United States v. McNab

2002 WL 32595270 (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.

May 03, 2002.

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

Brief of Defendant-Appellant David Henson Mcnab

Patrick H. Sims, Cabaniss, Johnston, Gardner, Dumas & O'neal, P.O. Box 2906, Mobile, Alabama 36652, Telephone: 251.433.6961, Facsimile: 251.415.7350, J. Patrick Courtney, III, P.O. Box 2205, Mobile, Alabama 36652-2205, Telephone: 251.694.1001, Facsimile: 251.433.3752

William W. Watts, III, Hudson & Watts, P.O. Box 989, Mobile, Alabama 36601- 0989, Telephone: 251.432.7200, Facsimile: 251.432.0073, Donald M. Briskman, Barskman & Binion, P.O. Box 43, Mobile, Alabama 36601, Telephone: 251.433.7600, Facsimile: 251.433-4485

FNAttorneys for Appellant

*v STATEMENT REGARDING ORAL ARGUMENT

Appellant David Henson McNab incorporates by reference his statement regarding oral argument contained in his original brief in Case No. 01-15148-JJ, with which the present appeal has been consolidated. This appeal concerns the same determinations of Honduran law and their applicability to appellant under the Lacey Act, 16 U.S.C. Section 3371, et seq.

*vi TABLE OF CONTENTS

Certificate of Interested Persons ... ii

Statement Regarding Oral Argument ... v

Table of Contents ... vi

Table of Authorities ... viii

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

Statement of Jurisdiction ... xi

Statement of the Issues ... 1

STATEMENT OF THE CASE ... 3

A. Course of Proceedings and Disposition Below ... 3

B. Statement of the Facts ... 4

1. Resolution 039-95 ... 6

a. Proceedings Regarding Resolution 030-95 Prior to Original Appeal ... 6

b. Post-Appeal Developments Regarding Resolution 030-95 ... 11

2. Regulation 008-93 ... 14

a. Proceedings Regarding Regulation 008-93 Prior to Original Appeal ... 14

b. Post-Appeal Developments Regarding Regulation 008-93 ... 16

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

a. Proceedings Regarding Article 70(3) Prior to Original Appeal ... 20

*vii b. Post-Appeal Developments Regarding Article 70(3) ... 22

C. Standard of Review ... 24

SUMMARY OF THE ARGUMENT ... 25

LEGAL ARGUMENT ... 27

I. THE DISTRICT COURT ERRED IN FAILING TO CERTIFY AN INTENTION TO GRANT A NEW TRIAL TO DEFENDANT MCNAB ... 27

A. Resolution 030-95 was Void Ab Initio and Cannot Form the Basis of this Lacey Act Prosecution ... 27

B. Regulation 008-93, Issued to Enforce the Law of Industrialization of Meats (Decree No. 40), Had No Further Value or Legal Effect After the Repeal of That Law in 1995 ... 30

C. Article 70(3) of the Fishing Law was Repealed by a Complete Amendment and Restatement of Article 70 in February of 2001 ... 33

CONCLUSION ... 36

CERTIFICATE OF COMPLIANCE ... 37

ADDENDUM ... 41

*viii TABLE OF AUTHORITIES

CASES

Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708 (1987) ... 29

Seguros Del Estate, SA v. Scientific Gains, Inc., 262 F.3d 1164, 1171 (11th Cir. 2001) ... 24

U.S. v. Ellsworth, 814 F.2d 613 (11th Cir. 1987) ... 3

U.S. v. Knowles, 29 F.3rd 947, 951 (5th Cir. 1994) ... 29

U.S. v. Richardson, 233 F.3rd 1285, 1292 (11th Cir. 2000) ... 24

STATUTES

F.R.A.P. Rule 4(b)(4) ... 4

16 U.S.C. Sections 3372 ... 4

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

Honduran Constitution

Article 96 ...

Article 245(11) ...

Article 248 ...

Statutes

Article 70 Fishing Law of 1959 (Decree No. 154) Decree No. 254-2000 ...

Article 118(2), General Law of Public Administration ...

Article 120, General Law of Public Administration ...

Article 43, Honduran Civil Code ...

*ix Law of Industrialization of Meats, (Decree No. 40) ...

Plant and Animal Health Law, (Decree No. 157-94) ...

Article 142 ...

Regulations

Regulation No. 008-93 ...

Regulation (Accord) No. 1081-99 ...

Article 124 ...

Resolutions

Resolution 003-80 ...

Resolution 030-95 ...

Note: Table of Authorities page numbers missing in original document

*X STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES

Appellant David Henson McNab, pursuant to F.R.A.P. 28(i) adopts by reference the arguments and citations of authority in appellants Huang's, Schoenwetter's, and Blandford's briefs, as they relate to the District Court's interpretation and application of Honduran law, and/or the retroactive effect of the changes in Honduran law to Mr. McNab's convictions.

*xi STATEMENT OF IURISDICTION

A. Subject Matter of the Jurisdiction

The United States District Court had subject matter jurisdiction pursuant to 18 U. S. C. Section 1331, and Rule 33, Federal Rules of Criminal Procedure.

B. Appellate Jurisdiction

Pursuant to 28 U. S. C. Section 1291, this Court has jurisdiction to hear this appeal from the District Court's denial of defendant's motion for new trial.

*1 STATEMENT OF THE ISSUES

I. Whether the District Court erred in failing to certify an intention to grant a new trial to defendant-appellant David Henson McNab where McNab presented further uncontroverted evidence that the "laws" of Honduras upon which this Lacey Act prosecution was based were either invalid, had been repealed or were not applicable, in particular:

A. Whether Resolution 030-95 was void ab initio because it was not issued by the President of Honduras, as confirmed by the Honduran Court of Appeals and the Secretary of State for the Ministry of Agriculture and Livestock.

B. Whether the repeal of the Law of Industrialization of Meats, Decree No. 40, in January of 1995, worked a repeal of Regulation 008-93 which was issued to implement Decree No. 40, as the Honduran National Congress has so interpreted its own Civil Code and as the Secretary of State for the Ministry of Agriculture and Livestock has so resolved.

C. Whether former Article 70(3) of the Fishing Law was repealed by the complete amendment and restatement of Article 70 in Decree No. 254-2000, as the Secretary of State for the Ministry of Agriculture and Livestock has so resolved.

D. Whether former Article 70(3) of the Fishing Law forbade only the destruction or collection for profit of the eggs or young of aquatic species, and not the destruction or collection of the egg-bearing species, as *2 interpreted by the General Director of DIGEPESCA, the agency responsible for the fishing laws.

*3 STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below

This is an appeal from an order of the District Court denying appellant-defendant McNab's motion for an order certifying an intention to grant a new trial and an order denying McNab's motion for reconsideration of this order. McNab remains incarcerated in federal prison pending this appeal. [FN1]

FN1. No other convicted defendants were incarcerated.

In McNab's prior pending appeal to this Court, Case No. 01-15148-JJ, McNab filed motions for judicial notice of certain Honduran law developments and moved alternatively for a remand in light of these developments. On December 26, 2001, this Court issued an order denying the motions for judicial notice "without prejudice to renewal" of McNab's request for remand "subject to appellant filing a motion for a new trial and request for certification with the District Court and the District Court issuing an appropriate certification to this Court. SeeU. S. v. Ells worth, 814 F. 2d 613 (11th Cir. 1987)."

McNab then filed a "Motion for Order Certifying Intention to Grant New Trial Upon Remand" with the District Court pursuant to the procedure set forth in U. S. v. Ellsworth, supra, and cases cited therein. (Doc. 415). This motion was unopposed by the Government. On January 31, 2002, the District Court denied defendant's motion without opinion. (Doc. 419). On February 6, 2002, McNab filed a motion for *4 reconsideration of the District Court's order of January 31, submitting additional evidentiary materials. (Doc. 421). On February 13, 2002, the District Court granted McNab's motion to reconsider, indicating its intention to issue a reconsidered decision promptly. The Court also granted a motion for an extension of time filed by McNab pursuant to F. R. A. P. Rule 4(b)(4), expressly granting an extension of time to file a notice of appeal to the maximum time permitted under Rule 4(b). (Doc. 427).

On March 1, 2002, again with no opposition from the Government, the District Court entered an order that the Court's original ruling of January 31, 2002, would remain unchanged. (Doc. 433). On March 5, 2002, McNab filed a timely appeal to this Court. (Doc. 436).

The other defendants - Blandford, Schoenwetter, and Huang - filed similar motions for a new trial which were denied by the District Court. Separate appeals were filed by those defendants.

On March 21, 2002, all of the defendant-appellants filed a joint motion to lift the Stay of the proceedings, and to consolidate and expedite the appeals in Case Nos. 01-15148-JJ, 02-11264-JJ, and 01-10810-JJ. On April 23, 2002, this Court granted appellants' motion to consolidate and expedite the appeals.

B: Statement of the Facts

Appellant David Henson McNab, a Honduran lobsterman, has been sentenced to eight years in prison, following a conviction based on alleged violations of the Lacey Act, 16 U.S.C. Sections 3372, et seq., and various money laundering charges flowing from those alleged violations. A fuller description of the facts upon which these *5 convictions were based is set forth in McNab's Brief in Case No. 01-15148-JJ and is incorporated herein by reference. Every count upon which McNab was convicted depended upon a violation of some valid Honduran law. The primary issue on appeal is whether or not the Government sustained its burden of proving the existence, validity, and applicability of each of the alleged Honduran "laws" which formed the predicate for the jury charges. If one or more of the alleged "laws" were not valid, not applicable or had otherwise been repealed or superseded, McNab's conviction cannot stand, as more fully argued in McNab's Brief in Case No. 01-15148-JJ.

In the proceedings below, McNab filed evidence of new developments in Honduras concerning three of the alleged Honduran "laws" that the Government claimed he had violated - Resolution 030-95 (Lobster Size Limits), Regulation 008-93 (Hygiene Regulations), and Article 70(3) of the Fishing Law of 1959 (Destruction or Harvesting of Eggs of Aquatic Species). In order to appreciate the significance of these recent developments, it is important to place them in the context of the evidence presented to the District Court in earlier proceedings concerning these "laws." This evidence, together with new evidence, is summarized below with respect to each of these "laws."

*6 1.

RESOLUTION 030-95

a. Proceedings Regarding Resolution 030-95 Prior to Original Appeal

The principal charge against McNab was that some of his crew kept some percentage of lobsters with a tail length shorter than 5. 5 inches. The indictment, as finally amended, charged that keeping such lobsters violated Honduran Resolution 030-95. [FN2] This "Resolution" was issued and signed solely by the Minister of the Department of Natural Resources and Fisheries, and not by the President of Honduras. At the first foreign law hearing, in September of 2000, McNab filed legal opinions and presented testimony from numerous experts in Honduran law and other officials, including the Attorney General of the Republic of Honduras, concerning Resolution 030-95. These declarants and witnesses unanimously testified [FN3] that Resolution 030-95 was not a valid Honduran law or regulation. Regulations are general rules of conduct applicable to all those who may be affected thereby. [FN4] Resolutions are administrative or judicial decisions designed to conclude a procedure or dispute involving an interested person within the jurisdiction of that agency or court. (R19-130). [FN5] A regulation must be *7 issued in the form of an "Accord" or "Agreement ["Acuerdo"], not a "Resolution" ["Resolucione"], [FN6] Further, in order to have constitutional validity as a "regulation," it must be issued by the President, co-signed by the pertinent Minister, with notice to the Attorney General of the Republic, and finally published in La Gaceta. [FN7] "Resolution" 030-95 contained general rules of conduct so it should have been issued in the form of an "Acuerdo," not a "Resolucione." Further, the failure of Resolution 030-95 to meet the procedural requisites of a regulation - particularly its failure to be issued by the President - made it an "absolute nullity," such that "compliance with [it] is not obligatory." (R19-131). (Folder 4, Ex. 4, ¶III). Finally, the Fishing Law itself required, in Articles 5 and 45, that its prohibitions be implemented by regulations, not resolutions. (Rl9-107-08). The testimony and evidence presented by McNab at the foreign law hearing, and by written filings, is summarized in his original Brief in Case No. 01-15148-JJ, at Pages 19-23. [FN8]

FN2. The original and first superseding indictments identified Honduran Resolution 003-80 as the basis for the size limit charge. At the hearing on foreign law, however, the Government withdrew its reliance upon Resolution 003-80, given its patent defectiveness. (R19-16).

FN3. The District Court agreed to accept affidavits as substantive evidence at such hearing.

FN4. See discussion of meaning of regulations in affidavit of Dionisio Matute (Folder 4, Ex. 5, pgs. 6-7) and Opinion of Special Prosecutor (Folder 4, Ex. 4 at pgs. 4-5).

FN5. See Article 120, General Law of Public Administration. (Folder 4, Ex. 5, pg. 9).

FN6. See Article 118(2) General Law of Public Administration, discussed in Opinion of Attorney General of Honduras (Folder 4, Ex. 1, ¶B(2)).

FN7. See Articles 245(11) and 248, Honduran Constitution, discussed in Opinion of Ad Hoc Commission for Honduran Bar Association. (Folder 4, Ex.

3, ¶ 2) and Affidavit of Dionisio Matute (Folder 4, Ex. 5, pg. 8).

FN8. For an example of a properly issued regulation, signed by the President, see Regulation 008-93, attached as Tab No. 6 in the Addendum to McNab's original Brief in Case No. 01-15148.

*8 McNab also filed certifications from the head of the fishing agency, DIGEPESCA, that McNab had never been cited for violation of any of the fishing laws of Honduras. (Folder 4, Ex. 14). [FN9] He also presented unrefuted evidence that he had never been cited in Honduras for violating any alleged size limit laws, egg-bearing lobster laws or packing laws. (R19-103-04) (Folder 4, Exs. 13 and 14).

FN9. At the foreign law hearing, a clarified statement from DIGEPESCA reflected one penalty of twenty dollars against McNab on one vessel in his fleet for a violation unrelated to size, eggs or packing, (Rl9-90-91, 102- 03). Mr. McNab owned some twenty-eight fishing vessels and has spent his entire life in Honduras as a lobsterman. (R32-1340).

The Government's lone Honduran "law" witness was Liliana Paz, General Secretary in the Ministry of Agriculture and Livestock. (R19-59). Although coincidentally a lawyer, Ms. Paz' duties as General Secretary were essentially clerical and administrative in nature. (Rl9-59-60). She had never worked in the fishing industry. (R19-101). When presented with the numerous legal opinions submitted by McNab that Resolution 030-95, and other Resolutions, were not valid under Honduran law, she agreed that "they are not laws or Regulations because they do not have the form that would be required for them to be such." (R19-95). She testified, however, that in order for them to be declared null and void, an annulment procedure would have to be followed which had not yet happened. (R19-95-96). She testified that resolutions such as 030-95 "are not law" but were "legal instruments that the Secretariat has used in the absence of regulations in order to be able to enforce the Fishing Law." (R19-96-97). She testified that these resolutions were "legally binding" in Honduras *9 (Rl9-97-98), despite the fact that she also agreed that Articles 5 and 45 of the Fishing Law required implementation by "regulation," not "resolution." (Rl9-107-08).

In its original Order on foreign law determination, entered on October 12, 2000, four days before trial, the District Court relied almost exclusively upon the testimony of Liliana Paz in concluding that Resolution 030-95 was a valid "law." (R4-209, at pgs. 11-17). He found her to be "well qualified" to speak on the issues regarding the validity of the Fishing Law and related regulations and a "very credible witness." (R4-209 at pg. 13). He ultimately found her testimony to be "critical" in resolving a "statutory dilemma" he thought existed in reviewing the Fishing Law. (R4-209 at pg. 15).

Prior to trial, McNab sought a continuance to allow him to file an annulment proceeding in Honduras relating to Resolution 030-95, [FN10] a procedure Ms. Paz suggested was appropriate to have the resolution declared "void." (R23-13, 14). The District Court denied the request, based on the Government's argument that the Eleventh Circuit would review denovo the District Court's rulings on foreign law, and therefore the annulment proceeding could be initiated after the trial and its results presented to the Eleventh Circuit on appeal. (R23- 21).

FN10. McNab had earlier filed a proceeding with the Supreme Court of Honduras to have Resolution 030-95 (and others) declared unconstitutional. The Supreme Court resolved that it could not afford relief because Resolution 030-95 did not have "the character of law." (Folder 4, Ex. 2).

Immediately following trial, McNab commenced an annulment proceeding in the Administrative Law Court in Tegucigalpa, Honduras concerning Resolution 030-95 and *10 certain other resolutions. On May 23, 2001, the Administrative Law Court issued its opinion, concluding that Resolution 030-95 was "null and void as a matter of law" because it was not issued by the President of the Republic, in violation of Article 245(11) of the Honduran Constitution. Resolution 030- 95 "violated the legal code at the time [it was] issued" and therefore was "entirely voided." (R5-324, Ex. B, pgs. 4-5) (Add. Tab 1).

On June 15, 2001, after his trial but before sentencing, defendant McNab filed the Administrative Law Court decision with the District Court (R5-324) and on July 16, 2001, filed alternative motions to dismiss or for a-new trial based upon various developments in Honduras concerning the "laws" upon which he was prosecuted, including the Administrative Law Court decision on Resolution 030- 95. (R5-336). The Government opposed McNab's motion with affidavits of Liliana Paz dated August 10, 2001, and another legal advisor to the Ministry of Agriculture and Livestock (Jose Bernardo Umanzor), claiming that the Administrative Law Court decision was not yet final due to the prospect of an appeal and was not retroactive. (R6-387, Exs. C and E).

On August 28, 2001, the District Court denied McNab's post-trial motions. The Court took note of the language of the Administrative Law Court decision declaring the Resolution to be void "but... only for purposes of [its] annulment and future inapplicability: This Resolution does not confer any right to claims." The Court found the legal meaning of this limitation language "not entirely clear," but concluded that the Honduran Court intended to give its pronouncement prospective, rather than retroactive effect, relying on the affidavit testimony submitted by the Government. *11 (R6-397 at pgs. 5- 6). The Court further noted that the Administrative Court's ruling was not yet a final judgment as an appeal had been filed by the Honduran Government. (R6- 397 at pg. 6).

b. Post-Appeal Developments Regarding Resolution 030-95

On October 11, 2001, while the appeal proceedings were pending in Case No. 01-15148-JJ, the Honduran Court of Appeals for Administrative Law affirmed the lower Administrative Court's decision that Resolution 030-95 was "void." The Court of Appeals found the Honduran Government's appeal "groundless." The Court again confirmed what McNab had contended all along, i.e., that, "pursuant to Articles 245, Item 11, and 248, of the Constitution of the Republic, in order for regulations to have legal effect, they must be issued by the President of the Republic and authorized by the Secretaries of State in their respective areas...." (Add. Tab 2). This decision was made an exhibit to McNab's motion for order certifying intention to grant a new trial. (Doc. 415, Ex. D).

On September 7, 2001, a complaint was filed on behalf of Mr. McNab with the National Human Rights Commissioner in Honduras, alleging that his rights had been violated by the testimony of Liliana Paz. (Doc. 415, Ex. A). [FN11] As a result of this complaint, on November 8, 2001, the National Human Rights Commissioner issued a Special Report and Recommendations to the Secretary of State of the Ministry of *12 Agriculture and Livestock, concluding that "as the result of an act that involves an illegitimate, arbitrary, defective, negligent, and discriminatory practice by the Secretary General of the Ministry of Agriculture and Livestock, the human rights of Mr. McNab have been violated, resulting in his unfair and groundless detention in a prison in the United States of America." (Doc. 415, Ex. A at pg. 1). The Commissioner concluded that Resolution 030-95 was "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 power conferred upon it by the law." (Doc. 415, Ex. A., pg. 3). The Commissioner further disputed the affidavit of Liliana Paz dated August 10, 2001, (earlier filed by the U. S. Government with the District Court) that the judgment of the Administrative Law Court did not have retroactive effect applicable to McNab, concluding rather that such effect must be given to the Court decision, under Article 96 of the Constitution, as it applied to McNab's criminal proceedings. (Doc. 415, Ex. A at pgs. 3- 4). The Commissioner concluded that the affidavit of Liliana Paz contained "legal errors that must be amended...." He recommended that the Secretary of State of the Ministry of Agriculture and Livestock "disqualify as an error of law" the affidavit issued by Liliana Paz and issue an affidavit "in which the correct sense and scope of the rules are set forth." (Doc. 415, Ex. A at pg. 4).

FN11. Under the Constitution and treaties of the Republic of Honduras, there exists a National Commission on Human Rights which is authorized to act as an "ombudsman" on behalf of Honduran citizens who claim to have been injured by the actions of Honduran administrative officers. The Commission is authorized to directly challenge such actions and to require a written explanation from the challenged officials.

On November 16, 2001, the Secretary of State for the Offices of Agriculture and Livestock (Liliana Paz' superior) issued a Resolution, co-signed by Liliana Paz as Secretary General, responding to the Human Rights Commissioner's Report. (Doc. 416, Ex. F)(Add. Tab 3). The Secretary of State first noted that his Legal Department, after *13 reviewing the facts and considering the decision of the Administrative Law Court, had concluded that what was set forth in the Report of the Human Rights Commissioner was "totally correct." The Secretary's Legal Department consisted, among others, of Liliana Paz, Jose Bernardo Umanzor and Vilma Cano Puerto. (R6-387, Ex. B). Thus, the very same people upon whom the U. S. Government relied to support its contention that the judgment of the Court did not have "retroactive" effect have now concluded that they were wrong and that the resolution does have "retroactive" effect. (R6- 387, Exs. B, C, D, and E).

In his Resolution, the Secretary of State first resolved to "disqualify as an error of law the affidavit given by Liliana Paz, on August 10, 2001, as well as any other statement contrary to what is set forth in this Resolution, inasmuch as it contradicts the Constitution of the Republic, the laws of the country, the international treaties and the conventions and principles of law." (Doc. 416, Ex. F). The Resolution then sets forth the "official position of this Secretary of State," with respect to the "correct sense and scope of the challenged rules." The Secretary of State noted that pursuant to the decision of the Court of Administrative Law, Resolution 030-95 was "totally rendered null and void" and that the judgment of the Appeals Court dated October 11, 2001, "expands the ruling by determining that the challenged Resolutions are null and void and, therefore, do not produce legal effects because of having been issued by an authority without jurisdiction erroneously and beyond the powers that the law grants to the issuer thereof." He concluded that the Resolution "never had the force of law" (emphasis in original) and that the decision of the Court of Administrative Law was applicable to *14 McNab in these pending criminal proceedings, under Article 96 of the Honduran Constitution, "since Article 96 does not require the legal rule to be criminal in order for it to be retroactive, since it is sufficient for it to favor the criminal or defendant in order for it to be applied in any criminal matter, as is in the case of Mr. McNab."

The Secretary of State's Resolution has been forwarded through official channels to the U. S. Department of State as the "official position" of the Ministry of Agriculture and Livestock. (Doc. 416, Ex. H and Doc. 421, Ex. B).

REGULATION 008-93

a. Proceedings Regarding Regulation 008-93 Prior to Original Appeal

Regulation 008-93 is a series of industrial hygiene regulations for the fishing industry. (Folder I, Ex. 28). McNab's alleged crime was packing lobster in plastic bags rather than in cardboard boxes. (Folder 1, Ex. 28-Article 49h) (R19-78-85). Regulation 008-93 was adopted under the authority of Decree No. 40 of May 16, 1973, the Law of Industrialization of Meats. (Folder 1, Ex. 28, pg. 1). The Government's witness, Liliana Paz, testified that Regulation 008-93 was a valid regulation in Honduras. (Rl9-66-67).

After trial, defendant McNab's lawyers discovered that, in fact, Decree No. 40, the statute authorizing Regulation 008-93, had been repealed before the time period covered by the indictment. (R5-341, Ex. 3). Article 42 of Decree No. 157-94, the Plant and Animal Health Law, published in La Gaceta January 13, 1995, provides that "the Law for the Industrialization of Meats (Decree Law No. 40, May 16, 1973), [and other specified laws] are repealed." (R5-325, Ex. C, pg. 4).

*15 In support of his motion for new trial/dismissal dated July 16, 2001, McNab presented to the District Court a declaration of Ramiro Lozano, Professor of Administrative Law, at the University of Honduras. (R6-388). Professor Lozano explained that under the law of Honduras a statute and administrative regulations issued pursuant to the statute are analogous to a tree and its branches: When the tree (the statute) is cut down, the branches (the regulations) fall with it. (R6-388, pg. 3). McNab also presented the affidavit of the Government's law witness, Liliana Paz, wherein she recanted her testimony at the foreign law hearing that Regulation 008-93 was "valid" by stating that the repeal of the Meat-Industrialization Law on January 13, 1995, "automatically repealed" Regulation 008-93 "on that same date." (R6-388) (emphasis added). McNab presented other affidavits to the same effect from other Government officials, including an affidavit of the former President of the Republic of Honduras, Rafael Leonardo Callejas Ramiro, who signed Regulation 008-93. (R5-341). See McNab's Brief in Case No. 01-15148-JJ at pg. 28.

In opposition to McNab's motion for a new trial, the Government submitted yet another affidavit of Liliana Paz, dated August 10, 2001, wherein she again recanted her previous affidavit testimony, now claiming that the repeal of Decree No. 40 only "tacitly" repealed Regulation 008-93, because the regulation was not specifically mentioned in the repealing law, Decree No. 157-94. Thus, she claimed that the regulation continued to be valid to the extent that it did not impinge on the provisions of the new law, and was not expressly repealed until December 2, 1999, when new regulations were issued under the Plant and Animal Health Law, in Accord *16 ("Acuerdo") No. 1081-99, (R6-387, Ex. C). [FN12] Ms. Paz further testified in her affidavit that SEN ASA "had routinely applied and enforced Agreement No. 008-93, from the time Decree No. 157-94 was passed and continued to do so until December 2, 1999, when Agreement No. 008-93 was expressly repealed by Accord No. 1081-99." (R6-387, Ex. C).

FN12. The Government filed another affidavit to the same effect, given by Vilma Cano Puerto, legal advisor to the National Agricultural and Livestock Health Service (SENASA), a division of the Ministry of Agriculture and Livestock. (R6-387, Ex. D).

Based upon the contentions and evidence submitted by the Government, the District Court ruled that Regulation 008-93 remained in effect following the repeal of Decree No. 40. (R6-397 at pgs. 7-10). The Court's conclusion was buttressed by the Government's evidence, through Ms. Paz, that Honduran officials "continued to enforce" Regulation 008-93 after Decree 157-94 was enacted. (R6-397 at pg. 9). [FN13]

FN13. One of the exquisite ironies of this case is that the District Court refused to consider, and prohibited the introduction of the evidence of, the lack of enforcement as evidence of the non-existence of a law (R23-42;

R25-177-78) and yet ultimately concluded that continued enforcement of a repealed regulation was persuasive evidence of its existence.

b. Post-Appeal Developments Regarding Regulation 008-93

In his motion for an order certifying an intention to grant a new trial, McNab filed a copy of Decree No. 198-2001, issued by the Honduran National Congress on November 1, 2001. (Doc. 415, Ex. D and Doc. 416, Ex. E) (Add. Tab 4). This Decree was issued pursuant to the power of Congress, under Article 205(1) of the Honduran Constitution, to "interpret" the laws of the Republic. (Doc. 416, Ex. E). This Decree dispels any doubt regarding the survival of a regulation issued to implement certain legislation, after repeal of that legislation. Decree 198-2001 interprets Article 43 of the *17 Civil Code "to the effect that the express total or partial repeal of a law leaves without legal value or effect the general regulations and the specific regulations... that the Executive Branch through the respective Secretariat of State has issued to implement the provisions of the repealed Law, unless there is an express provision to the contrary in the new repealing Law" (emphasis added).

On November 16, 2001, in his Resolution adopted in response to the Special Report of the National Human Rights Commissioner, the Secretary of State (with Ms. Paz as co-signator) in the Offices of Agriculture and Livestock, again disqualified the affidavit given by his subordinate, Liliana Paz, on August 10, 2001, "as an error of law" and set forth "the official position of this Secretary of State" with respect to Regulation 008-93 as follows:

"Pursuant to the Legal Principles of Law, confirmed by Decree No. 198-2001, recently issued by the National Congress, the express repeal of a law makes the regulations issued by the Executive Branch to enforce the repealed law without value or effect, unless there is an express provision in the repealing law. Therefore, Decision ["Acuerdo"] 008-93, issued to enforce the Meat Industrialization Law (Executive Decree No. 40 of May 16, 1973) was repealed in its entirety and rendered without any value or legal effect as of January 13, 1995, when the Plant and Animal Health Law went into effect (Decree 157-94), which repeals the aforesaid Meat Industrialization Law." (R6-416, Ex. F)(Add. Tab 3)(emphasis added).

In further support of his motion for an order certifying an intention to grant a new trial, McNab filed a statement of the Director General of SENASA, Dr. Francisco *18 Rodas. (R6-416, Ex. G) (Add. Tab 5). SENASA is a General Directorate within the Ministry of Agriculture and Livestock and is responsible for enforcing compliance with the Plant and Animal Health Law. In his statement, Dr. Rodas confirms that Regulation 008-93 was "repealed and rendered without any legal value or effects as of January 13, 1995, when the Plant and Animal Health Law (Decree 157-94) went into effect, which repeals in Article 42 thereof the Meat Industrialization Law." He states that the later language of repeal of Regulation 008-93, which appears in Article 124 of Accord No. 1081- 99, "was not necessary, inasmuch as it had already been repealed since 1995." He states that the language of repeal in Article 124 was due to the fact that, when the draft regulations were drawn up by his office, "the fact that the Meat Industrialization Law had been expressly repealed previously was not considered." (Add. Tab 5).

In his motion for reconsideration, McNab filed another statement of Dr. Rodas (Director General of SENASA) in which he states that SENASA is responsible for enforcing compliance with the Plant and Animal Health Law and its regulations, including Regulation 008-93. He states that Regulation 008-93 "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 by the Plant and Animal Health Law." (Doc. 421, Ex. A) (Add. Tab 6). This affidavit from the Director of SENASA refutes the affidavit testimony of Liliana Paz that SENASA continued to enforce Regulation 008-93 after 1995 (R6- 387, Ex. C), testimony upon which the District Court specifically relied in concluding that Regulation 008-93 was not repealed in 1995. (R6-397 at pg. 9).

*19 In his motion for reconsideration, Mina also filed an affidavit of Nicholas Cruz Torres, a Honduran attorney, attaching portions of a legal work entitled "Course of Civil Right," which Mr. Torres testified was an "authoritative source for the explanations of the Honduran law in what concerns to the civil right" and is "used as a reference work by the Supreme Court of Justice." (Doc. 416, Ex. D). The excerpts from the text discuss "interpretive" laws, and their effect on the interpreted laws:

"Interpretive laws contain a statement of the meaning of a law that lends itself to doubts. When saying how the interpreted law should be understood, a legislator limits himself to restating his already existing will, not making a new statement thereof. (R37). By a legal fiction, it is assumed that the interpretive law forms a single body with the interpreted law and is understood to be incorporated in the latter, as stated by Article 9. This means that it should be applied from the date of the interpreted law. In everything and for everything the interpretive law is considered to be a single law with the interpreted law...." (Doc. 421, Ex. C) (Add. Tab 7).

*20 3.

ARTICLE 70(3) OF THE FISHING LAW OF 1959

a. Proceedings Regarding Article 70(3) Prior to Original Appeal

Although none of the indictments identified the "law" that prohibited the taking of egg-bearing lobsters, the Government's motion for foreign law determination cited Resolution 003-80 for that proposition. (Rely-46 at pg. 12). When McNab pointed out its patent invalidity (it was not signed by the President and was never published), the Government withdrew its reliance upon Resolution 003-80 and, in a brief filed on the first day of the foreign law hearing on September 28, 2000, four days before jury selection, asserted for the first time that the egg-bearing prohibition arose from Article 70(3) of Decree No. 154, the 1959 Fishing Law. (R3-182 at pgs. 5-6). [FN14] Article 70(3) provides fines for" those who destroy or harvest the eggs, or the offspring of fish, chelonians [turtles], or other aquatic species for profit." (Add. Tab No. 8). At the foreign law hearing, over objection, Liliana Paz agreed with the prosecution's leading questions that Article 70(3) prohibits the capturing of egg-bearing lobsters. (Rl9-77-78).

FN14. No such averment is contained in any of the indictments against McNab.

Because of the lack of notice of the Government's reliance on Article 70(3), McNab was effectively denied an opportunity to develop and file evidence in opposition to the Government's reliance on Article 70(3) except for a supplementary affidavit filed by Dr. Litvinoff a week later. (R4-194). Dr. Litvinoff opined that this section of the Fishing Law "does not apply to the severance of the egg-bearing parts of a *21 lobster, nor to the harvesting of egg-bearing lobsters." If the statute punished the destruction of eggs by the catching of the mother, "the statute would have the absurd effect of prohibiting all fishing in Honduran waters, since any time that a caught female fish has eggs, the killing - by fishing - of the egg-bearing female, would necessarily destroy the eggs." Rather, it was the "taking of eggs in situ that the law seeks to prohibit." Finally, Professor Litvinoff noted that the Honduran system was always specific in its attempts to regulate lobster harvesting activities and there was no specific reference to lobster in Article 70(3).

The District Court rejected McNab's and Dr. Litvinoff's interpretation of Article 70(3), finding the statutory provision to be "broadly written and clearly encompasses lobster - which is undisputedly 'aquatic species."' (R4- 209 at pgs. 18). The Court found that nothing in plain language of Article 70(3) indicated that it was limited to eggs in situ. Consequently, the Court concluded the Government had met its burden of proof that Article 70(3) was "valid and binding under Honduran law," and prohibited the catching of egg-bearing lobster (and, by implication, egg-bearing fish). (R4-209 at 19).

In his first motion for new trial, McNab presented evidence that Article 70(3) of the Fishing Law had been repealed by a completely restated and amended Article 70 in Decree No. 254-2000, effective February 5, 2001, which contained no prohibition like that contained in Article 70(3). McNab also contended that, under Article 96 of the Constitution of Honduras, the repeal of this Article 70(3) operated retroactively to his benefit in these pending criminal proceedings. (R5-326 and R5-336).

*22 The Government responded that Decree No. 245-2000 (containing a "new" Article 70) did not expressly repeal Article 70 but only amended it and that the earlier Article 70 was only "tacitly" repealed. The Government again relied upon the affidavit of Liliana Paz dated August 10, 2001, which stated that the destruction or harvesting of eggs of aquatic species under former Article 70(3) remained prohibited under Honduran law because it was not "expressly" repealed by Decree No. 245-2000. (R6-387, Ex. C).

In its order of August 28, 2001, denying McNab's morion, the District Court found this ground of the morion to give the Court the "most pause." The Court found it "troubling that the Honduran National Congress would specifically 'bring over' certain prohibitions from the former Article 70 into the new Article 70, and choose not to specifically 'bring over' other prohibitions, only for this Court to conclude that the prohibitions not expressly brought over are still valid law to the extent that they are not inconsistent with the amended Article 70." (R6-397 at pg. 13). Nevertheless, the Court so concluded, based again upon the affidavit of Liliana Paz. (R6-397 at pg. 14).

b. Post-Appeal Developments Regarding Article 70(3)

Pending appeal in Case No. 01-15148-JJ, the Secretary of State in the Ministry of Agriculture and Livestock, issued his Resolution dated November 16, 2001, based upon the Human Rights Commissioner's Special Report. The Secretary of State specifically disqualified "as an error of law" the August 10, 2001, affidavit of Liliana Paz, upon which the District Court relied. The Resolution sets forth the "official position of the Secretary of State" with respect to Article 70(3). Specifically, he stated:

*23 "Article 70 of the Fisheries Law: This article, as amended by a Decree of the National Congress No. 245-2000, rendered invalid and without legal effect the provisions originally contained in said article. Therefore, those provisions that were part of the original article and which were omitted in its amendment, ceased to have legal validity when Decree 245-2000 went into effect, among them, those contained in Items 3 and 7 of the original Article 70. Since those omissions benefit the defendant, their retroactive application in the criminal case brought against Mr. McNab is likewise guaranteed by Article 96 of the Constitution." (Add. Tab 3) (emphasis added).

Finally, McNab has obtained a statement from Gabriela Pineda De Arias, the General Director of DIGEPESCA, the agency responsible for enforcement of the Honduran fishing laws which is attached to this Brief in the Addendum at Tab No. 8. [FN15] In her statement, the General Director states that Article 70(3) of the Fishing Law "only forbade the destruction or collection for profit of the spawn/eggs or young of fishes, chelonians or other aquatic species, but not the destruction or collection of the egg-laying species." (Add. Tab 8). This interpretation is consistent with the affidavit testimony of Dr. Litvinoff, which had been rejected by the District Court. Ms. Arias further states that Article 70(3) ceased to be enforced once the amended Article 70 went into effect by means of Decree No. 245-2000. (Add. Tab 8).

FN15. This statement was not obtained before the District Court ruled on McNab's motion for consideration but is included with this Brief as assistance to this Court's de novo review of the Honduran law issues.

*24 C. Standard of Review

The District Court's determination of controlling law, such as foreign law, is reviewed de novo. Seguros Del Estato, SA v. Scientific Gains, Inc., 262 F. 3d 1164, 1171 (11th Cir. 2001).

The content of jury instructions is reviewed de novo to determine whether they misstate the law or mislead the jury. United States v. Richardson, 233 F. 3d 1285, 1292 (11th Cir. 2000).

*25 SUMMARY OF THE ARGUMENT

The District Court erred in failing to grant McNab's motion for an order certifying an intention to grant a new trial, a motion that demonstrated numerous errors of law in the Court's conclusions and charges to the jury on Honduran law.

Resolution 030-95 is not, and never has been, a valid regulation or law of Honduras. The Honduran Court of Appeals has affirmed the lower Administrative Court decision which concluded that this Resolution was "null and void as a matter of law." The Secretary of State for the Ministry of Agriculture and Livestock, in response to a report from the Human Rights Commissioner, has issued a Resolution to the same effect, stating that the Resolution "never had the force of law," and concluding that McNab obtains the benefit of these judicial decisions in these pending criminal proceedings, pursuant to Article 96 of the Honduran Constitution. In his Resolution, the Secretary of State "disqualifies" the contrary affidavit testimony of Liliana Paz, upon which the Government had relied, "as an error of law." The Government's reliance on Resolution 030-95 is completely insupportable and the errors in the Court's charge to the jury are grounds for a new trial.

Regulation 008-93 was issued to implement the Law of Industrialization of Meats, Decree No. 40. That law was repealed in January 1995 by Decree No. 157- 94, the Law of Plant and Animal Health. At the same time, according to principles of Honduran law, the implementing regulations were thereby also repealed and rendered without further legal value or effect. This principle has been recently articulated by the National Congress in Decree No. 198-2001, interpreting Article 43 of the Civil Code. *26 The Secretary of State for the Ministry of Agriculture and Livestock has issued a Resolution to the same effect, specifically concerning Regulation 008-93, and the Director General of SEN ASA, the agency responsible for enforcing the Plant and Animal Health Law, has issued a similar statement. Contrary to the testimony of the Government's witness, Liliana Paz, SENASA's Director General states that SENASA did not enforce Regulation 008-93 after the repeal of Decree No. 40 in January of 1995.

Article 70(3) of the Fishing Law was repealed by the amendment of Article 70, and its complete restatement, in Decree No. 254-2000, effective February 5, 2001. The new Article 70 contains no prohibition against the harvesting of eggs or of egg-bearing species. Pursuant to Article 96 of the Constitution, the repeal of Article 70(3) operates retroactively to McNab's benefit in these pending criminal proceedings. This is the opinion of the Secretary of State in his recent Resolution based on the Human Rights Commissioner's Special Report. Even if Article 70(3) were still valid, its proscriptions only forbid the destruction or collection for profit of the eggs or spawn of aquatic species, not the destruction or collection of the egg-bearing species themselves. This is the authoritative interpretation placed on the law by the General Director of DIGEPESCA, the agency in charge of enforcing the Honduran fisheries laws.

In conclusion, the entire matrix of "Honduran laws" upon which the Government based this Lacey Act prosecution has dissolved like so many gossamer threads. McNab's conviction cannot stand. He is entitled to an acquittal and/or a new trial, as further argued in Case No. 01-15148-JJ.

*27 LEGAL ARGUMENT

THE DISTRICT COURT ERRED IN FAILING TO CERTIFY AN INTENTION TO GRANT A NEW

TRIAL TO DEFENDANT MCNAB

A. Resolution 030-95 was Void Ab Initio and Cannot Form the Basis of this Lacey Act Prosecution

Both the Honduran Court of Appeals and the highest ranking official in the Ministry of Agriculture and Livestock have now confirmed what defendant McNab has contended throughout this Lacey Act prosecution - Resolution 030-95 is not a valid Honduran law and was void ab initio, not having been issued in conformity with the procedures required for regulations under the Honduran Constitution. In the emphatic words of the Honduran Secretary of State for the Ministry responsible for the fishing industry, it "never had the force of law...."

In its earlier Brief to this Court in Case No. 01-15148, the Government argues that the language of the lower Administrative Court reflects an intention not to make its ruling retroactive, but to annul the Resolution "for purposes of [its] annulment and future inapplicability: This Resolution does not confer any rights to claims." The Secretary of State for the Ministry of Agriculture and Livestock has refuted this argument, explicitly stating in his Resolution that McNab obtains the benefit of this ruling in these pending criminal proceedings, pursuant to Article 96 of Honduran Constitution.

*28 The Government's argument distorts the meaning of the Administrative Court decision. The sentence, cited above, consists of two independent clauses linked by a colon, showing their relationship. The Resolution's annulment is made applicable to the future (first clause) in order to protect the Honduran Government from "claims" (second clause). The language merely prevents third parties, who have previously been charged with violating the Resolution, and have paid fines, from making any claims against the Honduran Government for enforcing an invalid law. McNab, on the other hand, is the very party who, in these pending criminal proceedings, successfully challenged the Resolution in Honduras. On his petition, the Honduran courts determined the Resolution to be void.

The Government's position on "rerroactivity" is also inequitable and illogical. For the Government's Honduran law witness to claim the Resolution was still valid only because no one had yet challenged it through annulment proceedings, for McNab then to follow that procedure and vindicate his contention that the Resolution was invalid, and for the Government then to claim that McNab himself cannot obtain the advantage of that ruling in this pending criminal case is preposterous. If McNab were being charged with violating this Resolution in Honduras, his successful challenge to the validity of the Resolution would have resulted in a dismissal of the charges; he would owe no fine. For him to be nevertheless criminally liable under the Lacey Act on the basis of this invalid Resolution, which he successfully challenged as being "void" and constitutionally infirm, during the pendency of the criminal proceedings against him, would be completely illogical, unjust, and without legal precedent

*29 Judicial rules of retroactivity in this country would acquit McNab from any criminal sanction for violation of this invalid Resolution. If McNab had been convicted of violating a U.S. statute, which was ruled to be constitutionally invalid even in a separate case to which he was not a party, he would have the benefit of that ruling even if he had not challenged it himself at trial, as long as his conviction was pending under direct review or not yet final. See Griffith v. Kentucky, 479 U. S. 314, 107 S. Ct. 708 (1987) ("a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final."); U.S. v. Knowles, 29 F. 3rd 947, 951 (5th Cir. 1994) (defendant's conviction under Gun Free School Zones Act had to be reversed, where Act was ruled unconstitutional in separate case while defendant's appeal was pending). The failure to apply such a new rule to a pending criminal case would violate "basic norms of constitutional adjudication." Griffith, 479 U.S. at 322, 107 S.Ct. at 713. Even more compellingly, the now declared invalidity of Resolution 030-95, under the Honduran Constitution, must work a reversal of McNab's conviction where he challenged that Resolution himself in the District Court and was also the petitioner himself in the Honduran court proceedings.

The Government's contention that the Honduran court decisions are not applicable to McNab in these pending proceedings is also directly contradicted by the Honduran Secretary of State of the Ministry of Livestock and Agriculture. In his Resolution, he corrects the "error of law" made by his subordinate, Liliana Paz, in this respect, expressly concluding that the Administrative Law Court decision applies to *30 McNab's benefit in these criminal proceedings, pursuant to Article 96 of the Honduran Constitution. (Add. Tab 3).

In the final analysis, the "retroactivity" of the Honduran court's decisions is a non-issue. The real issue is whether, upon de novo review by this Court the District Court erroneously determined Resolution 003-95 to be "valid" in the first instance. The subsequent developments merely confirm the credibility of McNab's evidence and the error(s) in the Government's.

In summary, throughout these proceedings, McNab has presented a consistent and overwhelming body of evidence concerning the invalidity of Resolution 030-95. McNab has obtained a final judicial decision as to its invalidity and it cannot form the basis of this criminal prosecution. The contrary testimony of the Government's Honduran law witness, Liliana Paz, has been completely discredited by her superior, the Secretary of State in the Ministry of Livestock and Agriculture, by her own recanting of that testimony, as well as by the Honduran courts. McNab's motion for an order certifying an intention to grant a new trial should have been granted. McNab's conviction must be reversed due to the erroneous jury charges concerning Honduran law, based on Resolution 030-95.

B. Regulation 008-93, Issued to Enforce the Law of Industrialization Of Meats (Decree No. 40), Had No Further Value or Legal Effect After the Repeal of that Law in 1995

Regulation 008-93 was issued to enforce Decree No. 40, dated May 16, 1973, containing the "Law of Industrialization of Meats." That statute was repealed in 1995 by Decree No. 157-94, the "Law of Plant and Animal Health." As McNab demonstrated *31 in his original motion for new trial, under Honduran law, the repeal of a statute automatically repeals the regulations issued by the Executive Branch to enforce that statute. The District Court rejected this evidence and denied McNab's motion for new trial based upon Liliana Paz' testimony that Regulation 008-93 was only "tacitly" repealed at the time Decree No. 40 was repealed and, therefore, continued to be valid to the extent it did not conflict with the new law, Decree No. 157-94. The District Court relied heavily upon her testimony that SENASA continued to enforce 008-93 from 1995 until December of 1999, when the new regulations were issued. This affidavit testimony of Liliana Paz has again been discredited by subsequent developments in Honduras, which were made the basis of McNab's motion to certify an intention to grant a new trial.

First, the Honduran National Congress issued a new "interpretive" law, Decree No. 198-2001, which interprets Article 43 of the Civil Code "to the effect that the express total or partial repeal of a law leaves without legal value or effect the general regulations and the specific regulations... that the Executive Branch through the-respective Secretariat of State has issued to implement the provisions of the repealed law, unless there is an express provision to the contrary in the new repealing law." (Add. Tab 4). This interpretive law is considered part and parcel of the interpreted law and is to be applied from the date of the interpreted law. See "Course of Civil Law" excerpts (Add. Tab 7).

Secondly, the Secretary of State in the Ministry of Agriculture and Livestock has issued a Resolution disqualifying the speculative testimony of his subordinate, Liliana *32 Paz, as containing "errors of law," and expressly declaring that Regulation 008-93 was "repealed in its entirety and rendered without any value or legal effect as of January 13, 1995," when Decree No. 157- 94, the Plant and Animal Health Law, went into effect.

Finally, the Director General of SENASA, the agency in the Ministry of Agriculture and Livestock responsible for enforcement of hygiene regulations, has issued a Statement to the same effect as the Secretary's Resolution, concerning the repeal of Regulation 008-93 in 1995. (Add. Tab 5). The Director General further explained that the language repealing Regulation 008-93 in Article 124 of the 1999 regulations was "unnecessary" because it had already been repealed in 1995; this language was inserted due to his agency's oversight, when drafting the regulations, in failing to consider the earlier repeal of Decree No. 40. He also contradicted the affidavit testimony of Liliana Paz that SENASA continued to enforce Regulation 008-93 after 1995. He explicitly stated that this regulation "was not enforced by SENASA after January 13, 1995, in view of the fact that the Meat Industrialization Law, on which [Regulation 008-93] is based, was repealed on that day by the Plant and Animal Health Law" [Decree No. 157-94]. (Add. Tab 6).

In summary, Regulation 008-93 no longer had any force or effect after the repeal of Decree No. 40 in January 1995 and no new regulations were issued until December 12, 1999. All of the shipments of lobster at issue were shipped between these dates. The conviction of McNab cannot stand due to the erroneous jury charges with regard to hygiene regulations which had been repealed and were of no legal effect at the time the shipments were made.

*33 C. Article 70(3) of the Fishing Law was Repealed by a Complete Amendment and Restatement of Article 7Q in February of 2QQ1

McNab presented evidence/ in his first motion for a new trial, that Article 70 of the Fishing Law, prohibiting the destruction or harvesting of the eggs of "aquatic species/' had been completely amended in February of 2001, by a new and restated Article 70 in Decree No. 254-2000. This new Article 70 contained no prohibition against the harvesting or destruction of eggs. In denying McNab's motion, the District Court relied upon the Government's witness, Liliana Paz, who testified by affidavit that the old Article 70 was only "tacitly" repealed by Decree No. 254-2000 and, therefore, remained in effect because it was not inconsistent with any provision of the new Article 70. The Court was "troubled" by this argument, but concluded it must so find in light of the affidavit of Liliana Paz. (R6-397 at pg. 14).

In his most recent motion to the District Court, McNab presented evidence that Liliana Paz' superior, the Secretary of State of the Ministry of Agriculture and Livestock, has now issued a Resolution (co-signed by Ms. Paz) disqualifying Ms. Paz' affidavit testimony and expressly declaring that Article 70, as amended by Decree No. 245-2000, "rendered invalid and without legal effect the provisions originally contained in said Article." Those provisions that were part of the original Article and which "were omitted in its amendment, ceased to have legal validity when Decree 245-2000 went into effect...." Among these provisions were those contained in "Items 3 and 7 of the original Article 70." (Add. Tab 3). The Secretary of State also declared that *34 Article 96 of the Constitution made this change in the law retroactive with respect to its effect upon the criminal proceedings against Mr. McNab.

In summary, the sole support for the Court's original denial of McNab's motion for new trial has now been effectively discredited by a Resolution issued by the highest official in the Ministry of Agriculture and Livestock. The law upon which the Government relied in prosecuting McNab was amended during the course of the proceedings below, and the conduct for which McNab was prosecuted was no longer even arguably prohibited under the new law.

Finally, the General Director of DIGEPESCA, Gabriela Pineda De Arias, has issued a statement that former Article 70(3) of the Fishing Law "only forbade the destruction or collection for profit of the spawn/eggs of young fishes, chelonians or other aquatic species, but not the destruction or collection of the egg-laying species." DIGEPESCA is the agency under the Ministry of Agriculture and Livestock which is responsible for the enforcement of the Honduran fisheries laws. (Add. Tab 8). This statement is consistent with, and confirms, Dr. Litvinoff's supplemental affidavit, submitted prior to the first order on foreign law, that Article 70(3) had nothing to do with the harvesting of egg-bearing lobsters, only of the eggs themselves, i. e., it is no more illegal under Article 70(3) to catch an egg-bearing lobster than an egg-bearing fish. The Government's only witness with a contrary interpretation was Liliana Paz at the foreign law hearing, whose credibility is now completely destroyed and whose interpretation certainly carries less weight than the head of DIGEPESCA, the agency responsible for enforcement of the Fishing Law.

*35 In conclusion, Article 70(3) was an invalid basis for the prosecution of McNab under the Lacey Act. Article 70(3) did not prohibit what the Government demonstrated a McNab vessel had done - harvested some egg-bearing lobsters. Furthermore, Article 70(3) was no longer the law in Honduras after its repeal and replacement by new Article 70 in Decree No. 245-2000. The District Court should have certified to this Court an intention to grant a new trial on this ground. The conviction must be reversed.

*36 CONCLUSION

For all of the above reasons, defendant-appellant David Henson McNab respectfully submits that the trial court erred in failing to certify an intention to this Court to grant a new trial. The Court should reverse and remand the District Court's decisions on McNab's motions concerning interpretation of law and should vacate his conviction and sentence.

Appendix not available.