 008-93 after 1995 (Doc. 421, Ex. A).

13. Statement of Director General of DIGEPESCA, dated March 4, 2002, interpreting Article 70(3) (Addendum Tab 8. McNab Brief).

14. A letter from the Honduran Embassy to the United States Department of State forwarding the resolution of the Secretary of Agriculture and Livestock to the Department of State which "clarifies the initial official position of that *28 Ministry and finds that the laws of Honduras were not violated by Mr. McNab," (Doc. 421, Ex. B).

In the face of such overwhelming evidence as to the meaning of Honduran law, the District Court's decision to the contrary is untenable and erroneous.

THE DISTRICT COURT'S HOLDING UNDERMINES THE INTERNATIONAL TRADING SYSTEM

The United States Congress has, pursuant to its Constitutional authority, provided the authority to the President to negotiate a number of international trade agreements. These acts are the Trade Act of 1974, et seq., 19 U.S.C. § 2101 et seq.; the Trade Agreements Act of 1979, 19 U.S.C. § 2501 et seq.; the Caribbean Basin Economic Recovery Act, 19 U.S.C. § 2701 et seq.; and the Uruguay Round Trade Agreements, 19 U.S.C. 3501 et seq. The Caribbean Basin Economic Recovery Act was amended and expanded in the Trade Development Act of 2000, better known as the United States-Caribbean Basin Trade Partnership Act ("CBTPA"). 19 U.S.C. § 2701, 2001 Cumulative Annual Pocket Part. The CBTPA was intended to allow duty-free access to products from eligible countries and is the first step in the development of a Free Trade Agreement of the Americas. Honduras has been found to be an eligible country under CBTPA and *29 is a member of the World Trade Organization (WTO), as is the United States, and thereby subject to the rules of the WTO, and other multilateral trade agreements.

As part of the entire trading system, the United States Congress has established a procedure whereby the United States may, consistent with the treaties and agreements entered into by the United States pursuant to treaties negotiated pursuant to the 1974, 1979 and Uruguay Round Trade Agreements, prohibit the import offish and wildlife products taken in contravention of international standards. It should be noted that Congress, as recently as 1999, amended 22 U.S.C. § 1977 et seq. to provide that the United States may only restrict imports offish and wildlife products to "the extent that such prohibition is sanctioned by the WTO, or multilateral trade agreements." 1999 amendments to Public Law 106-36, § 1002(d) found in the 2001 Annual Pocket Part to 22 U.S.C. § 1978.

The legislative history of the Lacey Act establishes that Congress intended to harmonize the trading system and the Lacey Act. Congress' concern was to craft an enforcement tool that would allow a U.S. enforcement mechanism to support foreign countries, states and tribes in enforcing their law, if the fish or wildlife was shipped in interstate and foreign commerce. The Senate Report makes clear that the 1981 Lacey Act amendments did not constitute a broadening *30 of federal authority, but merely allowed the Federal Government to provide more adequate support for the full range of state, foreign and federal laws. 1982 U.S.C.C.A.N., supra, at 1751. Congress intended that the Lacey Act was to be a tool to help states, tribes and foreign governments administer their fish and wildlife statutes. Congress never intended that the members of APESCA, their employees, or the country of Honduras would be exposed to forfeiture or criminal liability when the fishermen complied with Honduran laws.

The defect in the District Court's holding is that it overrides the law of Honduras, as interpreted by those Honduran officials charged with enforcing that law, by substituting the speculation of an American court. If allowed to stand, it will have a chilling effect on APESCA's members' ability to participate in the commercial fisheries for the export market. It would in effect nullify the CBTPA and the multilateral trading system.

This result also undermines the intention of the U.S. and Honduras trading system to use trade and American markets to allow development in countries around the world, including Honduras. The prospect that an entire export industry, APESCA, is subject to criminal charges when they comply with Honduran law, but do not satisfy different fishing management practices advocated by the U.S. National Marine Fisheries Service will necessarily dampen *31 that industry's desire to export to the United States and thereby frustrate Congress' effort to encourage trade. It is also an invasion of Honduran sovereignty and the principles of comity between countries. In administering the Lacey Act, the United States must defer to the clear statement of a foreign sovereign government's law by the authorities authorized to implement and interpret that law, including its judicial system. To do otherwise would gravely threaten the trading regime which Congress and the President have struggled to create.

VI.

CONCLUSION

Every appropriate Honduran authority authorized to render opinions as to the meaning of Honduran law, has concluded that Honduran law was not violated by McNab. The Embassy of Honduras, in this Amicus Brief, endorses that view. The well reasoned cases that have upheld a Federal Court's determination of foreign law have required that the appropriate officials of the foreign country, who are responsible for interpreting, declaring and administering the law, be the sources to determine that law. For American courts to ignore evidence from appropriate officials and to rely upon the recanted testimony of a mid-level government official, who was not authorized to give such opinions, runs counter to the legislative intent of the Lacey Act to faithfully discern and enforce only *32 the laws of the foreign country itself - and further violates the international principles of comity which require nations to give deference to the laws and procedures of other sovereign states. The McNab conviction must be reversed.