United States v. Huang

2002 WL 32595269 (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.

May 13, 2002.

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

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

*iv STATEMENT OF JURISDICTION

A. Subject Matter Jurisdiction

The United States District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

B. Appellate Jurisdiction

Pursuant to 28 U.S.C. § 1291, this Court has jurisdiction to hear this appeal from the District Court's denial of the Motion for New Trial Based on Newly Discovered Evidence.

STATEMENT REGARDING ORAL ARGUMENT

Appellant Diane H. Huang submits that oral argument is warranted in this case due to the lack of Eleventh Circuit precedent as to the determination of Honduran law and its applicability under the Lacey Act, 16 U.S.C. § 3371 et seq. Accordingly, oral argument is merited in this case in order to resolve these fundamental issues of law.

STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES

Appellant Diane Huang, pursuant to FRAP 28(i), adopts by reference the arguments and citations of authority in Appellants McNab's, Schoenwetter's and Blandford's briefs that relate to the District Court's denial of their similar motions for new trials based on newly discovered evidence. The newly discovered evidence is *v identical in each of these cases and the parties jointly requested these appeals be consolidated due to the same issues before this Court in the various appeals.

*vi TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES ... i, ii, iii

STATEMENT OF JURISDICTION ... iv

STATEMENT REGARDING ORAL ARGUMENT ... iv

STATEMENT REGARDING ADOPTION OF BRIEFS ... iv-v

TABLE OF CONTENTS ... vi-viii

TABLE OF AUTHORITIES ... viii-ix

STATEMENT OF ISSUES ... 1

STATEMENT OF THE CASE ... 1

A. Course of Proceedings and Disposition in the District Court ... 1

B. Factual Background ... 5

C. Basis of Appeal ... 7

D. Standard of Review ... 8

SUMMARY OF ARGUMENT ... 8

ARGUMENT ...

I. The District Court Incorrectly Failed to Certify Its Intention To Grant A New Trial Upon Remand Where The Newly Proffered Evidence In Support Of The Motion Clearly Establishes The Error in The Court's Pre-Trial Determination Of Foreign Law ... 9

*vii a. The Honduran National Human Rights Commission Special Report of Recommendations ... 10

b. The Secretary General of the Secretariat of State for the Offices of Agricultural and Livestock adopted the Findings and Recommendations contained in the Human Rights Report ... 12

c. The enactment by the Honduran National Congress of Decree No. 198-2001 ... 12

d. The Director General of the National Agricultural and Livestock Health Service (SENASA), Dr. Francisco Rodas, proclaimed that Agreement 0008-93 was repealed in January 1995 ... 14

e. The former Magistrate of the Supreme Court of Honduras, Nicolas Cruz Torres, clarifies the application of Decree No. 198-2001 ... 15

f. These Honduran Law Developments mandate the granting of a new trial and the District Court abused its discretion by denying Mrs. Huang's motion on the merits ... 16

II. The Newly Discovered Evidence Clearly Establishes That The District Court Incorrectly Determined The Applicable Foreign Law ... 16

a. Resolution 030-95 ... 17

b. Agreement 0008-93 ... 19

c. Article 70(3) of the Fishing Law of 1959 ... 20

III. Mrs. Huang Adopts The Arguments By Her Co-Defendants Concerning The Interpretation And Application Of Resolution 030-95, Agreement 0008-93 And Article 70(3) ... 21

CONCLUSION ... 21

Note: Table of Contents page numbers missing in original document

*viii TABLE OF AUTHORITIES

CASES

Bell v. Maryland, 378 U.S. 226 (1964) ... 18, 19

Seguros del Estrado, S.A. v. Scientific Games, Inc., 262 F.3d 1164, 1171 (11th Cir. 2001) ... 8

United States v. Boscario, 742 F.2d 1335 (11th Cir. 1984) ... 9

United States v. Chambers, 219 U.S. 217, 226, 78 L.E ... 19

United States v. Ellison, 557 F.2d 128 (7th Cir. 1977) ... 9

United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1984) ... 9

United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1999) ... 10

United States v. Pedrick, 181 F.3d 1264 (11th Cir. 1999) ... 8, 10

United States v. Pistone, 177 F.3d 957 (11th Cir. 1999) ... 8

United States v. Ramos, 179 F.3d 1333, 1336 (11th Cir. 1999) ... 10

United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997) ... 10

United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801) ... 19

STATUTES

16 U.S.C. § 3372(a)(2)(A) ... 1, 2

16 U.S.C. § 3373(d)(2) ... 1, 2

18 U.S.C. § 3231 ... iv

*ix 28 U.S.C. § 1291 ... iv

RULES OF PROCEDURES

Fed.R.Crim.P. 26.1 ... 2, 17, 18

Fed.R.App.P.28(i) ... iv

HONDURAN PROVISIONS

Constit. of the Repub. of Honduras ... 11

Honduran Civil Code ... 13, 15, 16

Agreement 0008-93 ... 1, 2, 3, 4, 6, 7, 11, 12, 13, 14, 15, 16, 20

Article 70(3) of the Fishing Law of 1959 ... 1, 2, 4, 6, 7, 11, 12, 16, 20

Decree No. 40 ... 12, 13, 14, 16, 20

Decree No. 157-94 ... 7, 8, 13

Decree 198-2001 ... 3, 4, 13, 14, 15, 16, 20

Decree No. 245-2000 ... 4, 7, 8

Resolution 001-95 ... 2

Resolution 030-95 ... 1, 2, 3, 4, 6, 7, 8, 11, 12, 16, 17, 18, 19, 20

Resolution 031-97 ... 2

OTHER AUTHORITY

Course on Civil Law ... 15

*1 STATEMENT OF ISSUES

I. Whether the District Court correctly denied Mrs. Huang's motion for new trial by refusing to certify its intention to grant a new trial upon remand in light of binding interpretations of relevant Honduran legal principles applicable to this case that mandate the granting of a new trial.

II. Whether the District Court erred in determining that Honduran Resolution 030-95, Agreement 0008-93, and Article 70(3) of the Honduran Fishing Law of 1959 are valid "laws" for purposes of the Lacey Act prosecution in light of newly discovered dispositive evidence to the contrary.

STATEMENT OF THE CASE

A. Course of proceedings and disposition in the District Court.

Appellant Diane H. Huang ("Mrs. Huang") was tried with three other defendants on a forty-seven (47) count indictment for various alleged crimes related to the Lacey Act (Record Excerpt at tab 2, hereinafter "RE_ at p._"). [FN1] On November 3, 2000, Appellant was convicted on counts one, thirteen through twenty-seven and forty-seven, i.e. conspiracy to violate the Lacey Act, to launder money and to smuggle illegal lobster (Count one), fifteen counts of misdemeanor violations of the Lacey Act (16 U.S.C. §§ 3372(a)(2)(A) and 3373(d)(2)) *2 (importing illegal wildlife)(Counts thirteen through twenty-seven), and one count of a felony violation of the Lacey Act (16 U.S.C. §§ 3372(d) and 3373(d)(3)(A)(i)) (false labeling offish or wildlife) (Count forty-seven).

FN1. All references to the record and record excerpts refer to documents, transcripts and excerpts in Court of Appeals Case No. 01-15148-JJ.

Mrs. Huang was not convicted of the substantive offenses of smuggling, the felony Lacey Act violations for importing or selling the lobster, or money laundering. Mrs. Huang is not presently incarcerated, but did receive as part of her sentence a prison term of twenty-four months (R15-394-1).

The Government moved, pursuant to Fed.R.Crim.P. 26.1, for a pretrial determination of the validity of the following provisions of Honduran law (R13- 46-1): Decree No. 154, The Fishing Law of 1959 (hereinafter "the Fishing Law"), Articles 30, 35, 37, 41, 54, and 70(3); Resolution Nos. 001-95 (January 1, 1995), 030-95 (December 5, 1995) and 031-97 (December 17, 1997); and Agreement 0008-93 (R19-15 to!9). The District Court granted the Government's Motion (R14-209). [FN2]

FN2. The District Court admitted the difficulty in resolving the discrepancies in Honduran law and stated that its applicability "is a very close question."(R19-14).

Mrs. Huang appealed her convictions based, in part, on the fact that Honduran Resolution 030-95, Agreement 0008-93, and Article 70(3) of the Fishing Law of 1959, which were relied upon by the Government, were *3 unenforceable at all times relevant to the prosecution. [FN3] In support of her initial appeal, Mrs. Huang submitted numerous definitive Honduran court rulings and government legal interpretations of the applicable Honduran laws that first became available after the trial (see Add. Tabs 1 to 7 to case no. 01-15148-JJ). These court rulings and interpretations bolster Mrs. Huang's arguments in that appeal as well as the instant appeal.

FN3. These issues are addressed in Mrs. Huang's related appeal, case No. 01-15148-JJ, referred to herein as the "initial appeal".

After Mrs. Huang filed her initial notice of appeal, additional authoritative evidence relevant to this Court's review of Honduran legal principles became available:

1) the Republic of Honduras National Human Rights Commission Special Report of Recommendations ("Special Report"), which recognized the invalidity of the Honduran provisions at issue on appeal (Add. Tab 1);

2) the Honduran Court of Appeals affirmed the lower court's annulment of Resolution 030-95 (Add. Tab 2);

3) the Honduran National Congress adopted Decree No. 198-2001, which codified the repeal of Agreement 0008-93 prior to the dates charged in the Indictment (Add. Tab 3);

*4 4) the Director General of the National Agricultural and Livestock Health Service (SENASA) adopted the Human Rights Commission's Special Report (Add. Tab 4);

5) the Honduran Secretary of State for the Offices of Agriculture and Livestock issued a resolution that addresses each of the Honduran laws at issue. The resolution states: a) the Honduran Court of Appeals' affirmation of the annulment of Resolution 030-95 is to be applied retroactively; b) Agreement 0008-93 was repealed in its entirety as of January 13, 1995; and c) Article 70(3) was repealed by Decree No. 245-2000, and that this repeal is to be retroactively applied (Add. Tab 5).

6) a letter from the Honduran Embassy to the United States Department of State clarifying the application of its laws to the acts of co-defendant McNab (Add. Tab 6); and

7) Nicolas Cruz Torres, former Magistrate of the Supreme Court of Justice, Republic of Honduras, attests to the application of Honduran legal principles concerning interpretive laws, such as Decree No. 198-2001 (Add. Tab 7).

In light of this new evidence, and pursuant to this Court's direction (Add. Tab 8), Mrs. Huang moved the District Court for a new trial by requesting it to certify to this Court its intention to grant a new trial upon remand (Add. Tab 9). The Government did not oppose this motion. After initially denying the motion *5 on February 13, 2002 (Add. Tab 10), the District Court granted Mrs, Huang's Motion for Reconsideration and, after reconsidering, again denied the Motion on March 1, 2002 (Add. Tab 11).

B. Factual Background [FN4]

FN4. The factual background of this case is thoroughly briefed in Appeal No. 01-15148-JJ. Contained herein is a synopsis of facts pertinent to the interpretation of the Honduran legal provisions at issue.

Appellant Henson McNab owns and operates one of the largest commercial fishing enterprises in Honduras, the Caribbean Dream Company ("CDC")(R14-183-1 and R28- 780). His company harvested, among other things, Caribbean spiny lobster (Panulirus argus) one hundred to three hundred miles offshore in the Caribbean Sea (R20-209 and R32-1335 to 1336). Appellants Robert Blandford and Abner Schoenwetter own or operate seafood import/export businesses which purchased lobster from CDC (R14-183-1 to 2). Between 1995 and 1999, Mr. Blandford's business, Seamerica Corporation ("Seamerica"), purchased approximately 55,000 pounds of lobster each month during the harvesting season from CDC (R20-212, see also R13-46, Folder 1, Govt. Ex. 21).

Mrs. Huang was an employee of Ex-Im, a California-based seafood distributor, (R14-183-2; R29-1025; Gov't. Trial Exs.W2 and S8) who purchased lobster imported by Seamerica for Ex-Im (R26-551). Ex-Im processed the lobsters *6 at various seafood processing facilities and sold the new processed product to large commercial restaurants (R26-399 and R26-435). The lobster Ex-Im purchased arrived predominantly through the port of Bayou La Batre, Louisiana, via numerous shipments over the course of several years on CDC's vessel, The Carribean Clipper (R26-523; Gov't. Trial Ex. Dl).

In March 1999, the Government seized a shipment of CDC's lobster imported on The Carribean Clipper in Bayou La Batre which contained approximately 72,000 pounds of spiny lobster (R29-939; Gov't. Trial Ex. M44-81). Approximately 3-4% of the shipment (approximately 2,698 pounds) was comprised of lobster allegedly taken in violation of Honduran Resolution 030-95 (R25-209; Gov't. Ex.M35-81-A). Another approximate 5,219 pounds of lobster were allegedly egg-bearing and harvested in violation of the Honduran Fishing Law of 1959, Article 70(3) (R29- 922; Gov't. Ex. M31-81). The Government also contended that all of the lobster from the seized shipment violated Honduran packaging requirements (Agreement 0008-93); however, only the lobsters that were deemed to be in violation of Resolution 030-95 and Article 70(3) were retained or sold by the Government - the remaining lobster in the shipment were returned to Appellant McNab (R25- 293). The Indictment states that these violations occurred on or around August 1995 until May 10, 2000 (RE2 at p. 5).

*7 Based on her involvement in purchasing the lobsters on behalf of Ex-Im and based on the invalid Honduran law charged to the jury, Mrs. Huang was convicted. Subsequent to the conviction, significant developments in Honduran law bolstered Mrs. Huang's pretrial and post-trial arguments concerning the validity of the Honduran legal provisions relied upon by the Government. [FN5]

FN5. These developments included the Honduran Court of First Instance in Administrative Law declaring that Resolution 030-95 was an "absolute nullity" and "violated the legal code at the time [it was] issued." (R5- 324), the repeal of Article 70(3) of the Fishing Law, and the repeal of Agreement 0008-93 (R33-1589 to 1590).

C. Basis of Appeal.

Central to the Government's case are three Honduran "laws": Resolution 030-95, Agreement 0008-93, and Article 70(3) of the 1959 Fishing Law. Resolution 030-95 relates to size limits of harvested lobster, Agreement 0008-93 relates to sanitation requirements, and Article 70(3) relates to egg-bearing lobster. In her initial appeal, Mrs. Huang thoroughly briefed the following facts: (1) Resolution 030-95 had been annulled by the appropriate Honduran Court (Initial Br. Add. Tabs 1-2), (2) Agreement 0008-93 was repealed on January 13, 1995, by the enactment of Decree No. 157-94 (Rl 5-3 97-7), and (3) Article 70(3) was repealed by Decree No. 245-2000 (R15-397-10). The Government's response to these arguments in the initial appeal are now subsumed by significant *8 developments and clarifications in Honduran law since Mrs. Huang filed her initial appeal. These developments confirm Mrs. Huang's arguments and warranted the District Court to grant a new trial upon remand of the case.

Mrs. Huang challenges on appeal the District Court's post-trial interpretation and application of the Honduran law and its decision to deny her motion for new trial upon remand,

D. Standard of Review.

The Court of Appeals reviews the denial of a motion for new trial for an abuse of discretion. United States v. Pedrick, 181 F.3d 1264 (11th Cir. 1999); United States v. Pistone, 177 F.3d 957 (1 lth Cir. 1999).

This Court reviews legal error de novo. Seguros del Estrado, S.A. v. Scientific Games, Inc. 262 F.3d 1164, 1171 (11th Cir. 2001). A de novo review of the District Court's interpretation and application of Honduran law is required.

SUMMARY OF ARGUMENT

This Lacey Act prosecution is based on violations of various provisions of Honduran decrees, resolutions and agreements (R19-6-29; R33-1589 to 1590, 1594). All four Appellants challenged the validity of the Honduran law both pretrial and post-trial. The developments in Honduran law which were brought to the District Court's attention post-trial confirm the arguments Appellants'made *9 pretrial. Mrs. Huang is entitled to a new trial as to Counts one and thirteen through twenty-seven as each of the convictions on these counts is rooted in the invalid Honduran provisions discussed herein.

ARGUMENT

The District Court, in accordance with the procedures outlined in United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1984) and United States v. Boscario, 742 F.2d 1335 (11th Cir. 1984), reviewed Mrs. Huang's post-appeal motion for new trial and request to certify its intention to grant the Motion. A district court has the discretion to deny the motion, or certify to the appellate court its intention to grant the motion for new trial, should the case be remanded for the district court's consideration. Ellsworth, supra.: Boscario. supra.; United States v. Ellisoru 557 F.2d 128 (7th Cir. 1977). A refusal by the district court to certify its intention to grant the motion acts as a denial of the motion on its merits from which a defendant may appeal and have the action consolidated with any pending appeal from the conviction. Ellison, 557 F.2d at 132.

*10 This Court reviews the denial of a motion for new trial based on newly discovered evidence for an abuse of discretion. Pedrick. supra: United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1999). After reviewing the newly discovered evidence presented to it, the District Court abused its discretion by not certifying its intention to this Court that it would grant the motion upon remand of the case. A motion for new trial based on newly discovered evidence is appropriately granted if 1) the evidence is discovered after trial; 2) the failure to discover the evidence was not due to the defendant's lack of due diligence; 3) the evidence is not merely impeaching or cumulative; 4) the evidence is material to issues before the court; and 5) the evidence is such that a new trial would probably produce a different result. United States v. Ramos, 179 F.3d 1333, 1336 (11th Cir. 1999) citing United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997). This section examines the newly discovered evidence submitted for the District Court's consideration and its impact on Mrs, Huang's trial in light of these factors.

a. The Honduran National Human Rights Commission Special Report of Recommendations.

The Constitution of Honduras authorizes individuals in the National Human Rights Commission to act as "ombudsman" on behalf of Honduran citizens who claim injury by the actions of Honduran administrative officers (see Special *11 Report, Add. Tab 1, pp. 1-2; Constit. of the Repub. of Honduras, Articles 1, 59, 321, 323). The purpose of the commission is to challenge official actions and to require written explanation from the challenged officials.

On November 8, 2001, Commissioner Leo Valladares Lanza issued his Special Report of Recommendations after analyzing a complaint submitted by counsel for co-defendant Mr. McNab ("Special Report") (Add. Tab 1). Mr. McNab's complaint requested a review of the administrative action of the counsel for Secretary General of the Ministry of Agriculture and Livestock. The Secretary's counsel, Liliana Paz, incorrectly opined on the validity and enforceability of Resolution 030-95, Agreement 0008-93 and Article 70(3).

The Report made several significant conclusions. First, "Resolution 030-95 is null and void and, therefore, does not produce legal effects because of having been issued by an entity without jurisdiction, in an erroneous manner and beyond the powers conferred upon it by the law." (Add. Tab 1 at p. 3). Second, the Special Report further recommends that Resolution 030-95 have a retroactive application when it effects criminal matters. Id Third, the Amended Article 70 "left without sanction the destruction or collection of the eggs of aquatic species" (Add. Tab 1 at p. 4). And fourth, Agreement No. 0008-93 was repealed on January 13, 1995. Id.

*12 Commissioner Lanza, while recognizing that he lacks the jurisdiction to declare null and void the actions of the administration, recommends that the Affidavit of Liliana Paz (which the Government and District Court relied on) be disqualified as legal error to the extent her opinion on the validity of these three legal provisions is contrary to the law (Add. Tab 1 at pp.4-5).

b. The Secretary General of the Secretariat of State for the Offices of Agricultural and Livestock adopted the Findings and Recommendations contained in the Human Rights Report.

On November 15, 2001, the Secretary General expressly adopted the recommendations of Commissioner Lanza. (Add. Tab 4 at p. 1). The Secretary General reiterated the findings and concluded that: (1) Resolution 030-95 never had the force of law; (2)Agreement 0008-93 was repealed in January 1995 and had no value or legal effect as of that date: (3) Article 70(3) of the Fishing Laws of 1959 was expressly repealed by Decree of the National Congress of Honduras; and (4) the affidavit of Liliana Paz is disqualified as it is legally wrong. Id.

c. The enactment by the Honduran National Congress of Decree No. 198-2001.

Mrs. Huang urged the District Court as part of her post-trial Alternative Motion to Dismiss/ Motion for New Trial based on newly discovered evidence (doc no. 344) that Agreement 0008-93 was repealed when Decree No. 40 was *13 repealed in January 1995. The District Court disagreed and held that it would be "untenable" to think that Agreement 0008-93 was repealed by the repeal of Decree No. 40 (RE6 at p. 9). The District Court reasoned, in part, that Articles 42 through 44 of the Honduran Civil Code, relating to repeals, supports its decision (RE6 at p. 8).

Despite the lower court's disbelief in Mrs. Huang's argument, on November 1, 2001, the Honduran National Congress adopted a new statute, Decree No. 198- 2001 (Add. Tab 3) codifying her argument. This statute interprets Article 43 of the Civil Code which relates to the effects of regulations issued pursuant to existing laws which have later been repealed by other laws on the same matter. Specifically, Decree 198-2001 mandates that "the total or partial express repeal of a law leaves without legal value or effects the general regulations and the specific regulations in toto,... that the Executive Branch... has issued to implement the provisions of the repealed law, unless there is an express revision to the contrary in the new repealing Law." (Add. Tab 3 at p. 1). In the instant matter, Agreement 0008-93 is an executive branch regulation issued to implement its enabling legislation, Decree No. 40. Decree No. 40 was expressly repealed by Decree No. 157-94 in January 1995 (Rl5-397-7) and Decree No. 157-94 did not provide for the continued vitality of the implementing regulation - Agreement 0008-93. *14 Therefore, based on Decree 198-2001, Agreement 0008-93 was repealed at the time Decree No. 40 was repealed in January 1995, which is prior to any of the conduct alleged in the indictment (see RE2 at p,5).

d. The Director General of the National Agricultural and Livestock Health Service (SENASA), Dr. Francisco Rodas, proclaimed that Agreement 0008-93 was repealed in January 1995.

Additional, conclusive evidence that Agreement 0008-93 was repealed in January 1995 came from the agency empowered to enforce that Agreement. Dr. Rodas, the Director General of SENASA, stated "[t]he Secretariat of Agriculture and Livestock through SENASA shall be responsible for enforcing compliance of the Plant and Animal [Health] Law and its Regulations relative to Animal and Plant Health." (Add. Tab 12 at p.l). Agreement 0008-93 was enacted under the laws relating to animal and plant health. Dr. Rodas concluded "Decision 0008-93 was not enforced by SENASA after January 13, 1995, in view of the fact that the Meat Industrialization Law, on which said Decision is based, was repealed on that day...." Id. The significance of this statement is that it is unequivocal that the Agreement was repealed prior to the time it was purportedly violated by Mrs. Huang (see RE2 at p. 5).

*15 Thus, through the very enactment of legislation by the Honduran National Congress and the express interpretation by the agency responsible for enforcing Agreement 0008-93 it is clear that the Agreement was repealed in January 1995. Since all of the conduct Mrs. Huang was convicted of occurred after January 1995, it was clearly incorrect to instruct the jury on the validity of this provision and its applicability to Mrs. Huang's charges.

e. The former Magistrate of the Supreme Court of Honduras, Nicolas Cruz Torres, clarifies the application of Decree No. 198-2001.

The treatise Course on Civil Law (Add. No.7), discusses the application of an interpretive law such as Decree 198-2001. As a former Honduran Supreme Court Magistrate, Nicolas Cruz Torres states this treatise is used by his country's supreme court as an authoritative, scholarly work (Add. Tab 7). The treatise clearly states that an interpretive law (Decree 198-2001) is deemed to be incorporated into the interpreted law (Article 43), and hence effective as of the date of the interpreted law. Because of this, there is no issue whether the interpretive law is retroactive, as such an argument would be inconsistent with the very nature of interpretive laws, i.e. that they are deemed written as of the same date as the interpreted law.

*16 Decree 198-2001, which is an express interpretive law of Article 43 of the Honduran Civil Code, is deemed to have been effective as of the date of the passage of Article 43. Therefore, since Decree 198-2001 codifies the principal of law that Agreement 0008-93 was repealed when Decree No. 40 was repealed, and Decree 198-2001 is deemed to be effective before the dates alleged in the Indictment, it is undisputed that a conviction grounded in a violation of Agreement 0008-93 cannot stand.

f. These Honduran Law Developments mandate the granting of a new trial and the District Court abused its discretion by denying Mrs. Huang's motion on the merits.

The District Court abused its discretion in failing to hold that Agreement 0008-93 and Article 70(3) of the 1959 Fishing Law were repealed, and in failing to hold that Resolution 030-95 was null and void, and that none of these provisions had any legal effect on the actions of Mrs. Huang, Had the District Court ruled accordingly, Mrs. Huang would have been entitled to a new trial.

II. The Newly Discovered Evidence Clearly Establishes That The District Court Incorrectly Determined The Applicable Foreign Law.

Mrs. Huang's initial appeal discusses at great length the Honduran statute, resolution and agreement at issue in this appeal. Ultimately, the issues in these consolidated appeals intertwine based on the common underlying challenges to *17 the District Court's pretrial determination of Honduran law pursuant to Rule 26.1 of the Federal Rules of Criminal Procedure. These latest developments as discussed, supra. not only bolster Mrs. Huang's arguments made pretrial, post-trial and in her initial appeal, but completely eliminate the bases and arguments made by the Government and the District Court as to the validity of the Honduran provisions.

a. Resolution 030-95.

After the Honduran appellate court affirmed the annulment of Resolution 030- 95, the Government's only contention on appeal was that the resolution must be applied prospectively (see Gov't.'s Br. in initial appeal at pp. 33-35, "the only question then is whether Resolution 030-95 was a Honduran law during the period covered by the indictment"). [FN6] In support of this position, the Government cites to the Honduran court's order which states the resolution is void "only for purposes of [its] annulment and future inapplicability: This Resolution does not confer any *18 right to claims." (Add. Tab 2 at p. 5). Mrs. Huang's newly discovered evidence rejects the Government's interpretation of the Honduran court order.

FN6. As a basis to reject Mrs. Huang's argument concerning the invalidity of Resolution 030-95, the District Court based its denial of the Alternative Motions in part on its perception that "the administrative decision is not Honduran law now and because... the Honduran government continues to enforce Resolution 030-95, the court concludes that Resolution 030-95 continues to be valid under Honduran law."(RE6 at pp.6-7).

The Secretary General of the Secretariat of State for the Offices of Agricultural and Livestock unequivocally concluded that Resolution 030-95 never had the force of law (Add. Tab 4 at p. 2). This position makes logical as well as legal sense. Mistakenly, the Republic of Honduras enforced a resolution that was never valid. Once the invalidity of Resolution 030-95 became known, it was annulled. Had the issue come before the Honduran court the week after Resolution 030-95 was published, that court would have ruled the same. Thus, the timing of its ruling does not make the resolution any more of a valid basis for the Government in its Lacey Act prosecution, particularly in light of the fact that the Government objected to the Defendants' pretrial motion for a continuance of the trial for the sole purpose of annulling the resolution (see R19-113). The Government should not be permitted to use the objection to the continuance as a shield at trial, only to turn that shield into a sword which is now thrust into Mrs. Huang by claiming the annulled resolution cannot be applied retroactively. Such a position is clearly inequitable and clearly in contravention to the rules of retroactive application of such a law as more fully briefed in Mrs. Huang's initial appeal. See Bell v. Maryland, 378 U. S. 226 (1964) and footnote 8, infra.

*19 The limiting language of the Honduran court's order actually solidifies Mrs. Huang's position and that taken by the Secretary General. The phrase "only for future application", is followed by a colon and the phrase "[t]his Resolution does not confer any right to claims." Id. The Honduran court merely emphasizes that its ruling does not confer the right to assert a new claim against the Republic of Honduras by anyone punished pursuant to Resolution 030- 95. It does not preclude any pending matters where an individual might have a right to appeal. [FN7] If this were the case, the Government's argument would lead to an illogical conclusion: Honduran citizens convicted of violating 030- 95 one day before the Honduran court annulled the resolution could not appeal the void resolution. This Court is bound to review de novo the state of the law today, not at the time of trial, *20 or any other time. There is clearly no doubt that Resolution 030-95 is not valid law (nor was it ever) and a conviction based on an invalid law cannot stand.

FN7. Such a position is entirely consistent with Bell v. Maryland, 378 U.S. 226, 232 (1964)(repeal of criminal law has retroactive effect on 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 law must be obeyed, or its obligation denied." United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801); see Bell, 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, supra, which will correct a misapplication of a law to cases not yet concluded. It would be nearly impossible to right every wrong caused by the misapplication of a Resolution 030-95, or to reverse every conviction under a statute later ruled unconstitutional.

b. Agreement 0008-93.

There is no stronger proof that Agreement 0008-93 was repealed than the plain language of the newly enacted Honduran statute, Decree No. 198-2001. This Decree states that an implementing rule promulgated to enforce the mandates of a given statute is repealed at the same time the statute is repealed. Decree 198-2001, when applied to the instant case, dictates that the repeal of Decree No. 40 on January 13, 1995, means Agreement 0008-93 was repealed on that date as well since Agreement 0008-93 was an implementing regulation of Decree No. 40. Since Agreement 0008-93 was repealed prior to the occurrence of the criminal acts alleged in the indictment, the District Court's determination that Agreement 0008-93 was valid is clearly in error.

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

As the District Court noted in its order denying Mrs. Huang's first Motion for New Trial, "it is this ground [the repeal of Article 70(3)] that gives the court the most pause." (RE6 at p. 13). The newly discovered evidence, discussed supra. concerning the repeal of Article 70(3) should remove any pause the District Court had concerning the continued vitality of this Article.

*21 III. Mrs. Huang Adopts The Arguments By Her Co-Defendants Concerning The Interpretation And Application Of Resolution 030-95, Agreement 0008-93 And Article 70(3).

CONCLUSION

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

Appendix not available.