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UNITED STATES OF
AMERICA, Plaintiff-Appellee, versus DAVID HENSON MCNAB, ROBERT D. BLANDFORD, et
al., Defendants-Appellants. UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus ABNER SCHOENWETTER, ROBERT D. BLANDFORD, Defendants-Appellants. UNITED
STATES OF AMERICA, Plaintiff-Appellee, versus DAVID HENSON MCNAB, ABNER
SCHOENWETTER, et al., Defendants-Appellants. No. 01-15148, No.
02-10810, No. 02-11264 UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT 331 F.3d 1228; 2003
U.S. App. LEXIS 10708;16 Fla. L. Weekly Fed. C 645; 2003 WL 21233535 May 29, 2003, Decided May 29, 2003, Filed PRIOR HISTORY: Appeals from the
United States District Court for the Southern District of Alabama. D. C. Docket
No. 00-00079-CR-1-RV, D. C. Docket No. 00-00079-CR-CB. Judge: Richard W.
Vollmer Jr. United States v. McNab, prior published opinion at 324 F.3d 1266, 2003 U.S. App. LEXIS 5561
(11th Cir. Ala., 2003) withdrawn for N.R.S. bound volume, 2003 WL 1419848, 2003 U.S. App. See below for links to briefs submitted by the parties to this case. COUNSEL: For McNab, David
Henson, Appellant (01-15148-JJ): Wadsworth, Jeffrey A., WASHINGTON, DC. For Embassy of Honduras, Amicus (01-15148-JJ): Lee, Tony S.,
Schmeltzer, Aptaker & Shepard, P.C., Washington, DC. Smith, John Anthony,
Schmeltzer, Aptaker & Shepard, P.C., Washington, DC. Gaynes, Martin J.,
Schmeltzer, Aptaker & Shepard, P.C., Washington, DC. JUDGES: Before HULL, WILSON
and FAY, Circuit Judges. FAY, Circuit Judge, dissents. OPINION: ORDERED: The petitions for rehearing are granted in part by deleting
entirely footnote 24 from the Court’s opinion which was issued on
March 21, 2003. The Court will issue a substituted opinion making that
deletion. The Court otherwise denies the petitions for rehearing of
defendants McNabb, Schoenwetter, Huang, Blandford and Embassy of
Honduras. No member of this Court having requested a poll, we deny the
suggestion for rehearing en banc. See Fed. R. App. P.
35(a); Eleventh Circuit Rule 35-5. FAY, Circuit Judge, dissents. [Westlaw
version, 2003 WL 21233535] [*1231]
OPINION
BY: WILSON,
Circuit Judge: The
Court hereby substitutes the following opinion in place of the opinion which
was issued on March 21, 2003. [*1232] David Henson McNab, Abner Schoenwetter, Robert D.
Blandford, and Diane H. Huang (collectively the defendants) appeal the
convictions and sentences they received after a jury found them guilty of
conspiracy, smuggling, money laundering, and Lacey Act violations in connection
with the importation, sale, and purchase of Caribbean spiny lobsters from
Honduras. The defendants’ main argument on appeal is that the district
court erred in determining that the Honduran laws that served as the underlying
basis of their convictions were valid and enforceable. The defendants contend
that the Honduran laws were invalid, and, therefore, there was no violation of
foreign law upon which to base their convictions. [FN1] FN1. The Lacey Act prohibits the
importation of “fish or wildlife taken, possessed, transported, or
sold in violation of … any foreign law.” 16 U.S.C. §
3372(a)(2)(A). If the lobsters were not imported, transported, and sold in
violation of Honduran law, there could be no Lacey Act violations. Accordingly,
if the lobsters were brought into the United States legally and were not
criminally-derived property, there could be no smuggling or money laundering
violations. The
defendants’ challenge to the validity of the Honduran laws requires us
to undertake our own foreign law determination. Our task is complicated by
conflicting representations from Honduran officials regarding the validity of
the Honduran laws. Throughout the investigation and trial, Honduran officials
offered support and assistance to the United States government, and both the
government and the district court relied upon the Honduran officials’
verification of the Honduran laws. Shortly after the defendants were convicted,
the Honduran government reversed its position; it currently refutes the
validity of the laws it previously verified. Therefore, we must decide whether
our courts are bound by a foreign government’s new representations
regarding the validity of its laws when its new representations are issued only
postconviction and directly contravene its original position upon which the
government and our courts relied and the jury acted. This question is a matter
of first impression in this Circuit and apparently the other circuits as well. For
the reasons set forth below, we affirm the defendants’ convictions and
sentences. BACKGROUND On
February 3, 1999, agents of the National Marine Fisheries Service (NMFS) received
an anonymous facsimile, which provided that McNab’s cargo transport
vessel, the M/V CARIBBEAN CLIPPER, would arrive in Bayou la Batre, Alabama on
February 5, 1999, with a shipment of lobsters containing “undersized
(3 & 4 oz) lobster tails, [which was] a violation of Honduran
law.” The facsimile further provided that Honduras prohibits the bulk
exportation of lobsters and requires that lobsters be packed in boxes for
export. In
response to the anonymous tip, NMFS agents consulted the Direccion General de
Pesca y Acuicultura (DIGEPESCA) in Honduras [FN2] regarding the legality of the
lobster shipment referenced in the facsimile. The NMFS agents questioned
whether the shipment violated the Lacey Act, which makes it unlawful to import
into the United States “fish or wildlife [that has been] taken,
possessed, transported, or sold in violation of … any foreign
law.” 16 U.S.C. § 3372(a)(2)(A). In three separate letters
responding to the agents’ inquiry, the director general of the [*1233] DIGEPESCA described some of
Honduras’s fishing laws and confirmed that McNab’s shipment
“ha[d] been illegally transported in violation of the Fishing Law, the
Industrial and Hygienic Sanitary Inspection Regulation for Fish Products and
Resolution No. 030-95.” The director general provided authentic copies
of the applicable laws and stated that the DIGEPESCA was ready to support all
efforts by the government to prosecute persons who violate the Lacey Act. FN2. The DIGEPESCA is the agency
within Honduras’s Secretaria de Agricultura y Ganaderia (SAG) that is
responsible for the enforcement of the fishing laws and the execution of
fishing programs. In
early March of 1999 NMFS agents seized the lobster shipment that was referenced
in the anonymous facsimile based upon the director general’s
assurances that the lobsters had been exported in violation of Honduran law.
Over the next few months, NMFS agents communicated with Honduran officials
about the Honduran laws and the legality of the seized lobster shipment. In
June of 1999 NMFS special agents and an attorney in the United States National
Oceanic and Atmospheric Administration Office of the General Counsel met with
various Honduran officials from the Secretaria de Agricultura y Ganaderia (SAG)
in Tegucigalpa, Honduras. The minister, the vice minister, the director of
legal services, the director of legal affairs, the secretary general of the
SAG, the director general of the DIGEPESCA, and the legal advisor for the
Servicio Nacional de Sanidad Agropecuaria (SENASA) [FN3] confirmed that the
lobsters had been exported illegally without first being inspected and
processed. Furthermore, the Honduran officials confirmed that there was a 5.5-
inch size limit for lobster tails and that all catches had to be reported to
Honduran authorities. The Honduran officials provided certified copies of the
laws in question. In September of 1999 NMFS agents inspected the lobster
shipment that had been seized earlier in the year. The inspection confirmed
that the seized lobsters were packed in bulk plastic bags without being
processed and revealed that a significant number had a tail length that was
less than the 5.5 inches required by the Honduran size limit restriction. In
addition, many of the lobsters were egg-bearing or had their eggs removed. FN3. Like the DIGEPESCA, the
SENASA is an agency within the SAG. The SENASA
is responsible for the enforcement of hygiene laws and regulations. In
March of 2000 two Honduran officials, a legal advisor in the Despacho
Ministerial and a SAG legal advisor, traveled to Alabama to meet with
government prosecutors and investigators. Both legal advisors provided written
statements that cited Resolution 030-95 as a valid law regulating the lobster
fishing industry. They also described the processing requirements mandated by
Regulation 0008-93. [FN4] They further explained that Honduras prohibits the
harvesting of egg-bearing lobsters. [FN5] Based upon the NMFS’s
investigation and the verification of the applicable foreign laws by the
Honduran officials charged with regulating the lobster fishing industry, the
government decided to prosecute the defendants for their roles in the illegal
importing scheme. Subsequently, the grand jury returned a forty-seven- [*1234] count second superseding
indictment in September of 2000. [FN6] FN4. Processing lobster tails
involves several steps: thawing, sorting, and grading the lobsters by quality
and size; placing the tails in individual plastic sleeves; and packing them in
boxes. FN5. The legal advisors cited
Resolution 003-80 as authority for the prohibition against harvesting or
destroying egg-bearing lobsters. Resolution
003-80 is substantially similar to Article 70(3) of the Fishing Law, as both laws
prohibit the harvesting or destruction of lobster eggs. At the foreign law
hearing, the government acknowledged that it could not verify the publication
of Resolution 003-80 in La Gaceta and therefore relied upon Article 70(3) as a
Lacey Act predicate. FN6. Although the investigation
focused initially upon the seized shipment referenced in the facsimile, the
indictment charged the defendants with violations based upon numerous shipments
of lobsters between 1996 and 1999. To
determine the validity of the relevant Honduran laws, the district court
conducted a pretrial hearing on foreign law in September of 2000. Most of the
defendants’ evidence at the hearing pertained to the validity of
Resolution 030-95, which established a 5.5-inch size limit for lobsters. [FN7]
At the government’s request, the minister of the SAG sent Secretary
General Liliana Patricia Paz, the SAG’s highest-ranking legal
official, to testify at the foreign law hearing. Secretary General Paz
testified as to the validity of various laws and confirmed that Resolution
030-95, Regulation 0008-93, and Article 70(3) of the Fishing Law [FN8] were in
effect and legally binding during the time period covered by the indictment.
She also explained the means by which a Honduran citizen may seek the
invalidation of a resolution in Honduras, [FN9] and she testified that no such
proceeding regarding Resolution 030-95 had been initiated at that time.
Persuaded by the testimony of Secretary General Paz, the district court found
that the government met its burden of establishing the validity of the Honduran
laws that served as the predicates for the Lacey Act charges. Shortly after the
foreign law hearing, a jury trial was conducted, and the defendants were found
guilty on multiple counts. [FN10] FN7. Two law professors, both
experts in Honduran law, testified for the defendants. The defendants also
submitted a number of legal opinions from members of the Honduran legal
community, including the attorney general of Honduras and the regional
prosecutor of the Fiscalia Especial Para la Defensa de la Constituci—n, and a
declaration from a practicing Honduran attorney. FN8. The Fishing Law is a
comprehensive statute regulating the Honduran fishing industry. See Decreto No.
154, May 19, 1959, La Gaceta, June 9, 1959. FN9. The Honduran judicial system
includes a separate administrative law court system in which disputes relating
to administrative matters are adjudicated. Among the procedures available in
the administrative court system is an action by a Honduran citizen who claims
to be affected adversely by some administrative rule to seek a declaration that
the rule is invalid. Such an action is first brought in the Honduran Court of
the First Instance of Administrative Law. Decisions from that court may be
appealed to the Honduran Court of Appeals for Administrative Law. FN10. McNab was found guilty of
conspiracy, smuggling, and money laundering. Blandford was found guilty of
conspiracy, smuggling, Lacey Act violations, and money laundering, as well as
two lesser included offenses under the Lacey Act. Schoenwetter was found guilty
as charged for conspiracy and smuggling, and Huang was found guilty as charged
for conspiracy, Lacey Act violations, and false labeling. After
the trial, the defendants filed a number of motions seeking to have their
convictions overturned. [FN11] In the motions, they attacked the validity of
the foreign laws underlying their convictions, citing recent developments in
Honduran law. In preparation for a hearing on the motions, an official from the
United States Department of Justice and agents from the NMFS and the Federal
Bureau of Investigation traveled to Honduras in early August of 2001 to discuss
the defendants’ challenges to the validity of the Honduran laws. They
received affidavits from three Honduran government officials, including
Secretary General Paz, confirming the validity [*1235] of the laws the
defendants were challenging. They also received an affidavit from the minister
of the SAG, stating that those Honduran government officials were authorized to
provide advice on the enforcement and validity of the laws. After the hearing,
the district court dismissed each of the defendants’ posttrial
motions. Thereafter, in August of 2001, the district court sentenced McNab,
Blandford, and Schoenwetter to ninety-seven months of imprisonment and Huang to
twenty-four months of imprisonment. FN11. The final set of motions
included a motion to dismiss because the indictment failed to charge a crime, a
motion for a new trial based upon newly discovered evidence, and a motion for
redetermination of foreign law based upon developments in Honduran law. After
sentencing, the defendants appealed their convictions based, in part, upon
their contention that the Honduran laws used as the predicates for the Lacey
Act convictions were invalid or void during the time period covered by the
indictment. [FN12] In December of 2001 a government attorney and NMFS agents
traveled to Honduras to discuss the defendants’ new documents with
Honduran officials to prepare the government’s brief on appeal. Once
again, the Honduran officials confirmed their prior statements regarding the
validity of the Honduran laws. FN12. After the initial notice of
appeal, the defendants obtained additional support for their claim that the
district court misinterpreted Honduran law. As a result, they filed a Motion
for Judicial Notice, as well as alternative motions regarding newly issued
Honduran legal opinions with this Court. We denied those motions without
prejudice and held that the motions could be renewed if the district court
refused to certify its intention to grant a new trial pursuant to United
States v. Ellsworth, 814 F.2d 613 (11th Cir.1987) (per curiam). Based
upon our order, in January of 2002 McNab filed a Motion for Order Certifying
Intention to Grant New Trial Upon Remand with the district court, which was
subsequently adopted by Blandford, Schoenwetter, and Huang. After initially
denying the motion, the district court granted the defendants’ motion
for reconsideration. Upon reconsideration, the district court affirmed its
earlier order that it would not certify its intention to grant a new trial. The
defendants appeal that order and argue that the district court erred in denying
the motion to certify its intention to grant a new trial upon remand. In light
of our holding regarding the validity of the Honduran laws, we need not address
this issue. The
defendants raise a number of issues in these consolidated appeals. First, they
argue that the scope of the Lacey Act is limited to foreign statutes and that
the Honduran resolutions and regulations listed in the indictment were used
improperly as predicates for their convictions. Second, they contend that the
district court’s interpretation of the Honduran resolutions and
regulations was erroneous and that the Honduran laws that served as predicates
for the convictions were invalid. Third, McNab argues that the district court
abused its discretion by excluding evidence at trial relating to his
“knowledge” of Honduran law. Fourth, the defendants assert
that the district court made several errors with respect to the jury
instructions. Fifth, they contend that the jury’s verdicts were based
upon insufficient evidence. Finally, Schoenwetter and Blandford argue that the
district court erred in failing to postpone their sentencing and in determining
the length of their sentences. DISCUSSION I.
Scope of the Lacey Act The
first issue we address is whether the phrase “any foreign
law” in the Lacey Act includes foreign regulations and other legally
binding provisions that have the force and effect of law. The defendants argue
that the phrase “any foreign law” should be read to mean
foreign statutes and not foreign regulations or provisions that are legally
binding. According to their argument, Resolution 030-95 and Regulation 0008-93
do not fall within the scope of the Lacey Act, because [*1236] they are not statutes. [FN13]
They rely upon what they consider a distinction by Congress between
“any law or regulation of any State” and “any
foreign law.” 16 U.S.C. § 3372(a)(2)(A). The defendants argue
that by failing to include foreign regulations explicitly, Congress intended
that only foreign statutes could serve as the basis for a foreign law Lacey Act
violation. FN13. The parties do not dispute
the following explanation of the Honduran legal framework: The Government of Honduras is a
constitutional republic. Its legal system is generally under the continental or
civil law system…. [T]he Constitution is the supreme law of the
Republic. The adoption of statutes in
Honduras (issued as “Decrees”) is the exclusive prerogative
of the National Congress. At the same time, the Constitution … vests
in the Executive Branch the exclusive authority to issue
“Regulations[.”] Regulations (issued in the form of
“Acuerdos”—in English, “Accords”
or “Decisions” or “Agreements”) are general
rules of conduct applicable to all who may be affected by them and they have
the force of law. The Constitution provides that Regulations may be issued only
by the President of the Republic with the co-signature of the Secretary of
State. [sic] (i.e. Chief Minister) of the pertinent ministry. Both statutes and
regulations become effective only when they are published in La Gaceta, which
is the Honduran equivalent of the Federal Register. Br. of Amicus Curiae of the
Embassy of Honduras and the Asociacion de Pescadores del Caribe in Supp. of
Def.-Appellant David Henson McNab at 8-9 (citations omitted). In
accordance with the plain meaning doctrine, “[w]e begin our
construction of … [the Lacey Act] where courts should always begin the
process of legislative interpretation, and where they often should end it as
well, which is with the words of the statutory provision.” Harris
v. Garner,
216 F.3d 970, 972 (11th Cir.2000) (en banc), cert. denied, 532 U.S. 1065, 121
S.Ct. 2214, 150 L.Ed.2d 208 (2001); United States v. Gilbert, 198 F.3d 1293, 1298
(11th Cir.1999). It is well established that “[w]hen the words of a
statute are unambiguous … [the] judicial inquiry is complete.”
CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th
Cir.2001) (first alteration in original) (internal quotation marks omitted);
see also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct.
1146, 117 L.Ed.2d 391 (1992) (“[C]ourts must presume that a legislature
says in a statute what it means and means in a statute what it says
there.”). When, however, “the language is ambiguous or leads
to absurd results, … [we] may consult the legislative history and
discern the true intent of Congress.” United States v.
Kattan-Kassin, 696 F.2d 893, 895 (11th Cir.1983). [FN14] FN14. We note that although a
court may resort to extrinsic materials if the statutory language is ambiguous
or if the interpretation causes absurd results, only the latter is a true
exception to the plain meaning rule. CBS Inc., 245 F.3d at 1227
(“Stating that ambiguity establishes an exception, instead of
disestablishes the predicate for the rule, confuses things.”). With
this guidance in mind, we examine the language of the Lacey Act. The Lacey Act
provides that “[i]t is unlawful for any person … to import,
export, transport, sell, receive, acquire, or purchase in interstate or foreign
commerce … any fish or wildlife taken, possessed, transported, or sold
in violation of any law or regulation of any State or in violation of any
foreign law.” 16 U.S.C. § 3372(a)(2)(A). The Act defines
“law” as those “laws … which regulate the
taking, possession, importation, exportation, transportation, or sale of fish
or wildlife or plants.” 16 U.S.C. § 3371(d) (emphasis added). Unfortunately,
the statutory definition defines the word “law” by using the
word “laws.” [FN15] While the definition is helpful in [*1237] determining what the
“law” must regulate, it is silent as to whether
“law” is restricted to statutes or includes regulations and
other provisions that foreign governments use to promulgate legally binding
rules. Thus, we turn first to the common usage or ordinary meaning of the word
“law” to determine its plain meaning. Cf. Consol. Bank,
N.A. v. Office of Comptroller of Currency, 118 F.3d 1461, 1464 (11th
Cir.1997) (“In the absence of a statutory definition of a term, we
look to the common usage of words for their meaning.”). “[T]o
determine the common usage or ordinary meaning of a term, courts often turn to
dictionary definitions for guidance.” See CBS Inc., 245 F.3d at 1223. FN15. Section 3371(d) provides in
full, “The terms ‘law,’ ‘treaty,’
‘regulation,’ and ‘Indian tribal law’ mean
laws, treaties, regulations or Indian tribal laws which regulate the taking,
possession, importation, exportation, transportation, or sale of fish or
wildlife or plants.” 16 U.S.C. § 3371(d). We
read the word “law” to refer to laws “which regulate
the taking, possession, importation, exportation, transportation, or sale of
fish or wildlife or plants,” and the word “treaty”
to refer to treaties “which regulate the taking, possession,
importation, exportation, transportation, or sale of fish or wildlife or
plants,” and so forth. Merriam
Webster’s Collegiate Dictionary provides several definitions of law,
including “a binding custom or practice of a community: a rule of
conduct or action prescribed or formally recognized as binding or enforced by a
controlling authority” and “the whole body of such customs,
practices, or rules.” Merriam Webster’s Collegiate Dictionary
659 (Frederick C. Mish et al. eds., 10th ed.1996). Under these broad
definitions of the word “law,” the phrase “any
foreign law” incorporates the Honduran decrees and regulations at
issue. See United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 826
(9th Cir.1989). On
the other hand, there are more narrow definitions of the word
“law” that also are commonly used. Black’s Law
Dictionary provides several definitions of the word “law,”
including one that defines law simply as “[a] statute.”
Black’s Law Dictionary 889 (Bryan A. Garner et al. eds., 7th ed.1999).
This definition is plausible when the phrase “any foreign law”
is read in conjunction with the rest of § 3372(a)(2)(A). For example,
the defendants assert that “any foreign law” can refer only
to foreign statutes, because to read “any foreign law” to
include regulations would render the word “regulation” in the
earlier phrase “any law or regulation of any State”
meaningless. [FN16] FN16. “A basic premise of
statutory construction is that a statute is to be interpreted so that no words
shall be discarded as being meaningless, redundant, or mere
surplusage.” United States v. Canals-Jimenez, 943 F.2d 1284, 1287
(11th Cir.1991). While
the defendants advocate this interpretation of the statute, it is not the only
reasonable one. Another is that Congress intended to punish violations of state
laws and state regulations and to punish violations of foreign laws, whatever
form those foreign laws may take. The Ninth Circuit, in explaining why it
interpreted “any foreign law” to cover different forms of
foreign laws, emphasized how the world’s diverse legal systems defy
easy definition or categorization. It noted, [B]ecause of the wide range the
forms of law may take given the world’s many diverse legal and
governmental systems, Congress would be hard-pressed to set forth a definition
that would adequately encompass all of them…. Thus, if Congress had
sought to define “any foreign law” with any kind of
specificity whatsoever, it might have effectively immunized … [conduct]
under the Act despite violation of conservation laws of a large portion of the
world’s regimes that possess systems of law and government that defy
easy definition or categorization. [*1238] 594,464 Pounds of Salmon, 871 F.2d at 827-28. In other
words, the argument is that Congress specifically chose to limit domestic law
to statutes and regulations, but specifically chose to use the language
“any foreign law” to cover the wide varieties of laws in
foreign countries. The
net result is that there are several reasonable ways to interpret the word
“law” in the phrase “any foreign law.” As a
result of this ambiguity, we look beyond the language of the statute to
determine legislative intent. We thus now look to the legislative history of
the Lacey Act to ascertain Congress’s intent. Fed. Reserve Bank of
Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir.2000). “In trying
to learn Congressional intent by examining the legislative history of a
statute, we look to the purpose the original enactment served, the discussion
of statutory meaning in committee reports, the effect of amendments whether
accepted or rejected and the remarks in debate preceding passage.” Rogers
v. Frito-Lay, Inc., 611 F.2d 1074, 1080 (5th Cir.1980). [FN17] FN17. In Bonner v. City of
Prichard,
661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent
all decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981. The
Lacey Act was introduced by Representative John F. Lacey of Iowa in 1900.
H.R.Rep. No. 97-276, at 7 (1981) (discussing the enactment of the Lacey Act).
Representative Lacey recognized that individual states were unable to protect
their wildlife, because their laws did not reach into neighboring states. Id. Thus, he asserted
that a federal law was necessary to outlaw the interstate traffic in wildlife
illegally taken from their state of origin. [FN18] Id. By 1981 Congress
recognized the need to strengthen the Lacey Act in response to “the
massive illegal trade in fish, wildlife and plants.” 127 Cong. Rec.
17,327 (1981) (remarks of Senator John Chafee). Congress thus amended the Lacey
Act in 1981 “to correct … insufficiencies” in the
Act and “to simplify administration and enforcement.” [FN19]
S. Rep. No. 97-123, at 2 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1749. FN18. In 1935 the Lacey Act was
amended to include foreign law because of concern over the illegal marketing of
wildlife from other countries. H.R.Rep. No. 97-276, at 7. FN19. The Lacey Act Amendments of
1981 combined the Lacey Act of 1900 and the Black Bass Act of 1926. 127 Cong.
Rec. 26,537 (1981) (remarks of Representative John Breaux). The Black Bass Act
was similar to the Lacey Act in that it prohibited the interstate
transportation of fish taken in violation of state or foreign law. See 127
Cong. Rec. 17,329 (remarks of Senator Howard Baker). Although
there are certain parts of the legislative history of the Lacey Act that support
the defendants’ position to some extent, the legislative history
reflects that “the [main] thrust of Congress’s intention in
amending the Act was to expand its scope and enhance its deterrence
effect.” [FN20] 594,464 Pounds of Salmon, 871 F.2d at 828.
Indeed, Congress clearly stated that the amendments were meant to strengthen
the existing wildlife protection laws and to “provide [the government]
the tools needed to effectively control the massive illegal trade in fish, wildlife
and plants.” 127 Cong. Rec. 17,327 (remarks of Senator Chafee); see
also 127 Cong. Rec. 26,537 (1981) (remarks of Representative John Breaux). The
Senate Report provided [*1239] that the amendments
“would allow the Federal Government to provide more adequate support
for the full range of State, foreign and Federal laws that protect
wildlife.” S.Rep. No. 97-123, at 4. The amendments were intended to
“raise both the civil and criminal penalties of the current laws and
target commercial violators and international traffickers.” 127 Cong.
Rec. 17,328 (remarks of Senator Chafee). By strengthening the penalty
provisions of the Lacey Act, Congress intended “to give the Federal
Government stronger enforcement tools to stop the large-scale importation and
taking of fish … which enjoy protection under other foreign …
laws.” Id. at 17,329 (remarks of Senator James Strom Thurmond). FN20. The defendants point to the
fact that the pre-1981 Lacey Act prohibited trade in wildlife taken in
violation of “any law or regulation of any State or foreign
country,” but that now the Lacey Act does not refer to foreign laws
and regulations. “While the legislative history is not totally
one-sided, the thrust of Congress’s intention in amending the Act was
to expand its scope and enhance its deterrence effect.” 594,464
Pounds of Salmon, 871 F.2d at 828. Our
examination of the legislative history of the Lacey Act leads us to the
conclusion that Congress by no means intended to limit the application of the
Act by its adoption of the 1981 amendments. The defendants’
interpretation is untenable, because it would restrict the application of the
Lacey Act unduly and would thwart Congress’s stated goal of strengthening
the Act by amending it in 1981. See id. at 17,328 (remarks of Senator
Chafee). Their narrow interpretation of the phrase “any foreign
law” would prevent the wildlife conservation laws of many countries
from serving as the basis for Lacey Act violations and would limit the
Act’s utility. We therefore conclude that regulations and other such
legally binding provisions that foreign governments may promulgate to protect
wildlife are encompassed by the phrase “any foreign law” in
the Lacey Act. [FN21] See United States v. Lee, 937 F.2d 1388, 1391-92 (9th
Cir.1991) (holding that a Taiwanese fishing regulation constituted
“foreign law”); 594,464 Pounds of Salmon, 871 F.2d at 828
(holding the same). FN21.
The defendants also argue that because the Lacey Act is ambiguous as to the
meaning of “any foreign law,” the rule of lenity requires
that any doubt be resolved in their favor. Lenity, however, is
“reserved … for those situations in which a reasonable doubt
persists about a statute’s intended scope even after resort to the
language and structure, legislative history, and motivating policies of the
statute.” Moskal v. United States, 498 U.S. 103, 108, 111
S.Ct. 461, 112 L.Ed.2d 449 (1990) (internal quotation marks omitted); see also United
States v. Curry, 902 F.2d 912, 915 (11th Cir.1990). As our examination of the
legislative history clarifies the purpose of and motivation behind the Lacey
Act, the defendants’ invocation of the rule of lenity fails. As
we have determined that the phrase “any foreign law” includes
nonstatutory provisions such as Resolution 030-95 and Regulation 0008-93, we
now turn to the defendants’ argument that their convictions were based
upon the district court’s erroneous interpretation of foreign law. II.
Honduran Laws The defendants contend that the Honduran
laws that served as predicates for their convictions were invalid. Specifically,
they argue that (1) Resolution 030-95, which established a 5.5-inch size limit
for lobsters, never had the effect of law, because it was promulgated
improperly and has been declared void by the Honduran courts; (2) Regulation
0008-93, which established inspection and processing requirements for the
lobster fishing industry, was repealed in 1995, prior to the time period
covered by the indictment; and (3) Article 70(3), which prohibits the
harvesting and destruction of lobster eggs, was misinterpreted by the district
court and was repealed retroactively in 2001. As
the defendants were found guilty of conspiracy under a general verdict, there
is no way to know which Honduran law the jury relied upon in determining their
guilt. Thus, if any of the three Honduran laws that the defendants challenge
were invalid during the time period [*1240] covered by the
indictment, the defendants’ convictions must be reversed. [FN22] See Mills
v. Maryland, 486 U.S. 367,
376, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (In criminal cases, “the
[Supreme] Court consistently has followed the rule that the jury’s
verdict must be set aside if it could be supported on one ground but not on
another, and the reviewing court was uncertain which of the two grounds was
relied upon by the jury in reaching the verdict.”). FN22. The government acknowledges
that the rule stated above generally is true, but argues that the defendants
are estopped from benefitting from that general rule because they
“objected to a special verdict form and requested general
verdicts.” We disagree. The record indicates that the only objection
to the special verdict forms was made by Blandford’s attorney, who
initially stated that he did not “like” the special
interrogatories. Upon hearing the government’s explanations for the
special verdict forms, none of the defendants made any further objections.
Thus, the district court declined to use the government’s special
verdict forms sua sponte, apparently because it considered them too complicated
for the jury members to use in their deliberations. We
review a district court’s interpretation of foreign law de novo. United
States v. Gecas, 120 F.3d 1419, 1424 (11th Cir.1997) (en banc). Our determination of
foreign law is complicated by the posttrial shift in the Honduran
government’s position regarding the validity of the laws at issue in
this case. [FN23] The Honduran government now maintains that the laws were
invalid at the time of the lobster shipments or have been repealed
retroactively. Thus, we must decide whether we are bound by the Honduran
government’s current position regarding the validity of these laws, or
whether we are free to follow the Honduran government’s original
position. FN23. Despite the fact that
Honduran officials supported the government throughout the investigation and
trial of this case, the Embassy of Honduras filed an amicus curiae brief in
support of McNab. As
we begin our analysis, we must make clear that the crux of this case is the
validity of the Honduran laws during the time period covered by the indictment.
Much of the defendants’ arguments focus upon the fact that none of the
laws are currently valid; however, their reliance upon the current invalidity
of the laws is misplaced. “Although Lacey Act offenses are predicated
upon violations of [foreign] law, the statute nowhere states that a viable or
prosecutable [foreign] law violation is necessary to support federal charges.
Instead, the Act simply requires that the fish or wildlife have been obtained
in violation of any [foreign] law….” United States v.
Borden,
10 F.3d 1058, 1062 (4th Cir.1993) (internal quotation marks omitted). [FN24]
The reference to foreign law in the Lacey Act is there to define what
constitutes illegal conduct. Thus, the subsequent invalidation of the
underlying foreign laws does not make the defendants any less culpable for
their actions. If the laws were valid in Honduras during the [*1241] time period covered by
the indictment, the defendants violated the Lacey Act by importing the lobsters
in violation of those laws. Whatever changes in the laws occurred after the
lobsters were imported into the United States illegally have no effect on the
defendants’ convictions. FN24. In Borden, two state
statutes served as the predicates for the Lacey Act violations. 10 F.3d at
1062. The defendant “contend[ed] that his indictment [wa]s invalid
because the one-year statute of limitations for the predicate state offenses
had expired by the time the indictment was returned.” Id. He argued
that the state statute of limitations governed Lacey Act violations,
“because the existence of a prosecutable violation of state law [wa]s
necessary to support a Lacey Act indictment.” Id. The Fourth Circuit
concluded that even though the Lacey Act “incorporates the substantive
elements of state law,” “it is not designed to incorporate
state procedural law.” Id. (internal quotation marks omitted). Thus,
although the state statute of limitations had run on the state offense, the
defendant’s indictment still was valid. In
a Lacey Act prosecution, once the district court determines the validity of a
foreign law during a given time period, it is up to the government to prove
that the defendants knowingly violated those laws. United States v. Todd, 735 F.2d 146, 151
(5th Cir.1984). The initial foreign law determination, however, is a question
of law for the court. See Fed.R.Crim.P. 26.1. “The court, in
determining foreign law, may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under
the Federal Rules of Evidence.” Id. Among the most logical sources
for the court to look to in its determination of foreign law are the foreign
officials charged with enforcing the laws of their country. The district court,
in the course of a Lacey Act prosecution, is entitled to rely upon such representations
by foreign officials as to the validity of their government’s laws.
The court reasonably may assume that statements from foreign officials are a
reliable and accurate source and may use such statements as a basis for its
determination of the validity of foreign laws during a given time period.
[FN25] FN25. Although the amici suggest
that the government used improper procedures, such as seeking out midlevel
employees who were not authorized to render opinions on behalf of the Honduran
government in its effort to ascertain the applicable Honduran laws, the record
indicates quite the contrary. On February 9, 1999, an NMFS agent sent a formal
request to the deputy director of the DIGEPESCA seeking information regarding
the legality of the lobster referenced in the anonymous facsimile. The director
general of the DIGEPESCA sent two letters to the NMFS in response to the
inquiry. In his first letter, dated February 12, 1999, the director general
described some of the Honduran laws governing the lobster industry, including
Resolution 030-95. In a second letter, dated February 25, 1999, the director
general confirmed that the lobsters “ha[d] been illegally transported
in violation of the Fishing Law, the Industrial and Hygienic Sanitary Inspection
Regulation for Fish Products and Resolution No. 030-95” and included
copies of the laws. The director general further stated the he supported all
efforts “to legally prosecute natives or legalized Americans that
violate the articles of the Lacey Act.” The letter was copied to the
minister and vice minister of the SAG. In addition, SAG Minister Guillermo
Alvarado Downing confirmed in an affidavit that Secretary General Paz could
“provide the necessary advice about and explanation of the enforcement
and validity of Honduran laws, and especially the fisheries laws enforced by
this Ministry.” Thus, it is clear that the government conducted its
investigation properly through the Honduran officials who were responsible for
interpreting, enforcing, and applying the fishing laws of Honduras. When,
however, a foreign government changes its original position regarding the
validity of its laws after a defendant has been convicted, our courts are not
required to revise their prior determinations of foreign law solely upon the
basis of the foreign government’s new position. There must be some
finality with representations of foreign law by foreign governments. Given the
inevitable political changes that take place in foreign governments, if courts
were required to maintain compliance with a foreign government’s
position, we would be caught up in the endless task of redetermining foreign
law. In
this case, the government solicited and received the assistance of the SAG and
the DIGEPESCA during the investigation of the legality of the lobster
shipments. From the earliest stages of the investigation until after the
defendants were convicted, the statements from the SAG were consistent with the
government’s understanding of the laws. After the defendants [*1242] were convicted,
however, certain events in Honduras induced the Honduran government to refute
its original statements. The newly issued statements and opinions of Honduran
officials, however, do not persuade us that the district court erred in its
determination that the Honduran laws at issue were valid and enforced during
the time period covered by the indictment. By
our decision today, we do not mean to impinge upon any foreign
government’s sovereignty. Honduras has every right to invalidate and
repeal the laws at issue in this case. The district courts and the government
of the United States, however, have the right to rely upon the Honduran
government’s original verifications of its laws. We must have consistency
and reliability from foreign governments with respect to the validity of their
laws. Otherwise, there never could be any assurance when undertaking a Lacey
Act prosecution for violations of foreign law that a conviction will not be
invalidated at some later date if the foreign government changes its laws.
Acceptance of the Honduran government’s current interpretation of its
laws as determinative of the validity of the laws would set the foundation for
future Lacey Act defendants to seek postconviction invalidation of the
underlying foreign laws. Although such is not the case here, it is not
difficult to imagine a Lacey Act defendant in the future, who has the means and
connections in a foreign country, lobbying and prevailing upon that
country’s officials to invalidate a particular law serving as the
basis for his conviction in the United States. Such a scenario would completely
undermine the purpose of the Lacey Act. There would cease to be any reason to
enforce the Lacey Act, at least with respect to foreign law violations, if
every change of position by a foreign government as to the validity of its laws
could invalidate a conviction. Thus,
we conclude that the postconviction shift in the Honduran government’s
position regarding the validity of its laws is not determinative as to whether
the laws were valid at the time the lobsters were imported into the United
States. We now examine each law in turn to determine whether each was valid
during the time period covered by the indictment. Resolution
030-95 Resolution
030-95, the law establishing the 5.5-inch size limit for lobsters, provides for
sanctions for noncompliance with its terms. See Resolucion No. 030-95, Dec. 5,
1995, La Gaceta, Jan. 4, 1996. The defendants argue that Resolution 030-95
never was a binding law, [FN26] because it was not issued in accordance with
Honduran constitutional procedure. FN26. This argument is
inconsistent with McNab’s prior acknowledgment of the validity of the
5.5-inch size limit and his instructions to his lobster boat captains to abide
by it. In a letter to his fishing boat captains, dated October 28, 1999, McNab
advised that “[i]t is absolutely prohibited to capture lobsters under
the size allowed by the Law and/or eggbearing lobsters…. You will only
keep those lobsters measuring more than 5.5-inches.” A second letter
was sent to the fishing boat captains by the general manager of
McNab’s company on July 31, 2000. The captains were “reminded
to comply with the sizes and weights that the lobster caught must fulfill,
which is 5 1/2 inches.” Furthermore,
throughout the investigation and after the trial, Honduran officials repeatedly
confirmed that Resolution 030-95 was a valid and binding law. The director
general of the DIGEPESCA confirmed the size limit
requirement in three separate letters. Resolution 030-95 was cited by several
Honduran officials as a valid and binding law during two trips to Honduras by
NMFS agents, one before and one after the defendants’ trial. Secretary
General Paz testified as to the validity of Resolution 030-95 during the
pretrial foreign law hearing. Thus, it is evident that Resolution 030-95 was
considered binding by those responsible for its enforcement. [*1243] The basis for the defendants’ argument that
Resolution 030-95 never was a valid law is an opinion from the Honduran Court
of the First Instance of Administrative Law. [FN27] In May of 2001 the Honduran
administrative law court found that Resolution 030-95 had been promulgated
through an incorrect procedure and ordered that the resolution was
“entirely voided, but this is only for purposes of [its] annulment and
future inapplicability: This Resolution does not confer any right to
claims.” R. at 5:324 Ex. B (emphasis added). Subsequently, the
Honduran Court of Appeals for Administrative Law affirmed the lower
court’s decision invalidating Resolution 030-95. R. at 1 Supp.:415 Ex.
C. FN27. After the trial in the
district court had begun, McNab filed a petition in the Honduran Court of the
First Instance of Administrative Law, seeking to annul Resolution 030-95 on the
grounds that the resolution had not been signed by the Honduran president
before being issued and that it should have been issued as a decree rather than
as a resolution. There
are conflicting opinions from Honduran officials as to the effect of the
court’s annulment of Resolution 030-95 on the defendants’
convictions. [FN28] While we certainly respect the opinions of the Honduran
officials, we base our determination that Resolution 030-95 was valid during
the time period covered by the indictment upon the Honduran court’s
opinion. The Honduran court clearly stated that Resolution 030-95 was annulled
for prospective application only, and we assume that the Honduran court meant
what it said. Although we recognize that Resolution 030-95 is now invalid, we
see nothing in the Honduran court’s opinion to indicate that the
nullification should be applied retroactively. [FN29] In fact, the decision
mandates [*1244] prospective
application. [FN30] Thus, Resolution 030-95 is a valid predicate for the
defendants’ convictions. [FN31] FN28. The affidavit of the
assistant attorney general of Honduras indicates that the decision annulling
Resolution 030-95 does not apply retroactively and does not legalize the
shipments of undersized lobsters retroactively. The attorney general of
Honduras, however, offers an alternative explanation for the prospective
language in the court’s decision that favors the defendants. He
contends that Resolution 030-95 was annulled ab initio, that it never was a
valid law and, therefore, cannot serve as a basis for the defendants’
convictions. Although the dissent accepts his explanation that Resolution 030-95
never was binding and that the prospective language merely protects the
Honduran government from civil liability, we believe that the attorney general
is extracting meaning from the Honduran court’s decision that is not
supported by the language of the opinion. In addition, although a report from
the Honduran national human rights commissioner advised that Secretary General
Paz’s testimony be disqualified as legal error and that Resolution
030-95 be declared void retroactively, a subsequent meeting between the
commissioner and an NMFS agent revealed that the commissioner was unaware of
the factual background of the prosecution at the time he rendered his report.
Furthermore, the commissioner said that he felt “pressured”
by McNab’s representatives to issue a quick decision. McNab
points to the statement of SAG Minister Downing to support his assertion that
aside from Article 96 of the Honduran Constitution, the Honduran appellate
court’s decision mandates retroactivity. Downing bases his opinion
that the invalidation applies retroactively upon an inexplicable assertion that
the Honduran appellate court’s opinion “expands” the
Honduran Court of the First Instance of Administrative Law’s opinion
and somehow mandates retroactivity. We, however, find nothing in the Honduran
appellate court’s decision requiring retroactivity, because the
Honduran appellate court issued a summary affirmance. FN29. We note that with the
permission and approval of the minister of the SAG, both Secretary General Paz
and SAG Legal Advisor Jose Bernardo Torres Umanzor confirmed that the Honduran
government continued to enforce Resolution 030-95 as a valid and binding law
while the appeal was pending before the Honduran Court of Appeals for
Administrative Law. They also explained that any annulment of Resolution 030-95
would not be retroactive, because the Honduran court’s judgment
pertained to an administrative matter, not a criminal matter. FN30. We briefly address the defendants’
argument that the Honduran Constitution requires that the invalidation of
Resolution 030-95 be applied retroactively in this case. Article 96 of the
Honduran Constitution provides, “The Law does not have retroactive
effect, except in penal matters when the new law favors the delinquent or the
person that is prosecuted.” Constituci—n de la Republic‡ de Honduras
art. 96. Article 96, however, has no application in this case. The reason that
we look to foreign law in Lacey Act prosecutions is to determine what
constitutes illegal conduct. At the time of the defendants’ conduct,
harvesting lobsters under 5.5 inches was a violation of Resolution 030-95. The
fact that Honduras now may not hold the defendants liable for past shipments that
contained undersized lobsters does not change the fact that those shipments
violated then-valid Honduran laws and the Lacey Act. The
government’s evidence, both pretrial and posttrial, indicates that
because the Honduran court’s judgment about Resolution 030-95 involved
an administrative matter and not a criminal matter it has no retroactive
effect. Although McNab’s evidence, submitted postconviction, may
indicate a contrary view, it is clear that a consensus has not been reached on
this issue in Honduras. Nevertheless, we still must determine the best reading
of the laws. See United States v. Mitchell, 985 F.2d 1275, 1281 (4th
Cir.1993) (“Perhaps, as is the case with many of our own laws, a
consensus has not yet been reached in Pakistan. Yet we are charged with
determining the best reading of the laws.”). In
our judgment, the government’s evidence and a plain language reading
of Article 96 require us to find that Article 96 does not apply in this case
and that the invalidation of Resolution 030-95 applies prospectively. Article
96 expressly provides that “[t]he Law does not have retroactive
effect.” This is consistent with the Honduran court’s
judgment that the invalidation of Resolution 030-95 be applied prospectively.
The only exception under Article 96 is a “new law” in
criminal matters. McNab’s
view requires a finding that “[t]he Law” in Article 96
applies to judicial declarations of the invalidity of an existing law as
opposed to the enactment or promulgation of a “new law.” The
language of Article 96 does not support this view. In the second clause of the
sentence, Article 96 specifically refers to a “new law” that
favors the accused. It does not refer to the absence of a law or a declaration
that a law is invalid. FN31. The dissent concedes that
reversal of the defendants’ convictions is not required if the
invalidation applies prospectively. Further, the dissent concedes that
“the language of the Honduran Court could be construed to mean
prospective application only.” We conclude that the language of the
Honduran court opinions requires prospective application only and that nothing
else in the record mandates otherwise. Regulation
0008-93 Regulation
0008-93 was issued pursuant to Decree 40 and required that lobsters be
inspected and processed in Honduras prior to exportation. See Acuerdo No.
0008-93, Jan. 13, 1993, La Gaceta, Apr. 7, 1993. In January of 1995 the
Congreso Nacional enacted Decree 157-94, which repealed and replaced several
existing statutes, including Decree 40. See Decreto No. 157-94, Nov. 15, 1994,
La Gaceta, Jan. 13, 1995. In December of 1999 the Secretaria de Recursos
Naturales y Ambiente issued Accord 1081-99, an administrative regulation that
contained updated inspection and processing requirements and expressly repealed
Regulation 0008-93. See Acuerdo No. 1081-99, Sept. 23, 1999, La Gaceta, Dec. 2,
1999. On
the basis of their posttrial research, the defendants argue that Regulation
0008-93 was repealed along with Decree 40 in 1995. [FN32] They contend that the
repeal [*1245] of Decree 40
operated to repeal the regulations promulgated under it, including Regulation
0008-93. The defendants argue that the automatic repeal of regulations
triggered by the repeal of the statute under which those regulations were
promulgated is a longstanding principle of Honduran law, and they rely upon a
recent interpretive decree by the Congreso Nacional for support. See Decreto
No. 198- 2001, Nov. 1, 2001. That decree expressly provides that “the
express total or partial repeal of a law leaves without legal value or effect
the general regulations and the specific regulations totally … that
the Executive Branch through the respective Secretariat of State has issued to
implement the provisions of the repealed Law….” Id. FN32. The defendants also raise a
second challenge with respect to the propriety of Regulation 0008-93 as a Lacey
Act predicate. They argue that even if Regulation 0008-93 were not repealed
until 1999 it falls outside the scope of the Lacey Act, because it is not a law
regulating the taking, possessing, transportation, or sale of wildlife. We
disagree. When Congress amended the Lacey Act in 1981, it expressly stated that
the Act covers laws “relating or referring to fish or wildlife or
plants.” S.Rep. No. 97-123, at 5; see also United States v. Lewis, 240 F.3d 866, 869
(10th Cir.2001) (per curiam); Lee, 937 F.2d at 1392. Accordingly, our review of
the regulation confirms that it unquestionably relates to fish and is within
the scope of the Lacey Act. We
are unconvinced by the defendants’ argument for two reasons. First, we
question why there is a need to issue an interpretive decree if the concept of
an automatic repeal of regulations is such a longstanding principle of Honduran
law. [FN33] Second, Regulation 0008-93 was repealed expressly by the Secretaria
de Recursos Naturales y Ambiente in 1999 when it issued new rules for lobster
fishing. There would be no need to repeal Regulation 0008-93 expressly in 1999
if it was repealed automatically in 1995. FN33. The evidence in the record
contradicts this assertion and establishes that the Honduran government
regarded the hygiene regulation as valid between the time of the 1995 repeal of
Decree 40 and the 1999 express repeal of Regulation 0008-93. The March of 2000
statements by the Honduran legal advisors described the processing requirements
mandated by Regulation 0008-93 and Decree 157-94, the very same decree that the
defendants contend repealed Regulation 0008-93 in 1995. At the pretrial foreign
law hearing, the SAG’s Secretary General Paz testified as to the
validity of the processing and inspection requirements. Secretary General Paz stated
that Regulation 0008-93 continued to be enforced in Honduras, because it was
only tacitly repealed in 1995. Furthermore,
the Honduran Civil Code provides support for the proposition that Regulation
0008-93 remained in effect until the express repeal in 1999. [FN34] According
to the Civil Code, a law may be repealed totally or partially by another law.
C—digo Civil art. 42. Such a repeal may be express or tacit; it is express when
the new law expressly provides that it repeals the previous one, and it is tacit
when the new law’s provisions cannot be reconciled with the previous
law. C—digo Civil art. 43. Significantly, a “tacit repeal leaves in
effect in the previous law anything not in conflict with the provisions of the
new law, even though both versions may cover the same matters.” C—digo
Civil art. 44. The 1995 decree did not repeal Regulation 0008-93 expressly,
which means that any repeal of the regulation was tacit. As Regulation 0008-93
did not conflict with the 1995 decree, it remained in effect until the 1999
regulation expressly repealed it. Thus, the district court properly determined
that Regulation 0008-93 was valid during the time period covered by the
indictment. FN34. Not only does the Honduran
Civil Code support the district court’s determination that Regulation
0008-93 was valid during the time period covered by the indictment, the
defendants’ interpretation leads to an illogical result. An automatic
repeal of Regulation 0008-93 in 1995 would have created a four-year window
during which there were no sanitary regulations for lobster fishing. This would
have been an odd result considering that the 1995 decree issued by the Congreso
Nacional was intended to strengthen the hygiene requirements. [*1246] Article 70(3) Article
70(3) of the Fishing Law prohibits the harvesting or destruction of lobster
eggs. See Decreto No. 154, May 19, 1959, La Gaceta, June 17, 1959. The
defendants argue that Article 70(3) does not prohibit the destruction or
collection of lobster eggs for profit. They contend that the district
court’s interpretation that the law prohibited the harvesting of the
egg-bearing species themselves was erroneous. [FN35] FN35. Lobsters have swimming legs
on their abdomens called swimmerets, which female lobsters use to hold eggs. 7
The New Encyclopedia Britannica 430 (15th ed.1998). The swimmerets of some of
the lobsters in the seized shipment were clipped off and the eggs were removed. We
fail to see how Article 70(3) can be read other than to prohibit the
destruction or harvesting of the eggs of lobsters for profit. The destruction
of eggs to sell the female lobsters appears to be a clear violation of Article
70(3), which provides for punishment by fine or imprisonment to
“[t]hose who destroy or harvest the eggs, or the offspring of fish,
chelonians or other aquatic species for profit.” Id. The
defendants’ argument regarding the legality of capturing egg-bearing
lobsters is contrary to the plain language of Article 70(3). [FN36] FN36. Not only is their
interpretation contrary to the plain language of Article 70(3), it directly
conflicts with McNab’s own instructions to his boat captains that
harvesting egg-bearing lobsters was prohibited. The October 1999 letter from
McNab to his fishing boat captains provided that “[i]t is absolutely
prohibited to cut the pleopods of the Lobsters to remove any eggs….
All the lobsters with eggs will be returned to the sea without any exception.
For that purpose, you will have to instruct the fisherman who work in the boats
on how to identify them.” The letter from McNab’s general
manager to the captains in July of 2000 instructed that they may “not
capture lobsters that are in their reproductive phase or gravid lobsters (with
eggs). It is absolutely prohibited to remove egg sacs from the lobster to
remove its eggs….” The
defendants also argue that Article 70(3) was repealed retroactively in February
of 2001 by the enactment of Decree 245-2000 by the Congreso Nacional. As stated
above, our duty with respect to each of the Honduran laws is to determine
whether they were valid during the time period covered by the indictment.
Whether the 2001 amendment to Article 70(3) repealed the prohibition against
harvesting egg-bearing lobsters for profit is not our concern. Thus, we reject
the defendants’ argument that Article 96 of the Honduran Constitution
requires that we apply the 2001 amendment retroactively for the reasons stated
with respect to Resolution 030-95. Accordingly, we conclude that Article 70(3)
was a proper predicate for the defendants’ convictions. Thus,
the defendants’ newfound support from the Honduran government does not
change the fact that during the time period covered by the indictment, the laws
at issue were valid. Although we certainly respect the Honduran
government’s position, the recent developments since the trial and the
newly rendered opinions from Honduran officials cannot turn what were illegal
lobster shipments into legal lobster shipments retroactively. Having
determined that Resolution 030-95, Regulation 0008-93, and Article 70(3) were
valid during the time period covered by the indictment and thus were proper
predicates for the Lacey Act charges, we now briefly address the defendants’
remaining issues on appeal. The defendants argue that (1) the district court
abused its discretion by excluding evidence at trial relating to
McNab’s “knowledge” of Honduran law; (2) the
district court made several errors with respect to the jury instructions; (3)
there was insufficient evidence [*1247]
to support the jury’s verdicts; and (4) the district court erred in
failing to postpone Schoenwetter and Blandford’s sentencing and in
determining the length of their sentences. After thoroughly reviewing the
record, we find that these issues are without merit. CONCLUSION Thus,
we conclude that the Honduran laws used as the underlying predicates for the
defendants’ convictions fall within the scope of the Lacey Act and
were valid and legally binding during the time period covered by the
indictment. The remaining issues raised by the defendants were decided properly
by the district court or are without merit. We therefore AFFIRM the
defendants’ convictions and sentences. DISSENT:
FAY,
Circuit Judge, dissenting: The
majority opinion is both thorough and scholarly in dealing with this
complicated matter. With some hesitation, I most respectfully dissent from that
portion of the majority opinion upholding the validity of Honduran Resolution
030-95. The theme of the majority opinion is that the government of Honduras
has “shifted” its position. The question for determination is
phrased as being complicated by the changed or new position of the Honduran
government. The majority then decides this issue within the framework of
whether or not we are free to follow the Honduran government’s
original position. Try
as I might, I simply cannot read this record that way. There was never
unanimity nor agreement concerning the validity of Resolution 030-95. That
question was hotly contested. But, throughout the course of this litigation,
the resolution of that question was based upon the weight given by the trial
judge to the evidence presented by the U.S. government during a pretrial
hearing on foreign law. At that time, the Honduran courts had not ruled. Now
they have. It
should come as no surprise to anyone that some of the
“expert” witnesses were correct and some were wrong. Nor
should we be surprised that it was the courts of Honduras which ultimately
answered the question. That is the way it works in Honduras and in the United
States of America. Simply stated, it is my position that we are bound by the
rulings of the Honduran courts declaring Resolution 030-95 null and void. This
being the case, the defendants convictions must be reversed since one of the
Honduran laws relied upon by the jury in finding guilt has now been found to be
a nullity. Most
respectfully, I disagree with the majority’s conclusion that the
government of Honduras has changed its position. Government officials testified
on both sides of the issue before the district court. There was no one official
voice for the government of Honduras. But, there is now. The Honduran courts
have ruled and the Honduran Embassy has filed an amicus brief advising us of
the Honduran government’s position—Resolution 030-95 is null
and void and was so during the critical time charged in the second superceding
indictment. That is the only official government position I am aware of in this
record. We
all agree that the key component to any alleged Lacey Act §
3372(a)(2)(A) violation is the commission of a predicate State or Foreign
offense concerning fish or wildlife. We further agree that, for purposes of
these appeals, three predicate offenses are pertinent. Of those three, my
concern goes to Resolution 030-95 concerning the minimum legal size of
harvested lobster tails. As
the majority correctly notes, the district court properly conducted a foreign
law hearing to determine whether Resolution 030-95 was, in fact, a valid
Honduran law during the time period charged in the [*1248] second superseding indictment. Over the
testimony of an expert in Honduran law, a Honduran law professor and former
Ministry of Justice, the then Attorney- General of the Republic of Honduras,
the Honduras Bar Association and others, the District Court, based upon the
testimony of one lower-level Honduran government official, Liliana Paz,
Secretary General of the Ministry of Agriculture and Livestock, concluded that
Resolution 030-95 was a valid law. Following
trial and conviction, defendant David Hensen McNab (“McNab”)
challenged the validity of Resolution 030-95 in the Court of First Instance of
Administrative Law in Honduras (“Honduran Court”). That
challenge was opposed by an attorney representing the government of Honduras.
At the conclusion of that proceeding, the Honduran Court declared Resolution
030-95 to be null and void. Specifically, on May 23, 2001, the Honduran Court
found: First: … [Resolution
030-95] [does] not conform to law by virtue of having violated the legal code
at the time [it][was] issued. Second: the challenged [Resolution] …,
No. 030-95 of December 5, 1995, [is] entirely voided, but this is only for
purposes of [its] annulment and future inapplicability: This Resolution does
not confer any right to claims. R.
at 5:324 Ex. B. The Honduran Court premised its decision on the fact that
Resolution 030-95 was not properly issued by the President of the Republic of
Honduras and authorized by the proper Secretary or Under Secretary of State as
is required under Honduran law. Subsequently, the government of Honduras
appealed the Honduran Court’s ruling to the Court of Appeals of
Administrative Matters (“Honduran Court of Appeals”) which on
October 11, 2001, confirmed the correctness of the Honduran Court’s
decision. The
rulings of the Honduran courts do raise a second question as to whether or not
the ruling applies retroactively. As quoted above, the language of the Honduran
Court could be construed to mean prospective application only. That is the
position the majority takes in this case. Therefore, the critical question
before this court is whether or not Resolution 030-95 was valid at the time of
the defendants’ conduct as charged in the second superceding
indictment. This question is determined by whether the invalidation of
Resolution 030-95 is to be applied retroactively or prospectively. If the
invalidation of Resolution 030-95 is to be applied retroactively, it seems to
me that reversal of the defendants’ convictions is mandated. If
invalidation is to be only applied prospectively, reversal is not required. We
all agree that we review a district court’s interpretation of foreign
law de novo. United States v. Gecas, 120 F.3d 1419, 1424 (11th
Cir.1997) (en banc). We also agree that under certain circumstances an
underlying Lacey Act predicate offense need not be independently prosecutable.
See United States v. Borden, 10 F.3d 1058 (4th Cir.1993) (affirming Lacey Act
conviction where the enforcement of underlying predicate state law was barred
by applicable state statute of limitations but not by federal statute of limitations).
However, Borden, or any similar case, is fundamentally different than this case
where the predicate substantive criminal law supporting the Lacey Act
convictions cannot be enforced, not because of a procedural bar, but because
the law itself has been invalidated by the courts through nullification. In
other words, what was thought to be a crime turns out to not be a crime under
Honduran law. It bears noting that had U.S. law been implicated, reversal of
the convictions would not be in question and the case would easily be resolved
in the defendants’ favor. In the [*1249]
United States, where a substantive criminal law is subsequently declared to be
invalid by the courts, any convictions thereon would be reversed. Further
troubling is the fact that as a matter of Honduran constitutional law, these
defendants could not be tried and convicted for violation of Resolution 030-95
in Honduras. In Honduras, as in the United States, any criminally enforceable
statute later declared to be invalid by the courts is retroactively applied to
any criminal defendant. Article 96 of the Honduran Constitution specifically
provides, “[t]he Law does not have retroactive effect, except in penal
matters when the new law favors the delinquent [(i.e., criminally convicted)]
or the person that is prosecuted.” Constitución de la República de
Honduras art. 96. The
majority makes note of Article 96 but simply asserts its inapplicability by
concluding that “[a]t the of time the defendants’ conduct,
harvesting lobsters under 5.5 inches was a violation of Resolution
030-95.” As stated above, if the invalidation of Resolution 030-95 is
retroactively applied, as I believe it must be, then at the time of the
defendants’ conduct, there would not have been a violation of
Resolution 030-95. To this point, there are authorities in the record which I
find particularly relevant in deciding whether the Honduran Court’s
invalidation of Resolution 030-95 should be retroactively applied. We
start with the official voice of Honduras in the United States. The country of
Honduras, through its Embassy in Washington, D.C., has filed an amicus brief
stating unequivocally that retroactive application is the law of Honduras. The
current Attorney General of the Republic of Honduras, Sergio Zavala Leiva, the
National Human Rights Commissioner of the Republic of Honduras, Leo Valladares
Lanza, [FN1] the current Secretary of State of the Offices of Agriculture and
Livestock, Guillermo Alvarado Downing and Secretary Downing’s
subordinate and star U.S. government witness before the district court,
Secretary General of the Ministry of Agriculture and Livestock, Liliana Paz,
all support the position that retroactive application is required. The only
witness presented suggesting that retroactive application is not required is
Juan Arnaldo Hernandez Espinoza, an Assistant Prosecutor General of the Public
Ministry of the Republic of Honduras. [FN2] Thus, the overwhelming evidence
before this court is [*1250] squarely
on the side of the retroactive application of the invalidation of Resolution
030-95. I can come to no other conclusion. FN1. Although his opinion was
never altered, amended or changed in any manner, the majority notes that a
National Marine and Fisheries Service agent who interviewed Commissioner Lanza
indicated that Commissioner Lanza revealed that he felt “
‘pressured’ by McNab’s representatives to issue a
quick decision.” FN2. In his opinion, Assistant
Attorney General Espinoza (“Espinoza”) indicates that there
is no retroactive application of the invalidation of Resolution 030-95 because
“the sanction to which [the defendants’] conduct applies is
based on a measure that originates in the Fishing Law and not in the activity
of the Executive Branch.” Appellee’s Addendum of Foreign Law
Materials at tab 1. Upon closer examination, it becomes clear that
Espinoza’s opinion is premised on the assumption that the Fishing Law,
not Resolution 030-95, defines the minimum lobster harvest size. Therefore,
invalidation of Resolution 030-95, a resolution implemented pursuant to the
authority of the Fishing Law, is without import and the question of
retroactivity is rendered irrelevant. This opinion is mistaken for two critical
reasons. Firstly, Espinoza’s opinion ignores the fact that, for
purposes of U.S. law, the predicate act the defendants were charged with
violating is Resolution 030-95, not the Fishing Law. Secondly,
Espinoza’s opinion ignores the fact that, with regard to minimum
lobster harvest size, the Fishing Law is silent and directs such restrictions
to be fashioned pursuant to regulation. See Decreto No. 154, May 19, 1959, La
Gaceta, June 9, 1959, art. 70. As
to the appropriate interpretation of the Honduran Court’s use of the
terms “annulment” and “future
inapplicability,” Attorney General Leiva provides the most reasoned
and reasonable explanation. Attorney General Leiva explains: The reason that the laws of
Honduras and, in particular, the Court of Administrative Appeals, with its
specific language in its judgment, only set forth its future inapplicability is
to guarantee the legal security of the State, protecting it from damages and
losses that could have been caused by the enforcement of an act that is null
and void as a matter of law. (Leiva
Decl. ¶ 8). Apparently,
in Honduras the government may be subject to civil liability for the
enforcement of a subsequently declared invalid law. Therefore, in the context
of Honduran law, the Honduran Court’s language makes sense and simply
seeks to limit the government’s liability and protect its treasury.
The precise language of the Honduran Court supports this interpretation.
Following the use of “annulment” and “future
inapplicability” is a colon followed by the following illuminating
language, “[t]his Resolution does not confer any right to
claims.” Thus, Attorney General Leiva’s explanation, as
compared to the other evidence before the court, is most compelling.
Furthermore, this court should not interpret Honduran law in a vacuum. As
stated above, in Honduras, Article 96 of the Honduran Constitution
retroactively applies the invalidation of Resolution 030-95 to any criminal
defendant. The Honduran Court certainly would have been aware of the existence
and effect of Article 96 when crafting the language and scope of its opinion
and this court should seek to interpret the Honduran Court’s opinion
in its proper context. The
majority advances the important principle of finality in support of its
decision. As a general proposition, I agree that finality is an important
aspect of American jurisprudence. However, in the context of an invalidated
substantive criminal law which forms the basis of a criminal prosecution or
conviction, reliance on the concept of finality is misplaced. As stated above,
under both U.S. and Honduran law, retroactive application is warranted for a
criminal defendant charged or convicted of a subsequently declared invalid
criminal statute. Cf., Davis v. United States, 417 U.S. 333, 346, 94
S.Ct. 2298, 2305, 41 L.Ed.2d 109, 119 (1974) (in the context of a petition for
relief pursuant to 28 U.S.C. § 2255, concluding that if conviction and
punishment are for an act not made criminal by the law, “[t]here can
be no room for doubt that such a circumstance inherently results in a complete
miscarriage of justice….” (Internal quotations omitted)). For
emphasis, I repeat again that the majority opinion discusses extensively and is
strongly critical of the changed position or shift by the Honduran government.
While that terminology may give comfort to the majority, it is simply not
accurate. While various government officials gave conflicting opinions
regarding the validity of Resolution 030-95, this was before the Honduran
courts ruled. The Honduran courts have now ruled and both agree, Resolution
030-95 was null and void. The majority casts this in an unfavorable light akin
to something sinister. In my opinion, this is no different than what occurs
routinely in our country. Attorneys, and even the Attorney General of a state
or the United States, often express opinions about statutes only to find that
after a court challenge, they were wrong. That is [*1251] all that happened
here. Some of the experts were right; some were wrong. But, the Honduran courts
have now spoken and there is simply no doubt that Resolution 030-95 is null and
void as if it never existed. To
suggest that the newly issued statements and opinions of Honduran officials do
not carry the weight of the earlier statements is a strange position for
members of the judiciary. The so-called “shift in position”
is the result of lawful litigation within the courts of a foreign nation. I
think we would be shocked should the tables be reversed and a foreign nation
simply ignored one of our court rulings because it caused some frustration or
inconvenience. The
evidence in this case supports the conclusion that the defendants were guilty
of knowingly violating the law at the time they harvested, shipped and sold
these “shorts.” The prosecutors did their very best to
establish the law of Honduras which is essential under the Lacey Act. It is
easy to understand the frustration inherent in this present situation. But, the
Lacey Act, by its very terms, is dependent upon the laws of a foreign
sovereign. In this situation, we do not control the outcome of challenges made
to those underlying laws. No one has suggested that McNab was not exercising
his lawful rights as a citizen of Honduras or that the courts of Honduras were
without authority to issue the decisions they did. Most
reluctantly, I therefore dissent. Appellate Briefs of
the Parties • Reply Brief (Jan. 4, 2004) • Reply Brief of Appellant Diane H. Huang (Jun. 26, 2002) • Brief for the United
States (Jun. 19, 2002) • Brief Amicus Curiae
of the Embassy of Honduras and the Asociacion de Pescadores Del Caribe in
Support of Defendant-Appellant David Henson McNab (Jun. 5, 2002) • Brief of Appellant
Diane H. Huang (May. 18, 2002) • Brief of Appellant
Diane H. Huang (May. 13, 2002) • Initial Brief
(May. 13, 2002) • Brief of
Defendant-Appellant David Henson McNab (May 3, 2002) • Reply Brief of
Appellant Diane H. Huang (Jan. 4, 2002) • Reply Brief (Jan.
4, 2002) • Reply Brief of
Defendant-Appellant David Henson McNab (Jan. 3, 2002) •
Reply
Brief of Defendant-Appellant David Henson McNab (Jan. 3, 2002) •
Brief
of Defendant-Appellant David Henson McNab (Nov. 28, 2001) •
Initial
Brief. (Nov. 21, 2001) |